The Voracious First Amendment: Alvarez and Knox in the Context of 2012 and Beyond

Abstract

Supreme Court cases can be analyzed and understood in many different ways. Often it is helpful to examine a case on its own terms, within its own four corners, to see whether the assumptions are sound, the reasoning is solid, and the result is tenable. At other times, it is interesting to look at a case in relation to seemingly unrelated yet roughly contemporaneous cases to compare methodological similarities and seeming inconsistencies. In yet other situations, to make useful sense of a case (or a group of related cases), one must pull back the lens and ask what the cases can tell us about the larger doctrinal field - its ascendancy or its marginalization - of which they are a part.

In our essay for this Supreme Court issue, we examine two First Amendment speech cases from the 2011-2012 Term from each of these perspectives. In particular, we take up United States v. Alvarez and Knox v. Service Employees International Union. After describing and dissecting each of the two rulings and the various positions the Justices asserted in them, we compare the opinions in these cases to some of the other landmark rulings of the last few years whose reasoning seems connected to Knox and Alvarez, even though these other cases fall outside the First Amendment. We then situate these recent cases in the larger pattern of ascendancy of First Amendment doctrine and values over the last few decades; specifically, we analyze,the ways in which expressive autonomy now seems regularly to trump competing constitutional and societal values that have traditionally been given great weight - somewhat in the same way that equal protection reasoning seemed to dominate constitutional analysis and balancing in the previous generation.