The Supreme Court this Term: The First Amendment Gets the Short Shrift

​This term, the Supreme Court declined to hear at least 16 cases that involved significant First Amendment issues, leaving a number of critical questions unresolved. Among those left on the table were cases touching on free speech, freedom of association, and the extent of religious freedom under the First Amendment. With these denials, the Court missed an opportunity to clarify or expand upon key First Amendment protections in an era where such rights are up against new and unprecedented challenges.
 
Among the First Amendment cases the Court declined, several stand out as especially significant in terms of the broader impact on free expression and association. If a suitable vehicle for the issues in these cases were to come up in future litigation, we highly encourage the Supreme Court to take them.
 
No on E v. Chiu - Donor Disclosure and Free Speech
 
No on E v. Chiu centered on a challenge to a San Francisco law that required groups running election-related advertisements to disclose their donors, raising significant concerns about the balance between transparency in elections and the right to anonymous political speech. The plaintiffs argued that mandatory disclosure infringes on both free speech and association rights, raising fears of retaliation or harassment for individuals supporting controversial political causes. This is especially relevant in today’s hyper-connected digital world, where donor information is easily accessible, making contributors vulnerable to backlash.
 
As seen in Americans for Prosperity v. Bonta, the Supreme Court has already recognized that revealing donors’ identities can expose them to threats and harassment, deterring political participation. While transparency is often cited as a virtue in campaign finance, the risks to individuals' safety and privacy are real and growing. In response to these threats, 20 states have passed the Personal Privacy Protection Act (PPPA) to shield donors from exposure, acknowledging that the right to support causes anonymously is vital for a healthy democracy. The Court’s refusal to hear No on E allows these concerns to persist and leaves donor privacy vulnerable in states without such protections.
 
National Press Photographers Association v. Higgins - Drones and Press Freedom
 
In National Press Photographers Association v. Higgins, the Court declined to hear a case that highlights the growing tension between new technologies and First Amendment rights. The plaintiffs challenged a Texas law that bans drone surveillance without exceptions for journalists, arguing that the law restricts their ability to gather news. Drone technology is a new frontier for free press rights, where the tools used by journalists to report on important public issues — like protests or natural disasters — are being regulated or outright banned. Drone technology is rapidly becoming essential for covering stories from angles that are otherwise inaccessible, but without clear protections for its use, journalists are left vulnerable to restrictions that limit their news gathering capabilities. As technology continues to evolve, the Court's refusal to address this issue and others like it could have serious implications for how the press operates in the digital age.
 
Hile v. Michigan - Blaine Amendments and Religious Discrimination
 
Hile v. Michigan involved a challenge to Michigan’s Blaine Amendment, which prohibits public funding from supporting religious schools. The plaintiffs argued that this restriction discriminates against religious schools and families, violating both Equal Protection and Free Exercise rights under the First Amendment. This case mirrors other recent challenges to state-level Blaine Amendments, including South Carolina’s, which prohibit the use of public funds for religious schools.
 
Blaine Amendments, like Michigan’s, have their origins in 19th-century anti-Catholic bigotry and today block families from choosing educational options that align with their values. In South Carolina, for example, the state’s Supreme Court recently struck down a school voucher program, citing its Blaine Amendment, leaving thousands of students without financial support to attend religious schools. These rulings disproportionately harm low-income families who rely on school choice programs for access to quality education. As our amicus brief in that case argued, school choice promotes First Amendment-protected religious and speech rights by allowing families to select schools that reflect their beliefs and values. By refusing to hear Hile, the Court missed an opportunity to address the discriminatory legacy of Blaine Amendments and expand educational freedom for all families.
 
Saline Parents v. Garland - Chilling Speech in School Board Protests
 
Saline Parents v. Garland raised concerns about government overreach in monitoring political speech. The case challenged Attorney General Garland’s directive to the FBI to investigate threats at school board meetings, which parents argued unfairly targeted their free speech rights. The plaintiffs contended that the policy cast them as potential threats simply for speaking out against school policies, thereby chilling their ability to participate in public debates over education.
 
Garland’s memo suggests that parental dissent might be treated as a threat. While Garland assured Congress that the DOJ’s efforts were aimed at preventing violence, the mere initiation of an FBI investigation has a chilling effect on speech. Even the process of being investigated can suppress dissent, as individuals are subjected to the anxiety of scrutiny, potential legal costs, and damage to their reputations. Though it’s unlikely that parents would be prosecuted merely for voicing objections, the threat of federal surveillance is more than enough to stifle open debate on school policies. By refusing to hear Saline Parents, the Supreme Court left this chilling dynamic unaddressed.
 
Union and Free Speech Cases
 
The Court also passed on several cases involving unions and the First Amendment, where state employees challenged mandatory union dues deductions made after they had resigned their membership. These cases often focused on limited opt-out windows and union agreements with state agencies that enforced dues collection beyond an employee’s resignation. In previous cases, we have argued that this practice violates employees' First Amendment rights by forcing them to support union activities they may disagree with. By refusing to hear these cases, the Court left in place lower court rulings that continue to allow unions to infringe on individual speech rights through these financial extractions.
 
Why These Cases Matter
 
By denying these First Amendment cases, the Supreme Court missed key opportunities to clarify the scope of free speech and association rights in the modern age. Whether it's the rise of new technologies like drones, the balance between transparency and privacy in political advocacy, the exclusion of religious schools from public programs based on antiquated laws, or government surveillance of political speech at local levels, the Court’s passivity this term leaves many critical questions unanswered. We urge the Supreme Court to consider taking up these issues if, and when, they return in future litigation.