Tuesday, September 17, 2013
Following on Tom's earlier post, Michael McConnell and John Inazu have co-authored an excellent amicus brief (available here) in the upcoming McCullen v. Coakley case challenging Massachusetts' public-sidewalk exclusion zone statute. The brief is on behalf of a range of religious groups, including the Christian Legal Society, National Hispanic Christian Leadership Conference, Christian Medical Association, Ethics & Religious Liberty Commission of the Southern Baptist Convention, National Association of Evangelicals, Institutional Religious Freedom Alliance, InterVarsity Christian Fellowship, Missouri Synod Lutherans, US Conference of Catholic Bishops, and International Society for Krishna Consciousness.
As McConnell and Inazu note, even some sympathetic to abortion rights have roundly criticized Hill v. Colorado (Laurence Tribe has said it was "slam-dunk simple and slam-dunk wrong" and Kathleen Sullivan noted its weaknesses in a Pepperdine Law Review symposium). As I've been working my way through the canonical First Amendment cases in Constitutional Law II this semester, I am struck again by how rarely the government wins in contemporary free speech cases, Hill v. Colorado and Holder v. Humanitarian Law Project being notable recent exceptions, along with a smattering of government employee (Garcetti v. Ceballos) and student speech (Morse v. Frederick) cases. In cases that seemed to pose close questions--Brown v. EMA (violent video game sales to minors), for example--the Court has issued broad, bright-line, pro-free speech opinions. And the four members of the Court appointed since Hill v. Colorado seem at least somewhat more liberal (libertarian) on freedom of speech than their predecessors, all of whom were in the majority in Hill. Chief Justice Rehnquist, for example, was (to put it broadly) often pro-government in speech cases, see Renton v. Playtime Theaters. Hill's author, Justice Stevens, was also (again broadly) frequently pro-government in speech cases and said after his departure that he would have joined Justice Alito's dissent in United States v. Stevens (animal cruelty videos). With Hill's three dissenters (Justices Scalia, Thomas, and Kennedy) still on the Court and by replacing Chief Justice Rehnquist with Chief Justice Roberts, Justice Stevens with Justice Kagan (whose nascent record on the Court and earlier academic work is strongly pro-free speech), Justice Souter with Justice Sotomayor, and Justice O'Connor with Justice Alito, a clean majority to reaffirm Hill looks very unlikely.