‘Buckle up’ America: We’re in for a wild First Amendment ride

First Five by the Freedom Forum Institute

Nov 19, 2020


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Buckle up, America. U.S. Supreme Court Justice Samuel Alito may well have pulled the “start” switch on the First Amendment’s legal equivalent of a popular carnival attraction, the Tilt-a-Whirl — a wild, spinning legislative ride propelled by a revolving wheel of judicial review.

In a speech Nov. 12 to the conservative Federalist Society, Alito offered a list of grievances about the state of individual rights in America, with a special focus on the freedoms of religion and speech.

Alito was very critical of a 5-4 Supreme Court decision this summer that rejected a church’s objection to Nevada’s COVID-19-based restrictions on attendance at religious services. He pointed out that casinos in that state were limited to 50% capacity, while houses of worship were subject to a smaller, flat 50-person limit.

Rejecting this “disparate treatment should not have been a very tough call,” he said. “Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment, which protects religious liberty. You will not find a craps clause, or a blackjack clause, or a slot machine clause.”

Noting that comedian George Carlin once identified “seven dirty words” not allowed to be spoken on TV, Alito said that “today you can see shows on your TV screen in which the dialogue appears at times to consist almost entirely of those words … But it would be easy to put together a new list called ‘Things You Can’t Say If You Are a Student or a Professor at a College or University or an Employee of Many Big Corporations.’ And there wouldn’t be just seven items on that list. Seventy times seven would be closer.”

Following the court’s legalization of same-sex marriage, which he opposed, Alito predicted vilification of those opposing the decision. In his speech, Alito claimed that “You can’t say that marriage is a union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”

A second justice, Clarence Thomas, has twice this year called for the court to revisit — and perhaps reverse — a landmark 1964 free speech and free press case, New York Times v. Sullivan, which generally rules out successful defamation lawsuits by political or public persons without evidence of “actual malice.”

A new, 6-3 conservative balance on the court may provide additional support for both Alito and Thomas and for the construction of new legal shields based on religious views against anti-discrimination laws. The court will rule next spring in Fulton v. City of Philadelphia, involving that city’s attempt to withhold public funds from a Catholic social work group which refuses to consider same-sex couples when placing children for adoption.

Both Republicans and Democrats in Congress seem intent on reviewing First Amendment rights and special legal protections under Section 230 of the Communications Decency Act, now enjoyed by Silicon Valley tech companies. The changes would target social media giants such as Twitter and Facebook and perhaps even attempt to reduce Google’s dominate position among search engines.

Advocates say changes and limits are needed to ensure diverse viewpoints. Removing some or all of those protections, the companies argue, would force them to adopt draconian restrictions on what we freely say online in these 21st century equivalents of the colonial public square.

Congress also is expected to quickly take up other complicated, “First Amendment-ish” aspects around free speech on the web — that is, balancing the need to fight misinformation and distortion of facts online with unfettered access by individuals to this new, electronic version of the public square.

A new conservative majority on the U.S. Supreme Court seems likely to heed Alito’s call to revisit both new and long-standing First Amendment rulings, particularly on religion and speech. State legislatures in more than 40 states seem bent on rewriting laws across a dizzying array of rulings, all aimed at restricting protest and assembly.

Freedom of the press will continue to be beset by both critics who would diminish its First Amendment protections and those advocates who would save independent American journalism by inserting government into the unprecedented role of at least a partial funder.

And within the First Amendment scholarly community itself, there is growing sentiment that the original 45 words, adopted in 1791, need to be reworked and revised to meet the challenges of a modern, 24/7 globally connected planetary society.

Even the relatively new doctrine of “government speech” is gaining ground — that government itself has free speech rights, as in what slogans are banned from state-issued license plates, or which religious symbols are allowed in public spaces. As it happens, Justice Alito has played both a major role in court decisions advancing the doctrine, but also cautioning against its overuse.

For nearly 100 years, First Amendment law has been largely focused on protecting the free expression of individual viewpoints, particularly those considered “fringe” or “extreme.”

Now in vogue: Claims to a “right” not to hear someone’s views.

Many of these new voices and approaches in the marketplace of ideas echo Alito’s basic pitch: It’s time for conservative views and limits to take over from what they see as overly broad, liberal expansions across the five freedoms.

Keep both hands and feet firmly inside the whirling legal constructs, dear fellow citizens.

And pay close attention to what people are saying in the upcoming debates over balancing our core freedoms with other values.

Hang on through the ride and listen to the debates as if the very meaning and application of the First Amendment for the next generation depends on it — because it will.