This column expresses the views of David L. Hudson Jr., First Amendment Fellow of the Freedom Forum.
Justice Ruth Bader Ginsburg (1933–2020), the second woman to ever serve on the U.S. Supreme Court, is best known for her pioneering advocacy against gender discrimination. Much like Thurgood Marshall, Ginsburg was a seasoned Supreme Court advocate before she ever began her career on the federal bench. In fact, her frequent success in arguing gender discrimination cases before the Supreme Court earned her the moniker “the Thurgood Marshall of gender equality.”
But Justice Ginsburg also had an impact on several areas of First Amendment jurisprudence during her 27 years on the U.S. Supreme from 1993 until her death in 2020. Her First Amendment jurisprudence is most notable for three areas: (1) the Establishment Clause; (2) commercial speech; and (3) the intersection between the First Amendment and copyright law.
Ginsburg’s voting record in Establishment Clause cases shows a deep commitment to the principle of church-state separation. For example, she voted with the majority in Santa Fe Independent School District v. Doe (2000), when the court ruled 6-3 that a Texas high school district violated the Establishment Clause by announcing prayers over the loudspeaker at football games. She also voted with the majority in the court’s 5-4 decision in McCreary County v. American Civil Liberties Union of Kentucky (2005), when the court ruled that Ten Commandment displays in several Kentucky county courthouses violated the clause.
Her commitment may be shown most forcefully by her dissenting opinion last year in The American Legion v. American Humanist Association (2019). The case concerned the constitutionality of a 40-foot tall cross on display in Bladensburg, Md., to honor World War I veterans of Prince George’s County.
The court ruled 7-2 that the cross did not violate the Establishment Clause, noting that the Christian symbol represented a “symbolic resting place” for those who perished and “a historical landmark” for others.
However, Ginsburg — joined only by Justice Sonia Sotomayor — saw the display as a pristine example of the government favoring Christianity over other religions. “By maintaining the Peace Cross on a public highway, the commission elevates Christianity over other faiths, and religion over nonreligion,” she wrote. She added that “[t]he cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity.”
Ginsburg’s First Amendment jurisprudence also is marked by a generally strong commitment to the protection of commercial speech or advertising. In 1994 — only one year after her Supreme Court confirmation — Ginsburg wrote the court’s decision in Ibanez v. Florida Department of Business and Professional Regulation. Silvia Safille Ibanez, an attorney and public accountant, had received a reprimand from the Florida Board of Accountancy for truthfully stating in a Yellow Pages ad that she was both a certified public accountant and a certified financial planner.
The Florida Board of Accountancy objected to Ibanez’s truthful advertising that she was a certified financial planner, because a private organization had approved that certification, not the government. The board claimed that such an advertisement could be misleading to the public.
However, Ginsburg noted that Ibanez had no intent to deceive and was merely disclosing, rather than concealing, information to the public. Ginsburg also noted that the board failed to show any evidence that any member of the public had been misled by Ibanez’s adds.
She consistently voted with her colleagues in cases that held the government to a strict standard when attempting to regulate truthful, non-misleading advertising — such the alcohol advertising decision 44 Liquormart, Inc. v. Rhode Island (1996) and the tobacco decision Lorillard Tobacco Co. v. Reilly (2001). She also joined the four dissenters in Florida Bar v. Went For It, Inc. (1995), when the court narrowly upheld a 30-day ban on attorney solicitation letters. A notable exception to her commercial speech protection was her vote in Sorrell v. IMS Health, Inc. (2011).
Copyright and the First Amendment
During her tenure on the court, Ginsburg wrote the court’s two major decisions examining the intersection between copyright law and the First Amendment — Eldred v. Ashcroft (2003) and Golan v. Holder (2012).
In Eldred, she wrote for a seven-member majority in rejecting a First Amendment challenge to the Copyright Term Extension Act of 1998 that extended the terms of copyright protection by 20 years. Ginsburg did not see the law as an incursion into free-speech principles. “Copyright law contains built-in First Amendment accommodations,” she wrote, noting the fair use doctrine and the idea/expression dichotomy.
Similarly, Ginsburg wrote the court’s majority opinion in Golan, rejecting a First Amendment challenge to a U.S. copyright law that extended copyright protection to some foreign works that had previously been in the public domain. Ginsburg viewed the law as an attempt for the United States to join international copyright law protections rather than a denial of viewpoint or a violation of other generally applicable First Amendment principles. Once again, she viewed copyright law’s built-in First Amendment accommodations as sufficient.
Justice Ruth Bader Ginsburg was small in stature, but a giant in American jurisprudence and — in later years — popular culture. Her seminal accomplishments in making the world a better place by advocating for gender equality should not cause us to lose sight of her many other contributions, including those to the First Amendment.
David Hudson Jr. is a Freedom Forum Fellow for the First Amendment and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment”(Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded”(ABC-CLIO, 2017).