The Roberts Court's Overprotection of Free Speech and the Perfect Storm with Social Media

78 Pages Posted: 13 May 2023 Last revised: 8 Feb 2024

See all articles by Gary J. Simson

Gary J. Simson

Cornell University - Law School; Mercer University - Walter F. George School of Law

Date Written: December 15, 2023


In this Article I maintain that in recent years a broad, but unspoken, consensus has existed on the Supreme Court for deciding free speech cases with an almost insuperable presumption of unconstitutionality and that the result has been a system of freedom of expression that indefensibly and dangerously favors speech. If the Justices were simply putting a proverbial thumb on the scales in favor of free speech, that would not be particularly noteworthy. I make the much more controversial and novel claim here, however, that, across their ideological spectrum, the Justices routinely decide free speech cases in a way that greatly overvalues the harm to speakers from regulating speech or greatly undervalues the harm to society from not regulating it, or both. A fundamental change in the Court’s thinking about free speech issues is essential, and it is not the kind of change in thinking that can come about with one or two retirements on the Court.

To demonstrate the extreme nature of the Roberts Court’s free speech approach, I look closely in Parts II-IV at three cases in which the Justices were in broad agreement that a free speech claim should prevail – Snyder v. Phelps in 2011, United States v. Alvarez in 2012, and Mahanoy Area School District (MASD) v. B.L. in 2021. Snyder, Alvarez, and MASD are not the first cases anyone would name if asked to list the Roberts Court’s most important free speech decisions, but each offers a much better view of the Court’s approach at work than a high-profile case like Citizens United in which the Court divided along familiar ideological lines. The real story here is the striking breadth of agreement across the Court’s usual ideological divide and the exceptionally protective approach to free speech on which the Justices are so broadly agreed. In essence, all the Justices predicate their thinking in free speech cases on a baseline of protection that is perilously and unjustifiably high.

After discussing Snyder, Alvarez, and MASD, I turn to speech on social media to illustrate the urgency of the Court’s revising its free speech approach. In Part V, I underline the gravity of the dangers posed by speech on social media by focusing on two kinds of uses to which social media has all too often, and increasingly, been put: expressing and cultivating hatred and prejudice toward racial and other minorities; and deliberately misleading and confusing the public about matters of important public policy. I argue in Part VI that such dangers very likely must go unregulated unless and until the Court adopts a much more balanced free speech approach. Social media is a propagandist’s dream come true. Speakers have always wanted to get others to embrace and act upon their ideas. By enabling speakers to flood the marketplace, and bombard people repeatedly, with their ideas, social media gives speakers enormous power to make that happen. Properly understood, however, the First Amendment should not stop the government from standing in their way when vital state interests are at stake.

Keywords: Roberts Court, free speech, First Amendment, social media, Supreme Court, freedom of speech, hate speech, misinformation, lies, Snyder, Alvarez, Mahanoy School District, marketplace of ideas, Cohen v. California, Tinker, balancing

Suggested Citation

Simson, Gary J. and Simson, Gary J., The Roberts Court's Overprotection of Free Speech and the Perfect Storm with Social Media (December 15, 2023). 90 Tennessee Law Review 941-1018 (2023) (article in special First Amendment issue) , Available at SSRN:

Gary J. Simson (Contact Author)

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Avenue
Macon, GA 31207
United States
478-301-2628 (Phone)

Cornell University - Law School

Myron Taylor Hall
Cornell University
Ithaca, NY 14853
United States

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