With the holiday season upon us, it’s the perfect time to reflect on the many things for which we can and should be grateful. And yes, 2021, like the year before it, was a challenging year for most of us. But free speech actually had quite a good year.
Given the state of civil discourse and the human impulse to silence or punish others because of their speech, this may come as a surprise to many. Surely, our free speech culture is a cause for concern. However, if you look more closely, there are also plenty of reasons to be thankful. For example, although America seems more divided today than it has been for the past 50 years, the truth is that Americans are less polarized than we think.
But even if we grant that our free speech culture has seen better days, our First Amendment rights have never been better protected than they are now, at the end of 2021. While our culture continues to try to remind itself that free speech really is a good idea, the judiciary continues to do its job of protecting those freedoms.
So this year, I’m thankful for four Supreme Court decisions upholding every American’s First Amendment rights.
Future law students may not appreciate needing to remember the names in the first one, Uzuegbunam v. Preczewski, but the Supreme Court’s 8-1 decision will make it easier to vindicate First Amendment rights in court. Georgia Gwinnett College violated the free speech rights of a student by restricting his speech to a small speech zone and then imposing a speech code to censor him because his religious speech disturbed the “tranquility” of another student. The violation didn’t cost Chike Uzuegbunam anything except many months of not exercising his First Amendment rights. Like many government defendants, the college later tried to avoid adjudication and responsibility for its violation of Uzuegbunam’s free speech rights by changing its policies, arguing that his $1 “nominal damages” claim wasn’t sufficient to keep the case in court if the college’s free speech violations didn’t cost him out of pocket. The Supreme Court held that Uzuegbunam’s free speech rights were priceless, not worthless, and his case could go forward. This resolves an important question and makes it much more likely that campus and other free speech claimants will get their day in court.
Second is Mahanoy Area School District v. B. L., which will forever be known as “the cursing cheerleader case.” The 8-1 decision in this case affirms that in all but the rarest circumstances, a public school’s jurisdiction over student speech ends at the schoolhouse gate. Parents, not principals, should be the ones policing a student’s social media posts during nonschool hours. While not a home run, the decision was a solid double for free speech. And importantly, it avoided the strikeout scenario, in which the court could have opened the door wide to public schools policing their students’ speech during nonschool hours.
Third is our own case: Americans for Prosperity Foundation v. Bonta. This 6-3 decision protects and reaffirms the freedom to support causes and charities anonymously. In reaffirming its decision in NAACP v. Alabama, the court held that the California attorney general could not collect data on charitable contributions for tens of thousands of charities all over the country. A former executive director of the NAACP described the case as “one of the most significant wins for civil rights in decades.” Underscoring this point is the most diverse set of organizations ever on one side of a constitutional case in the Supreme Court.
Finally, I am grateful for Fulton v. City of Philadelphia. Philadelphia had disqualified a Catholic foster parent placement service because of the stated views of Catholic clergy about foster parent placements with same-sex couples. As we argued to the court, free and voluntary association to address social ills is crucial to maintaining our system of government. Throughout our nation’s history, fights for civil rights have relied on the simultaneous exercise of civil liberties, including this ability to associate freely. Excluding some volunteers from working to address a problem on the basis of their views would “imperil … the very building blocks of civil society.” As in Mahanoy, the court failed to go as far as it could have, but it did side unanimously with the Catholic foster placement agency, protecting its freedom to continue to serve children and foster parents in Philadelphia. This was a win for pluralism and First Amendment rights.
As we enjoy the holidays and close in on the end of 2021, when you’re tempted to be despondent about the state of our politics and culture, remember that there are bright spots to be appreciated. You get to watch Alabama in the College Football Playoff (maybe that’s just something I’m happy about), and your First Amendment rights are on firmer footing now than they’ve ever been as we leave 2021 behind. Here’s to using those freedoms more in 2022.
Casey Mattox is the vice president for legal and judicial strategy at Americans for Prosperity.
