The Supreme Court has certainly received a lot of attention lately: hearings, pending decisions, leaked drafts and partisan splits.  We tend to focus a lot on partisan splits, but 9-0 unanimous decisions occur more often than 5-4 and 6-3.  And those are just announced decisions.  I suspect they are also quite common on procedural things, like which cases to hear.

Last week the Court announced a 9-0 decision on an interesting case, Shertleff v Boston.  Quickly: Shertoff was a free speech case in which a citizen (Shertleff) was denied flying a Christian flag (red cross on blue patch with white background) on one of three masts at the Boston city hall.  The city had never denied such a one-day request before.  But the court considers such facts not so much as the law. ^[1]

Regarding the law, the court has always bent over backward to protect free speech.  And the right to have that free speech heard – or, in this case, seen.  It’s not the first time Boston and the area has been so severely spanked by SCOTUS on speech.

In 1993 the Irish Gay, Lesbian, Bisexual Group of Boston (GLIB) wanted to participate in the St Patrick’s Day parade.  They were denied (although not by the city, rather by an independent organization running the parade).  GLIB sued and Hurley v Irish-GLIB, Inc went to the highest court.  These things usually take a while to wend through the court system.  The court decided again, in 1995 and unanimously 9-0, that free speech gets pole position.  Gays et al must be allowed to march in public parades.

Another unusual 9-0 decision came in 2014 in McCullen v Coakley.  A Massachusetts law was passed in 2007 mandating an anti-protest “buffer zone” around entrances to abortion clinics – even if that buffer extended to public areas like sidewalks. Protestors sued. Free speech won unanimously, again.  The whole law was stricken.

In every case above the most progressively liberal and conservative justices united to rule in favor of the most liberal interpretations of free speech, even if it went against their personal social principles in the specific cases.

This even applies to burning the flag, see Johnson v Texas, decided in 1989.  Although narrowly decided at 5-4, it’s interesting that conservative-leaning Kennedy and most-conservative Scalia voted with the majority to permit flag burning.  [Kind off odd, as the specific flag burning incident was a protest against Ronald Reagan, done just outside the Republican convention of 1984 — and by 1989, when the case was finally decided, Reagan had recently appointed Justice Anthony Kennedy].

Not long after Johnson, above, the court heard a very similar case.  In response to Johnson Congress quickly passed the Flag Protection Act, which prohibited flag desecration and mistreatment.  They basically dared the courts to take up the issue again.

This got to SCOTUS quickly, dying a 5-4 death in 1990, in United States v. Eichman.  Again, with conservatives Scalia and Kennedy concurring: flag burning is speech.  Speech is protected.

Years later Judge Antonin Scalia stood by his votes.  “If I were king, I would not allow people to go around burning the American flag.  However, we have a First Amendment, which says that the right of free speech shall not be abridged…”

Scalia’s reference to the First Amendment to the Constitution gives us a good chance to review this very important part of the US Constitution.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

One thing that’s interesting right from the start is that this Amendment, as written, is directed at “Congress” — not to the states, or to the state legislatures, or to city governments.  Yet the Supreme Court, and lower courts by precedence, have determined for a long time that these rights (religion, speech, press, assembly) are so very important that they apply to all branches of government.

These rights are indeed important.  Let’s consider Freedom of the Press.  This points to just one reason why I personally did not really react much to the great fear-stoking regarding the tenures of, let’s say, our last two presidents: Obama and Trump.  What’s that you say?  Because they were pummeled and attacked by the press, and cartoonists, daily.  None of those publications or voices were silenced, arrested, or “disappeared” by a government response.  We can extend this to the many anti-this and pro-that demonstrations that happened during each presidency.  Free press and free speech all.  [Presidential claims of “fake news” and a bible walk to St John’s notwithstanding].

Freedom of the press is so important it should cause us to consider how contemporary events would have played out if such a valuable and cherished freedom truly existed in, say, China and Russia.

Would there be an atrocity-filled war in Ukraine right now if Russia had such a court-protected freedom?  How might the Covid pandemic have played out if China had freedom of the press?  Reporters Without Borders (RSF) rates China 175^th and Russia 155^th (out of 180) in the world in Press Freedom.

By way of comparison, the US gets an overall top-grade score of “Good”, and “Satisfactory”, but still comes in at only 42^nd, per RSF.  Saying the “US is better than most” is not anything like saying “Russia and China are better than North Korea” (dead last). They are so very low because of authoritarian government interference and censoring. Although we (the US and much of Western Europe) can do better, we are in pretty good standing regarding press freedom.

In absolute freedom of speech, the US does rank #1 in the world (World Economic Forum rankings). ^[2]

“I disapprove of what you have to say, but I defend your right to say it” has long been a maxim of US law and principals. ^[3] Recent Rasmussen polls regularly show over 80% of Americans believe free speech is more important than offending someone, and prefer it to giving government control of speech content. [Caveat, among younger Americans this number is dwindling.]

In reviewing the RSF’s Free Press evaluation criteria the US seems to lose ground for a variety of non-government reasons:  there are far fewer jobs for investigative journalism than there used to be; many writers self-censor; much media fails to fairly present alternative views. ^[4] It’s all related and these conditions continue to morph.  All-in-all, these topics are very large kebabs to skewer. As is Free Speech, in the context of, say, Twitter and Elon Musk. I’ll leave those for others to tackle.

Here’s to #1.  The First Amendment, that is.

Peace,

Joe Girard © 2022

Thanks for reading. As always, you can add yourself to the notification list for newly published material by clicking here . Or emailing joe@girardmeister.com

Footnotes below.  Acknowledgements to recent articles by Jeff Jacoby (Boston Globe) and The Economist for stimulating the thoughts that led to this essay.

[1] More on recent Shetleff Case: https://www.scotusblog.com/2022/05/boston-violated-first-amendment-when-it-rejected-christian-flag-court-unanimously-rules/

[2] This is supported by a 2015 Pew Research poll, here.  By 2021, the US has dropped into a virtual tie with Norway and Denmark for #1 [link], which apparently has more to do with Americans’ perception of free speech than actual government or private censoring.

[3] This quote is often attributed to Voltaire, 18th century French philosopher and strong proponent of civil liberties.  It’s actually probably best attributed Evelyn Beatrice Hall, an early 20th century biographer of Voltaire, trying to capture Voltaire’s philosophy.

[4] Figure and scoring, ref: Reporters without Borders site:
Reporters Without Borders site

White (score 0-15) relates to a Good Situation.
Yellow (score 15-25) reflects a Satisfactory Situation.
Orange (score 25-35) represents a Problematic Situation.
Red (score 35-55) represents a Difficult Situation
Black (score 55-100) represents a Very Serious Situation