By Brandon Bub
June 21, 2014
The problem with writing about the Supreme Court near the end of its term is that the justices tend to save the juiciest cases for last and opinions often come down the pipeline with such rapidity that it’s hard to parse out exactly how important certain cases end up being.
So while we wait for cases like Hobby Lobby (about religious freedom and coverage of birth control under Obamacare) and Noel Canning (on the extent of the President’s recess appointment power) to be decided in the next week, I thought it would be good to preview a couple of cases we might see in the next few terms or so.
First up is a case the Court agreed to hear a few days ago: Elonis v. United States. Back in 2010, Anthony Elonis was dumped by his girlfriend and fired from his job, so he decided to do what all of us do when we’re sad now: complain about it on Facebook. However, his ex (as well as law enforcement) thought he went too far, making unspecified violent threats that netted him a 44 month prison sentence. His defense says he was merely making jokes in bad taste.
Another is a case that will likely flow from an opinion that was handed down on June 16th: Susan B. Anthony (SBA) List v. Driehaus. SBA is a nonprofit pro-life group that threatened to run an ad in Rep. Steven Driehaus’s Ohio district in 2010 alleging that the congressman’s vote for Obamacare was a vote for state-sanctioned abortion. Driehaus’s legal team threatened to sue SBA if they ran the ad, arguing that it would run afoul of an Ohio statute outlawing political speech.
Now, the argument in the opinion that was just handed down did not center on the free speech issue–the problem was one of justiciability (specifically whether or not SBA had a case that could actually be remedied by the Court at this time). The justices agreed unanimously that the case could proceed, so it’s likely we’ll see this one rear its head again in the next year or two as it works its way up the lower courts again.
Ostensibly, First Amendment cases like these seem quite simple: as Justice Hugo Black once said, “No law means no law” when it comes to the First Amendment’s guarantee against abridgment of speech. But the reality is that we make laws regulating speech all the time. Consider Oliver Wendell Holmes’ opinion in Schenck v. United States in which he suggests that the First Amendment wouldn’t protect a person for shouting fire in a crowded theater.
Probably the most relevant case we can consider here is one from 1942 called Chaplinsky v. New Hampshire, in which Justice Frank Murphy wrote, “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
Chaplinsky still stands as good law, even though the Court has in the past century tended toward a more libertarian approach to speech, effectively extending more protections to “unprotected” categories of speech like libel and obscenity. How the Court will react to these two cases will be interesting to see.