The U.S. Supreme Court under Chief Justice John Roberts has been quite friendly to free speech claims, particularly during its most recent session, but has been more limiting in its approach to religion-based claims under the Establishment Clause, says constitutional law Professor Joseph Thai.

“It’s probably the most free speech-friendly court since the Warren court, which may come as a bit of a surprise given the ideological orientation of the Roberts court on the conservative side rather than on the liberal side on the Warren court,” said Thai, who teaches at the University of Oklahoma College of Law.

“We’re seeing a renaissance in the robustness of the court’s protection of free speech,” he said. “It’s expanding both the kind of speech that it considers to be political speech at the core of the First Amendment and it’s also expanding the kind of speech, even nonpolitical, that it’s willing to grant full First Amendment protection to.”

One of the court’s most controversial decisions, at least to the general public, was when an 8-1 court held in Snyder v. Phelps that the sometimes offensive signs wielded at military funerals and related activities by members of the Westboro Baptist Church are matters of public concern and therefore protected under the First Amendment.

“It was a no-brainer for the court to say funeral picketing about national attitudes toward homosexuality, about war, about social mores, about dead soldiers—that’s core political speech—the kind of stuff that the court has said lies at the heart of the First Amendment and receives the strongest protection,” said Thai. “Regardless of whether or not the speech is offensive, extreme or hurtful, it doesn’t matter.”

He said the justices also used the Snyder case to highlight their reluctance to base their decisions on what particular speech actually says: “That case is a good example of how far the court is willing to go to say ‘Political speech is political speech. We’re not going to examine the content any further to say whether it’s good or bad political speech. We’re going to protect it equally.’”

Thai said that should give heart to those in the minority, to dissenters and unpopular fringe groups, that their speech will receive the same legal protection as that accorded to journalists, politicians and “anyone else who wishes to enter the marketplace of ideas.”

Court extends protection to violent video games

Thai said the Roberts court has gone further than previous courts in extending full protection even to nonpolitical speech, as in the violent-video-games case, Brown v. Entertainment Merchants Association.

Justice Antonin Scalia made some fairly expansive assertions in his majority opinion, Thai said

“For example, he said it’s difficult to distinguish between entertainment and politics, and dangerous to try,” Thai said. “In other words, entertainment may be speech that some may regard as entertaining, others may regard as political, and the court’s not going to get into the business of deciding what’s merely an entertaining movie versus what is a political movie. It’s going to protect both on an equal basis.”

In what Thai sees as a “fairly radical footnote,” Scalia said there may be differences between Dante’s Divine Comedy and the violent video game Mortal Kombat, but those are cultural and intellectual differences, not constitutional ones.

“What that means is, as long as the speech is not one of the categories of unprotected speech, like obscenity or child pornography or incitement or fighting words, the court’s going to protect it,” Thai said. “It doesn’t matter whether it is core political speech or whether it is extremely violent entertainment in the form of video games. The court’s going to protect both and any regulations that suppress either will be presumptively invalid.”

In other words, he said, the Roberts court has refused to make value judgments as to speech-related content.

“I don’t think even the Warrant court went that far,” Thai said. “I think it’s a surprise to many, and I think that it’s good news to people who feel strongly about our First Amendment freedoms, that this court, and in particular a conservative majority of this court, is willing to go so far to extend protection, to all kinds of speech, not just those favored by the elite.”

Student, public employee Free Speech claims turned down

However, not everyone who has made a Free Speech claim before the Roberts court has fared so well.

“Students have less right to speak than under the Warren court,” Thai said. “Under the Roberts court, public employees are not as protected in speaking in the workplace than they were previously. States and the federal government have less options to regulate campaign finance or to fund publicly financed candidates, to level the playing field with privately financed candidates.”

One group has made out particularly well in Free Speech cases, he said: Corporations, unions and other nonpersons.

“In the Citizens United case, the Roberts court placed corporations, unions and other nonpersons, on an equal First Amendment footing with natural persons,” Thai said. “They enjoy the full dividends of the Roberts court’s expansive Free Speech decisions.”

Citizens United was the case in which government lost the authority to ban corporate political contributions to groups that make independent expenditures to advocate for or against candidates.

Thai said a key commercial speech decision during the court’s last session was no surprise, given the justices’ expansion of the types of speech protected by the First Amendment.

In Sorrell v. IMS Health, the court struck down a Vermont law that restricted the gathering and use of physicians’ prescription data by pharmaceutical sales representatives, saying the law violated the First Amendment.

“I think it adds to the writing on the wall, that the commercial speech doctrine is going to be discarded at some point in the future, and that truthful, non-misleading commercial speech will probably, sooner if not later, end up receiving full First Amendment protection,” Thai said.

Court turns down taxpayers’  Establishment Clause claim

When it comes to claims involving other First Amendment provisions, the Roberts court has been less than receptive, he said.

 The Establishment Clause, for instance.

In Arizona Christian School Tuition Organization v. Wynn, the court said some Arizona taxpayers lacked standing to challenge a statute providing for tax credits for contributions to school tuition organizations that provide funds to help students attend schools, including private religious institutions. A similar law was passed in Oklahoma this year.

This is not a type of litigation the Roberts court likes, Thai said.

“There are two ways in which the Rehnquist court and now the Roberts court have reversed the Warren court revolution in constitutional rights and individual rights, including First Amendment rights,” he said. “One way is to either narrow or overrule the decisions that create the rights themselves. The other way is just to close the courthouse doors, to say you may have a right, but you can’t get into court to litigate your claim. Increasingly, that’s what we’re seeing.”

 The Roberts court doesn’t have much of an appetite for expressly overruling precedential decisions, he said, so the justices take the other route.

“That’s what it did in that case, just by saying, ‘you don’t really have standing to bring those kinds of cases,’” Thai said.

In Arizona Christian, the court distinguished using actual appropriations for religious purposes from providing tax credits that lower the tax liability of individuals.

“It says, well look, you know, a tax credit is different from spending money,” Thai said. “Just collecting less taxes, giving favorable treatment to groups that will end up subsidizing religious education, is different than directly giving money for religious education. So therefore, there’s no remedy for taxpayers, whether or not this violates the Establishment Clause. In that way, it falls in line with the Roberts court, in its general hostility towards litigation claiming constitutional rights that it generally views with disfavor.”

Thai doesn’t think the court is finished addressing this issue.

“Most commentators in this area believe that the Roberts court will eventually curtail, if not overrule, earlier decisions establishing a higher barrier between church and state than the current conservatives are comfortable with,” he said. “I think they’re just waiting for the right case. Until the right case comes, the easiest thing to do is just close the courthouse doors and say you can’t sue. Once the case comes through, where you can sue, then I think that’s what they’ll say—‘You know what, we don’t recognize that right anymore, that the wall between church and state is not as high as you claim it is or as earlier cases once established it to be.’”