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Weaponizing the First Amendment


On the last week of arguably the most reactionary Supreme Court term since the New Deal, the Roberts Court five held that making anti-abortion centers that create the impression that they’re medical clinics disclose that they aren’t medical clinics violates the First Amendment, while also affirming that states can compel doctors can read pro-life propaganda and a woman can be forced to read it before she can obtain an abortion. The attempts by the majority to distinguish the cases were farcical.

As data collected by the invaluable team of Epstein, Martin and Quinn shows, this is not an anomaly. The Roberts Court has offered far more protection for conservative speakers than liberal speakers:

Adam Liptak comments:

But a transformative ruling by the Supreme Court five years later began to change that thinking. The case, a challenge to a state law that banned advertising the prices of prescription drugs, was filed by Public Citizen, a consumer rights group founded by Ralph Nader. The group argued that the law hurt consumers, and helped persuade the court, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, to protect advertising and other commercial speech.

The only dissent in the decision came from Justice William H. Rehnquist, the court’s most conservative member.

Kathleen M. Sullivan, a former dean of Stanford Law School, wrote that it did not take long for corporations to see the opportunities presented by the decision.

“While the case was litigated by consumer protection advocates,” she wrote in the Harvard Law Review, “corporate speakers soon became the principal beneficiaries of subsequent rulings that, for example, struck down restrictions on including alcohol content on beer can labels, limitations on outdoor tobacco advertising near schools and rules governing how compounded drugs may be advertised.”

That trend has continued, with businesses mounting First Amendment challenges to gun control laws, securities regulations, country-of-origin labels, graphic cigarette warnings and limits on off-label drug marketing.

The theory of New Deal liberals, which commanded a majority of the Court for nearly a decade in the 60s, is that judicial review was particularly important in cases where the rights of “discrete and insular minorities” are under attack, and where democratic processes are being thwarted by powerful interests. The theory of the Roberts Court is stands this precisely on its head: the Supreme Court is much more solicitous of the rights of powerful interests, and has been an active collaborator with state efforts to disenfranchise voters.

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