SCOTUS Justices Work Hard to Keep Hate Speech Free--But Repress Speech Exposing Judicial Misconduct
The last piece on Black-Collar Crime began by explaining how U.S. Supreme Court (SCOTUS) justices use their positions and opinions to teach how to properly practice hate speech (and even encourage it). That piece focused on a SCOTUS opinion from 2011 that was written or joined by eight justices, including four current justices. This piece addresses a SCOTUS sequel by all current justices. It is a sequel in that it used much of, and further reinforced, the same language used in 2011.
On June 30, 2023, SCOTUS justices published their opinions in 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023). That date and those opinions have for this author (and for Americans, generally) particular significance, including because on June 5 and October 2, 2023 every justice on SCOTUS directly and deliberately retaliated against this author for speech that, on June 30, they all insisted was extremely highly protected.
Before June 5, 2023, this author was an officer of the U.S. Supreme Court, and (as conscientiously as he had previously as a soldier), he worked diligently to fulfill his oath as an officer of a federal court to support the U.S. Constitution. To oppose outrageous abuses of power by government employees (efforts to attack and undermine our Constitution), this author filed copious briefing, including amicus briefs in multiple cases that SCOTUS justices were considering. Precisely because he did so, every SCOTUS justice decided to disbar him. On October 2, every SCOTUS justice refused to reverse their June 5 order.
The SCOTUS justices issued both orders without saying one word to even try to justify disbarring this attorney. But they issued both orders to retaliate against this attorney for his written statements in court filings exposing and opposing the lies and crimes of judges. That is one type of speech that SCOTUS justices unanimously (but surreptitiously) agree definitely should not be protected or encouraged—no matter what the Constitution and copious SCOTUS precedent say to the contrary. Their own opinions in Elenis showed exactly what some such precedent said (and the Constitution meant) to the contrary.
In Elenis, the majority opinion was delivered by Justice Gorsuch joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh and Barrett. A dissenting opinion was filed by Justice Sotomayor joined by Justices Kagan and Jackson. The dissenting opinion in no way diminished the force of anything quoted in this piece from the majority opinion. In fact, the dissenting opinion even reinforced the majority opinion, including by emphasizing how it protected, specifically, the speech of attorneys.1
On June 5 and October 2, 2023, “this Court” would (and did) “do something truly novel by allowing” employees of state and federal “government to coerce an individual to speak contrary to” his “beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.” As “the Tenth Circuit recognized” any “coercive elimination of dissenting ideas about” any public issue, any public institution or any public official cannot be the “very purpose” of any government employee’s action against anyone. “If anything is truly dispiriting here, it is [multiple SCOTUS justices’] failure to take seriously [SCOTUS’s] enduring commitment to protecting the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.”
“[T]he First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply misguided” and “likely to cause anguish or [even] incalculable grief.” Individuals’ “choice of what to say (and not say) might [be] unpopular, but they [have] a First Amendment right to present their message undiluted by views they [do] not share.” “[T]he First Amendment’s protections” clearly do not “belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive.”
“The framers” (of the First Amendment) “designed the Free Speech Clause of the First Amendment to protect the freedom to think as [we] will and to speak as [we] think.” “They did so because they saw the freedom of speech both as an end and as a means.” “An end because the freedom to think and speak is among our inalienable human rights.” “A means because the freedom of thought and speech is indispensable to the discovery and spread of political truth.” “By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation.” “For all these reasons,” it is a “fixed star in our constitutional constellation” that no “government” employee whatsoever may unconstitutionally “interfere with an uninhibited marketplace of ideas” about any public issue, any public institution or any public official.
“All manner of speech—from pictures, films, paintings, drawings, and engravings, to oral utterance and the printed word—qualify for the First Amendment’s protections,” and that “no less” holds “true when it comes to speech” that is “conveyed over the Internet” or conveyed by lawyers or litigants in court filings. “An individual” clearly “does not forfeit constitutional protection simply by combining multifarious voices in a single communication.”
Despite nearly a hundred years of SCOTUS opinions emphasizing and re-emphasizing the foregoing about what our Constitution established as the limits of power of all public servants (including judges), the “dictates” of government employees far too often have “invade[d] the sphere of intellect and spirit which it is the [very] purpose of the First Amendment” to “reserve from all official control.” “All that” official misconduct “offends the First Amendment just the same.”
Whenever a lawyer “must either speak as” a judge “demands or face sanctions for expressing” his “own beliefs, sanctions that may include compulsory participation in remedial . . . training, filing periodic compliance reports as officials deem necessary, and paying monetary fines,” that is “more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.” “No government” employee may “affect a speaker’s message by forcing” him “to accommodate other views;” “no government may alter the expressive content of” a lawyer’s “message;” and “no government may interfere with” his “desired message.”
No “creative professionals” may “be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.” “As our precedents recognize, the First Amendment tolerates none of that.” SCOTUS even has emphasized that government employees “could not use” even generally-legitimate laws “to deny speakers the right to choose the content of [their] own message[s].”
The three dissenting justices in Elenis reinforced the foregoing with the following. Judges clearly may “not aim at the suppression of speech” and may “not distinguish between prohibited and permitted activity on the basis of viewpoint.” It is emphatically unconstitutional for any judge to have “applied the law for the purpose of hampering” any lawyer’s or litigant’s “ability to express” his own “views.” Practicing “law” necessarily consists of providing “services (legal advocacy)” that “were expressive; indeed, they consisted of speech.”
Lawyers using court filings to protest illegal, unconstitutional or criminal judicial misconduct is “indisputably expressive. Indeed, it was political expression, which lies at the heart of the First Amendment.” Judges have no power to “inhibit” any lawyer’s “ability to advocate for certain ideas and beliefs” about whether judicial conduct is constitutional or criminal. Such “discrimination” is “[i]nvidious” and “has never been accorded affirmative constitutional protections.”
Quotations have been cleaned up, e.g., to omit internal quotation marks or brackets.