First Amendment Supreme Court Cases: Seven Key 2022-2023 Rulings

U.S. Supreme Court with flag flying out front

From cases involving Twitter and Google to cases involving a website creator and a United States Postal Service employee, these are the outcomes of seven First Amendment Supreme Court cases from the 2022-2023 term.

Discover 7 prominent 2022-2023 First Amendment Supreme Court cases

Social media platforms didn’t aid terrorism

The next time you log in to your social media accounts, they’ll probably look pretty much the same. That may not seem like news, but it wasn’t always assured. Two similar First Amendment Supreme Court cases that were argued this term – Gonzalez v. Google LLC and Twitter Inc. v. Taamneh – could have resulted in drastic changes to the algorithms that social media platforms use to prioritize the content you’re seeing.

In the end, a unanimous ruling in the Twitter case effectively ended the Google case and sidestepped both the First Amendment and Section 230 of the Communications Decency Act.

We never reached these key issues because the court said unanimously that neither platform aided and abetted international terrorism, which was the claim made by the families of two people who were killed by terrorist attacks.

Justice Clarence Thomas said that Twitter (and Google) are akin to innocent bystanders – who, under the law, are not held liable just because they do not object to the wrongful acts they see – because their content suggestion algorithms treat terrorist content the same as all other content: passively and indifferently.

RELATED: The complete guide to free speech on social media

So, the court did not need to decide whether Section 230 could defend Twitter or Google in its own case.

These dual wins mean the platforms can maintain their current algorithms and also their current (and controversial) content moderation efforts. Platforms still won’t be liable for decisions as to what content to retain or reject.

Parody dog toy doesn’t have First Amendment protection because of potential brand confusion

This First Amendment Supreme Court case gave a clear win to Jack Daniel’s and offered a bright line between trademark law and the First Amendment.

The court ruled in Jack Daniel's Properties v. VIP Products that the only question here is whether there is a likelihood of confusion among consumers that the Bad Spaniels dog toy made by VIP Products could be made by Jack Daniel’s, based on its similarity to the brand’s actual products. This concept of “source identification” (who makes the product you want to buy) lies at the heart of trademark law and leaves no room for First Amendment protection in this case. First Amendment protection for art and expression gives way to consumer protection when consumers could be tricked or mistaken about a product’s origin.

On the other hand, Justice Elena Kagan cited artistic uses of a trademark where the First Amendment might apply, including the song “Barbie Girl,” which parodied the popular Mattel character, and a mention of Louis Vuitton in the movie “The Hangover II.” In these instances, there is less likelihood that consumers might be tricked into believing there is a connection between the trademark holder and artistic user, so courts apply a standard called the Rogers test to determine the extent to which the First Amendment protects the artist.

The case takes a bite out of First Amendment protections but only a small nip. Kagan noted the narrow scope of her decision, which applies to only the intersection of trademarks and the First Amendment. It does not affect First Amendment protections for parody generally, as some had feared.

Lower courts will review the case again to determine whether the potential confusion is enough that the Bad Spaniels toy infringes Jack Daniel’s trademarks.

Law against “encouraging or inducing” illegal immigration does not necessarily violate First Amendment free speech rights 

Helaman Hansen admitted to defrauding more than 450 immigrants out of thousands of dollars each in violation of a federal law that prohibits “encouraging or inducing” an immigrant to enter or remain in the country unlawfully. The court has ruled in United States v. Hansen that the law under which he was convicted does not unconstitutionally violate First Amendment free speech rights.

The First Amendment exists to ensure people understand when they are and are not breaking the law. It demands that laws be written with clarity and precision so people can speak freely without constantly second-guessing and self-censoring to avoid prosecution based on what they say. Declaring a law “facially” unconstitutional is a far-reaching judicial act. The justices only go this route when a law is so overbroad that it presents real danger of restricting a substantial amount of protected speech.

In a 7-2 opinion, Justice Amy Coney Barrett demonstrated this judicial caution against declaring laws facially unconstitutional. She determined that Congress intended – and courts have agreed in application – that the law under which Hansen was charged limits only actions that “solicit” and “facilitate.” This narrows the scope of the statute’s application to people who intend to violate the law (as Helaman Hansen did here). The ruling:

  • Allows Hansen’s conviction to be reconsidered (and likely reinstated) under the law as it is.
  • Saves the law by employing appropriately (and approved) narrow legal standards that don’t violate the First Amendment.
  • Still allows defendants to challenge the law as applied to them. For instance, those who engage in acts of political civil disobedience, charitable support for undocumented immigrants, and even journalists who write about these individuals may argue that the narrower interpretation doesn’t criminalize those actions – perhaps the biggest reason the rest of us should care about this case.

Words can be punishable as a true threat if you didn’t intend a threat but knew the recipient was likely to take your words as a threat

“True threats” are statements directed at someone that make them fear for their safety or security. It’s a category of speech that’s not protected by the First Amendment. Making true threats can be a crime, usually under statutes criminalizing stalking, harassment or assault. But when is a statement a true threat?

