SCOTUS First Amendment opinions in its 2014-15 term
By John C. Henegan
MPA General Counsel & Libel Hotline Attorney
The United States Supreme Court decided three cases during its October 2014–2015 term that address First Amendment issues. While none involves defamation or privacy issues, they are of sufficient interest to warrant a brief review. One addresses state laws that prohibit judicial candidates from personally soliciting campaign contributions. Another involves a state's right to dictate the content of its specialty car tags. The third finds that a municipal sign ordinance is unconstitutional using an unexpected rationale with potentially far reaching implications.
In Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015), the Supreme Court in a 5-4 decision held that a provision of the Florida Code of Judicial Conduct that prohibited judicial candidates from personally soliciting campaign funds for judicial elections while permitting those candidates to establish committees of responsible persons to raise such funds did not violate the First Amendment. Thirty-nine states, including Mississippi, elect their trial or appellate judges at the polls. Coincidentally, the Florida judicial candidate who challenged the anti-solicitation provision was a graduate of the Mississippi College School of Law.
In Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), the Supreme Court in another 5–4 decision upheld that the Texas Motor Vehicle Board's rejection of the Sons of Confederate Veterans' application for a specialty license tag featuring the Confederate Battle Flag under the First Amendment. Justice Breyer, writing for the court, explained that Texas specialty car tags are government speech. As a result, Texas was not barred from deciding what its license plates did or did not say so long as its citizens were not compelled to purchase a specialty plate containing a message that they disagreed with.
Finally, in Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015), the Supreme Court, in a 9-0 opinion written by Justice Thomas, held that a municipal sign ordinance that placed greater restrictions on the display of temporary signs addressing where people might go and worship on Sundays than political campaign signs is content-based discrimination barred by the First Amendment. The court rejected the city’s contention that its sign ordinance should be upheld based on aesthetic or public safety reasons. In a concurring decision, Justice Kagan held that the sign ordinance violated every possible First Amendment test including the “laugh” test. It was therefore unnecessary and imprudent Justice Kagan explained to find that the sign ordinance was content-based discrimination to which the court's stringent strict scrutiny test applied. Justice Kagan predicted that the Justices would soon become the Supreme Board of Sign Ordinance Review for the entire country.
Justice Thomas’ opinion, joined in by six members of the court, is a significant step in advancing the libertarian philosophy that pervades and undergirds numerous First Amendment decisions of the Roberts Court. The decision has the potential to have an impact far beyond the content and regulation of public sign ordinances.
John C. Henegan is a member of Butler Snow, PLLC, and counsel to the Mississippi Press Association. Members can send general questions about libel or requests for story review to firstname.lastname@example.org.