Supreme Court Docket Overflowing with Sharp Questions About the First Amendment

The U.S. Supreme Court’s next term could bring major rulings on compelled speech, donor privacy, religious expression, commercial speech, and the right to speak on private property.

The Court has not yet agreed to hear any of these cases, some of which also implicate the Takings Clause. But the petitions before it pose questions that could significantly reshape First Amendment law if the Court accepts them.

Can Donor Privacy Be Breached?

In Rio Grande Foundation v. Oliver, New Mexico applied its campaign-finance disclosure law to this nonprofit that publishes legislative “Freedom Index” scorecards but does not expressly advocate the election or defeat of candidates. The Foundation argues that forcing disclosure of its supporters exposes people engaged in issue advocacy to harassment and chills their freedom of association.

We are hopeful that the Court will take this case. Ever since it protected the anonymity of donors to the NAACP in the 1950s, the Supreme Court has recognized that donor privacy is essential to free association. A government demand for names cannot become the price of offering opinions based on public information about legislators’ voting records.

Can Officials Be Sued for Restricting Religious Speech on Public Sidewalks?

Hershey v. City of Bossier City presents a particularly stark free-speech claim. Richard Hershey says officers threatened to arrest him and forced him to stop distributing religious leaflets on “Christian vegetarianism” on a public sidewalk outside a Christian rock concert. At the same time, they allegedly allowed a nearby radio station to distribute commercial material.

While the specific content may seem idiosyncratic, long-standing First Amendment law forbids content discrimination.

The Fifth Circuit granted the officers qualified immunity because Hershey could not identify a prior case with sufficiently similar facts. But no officer should need a remedial tutorial to understand that suppressing religious leaflets while allowing commercial leaflets on a public sidewalk is unconstitutional content discrimination.

Can Shopping Malls Be Compelled to Admit Speakers and Petition Gatherers on Their Property?

Majestic Realty Co. v. Salazar approaches free speech and association from the opposite direction. California courts held that an activist had a right to distribute leaflets at privately owned shopping centers. The owners argue that forcing these properties to host unwanted speakers violates both their First Amendment rights and their right to exclude others from their property.

The case could force the Court to reconsider its controversial decision in PruneYard Shopping Center v. Robins (1980), which upheld an interpretation of a provision in California’s constitution that would allow uninvited speakers to circulate petitions on private property, so long as the speakers are peaceful and do not disrupt business. If the Court takes up this case, it may signal a potential modification or even an overruling of PruneYard. The Court would need to resolve the tension between those who advocate for a right to speak in privately owned venues open to the public and those who oppose a government-created entitlement to use someone else’s property as a platform.

Shalt Thou Post the Ten Commandments in Louisiana?

Louisiana’s Ten Commandments case, Brumley v. Roake, adds the Establishment Clause to this crowded list of potential First Amendment cases. The petition asks the Court to address whether Louisiana’s requirement that the Ten Commandments be displayed in public-school classrooms is unconstitutional. The petition also raises a threshold question: Must parents wait until the displays appear in their children’s classrooms before bringing a constitutional challenge?

Evolving views on the Establishment Clause make this one to watch but hard to predict.
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How Should Courts Balance the Protection of Jewish Students Against the First Amendment?

The most emotionally charged petition may be StandWithUs Center for Legal Justice v. MIT. Jewish students allege that MIT was deliberately indifferent to antisemitic harassment during campus protests. Their petition asks whether the First Amendment prevents protected speech from contributing to a hostile-environment claim under federal civil rights law.

Universities have a duty to protect students from threats, violence, discriminatory conduct, and the denial of equal access to education. Here’s the rub – offensive and hateful ideas do not automatically lose First Amendment protection. Any ruling must preserve the line between punishing unlawful conduct and suppressing protected (if ugly) expression.

Can Regulators Divulge Trade Secrets?

In PhRMA v. O’Day, an Oregon law requires drug manufacturers to submit reports with narrative justifications for their prices. State officials must then publish those reports, including confidential information and trade secrets, whenever they decide publication is in the “public interest.”

A divided Ninth Circuit panel upheld the law under intermediate scrutiny, reasoning that Oregon may compel “product-specific” disclosures to correct “information asymmetries.” The Supreme Court has asked for the views of the U.S. Solicitor General – often a sign that the justices are taking a petition seriously.

This case raises a basic question: Can the government force a private party to explain and defend its pricing decisions? The First Amendment protects not only the right to speak, but also the right not to deliver the government’s preferred message.

First Amendment Jurisprudence Is Sure to Get a Workout

These cases differ dramatically, but clear principles run through all of them: The government must not compel speech, expose associations, discriminate against religious viewpoints, or blur constitutional lines. First Amendment rights matter most when officials believe they have excellent reasons to disregard them.

Author Stephen King once wrote in an op-ed in his local Bangor, Maine, newspaper:

“If there’s one American belief I hold above all others, it’s that those who would set themselves up in judgment on matters of what is ‘right’ and what is ‘best’ should be given no rest; that they should have to defend their behavior most stringently. As a nation, we’ve been through too many fights to preserve our rights of free thought to let them go just because some prude with a highlighter doesn't approve of them.”

The Supreme Court exists to correct the errors of such officials.

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