That’s the question posed to the court in Counterman v. Colorado.

Billy Counterman was convicted of stalking after sending more than a thousand online messages – many aggressive and intimidating – to musician Coles Whalen over two years. Whalen was terrified and had panic attacks. She eventually quit performing live.

Two Colorado courts held Counterman’s messages were true threats because a reasonable person would have feared for their safety, as Whalen did.

Counterman argued that he never intended to instill fear. His attorneys said the speaker’s intent should be the measure of a true threat.

In a 7-2 decision, Justice Elena Kagan agreed that the “reasonable person” standard is not sufficiently protective of free speech. Someone might be punished for words meant as a joke or intended as hyperbole. People could self-censor for fear that their words will be taken out of context or otherwise misconstrued. Such a real and pervasive “chilling effect” on speech can be enough to violate the First Amendment.

The court didn’t go quite as far as Counterman wanted, though. Kagan said statements can be considered true threats if they are made recklessly. Falling below “purposeful” and “knowing” in the hierarchy of subjective standards, recklessness involves a speaker consciously disregarding a substantial risk of harm that their speech might cause to their target.

The court said this strikes the best balance between the need to prosecute true threats and the need to protect against inadvertent prosecution and the chilling of protected speech. It mirrors the “actual malice” standard from New York Times Co. v. Sullivan for defamation cases brought by public officials or public figures (which multiple justices mentioned, both positively and negatively, in their opinions).

Counterman’s case goes back to Colorado courts to apply the new recklessness standard to his conduct.

Private employers must grant employees’ religious accommodation requests unless they create a substantial burden

The court ruled unanimously in favor of Gerald Groff, a United States Postal Service employee who resigned in 2019 because he was required to work on Sundays. Groff, an evangelical Christian, believes that Sundays are for worship and rest. But he was required to deliver Amazon packages due to a contract between that company and the Postal Service. The First Amendment prevents the government from discriminating on the basis of religion but only pertains to state actions, not private employers. Groff therefore sued under Title VII of the 1964 Civil Rights Act, which applies to all employers, private or public, asserting that he had been unlawfully discriminated against because of his deeply held religious beliefs.

Justice Samuel Alito, writing for the unified court, clarified an earlier Supreme Court decision from 1977 (Trans World Airlines v. Hardison) that laid out a confusing and seemingly contradictory standard for employers when considering their employees’ religious accommodations requests. That decision had seemingly contradictory language holding that employers could deny accommodating such requests if it would cause an “undue hardship” or trivial cost to the business. The justices took issue with those two standards arguing that employers and lower courts had focused too heavily on the minimal cost language.

Prior to the court’s ruling in Groff v. DeJoy, employers could deny accommodation requests by arguing that a trivial cost was an “undue hardship” on their business. Now, they must demonstrate honoring such requests would substantially burden their ability to conduct business. While Alito refrained from defining exactly what “substantial” means in this context, he stressed that current guidelines from the U.S. Equal Employment Opportunity Commission are “sensible” and are unlikely to be affected by the court’s decision. According to the EEOC, examples of substantial burdens include diminished efficiency, threats to workplace safety, and violations of other employees’ rights or benefits.

The court’s ruling will make it more difficult to dismiss employee requests for religious accommodation.

Business owners cannot be compelled to create for customers messages that violate the owners’ beliefs

The Supreme Court held that the First Amendment protects a Colorado website designer who would refuse to create websites celebrating same-sex marriages.

Justice Neil Gorsuch found, as I expected, that Lorie Smith, the owner of 303 Creative LLC, would be engaged in expression to communicate a message to the public when creating websites for others. Forcing her to create messages contrary to her religious beliefs about marriage violates the First Amendment’s protection against compelled speech. Public accommodation laws like Colorado’s, which would have required Smith to create such sites, serve an important purpose. The court did not issue a blanket license to discriminate or strike down the Colorado Anti-Discrimination Act or public accommodation laws generally. It said that without this First Amendment’s protection, the government could “coopt an individual’s voice for its own purposes.”

In 303 Creative LLC v. Elenis, the court said the burden on Smith’s free speech rights was not “incidental” as Colorado had claimed. Her beliefs are not shared by all, but they are sincere. The First Amendment has always protected unpopular speech. In this regard, Smith is entitled to protection of her right not to speak in opposition to her religious beliefs in the same way that the court said the Barnette children were entitled not to stand for the pledge of allegiance during the height of World War II.

The court said that 303 Creative is not violating the Colorado Anti-Discrimination Act and may create wedding websites only for weddings between a man and a woman if Smith so chooses without fear of being punished under that law.

Kevin Goldberg is First Amendment specialist for the Freedom Forum. He can be reached at [email protected].

David Callaway is religious freedom specialist for the Freedom Forum. He can be reached at [email protected].

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