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Last year David Hudson and I published a detailed analysis of the Roberts Court's First Amendment free expression jurisprudence: "," Brooklyn Law Review. Those findings are updated in the data set out below. Some of the more significant takeaways from the last term are: 

1. Chief Justice Roberts was in the majority in all of this term's First Amendment cases, which means he continued to assign the majority opinions. This was so even in a in which the First Amendment expression claim was denied and in which Roberts sided with the liberal majority (joined by Justice Kavanaugh) — a rather rare example.
2. Campaign finance cases continue to win (an unbroken record) in the Roberts Court.
3. LGBTQ free expression cases continue to come before the Court with review often granted.
4. Despite Justice Thomas' calls to review its First Amendment actual malice defamation cases, the Court continued to deny review in no fewer than three cases this term.
5. Despite the Roberts Court's enthusiasm with concerns about the Constitution's text and original meaning, when it comes to the First Amendment that zeal is largely absent, save for its . Justice Thomas is the exception, though he has found little support for such views — see e.g. Morse v. Frederick (2007) (Thomas, J. concurring).
6. When it comes to the government speech doctrine, the Court's ruling in  suggests that when a free exercise claim is raised the application of the test may be relaxed (formally or functionally) in favor of allowing religious expression. If so, this could reflect a hierarchy of values within the First Amendment itself.
7. The Court's application of the Reed content-based test has been weakened somewhat; that is, it does not apply, in the words of the  majority, when there is no "content-based purpose or justification" — "location-based and content-agnostic" rules thus do not offend the Reed anti-discrimination principle.
8. The Court's refusal in  to recognize a Bivens cause of action for a First Amendment retaliation claim.

Related: Abortion protests

• Sarah Rankin, "," Associated Press (July 5)
• Dan Schere, "," Bethesda Magazine (July 2)
• Jeremy W. Peters, "," The New York Times (June 30)

This term the Roberts Court added another five free expression cases to its previous total (58) of decided cases, bringing the overall number to 63.

Number of First Amendment free speech claims sustained: 3

Categories of cases decided, results, and votes

• Government speech (: 6-3/: 9-0)
•  (sustained: 6-3)
•  (denied: 5-1-3)
• (denied: 9-0)

Authors of majority opinions: Votes & total number of majority opinions

• Breyer () (9-0) (his fifth majority opinion)
• Sotomayor () (5-1-3) (her third majority opinion)
• Gorsuch ( (9-0) and (6-3) (his first two majority opinions)
•  (campaign finance) (6-3) (his 17th majority opinion)

Chief Justice Roberts & Justice Kavanaugh

• In , Chief Justice Roberts and Kavanaugh joined the liberals in denying a First Amendment claim, with Justices Thomas, Gorsuch, and Barrett in dissent with Justice Alito concurring in the judgment.

Lineup of dissenters

• : Sotomayor joined by Breyer & Kagan
• : Kagan joined by Breyer and Sotomayor
• : Thomas joined by Gorsuch & Barrett (Alito in part)

Justice Barrett 

• In the course of her first term on the Court, Justice Barrett authored no opinions (majority or other) in any of the Court's First Amendment free expression cases.
• Where the Court was divided in such cases, Justice Barrett voted with the conservative bloc in all of those cases (joining Thomas and Gorsuch in dissent  / joining conservative majority / and also joining conservative majority ).

Textual and historical analysis: Still absent in free expression cases

Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.

— Justice Kagan dissenting in (2022)

Despite all the Roberts Court's concern with the texts and history of the Constitution, it has paid scant attention to those matters when it comes to the First Amendment save for the Establishment Clause.

• While the Court in  turned yet again to an analysis of the "original meaning and history" of the Establishment Clause, such analysis continues to remain largely absent when it comes to the text and meaning of the speech, press, assembly, and petition clauses.
• And while in  the majority did discuss the history of sign regulations, here, too, the text and history of the speech clause was not discussed.

Campaign finance cases: Unbroken record

• The trend continues: Prior to this term, the Roberts Court had sustained the First Amendment claims in all eight campaign finance cases it heard. This term, that trend continued with the Court's ruling in .

LGBTQ First Amendment free expression cases 

• At the end of the 2019-2020 term and into the 2020-2021 term, lingered on the Court's docket. This term, however, the Court denied review, and the petition for rehearing was subsequently withdrawn.
• The Court, however, did grant review in .
• Kristen Waggoner was the counsel of record in both cases. She’s the General Counsel for Alliance Defending Freedom. Court watchers may recognize her name — Ms. Waggoner served as counsel in National Institute of Family and Life Advocates v. Becerra (2018) and successfully argued  (2018)

Defamation cases

"This case is one of many showing how The New York Times and its progeny have allowed media organizations and interest groups 'to cast false aspersions on public figures with near impunity.'"

— Justice Thomas

→ This term the Court denied review in three defamation cases:

• (Thomas, J., dissenting from denial of cert.)

Related

• Jeff Kosseff & Matthew Schafer, "," LawFare (July 5)
• (2021) (Thomas, J. & Gorsuch, J., dissenting from denial of cert.)

Topical sampling of cases in which review was denied

• (actual malice) and
• to FISC’s significant opinions
•   and
•   and
• : intrafamilial contributions re family-run corporation
• of oral communications
• RE: Former “CIA” officer

2021-2022 SCOTUS term: Free expression & related cases

Cases decided

• (Gorsuch: First Amendment claim affirmed)
• (Roberts: First Amendment claim affirmed)
• (Breyer: First Amendment claim affirmed)
• (Gorsuch: First Amendment claim denied)
• (Sotomayor: First Amendment claim denied)

Review granted

Pending petitions

First Amendment-related petitions

•  (cert. denied)
• (rejecting Bivens cause of action for First Amendment retaliation claim)

Petition withdrawn 

• (petition for rehearing)

Applications for stay orders

•  (application denied)

Review denied

• (First Amendment and qualified immunity)

Last FAN

• FAN 344: "Summer & fall picks: New & forthcoming books on free speech”