The Supreme Court's decision in the Citizens United case has sparked much controversy but New York Times Supreme Court correspondent Adam Liptak says the decision fits neatly into this Court's broad interpretation of protected speech under the First Amendment. Liptak discusses some recent First Amendment cases and what's up next for the court.
BOB GARFIELD: In January 2010, the Supreme Court decided Citizens United vs. Federal Election Commission, removing limits on a corporation’s First Amendment rights to donate to political campaigns, and essentially gutting the once powerful McCain-Feingold finance reforms of 2002. The decision was polarizing and unpopular, with one Washington Post poll saying that 85 percent of Americans opposed it. But since that decision the Supreme Court has handed down many decisions fiercely protective of First Amendment rights, some of them nearly as controversial as Citizens United. Adam Liptak, the Supreme Court correspondent for The New York Times, believes that while some of these decisions may have been a backhanded way of justifying the extremely unpopular Citizens United decision, they point to a strong commitment to a broad interpretation of protected speech under the Constitution. Take, for example, the United States vs. Stevens, the first post-Citizens United case concerning the First Amendment.
ADAM LIPTAK: The court decided whether the federal government can make it a crime to distribute depictions of animal cruelty. The law was targeted at a really weird kind of sexual fetish of women in high heels crushing kittens and puppies and just the most horrible stuff imaginable. The case that reached the Court involved dog-fighting videos. So the question is not can they ban the cruelty itself – all 50 states do that – but can you also ban depictions, speech about/speech showing that kind of cruelty. And eight to one, in a decision written by Roberts, the court categorically says, no way. We're not going to carve out a new exception to the First Amendment, no matter how distasteful the speech.
BOB GARFIELD: So that was the Stevens case, which I guess in some circles was unpopular for its seeming indifference to horrible images. But there was an even more inflammatory decision by the court called Snyder vs. Phelps, and that involved the Westboro Baptist Church, which pickets military funerals with placards and banners saying “God hates fags,” and so forth.
ADAM LIPTAK: Well, the church believes, I guess, as a theological matter, that God hates the United States because of its tolerance of homosexuality, and it goes to military funerals and other public places to spread this message, often causing enormous additional grief to people when they're burying their sons and daughters. The court makes the point that a real commitment to the First Amendment requires tolerance of even very offensive speech, so long as it’s on a matter of public concern. And public concern they viewed to be quite broad, you know, views about morality, gays in the military and so on, and if it’s taking place in public, in a place where they're allowed to be. It should be said that the Westboro Baptist Church followed all the laws and regulations and was not particularly close to the funeral. In both that case and Stevens, there was only one dissenter. That’s Justice Alito.
BOB GARFIELD: This Court has also been quite protective of freedom of information. There've been a couple of cases where the Court has very much backed the notion of government transparency. Can you describe?
ADAM LIPTAK: One of them, people were concerned, would be a follow-on to Citizens United. It asked the question of whether corporations have personal privacy rights for purposes of the Freedom of Information Act. There’s a Freedom of Information Act exemption that allows the government to withhold materials that impinge on personal privacy. The FOIA statute does define “person” to include corporations, so you can see how the argument would go. The company that had sought to have the government withhold its records, AT&T, said if persons are corporations, then “person-al” might apply to corporations, as well. Chief Justice Roberts, writing for a unanimous Court, just had a ton of fun with this and said, that is just not the way people talk and think. He gave a bunch of examples of nouns and adjectival forms of those nouns that are very different – “craft” and “crafty,” “squirrel” and “squirrely.” And he ended his decision with a line along these lines: We hope AT&T doesn't take it personally.
BOB GARFIELD: [LAUGHS] Yeah, I think Dahlia Lithwick of Slate called that the funniest line ever to appear in a Supreme Court decision.
ADAM LIPTAK: [LAUGHS] That may tell you something about Supreme Court decisions [BOB LAUGHS] and not so much about the line.
[BOB LAUGHING] So, so that was one of two in just the last ten days or so. And in the other one, now the new Justice Elena Kagan writing, a citizen of Washington State wanted to know about explosives kept on an island off the coastline of Washington State. And the question there was whether those records could be withheld as personnel records, “personnel” in the human relations kind of sense. And there again, eight to one, with only one dissent, the Court says, listen, we're not saying it’s a good idea to disclose this stuff. There may be other exemptions; you can withhold this stuff. This is after all aboout bombs. But you just can't stretch the English language to say that personnel records, meaning things about pay, promotion, parking spots, can be stretched to include anything that personnel are called upon to do, like manage munitions.
BOB GARFIELD: Previous Supreme Court decisions tend to lead to speculation about subsequent Supreme Court decisions. And there are other First Amendment cases in the pipeline, one, Schwarzenegger vs. the Entertainment Merchants Association.
ADAM LIPTAK: That’s a case that involves a California law that bans the sale of violent video games to minors. And that’s a fairly significant First Amendment issue because depictions of violence, as in the animal cruelty case, have always been thought to be protected by the First Amendment. There have been exceptions to First Amendment protection for speech about sex, depictions of sex, pornography and so on, but to move to depictions of violence would be a fairly big move for the Court. The case has been argued, and my sense from the questioning is that the Court is likely to strike down the California law and say the government has no business telling even minors that they can't have access to violent video games.
BOB GARFIELD: You know, I got to say I had kind of allowed myself to kind of caricature the Roberts Court, especially under Scalia’s influence, as extremely ideological and sort of right wing.
ADAM LIPTAK: It’s not clear anymore that right wing and left wing are the right ways to think about a commitment to the First Amendment. There are elements of what most people would call conservative legal thinkers who are much more committed to a libertarian, no-holds-barred understanding of the First Amendment, than is the left, which often thinks that equality is a more important value than liberty. So that ideological predisposition might send you in the wrong direction. But the other is that we simply have a set of justices here who are authentically and deeply committed to the First Amendment and First Amendment values. And you mention Justice Scalia. Justice Scalia I would put at the forefront of this group. He really believes in equality he calls “civic courage,” that my argument is better than yours, bring it on, more speech is good, I'm gonna win in the end because I can out-argue you.
BOB GARFIELD: Very well. Adam, thank you very much.
ADAM LIPTAK: My pleasure. Good to be here.
BOB GARFIELD: Adam Liptak is the Supreme Court correspondent for The New York Times.
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