Recent Issues & Cases

Several important decisions on free speech issues were handed down by the Supreme Court in the session ending June 30, 2023.   Linda Greenhouse of the New York Times notes that this session caps the triumph of what would have been an unimaginably right-wing agenda when John Roberts became Chief Justice in 2005.

Of course the big swing to religious law was Dobbs v Jackson Women’s Health Organization last year overturning Roe v Wade. This year it was 303 Creative v. Elenis — a case involving the balance between individual religious rights and public accommodations.  In 303 Creative, the Supreme Court ruled that the First Amendment prohibits the state of Colorado from forcing a website designer to work with content that conflicts with her beliefs,  such as gay marriage.

The case overturns a ban on commercial discrimination based on sexual  orientation in the 2018 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  The 303 Creative case also calls into question the 2015 case  Obergefell v. Hodges in which the court said same-sex marriages were unconstitutional. 

Justice Sonia Sotomayor’s dissenting opinion  in 303 Creative notes how far the decision crosses the line separating church and state: “Today, the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”  This is a backlash against  people’s rights, she says. “New forms of inclusion have been met with  reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”

Other cases this term included: 

Counterman v. Colorado   — A “true threats” case — The court said that the First Amendment limits laws that make it a crime to threaten people on the internet. In such cases, governments  must prove that the defendant acted with a culpable mental state, and not only that his words were objectively threatening. The ACLU commended the court’s decision. The case is also significant in that the  court used the New York Times v Sullivan standard, which two of the justices (Thomas and Gorsuch) would like to overturn. That now seems unlikely.

US v Hansen –– Criminal solicitation —  A law against encouraging illegal immigration is constitutional, the court said, so long as it applies specifically to criminal acts and not to general ideas about immigration, which are protected under the First Amendment.

Groff v. DeJoy —  Religious accommodation — A US Postal Service delivery worker sued because he was being forced to work on Sundays.  “Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” the court said.

Gonzalez v Google LLC and Twitter v Taamineh both involved the extent of protection for YouTube (Google) in automatically posting and recommending terrorist recruiting videos; they also involved the broader question of how social media and the internet are to be regulated. The SCOTUS Blog has a valuable repository of documents about the case. In both cases, the anti-terrorism law was held NOT to apply, and no decision was made about Section 230 specifically or whether or not to change the way social media and the internet are regulated.