First Amendment

Walker v. Texas Division, Sons of Confederate Veterans, Inc and Reed v. Town of Gilbert - Post-Decision SCOTUScast

SCOTUScast 6-23-15 featuring Eugene Volokh.
Eugene Volokh June 23, 2015


On June 18, 2015, the Supreme Court issued two highly anticipated decisions in free speech cases, Walker v. Texas Division, Sons of Confederate Veterans, Inc., and Reed v. Town of Gilbert.

Walker v. Texas Division, Sons of Confederate Veterans, Inc. concerned two First Amendment issues: the first was whether content displayed on specialty license plates issued by the state is government speech immune from First Amendment prohibition on viewpoint discrimination; the second was whether Texas engaged in viewpoint discrimination when it rejected a specialty license plate design which included an image of a Confederate Flag.

In an opinion delivered by Justice Breyer, the Court held by a vote of 5-4 that Texas’s specialty license plate designs constitute government speech, and Texas was therefore entitled to reject the design proposed by Sons of Confederate Veterans. The decision of the Fifth Circuit to the contrary was reversed. Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Breyer’s majority opinion. A dissenting opinion was filed by Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Kennedy.

Reed v. Town of Gilbert involved a First Amendment challenge to the sign code for Gilbert, Arizona, which imposes more stringent restrictions on signs directing the public to meetings of nonprofit groups--including churches--than on other signs. By a vote of 9-0, the Court reversed the judgment of the Ninth Circuit (which had rejected the challenge) and remanded the case.  Justice Thomas, joined by the Chief Justice and Justices Scalia, Kennedy, Alito, and Sotomayor, held that the Code’s sign provisions were content-based restrictions of speech that could not survive strict scrutiny. Justice Alito also filed a concurring opinion, joined by Justices Kennedy and Sotomayor. Justice Breyer filed an opinion concurring in the judgment. Justice Kagan, joined by Justices Ginsburg and Breyer, also filed an opinion concurring in the judgment.

To discuss the case, we have Professor Eugene Volokh, the Gary T. Schwartz Professor of Law at the UCLA School of Law.

Elonis v. United States - Post-Decision SCOTUScast

SCOTUScast 6-11-15 featuring John Elwood and Kent Scheidegger
John Elwood, Kent S. Scheidegger June 11, 2015

On June 1, 2015, the Supreme Court issued its decision in Elonis v. United States. This case involves two questions. First, this case asks whether the First Amendment requires proof of the defendant’s subjective intent to threaten in order to convict someone of threatening another person under 18 U.S. C. § 875(c), or whether it is sufficient to demonstrate that a “reasonable person” would consider the statement to be threatening. The second question in this case is whether, as a matter of statutory interpretation, conviction of another person requires proof of the defendant’s subjective intent to threaten.

In an opinion delivered by the Chief Justice, the Court held that general intent is not sufficient to support a conviction under 18 U.S.C. 875(c) and that the imposition of criminal penalties under the statute requires proof of a “guilty mind.” 

Chief Justice Roberts’ opinion for the Court was joined by Justices Scalia, Kennedy, Kagan, Ginsburg, Breyer, and Sotomayor. Justice Alito filed a separate opinion concurring in part and dissenting in part. Justice Thomas filed a dissent. 

To discuss the case, we have Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation and John Elwood, Partner, Vinson & Elkins LLP.

Debate: Was Citizens United Wrongly Decided? - Audio/Video

Federalist Society with the American Constitution Society and the National Constitution Center
Anthony Johnstone, John O. McGinnis, Jeffrey Rosen May 22, 2015

The National Constitution Center, the Federalist Society and the American Constitution Society presented this debate on Citizens United. Professor Anthony Johnstone, argued in favor of the resolution and Professor John McGinnis argued against the resolution. Jeffrey Rosen, President and Chief Executive Officer of the National Constitution Center, moderated the program.

This debate was made possible through the support of a grant from the John Templeton Foundation. 


  • Prof. Anthony Johnstone, University of Montana School of Law
  • Prof. John McGinnis, Northwestern University School of Law
  • Moderator: Prof. Jeffrey Rosen, President and CEO, National Constitution Center

May 12, 2015
Boston, MA

The opinions expressed in this debate are those of the participants and do not necessarily reflect the views of the John Templeton Foundation.

Non-Media Speech: Is it Free? - Podcast

Free Speech & Election Law Practice Group Podcast
Eugene Volokh, Sonja R. West May 18, 2015

The First Amendment reads, in part, "Congress shall make no law . . .abridging the freedom of speech, or of the press . . ." Are there, and should there be, different levels of freedom of speech for media and non-media speakers? If so, how should "media" and "non-media" be defined, and who should decide? Our experts debated a recent Texas Court of Appeals decision that surprised some observers.

  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
  • Prof. Sonja R. West, University of Georgia School of Law

Williams-Yulee v. The Florida Bar - Post-Decision SCOTUScast

SCOTUScast 5-14-15 featuring Brian Fitzpatrick and Erik Jaffe
Erik S. Jaffe, Brian T. Fitzpatrick May 14, 2015

On January 20, 2015, the Supreme Court heard oral argument in Williams-Yulee v. The Florida Bar. This case asks whether Florida’s rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 5-4 that Florida's rule does not violate the First Amendment. The judgment of the Supreme Court of Florida was affirmed. Justices Breyer, Sotomayor, and Kagan joined the Chief Justice’s opinion in full and Justice Ginsburg joined all except Part II. Justice Breyer filed a concurring opinion. Justice Ginsburg filed an opinion concurring in part and concurring in the judgment, which Justice Breyer joined as to Part II. Justice Scalia filed a dissenting opinion, which Justice Thomas joined. Justices Kennedy and Alito also filed dissenting opinions. 

To discuss the case, we have Prof. Brian T. Fitzpatrick, a Professor of Law at Vanderbilt University Law School and Erik Jaffe, who is a sole practitioner at Erik S. Jaffe, PC.