Votes by Individual Justices in First Amendment Cases

After posting recently on the Fourth and Sixth Amendments, I’m happy to respond to a request for information on the votes cast by individual justices in First Amendment cases.  The findings below are derived from a set of eleven cases turned up in a Lexis “First Amendment” search for the period September 1, 2004, through March 2018.^[1]  They show not only how often the justices approved First Amendment arguments, but, more important, what types of claims seemed compelling to each justice individually.  I have divided the eleven cases into categories—“political-ideological,” “religious organization,” and “non-ideological”—which helps in identifying the justices’ tendencies.  A reference list of the eleven cases appears at the end.

The following table displays the frequency with which individual justices favored First Amendment defenses.  I should note that when a separate opinion ignored a First Amendment issue discussed in the majority opinion, I did not count the separate opinion.  In similar fashion, if the majority opinion decided the case on non-First Amendment grounds, but a separate opinion assessed a First Amendment argument, I counted only the separate opinion.^[2]

(click on tables to enlarge them)Political/ideological cases
One notable point in the table is that “conservative” justices have been every bit as inclined as “liberals” to accept First Amendment defenses, reflecting the fact that these cases rarely involve allegations of criminal activity.  Indeed, six of the eleven cases before us concern non-criminal disputes in which I would characterize the underlying conduct at issue as political or ideological.  Among the justices still on the court today who addressed First Amendment arguments in these six cases, liberals (Justices Abrahamson and A.W. Bradley) voted one way, and conservatives (Justices Roggensack, Ziegler, and Gableman) voted the other.^[3]  Every single time. 

For instance, in the John Doe decision of 2015, and in the Wisconsin Judicial Commission v. Gableman standoff of 2010, the conservatives embraced First Amendment defenses, contending that the First Amendment (1) protected the political activities of conservative groups under investigation by the special prosecutor and (2) allowed the controversial campaign ads run by future-Justice Gableman against Justice Butler.  On the other hand, Justices Abrahamson and A.W. Bradley (1) maintained in a defamation suit that the First Amendment protected a gay-rights organization which had published aggressive criticism of an anti-gay pastor (Storms v. Action Wisconsin) and (2) agreed with a group of teachers that Governor Scott Walker’s Act 10 violated their First Amendment right to freedom of association (Madison Teachers v. Walker).

Religious organization cases
In addition to the six “political/ideological” cases, there are three that I’ve placed in a “religious organization” category.  Two of these pertain to the First Amendment right of a religious organization to fire an employee. 

In Coulee Catholic Schools v. LIRC, a first-grade lay school teacher, who was fired from her position at a Catholic school, alleged that she had been dismissed because of her age, in violation of the Wisconsin Fair Employment Act.  The school responded that her position was “ministerial” and therefore the First Amendment barred her suit.  After a lengthy explanation that a large range of duties, including teaching, could earmark a person as a “ministerial employee,” Justice Gableman’s majority opinion concluded that the Free Exercise Clause of the First Amendment and the Freedom of Conscience Clauses of the Wisconsin Constitution “preclude employment discrimination claims under §§ 111.31 to 111.395 of the Wisconsin Fair Employment Act for employees whose positions are important and closely linked to the religious mission of a religious organization.”

A dissent by Justice Crooks, joined by Justices Abrahamson and A.W. Bradley, objected to the majority opinion’s understanding of the term “ministerial employee” and to its assertion that the First Amendment barred the teacher’s claim.

In DeBruin v. St. Patrick Congregation, a woman fired by St. Patrick Church filed a suit alleging that her employment had been terminated “without good and sufficient cause as that term is defined by the Contract of Employment …”  Observing that DeBruin, the Director of Faith Formation, was clearly a “ministerial employee,” Justice Roggensack’s lead opinion stated that “[p]ermitting the continuation of this type of breach of contract or promissory estoppel claim by a ministerial employee, who seeks payment based on an allegedly improper reason for being terminated from her employment, would impermissibly interfere in a religious institution’s choice of ministerial employees, in violation of the First Amendment of the United States Constitution.”

