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U.S. Supreme Court

The nation’s highest court, now home to three female justices,
is set to confront
issues of free speech
vs. hate speech in its new term.

Legal scholars gathered at USC recently, turning an analytical eye toward the current U.S. Supreme Court term, which began October 4. They discussed the dynamics of the court, the court’s future, and the additions of Justice Sonia Sotomayor last year and Justice Elena Kagan this year.

“It’s the sixth term for Chief Justice John Roberts, and I think in many ways it can been seen as truly his court,” said Elizabeth Garrett of the USC Gould School, which hosted the event with the Federalist Society and American Constitution Society student chapters. “Last year he was in the majority 90 percent of the time. It’s the first time in 34 years Justice John Paul Stevens will not be sitting on the bench. He’s someone who has gone from being — at the time I clerked — an idiosyncratic moderate to a leader of the liberal wing. So, it’ll be interesting to see what happens in his absence.

“We now have a new justice this year, Elena Kagan, and finally for the first time we have three justices on the Supreme Court who are women,” Garrett noted. “Something to look out for this year is the perennial question: What will Justice Anthony Kennedy do in any particular case?”

The panel discussed a variety of cases before the court this year, including Schwarzenegger v. Entertainment Merchants Association, which considers a possible California ban on the sale or rental of violent video games to children; Snyder v. Phelps, a free speech case involving an anti-gay demonstration at a soldier’s funeral; and Flores-Villar v. United States, a gender case.

John Eastman of Chapman University, who clerked for Justice Clarence Thomas, said that Snyder v. Phelps could change how the court views free speech cases.

The case centers on whether the father of a Marine killed in Iraq can sue a fringe church for emotional distress. Church members protested at his son’s funeral, and linked U.S. military casualties to American tolerance of homosexuality.

“This case is putting two fairly significant constitutional ideas at odds with each other — the right of unfettered speech, and the right to be left alone at the funeral for your son or daughter,” Eastman said. “I’m predicting the court will come up with something like this: that although the protest was on a public street, it was a public street that was being used for a funeral procession. I think the court will find some way to reconcile the speech interest as well as the privacy interest at stake right now.” He added, “The lack of civility that will flow from an unfettered free speech will just get worse and worse as we go on.”

Rebecca Brown of the USC Gould School said that the case could have implications for hate speech, something the court has protected in the past.

“The harm here was not that the protestors were making noise or showed up uninvited,” explained Brown, who clerked for Justice Thurgood Marshall. “The problem is what they said — that the Marine was going to hell, and other terrible remarks that caused pain to the family. To me, what’s interesting is there’s a very strong intuitive appeal here for regulating speech based on its content: The thing that was said is harmful to someone else. That sounds a lot like hate speech. The court has been reluctant to allow any regulation of hate speech because for the most part we have an absolute right to free speech. It’ll be fascinating to see what the court does.”

The case Schwarzenegger v. Entertainment Merchants Association looks at whether California can ban the sale or rental of violent video games to children. The Ninth U.S. Circuit Court of Appeals in Sacramento ruled that the law violated minors’ rights under the First Amendment and 14th Amendment.

“There’s an old view that certain kinds of speech are less protected than others,” said Kathleen Sullivan of Stanford University. “But there’s never been a kid exception to the First Amendment.”

The panel also looked back on cases from last term, including Citizens United, a campaign finance case, and McDonald v. City of Chicago, a gun case.

“If you want to pick a key theme for what’s happening at the Supreme Court right now, it’s that the political balance of judicial activism and judicial restraint has shifted political sides,” Sullivan commented. “You now have judicial activism coming from the so-called conservative side,” as seen in the Chicago gun case, she said. “So sometimes you can’t be sure of who is reading from whose playbook.”

Eastman disagreed: “I don’t think it’s right to define activism as striking down an act of a majority. That is the duty of an independent judiciary. Activism is striking down a law without a strong textual basis in the Constitution.”

Although it is not yet before the Supreme Court, Garrett asked the panel to discuss the challenge to California same-sex marriage ban Proposition 8, which is now in the federal courts. The panel agreed that the issue of same-sex marriage ultimately will be decided by the Supreme Court.

Click to watch video of the discussion.

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