The ‘Weaponized’ First Amendment at the Marble Palace and the Firing Line: Reaction and Progressive Advocacy Before the Roberts Court and Lower Federal Courts

It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction. This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come from the coalition of right-wing interests (businesses, right-wing Christian organizations and individuals, and mobilizations against abortion and LGBTQ rights) as from progressive proponents of change. Right-wing and allied litigants prevailed more than twice as often as progressive allies. This Article considers whether the right-wing “weaponization” of the First Amendment looks the same at the firing line. Examining a sample of 733 First Amendment cases decided in 2020 and 2021 in the lower federal courts reveals a different story. Viewed from the firing line, First Amendment doctrine is not monopolized by the forces of reaction. It continues to open doors for advocates of progressive social change. In the lower court sample, successful litigants were far more likely to come from the ranks of progressives; progressive litigants were almost twice as likely to succeed as their right-wing counterparts. This Article concludes by exploring reasons that might explain this divergence: the possibility that lower courts simply lag Supreme Court case law, the unremarked Roberts Court reaffirmation of earlier doctrines which can be invoked by progressive litigants, the impact of the central role “content neutrality” plays under the Roberts Court, the differences between Supreme Court adjudication and the dynamics of litigation in lower courts, and the emerging protections for access to and dissemination of information