Supreme Court Ends Pro-Business Term With Important First Amendment Rulings

The Supreme Court today ended a 2010 Term marked by big victories for big business with two important free speech decisions reflecting the Court's expansive view of the First Amendment.

Once again wading into the roiled waters of campaign finance reform, the Court struck down Arizona's public financing system, which provides matching funds to publicly financed candidates to ensure that they are not outspent by privately financed opponents and to encourage candidates to participate in the public financing scheme. The decision in Arizona Free Enterprise v. Bennett is certain to reignite the heated debate that followed last year's ruling in Citizens United upholding corporate campaign expenditures.

In addition, the Court struck down a California law prohibiting the sale of violent video games to minors in Brown v. Entertainment Merchants Association. Stressing that minors have First Amendment rights as well as adults, the Court rejected calls to treat violence like obscenity and carve out a new exception to the First Amendment for violent speech directed at children.

"This is a Court that takes an expansive view of the First Amendment. It is particularly sensitive to any claim that the government is using its power to censor unpopular speakers or unpopular speech," Shapiro said.

That view was evident earlier this year in Snyder v. Phelps when the Supreme Court overturned a jury verdict against members of the Westboro Baptist Church who had picketed the funeral of an Iraqi war veteran with signs proclaiming their view that the death of U.S soldiers was a punishment by God for America's tolerance of homosexuality.

"This Term also highlighted the Court's pro-business reflex," Shapiro added. "Unfortunately, the instinct to protect business interests often comes at the expense of ordinary citizens looking for justice."

Of course, to say that the Roberts Court is pro-business does not mean that business always wins. In Chamber of Commerce v. Whiting, a case where the ACLU served as co-counsel, the Court held that federal law did not bar Arizona from imposing its own severe sanctions on employers in the state who hire undocumented workers.

But, more typically, the Court held in Wal-Mart v. Dukes that a sex discrimination lawsuit against America's largest employer could not proceed as a class action. It did so, moreover, by reinterpreting the class action rules so that it will now be harder for other class actions to go forward as well, leaving many employees with grievances that they can no longer afford to pursue.

Similarly, in AT&T Mobility LLC v. Concepcion, the Court held that companies can effectively shield themselves from consumer class actions simply by including a clause in the standard consumer contract that all claims must be resolved through individual arbitrations. When the amount at stake is less than $40, as it was in this case, most consumers will simply give up.

"The Roberts Court is undeniably conservative, but it is a particular kind of conservatism," Shapiro explained. "This is not a libertarian court. It is not a state's rights court. It is a pro-business court."

Employees and consumers were not, however, the only ones denied their day in court this Term.

In Connick v. Thompson, the Court ruled that an individual who spent 14 years on death row after being wrongfully convicted of murder could not sue the prosecutor's office that unconstitutionally withheld critical evidence from his defense lawyers.

In Arizona School Tuition Organization v. Winn, an ACLU case, the Court held that Arizona taxpayers could not challenge the use of state tax credits to subsidize religious education because tax credits involve funds diverted from the state treasury as opposed to funds spent out of the state treasury. The majority decision provoked Justice Kagan's first dissent as the newest member of the Court.

In Ashcroft v. al-Kidd, another ACLU case, the Court held that former Attorney General John Ashcroft was immune from damages even assuming that he had authorized the use of the material witness statute as a pretext after 9/11 to detain terrorism suspects without probable cause.

Still, there were several notable criminal justice victories this Term in a Court where such victories are often few and far between.

In Brown v. Plata, the Court upheld an order requiring California to reduce its prison population significantly after the state had failed to correct the unconstitutional conditions resulting from prison overcrowding for more than a decade.

And, in J.D.B. v. North Carolina, the Court ruled that the age of a child being questioned by the police is a relevant factor in deciding whether the child is "in custody," thus triggering the need for Miranda warnings.

Shapiro is available for television interviews using the ACLU's in-house studio facility, which has an outbound fiber line for standard definition (SD) video.