Communication Currents

On June 28, 2010, the United States Supreme Court delivered its decision in the case of Christian Legal Society (CLS) v. Martinez. The case concerned the constitutionality of the “Registered Student Organization” (RSO) program of Hastings College of Law. In order for a student group to become an RSO, they must comply with a few regulations including the school’s Nondiscrimination Policy. Hastings interpreted the Nondiscrimination Policy to mandate that all RSOs must allow any student in good standing to participate, become a member, or seek leadership positions, regardless of the student’s status or beliefs. The Christian Legal Society (CLS) required the CLS members and officers to sign a statement that included the belief that sexual activity should not occur outside of marriage between a man and a woman. Hastings rejected CLS’s application for RSO status because they believe the Statement of Faith violated the school’s Nondiscrimination Policy. CLS filed suit against Leo Martinez (Dean of Hastings Law School) alleging that Hastings’ refusal to grant the group RSO status violated their First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion. In a narrow 5-4 decision, the Supreme Court ruled in favor of Martinez and the Hastings College of Law.

This decision is important because it marks an atypical 5-4 decision. Often times, the Supreme Court has reached 5-4 decisions with the voting block of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. However, CLS v. Martinez marked an occasion where Justice Kennedy sided with the other four justices. In studying the voting records of the Roberts Court, founding Dean and University of California Irvine Law Professor Erwin Cherminsky concluded that, “Justices Roberts, Scalia, Thomas, and Alito were on one side. Justices Stevens, Ginsburg, Souter, and Breyer were on the other.” He continued, “Anthony Kennedy sides with the conservatives more than twice as often as with the more liberal Justices. In fact, in each of the major First Amendment cases that was decided 5-4, Anthony Kennedy has sided with the conservatives, not the liberals.”

The terms “liberal” and “conservative” are problematic when it comes to First Amendment law. For example, in the recent Brown v. Entertainment Merchants Association case, Justice Breyer and Justice Thomas were on the same side of the decision (for different reasons) and Justice Ginsburg joined Justice Scalia in the majority opinion. Voting blocks, therefore, may be a more accurate to describe the Court. In 5-4 decisions on the First Amendment, Justice Kennedy typically sides with Chief Justice Roberts and Justices Scalia, Thomas, and Alito. There is good reason to believe that Justices Sotomayor and Kagan will replace their predecessors in the bloc of four in the close 5-4 decisions. Thus, Justice Kennedy’s vote is pivotal in close cases.

Kenneth Starr, legal counsel in Morse v. Frederick, noted, “As Justice Kennedy went, so went the Court. His centrist position in Bong Hits [i.e., Morse v. Frederick (2007)], in the face of a narrower, minimalist approach that resolves the case quickly and efficiently, confirms . . . that the immediate future of American constitutional law will be in the hands of a single justice. This is, now, the Kennedy Court.” Legal scholar Lisa Parshall wrote that, “With O’Connor’s absence and the increased recognition of Kennedy’s centrality and pivotal vote, it has become imperative that the framing of any constitutional argument presented to the Court takes Kennedy’s views and preferences into consideration.” Understanding Justice Kennedy, therefore, is important to understanding the dynamics of the Supreme Court.

Because CLS v. Martinez marked an instance where Justice Kennedy ruled on the other side of Chief Justice Roberts and Justices Scalia, Thomas, and Alito, his ruling marks a unique place for beginning to understand the circumstances that Justice Kennedy may depart from his common voting bloc in First Amendment cases. In Justice Kennedy’s First Amendment decisions, he has maintained an ethical framework implicit in his legal orientation. His body of work on the First Amendment suggests that he has maintained a skepticism of local authority while being committed to protecting his belief in the First Amendment as the protector of freedoms that are essential to a robust and unfettered democratic process at the heart of intellectual life in America. While this statement is somewhat broad in its language, it is given context with his specific decisions in First Amendment cases.

In Rosenberger v. University of Virginia, he articulated a position that the suppression of free speech and creative inquiry at colleges and universities stifles his belief in the marketplace of ideas, which by extension is necessary for invention and the discovery of truth (both presumptively good). In Morse v. Frederick, Justice Kennedy ruled in favor of school administrators’ rights to prevent students from promoting illegal drug use. At the same time, he expressed his distrust of local authority by sending the message to school administrators that they could not censor any speech with the justification that it broadly interferes with a school’s educational mission. In Board of Education of Kiryas Joel Village School District v. Grumet, he ruled that the First Amendment requires schools to encourage engagement between people rather than against people, and also requires the encouragement of an environment where people from different religions and beliefs may encounter each other. 

These decisions lay the framework for understanding Justice Kennedy’s departure from Chief Justice Roberts and Justices Scalia, Thomas, and Alito in CLS v. Martinez. Justice Kennedy differed in at least four important ways. First, he believed that extra-curricular activities were as important as curricular activities in educational settings. Second, he believed that the marketplace of ideas in the educational setting is individually based rather than group based—the engagement of individual people with ideas is more important than groups representing ideas in the context of other groups. Third, Justice Kennedy believed that the purpose of the private (religious) setting is different from the purpose of public academic institutional settings. Justice Kennedy perceived the public academic institutional setting to be a place of “creative power” that is only made possible by students who are encouraged to encounter one another on a regular basis. Fourth, Justice Kennedy maintains a stronger commitment to the marketplace of ideas in specifically educational institutions—outside the educational context, Justice Kennedy sides with his usual voting bloc on the right of assembly.

While the Court is administratively the Roberts Court, ideologically the Court may be considered the Kennedy Court. Justice Kennedy is the most important justice on the Court. As such, my recent study of his decisions on the First Amendment are a critical beginning for understanding the Court’s current collective mindset on issues pertaining to the freedom to communicate. Justice Kennedy may very well be the deciding factor in future cases that are likely to reach the Supreme Court. Future decisions may include whether the police have the right to shut down cell phone service of protestors, whether video game designers may use the likeness of college athletes in their video games, whether regulations may be narrowly tailored to meet a compelling government interest in preventing protests at military funerals, as well as a host of other questions. Regardless of the First Amendment case, Justice Kennedy may decide the future course of First Amendment law in America.