Justices Ziegler and Gableman joined this lead opinion.  Justices Crooks and Prosser agreed that the circuit court’s judgment, which had dismissed the complaint, should be affirmed, but they based their stance on the specific terms of the contract.  In a dissent, Justice A.W. Bradley, joined by Justice Abrahamson, objected: “I conclude that DeBruin’s common law contract claims do not implicate free exercise concerns and therefore do not require dismissal for failure to state a claim.  Further, it would be premature to determine whether the claims would foster an excessive state entanglement with religion.”

In the third case,^[4] which involved alleged sexual abuse by a priest, the majority did not address First Amendment arguments and resolved the matter on narrower grounds.  Justice A.W. Bradley’s concurrence (joined not only by Justice Abrahamson but also by Justice Roggensack) contended that “these allegations emanating from alleged child sexual assault pose no threat of excessive entanglement between government and religion.  The Establishment Clause of the First Amendment is not a bar here because secular, not religious, standards are implicated.”^[5]  This is the only one of the eleven cases in which Justices Roggensack, Ziegler, or Gableman joined a separate opinion by Justices Abrahamson or A.W. Bradley (neither of whom joined any separate opinion by the three conservatives). 

Non-ideological cases.
This category contains two additional cases (both criminal) with First Amendment arguments—neither of which produced a surprising alignment of justices.  In State v. Pinno certain members of the public were excluded from voir dire in order to create room for a large jury panel.^[6]  Although Pinno did not object at the time, she argued subsequently that being deprived of a public trial was a structural error for which correction did not require her to make a timely objection.  The majority (Justices Prosser, Roggensack, Ziegler, and Gableman) decided the case on Sixth Amendment grounds—ruling that Pinno’s right to a public trial had not been infringed—but the three dissenters (Justices Abrahamson, Bradley, and Crooks) maintained that the public’s First Amendment right to attend trials had been violated.

In State v. Baron the justices agreed unanimously that the First Amendment did not protect an employee who accessed his supervisor’s email account, collected emails which revealed that the supervisor was having an extramarital affair, and sent these emails to various people in the community.^[7]  The court may well have rejected the employee’s freedom-of-speech defense under any circumstances, but his supervisor’s suicide immediately following the email disclosure doubtless won the employee no sympathy from the justices.

Gray-area cases
My selection process rejected a couple of “gray-area” cases, one of which—Board of Regents – UW System v. Decker—was a particularly close call.  The justices concluded that a harassment injunction against a former UW-SP student (who had hounded an administrator) was justified,^[8] but decided that the injunction was overbroad and should be sent back to the lower court to be refined.  The decision did not spend much time discussing First Amendment assertions, and the concurrences by Justices Abrahamson and Prosser did not do so at all.  However, Justice Gableman included the following passage late in his majority opinion:  

¶45 We have recognized that an individual’s First Amendment speech rights are “not absolute.” State v. Givens, 28 Wis. 2d 109, 118, 135 N.W.2d 780 (1965). “The right to demonstrate (even peaceably) in pursuance of our constitutional rights of freedom of speech, freedom of assembly and freedom to petition for redress of grievances might be appropriate in one place and not in another.” Id. at 121. The United States Supreme Court has explained that a student may express his opinions,

If he does so … without colliding with the rights of others. … But conduct by the student, in class or out of it, which for any reason … materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969).

[1] Included are only decisions and separate opinions that actually addressed First Amendment arguments (as opposed to mentioning the First Amendment in passing).  Rulings on Office of Lawyer Regulation matters are omitted.

[2] I did not count the votes of Justices Roggensack, Ziegler, and Gableman when they decided that review had been improvidently granted in Wisconsin Prosperity Network v. Myse, though they would almost certainly have supported the argument advanced by conservative organizations that the First Amendment protected from various disclosure requirements the people who contributed anonymously to certain issue-advocacy ads. 

[3] None of these cases arose while Justices R.G. Bradley and Kelly have been on the bench.

[4] John Doe 67C v. Archdiocese of Milwaukee.

[5] Justice Roggensack joined Part I of Justice Bradley’s concurrence, which is the portion containing the First Amendment discussion.

[6] Two cases—State v. Pinno and State v. Seton—that presented the same question for review were combined in this decision.

[7] Justice Abrahamson did not participate in this case.

[8] The court found that Wis. Stat. § 813.125 can protect institutions as well as individuals and that the student’s behavior amounted to harassment without a legitimate purpose.