Roberts Court

About: Roberts Court is a research topic. Over the lifetime, 397 publications have been published within this topic receiving 1468 citations.

Bleeeeep! The Regulation of Indecency, Isolated Nudity, and Fleeting Expletives in Broadcast Media: An Uncertain Future for Pacifica v. FCC

Abstract: This article posits that regulating in an area of speech that raises questions about its social value and potential harm will be extremely difficult under the Roberts Court. Government restrictions targeting the content of low value, but protected, expression will be reviewed under the exacting standards of core First Amendment speech. Even though the broadcast indecency policy is shrouded in administrative agency deference standards, it is unlikely that the Court will give the FCC free-wheeling reign to enforce its new policy, which is much more speech-restrictive than the FCC’s enforcement policy of the past forty years. While the Court may not reach the ultimate question of whether Pacifica is or should be overturned, the Fox case may bring the Court one step closer to erasing the First Amendment distinctions between broadcast media and other forms of media.

From Louisville to Liddell: Schools, Rhetorical Neutrality, and the Post-Racial Equal Protection Clause

Abstract: The neutral allure of school choice, neighborhood schools, and other purported "remedies" for poorly performing schools have displaced the substantive pursuit of fully integrated schools. Indeed, the constitutional mandate of Brown v. Board of Education has been cast aside in favor of a formalistic conception of equality based on an individual right to attend neighborhood schools without reference to race. Under this post-racial interpretation of the Fourteenth Amendment, Jim Crow racial subjugation is no different than positive, race-conscious remedial efforts to integrate and preserve diversity in public schools. Voluntary choice means that some discrimination may exist "naturally" if it cannot be directly attributed to state action. Tracing school desegregation cases in Louisville and St. Louis, this Article critiques the Roberts Court's post-racial constitutionalism in Parents Involved in Community Schools v. Seattle School District No. 1. This case holds the key to the seminal doctrinal shift from the Rehnquist Court's colorblind constitutionalism to the Roberts Court's post-racial constitutionalism.

Symposium: Business in the Roberts Court - Introduction: Still in Search of the Pro-Business Court

Abstract: The Supreme Court under Chief Justice Roberts is often described as a “pro-business” court Many commentators believe that Court is particularly sympathetic to business interests in concerns A 2016 volume, Business and the Roberts Court turned a critical eye to this hypothesis In September 2016, the Center for Business Law & Regulation at the Case Western Reserve University School of Law hosted a symposium to further explore how the Roberts Court deals with business issues Papers from this conference were published in the Case Western Reserve Law Review, and this brief article served as the Introduction for this symposium

Four Principles for Digital Expression (You Won't Believe #3!)

Abstract: At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law - the Communications Decency Act - that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the mid-90s Internet enabled anyone to become a town crier. Communication no longer required the permission of powerful entities. With a network connection, the powerless had as much luck reaching a mass audience as the powerful. The “special justifications or regulation of the broadcast media” had no application to the “vast democratic forums of the Internet.” Twenty years later, the Roberts Court had an opportunity to explain how the First Amendment should operate in the mature Internet of 2017. Despite the interval of time, the Roberts Court of 2017 took a remarkably similar approach to the Rehnquist Court of 1997. In Packingham v. North Carolina, Justice Kennedy announced the start of the “Cyber Age.” The Internet was the virtual public square, much like streets and parks. Because the “Internet” was still in its infancy, its impact on expression was not fully understood. The expressive potential of the “Internet” would be imperiled in the absence of a hands-off approach. Justice Kennedy noted that someday, the Internet might be used for anti-social ends. Until then, extreme caution was in order so the Internet’s democratic potential could be realized. Contrary to the Court’s thinking, the Internet is no longer in its infancy. It has matured at a breathtaking pace. Virtually all aspects of our public and private lives - politics, child-rearing, work, health, shopping, and sex - involve the Internet. If online discourse ever accorded with the Court’s vision, it does not now. Rather than just the virtual town square, the “Internet” is bound up in everything and everywhere-whether the workplace, library, coffee shop, gym, park, public street, town square, or bedroom. This article debunks the Court’s magical thinking about the Internet. The Internet’s expressive opportunities are not available to all on equal terms, thanks to the wide availability of personal data. Online platforms highlight favored content while burying disfavored ones. Search engines produce different, and less advantageous, results to people of color and women than to men. Cyber mobs shove people offline with doxxing, swatting, and other privacy-invasive forms of abuse. Online platforms fuel polarization and filter bubbles, ensuring an electorate without access to a full range of ideas and information. Fake news spreads like wildfire on social media platforms that are often people’s main source of information. We need clear principles to guide and secure meaningful digital free expression. This article charts a path to provide just that. Part I exposes crucial myths surrounding the digital speech and privacy in our networked age. Part II offers a conception of free speech based on a distrust of power, both public and private. Even if doctrinal analysis does not account for private barriers to free expression, the project of free expression should. Part III lays out four essential preconditions for a theory and a system of free expression in the digital age. These preconditions are substantive and procedural. They require legal intervention and extra-legal efforts. They draw some inspiration from due process guarantees and some from commitments to equality. Underlying these principles is a unifying normative commitment: If we want to ensure that our commitment to long-standing democratic theories of free expression survives its translation to the digital environment, we need to take a long, hard look at the digital public sphere we actually have, rather than one that we might want or one that has been advertised to us by Silicon Valley.

The Roberts Court in an Era of Polarized Politics

Abstract: Abstract This essay examines the Roberts Court and its relationship to the Obama administration. It begins by analyzing the ways in which the Court has been structured by electoral politics over the past 40 years, arguing that the Court’s more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime. It concludes by considering the impact of President Obama’s 2012 reelection, contending that there is little indication that Obama aspires to restructure the courts fundamentally or to push major new constitutional initiatives. Although Obama will undoubtedly have an opportunity to fill at least one seat on the Court in the coming years, he is unlikely to alter its ideological balance, leaving Justice Kennedy as the swing justice. Thus, while liberals can expect isolated judicial victories, Obama’s reelection does not portend an imminent shift in Court decision-making. Only time will tell, however, whether it will have longer-term consequences for American constitutional development.