Bloomberg News

Speech Rights Triumph as U.S. High Court Limits Government Power

June 28, 2011

June 28 (Bloomberg) -- The U.S. Supreme Court capped its nine-month term with a show of support for free speech.

Whether the topic was violent video games, pharmaceutical marketing campaigns or political contributions, the justices cast a skeptical eye toward government regulation of speech as they closed out their year with a flurry of First Amendment rulings.

The court yesterday struck down a California law barring the sale of violent video games to children, and voided an Arizona system that provided public funds to political candidates based on their opponents’ financial resources. Last week the court overturned a Vermont law aimed at limiting the ability of brand-name drugmakers to tailor their sales pitches to doctors.

“I wouldn’t say that the court’s track record on speech is absolutely perfect, but it’s pretty close to that,” said Steve Simpson of the Institute for Justice, an Arlington, Virginia, group that successfully challenged the Arizona system. The court has “really protected speech where it’s mattered the most, even though in some cases it’s clearly wanted to allow the government a certain amount of room to navigate.”

Each ruling divided the court, with dissenting justices lamenting the limits the majority placed on the government’s ability to address societal issues. In the campaign finance case, Justice Elena Kagan said the disputed law could promote speech, not restrict it, by preventing money from corrupting politics.

‘Will of the People’

The invalidated law “fostered both the vigorous competition of ideas and its ultimate object -- a government responsive to the will of the people,” Kagan wrote.

Two of the rulings fractured the court at or near its ideological fault line. In the 5-4 campaign finance decision, the court’s five Republican appointees -- Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito -- formed the majority.

In the drug case, Justice Sonia Sotomayor joined that group in a 6-3 decision to strike down the Vermont law limiting the use of data on the prescription writing practices of doctors. The measure targeted “detailing,” the brand-name drug industry practice of making one-on-one sales pitches to doctors, and was aimed at encouraging the use of lower cost generic drugs.

In both cases, the majority said the state was improperly attempting to penalize one side of a public policy debate.

“The state may not burden the speech of others in order to tilt public debate in a preferred direction,” Kennedy wrote for the majority in the drug case. Bloomberg LP, the parent of Bloomberg News, was among several news organizations that urged the court to overturn the Vermont law.

Funeral Protest

The splits in those cases fueled assertions that the court’s ardor for free speech depends on what is being said and who is speaking. Supreme Court rulings in recent years have limited the speech rights of students, public employees and human rights activists, said Adam Winkler, a constitutional law professor at the University of California at Los Angeles.

“The Roberts court strongly protects speech that it likes, while allowing regulation of speech it disfavors,” Winkler said.

The court said in March that it will protect even unpopular and offensive speech. Voting 8-1 with Alito as the lone dissenter, the justices struck down a $5 million award against a group that staged an anti-homosexual demonstration at a military funeral.

‘Great Pain’

The protesters, from the Westboro Baptist Church in Topeka, Kansas, bore signs that said God was killing U.S. soldiers to punish the country for accepting homosexuality. Writing for the court, Roberts said the protesters had inflicted “great pain” on the father of a Marine who died in Iraq.

“On the facts before us, we cannot react to that pain by punishing the speaker,” Roberts wrote. “As a nation we have chosen a different course -- to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The video game case produced an unusual alignment, with Scalia, Kennedy, Sotomayor, Kagan and Ruth Bader Ginsburg taking the staunchest free-speech positions. Those five rejected the state’s contention that violent games are akin to sexual materials, which the government can restrict to protect children.

Roberts and Alito agreed with the result, while saying they would have left room for states to enact better-crafted laws. Thomas and Stephen Breyer dissented.

Regulatory Power

Breyer, perhaps the court’s strongest advocate for the regulatory power of government, also voted to uphold the Vermont drug law and the Arizona campaign finance measure.

The justices may extend the First Amendment further in the term that will start in October. The court yesterday said it will decide whether federal regulators violate the speech rights of broadcasters by imposing fines for on-air profanities and nudity.

“This court is the strongest First Amendment court in history,” said Burt Neuborne, a New York University School of Law professor who specializes in civil liberties and filed a brief backing the Arizona public financing law. “The current majority uses the First Amendment as a powerful tool of deregulation that eliminates virtually all government efforts to regulate anything to do with the flow of information.”

--Editors: Jim Rubin, Don Frederick

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.


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