Tuesday, September 12, 2017

Lata Nott: State high courts can provide greater free-speech protections

  Forty years ago in the Harvard Law Review, U.S. Supreme Court Justice William Brennan described state constitutions as “a font of individual liberty, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.” Brennan urged state high courts to provide needed protections to individual liberty, particularly as the U.S. Supreme Court began cutting back on individual freedoms.

  With regard to individual rights, the U.S. Constitution sits as a floor, not a ceiling. This means that a state high court can do as Brennan urged in the late 1970s – provide greater protection for individual liberty than the U.S. Supreme Court. What a state high court cannot do is provide less protection than the floor of liberty established by the U.S. Constitution.

  Applied to free expression, this means that a state supreme court can interpret the free-expression provision in its state constitution more expansively than the U.S. Supreme Court has interpreted the First Amendment.  

  Brennan’s colleagues recognized this reality in PruneYard Shopping Center v. Robins (1980), reasoning that the California Supreme Court could grant free-speech protection to a group of high school students who were engaged in political advocacy at a privately-owned shopping mall. The California Supreme Court reasoned that the students had a free-speech claim under the California Constitution.

  In recent years, a few other state high courts have granted greater protection to free expression under their state constitutions. In Trusz v. UBS Realty Investors, LLC (2015),  the Connecticut Supreme Court granted greater rights to free-speech to employees by rejecting the U.S. Supreme Court’s decision in Garcetti v. Ceballos (2006).

  As explained in a cornucopia of stories on the Newseum website, the Supreme Court’s decision in Garcetti has devastated many a public employee’s free-speech claim by providing no protection at all for any official, job-duty speech.  

  The Connecticut high court wrote that “the Garcetti standard does not comport with the free speech provisions of the state constitution.” Instead, in Connecticut, a public employee often retains protection for speech on “deliberately unconstitutional action, other serious wrongdoing or threats to health and safety.”

  Another example comes from Brennan’s home state of New Jersey. The New Jersey high court reasoned in Mazdabrook Commons Homeowners’ Association v. Khan (2012) that the free-expression provision in the New Jersey Constitution can apply to homeowner association policies that restrict political speech. The court concluded that the association’s sign policy, which prevented a homeowner from posting a political sign from his window, violated “the State Constitution’s guarantee of free speech.”

  This differs from the U.S. Supreme Court’s application of the state action doctrine in First Amendment cases. Under the state action doctrine, the First Amendment limits only governmental actors, not private entities.

  These decisions from the Connecticut and New Jersey Supreme Courts are encouraging to those who care to see what Justice Brennan described as “the full realization of our liberties.” Hopefully, more state high courts will at least consider seriously whether the free-expression provisions in their state constitutions can provide greater protection for expression.  

  About the author: Lata Nott is executive director of the Newseum Institute’s First Amendment Center.

  This article was published by the Newseum Institute.

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