’04 docket includes free-speech cases

Wednesday, September 29, 2004

WASHINGTON — The free-speech litigants in three First Amendment cases that await the Supreme Court as it returns to the bench Oct. 4 could hardly be more varied: beef ranchers, the Oklahoma Libertarian Party and a disgruntled former client of famed lawyer Johnnie Cochran Jr.

More First Amendment cases may be added later — possibly including church-state disputes over Ten Commandments displays and prisoners' religious freedom — but for now, the three cases already on the Court’s docket represent an unusually small number. Overall, the Court has already agreed to review 48 cases in the coming term, and is likely to add about 30 more as the term proceeds.

Johanns (formerly Veneman) v. Livestock Marketing Association
The cattle-rancher case of Johanns v. Livestock Marketing Association has received the most attention so far. It is the third in a series of commercial-speech cases challenging government programs aimed at marketing certain foods on behalf of the private farmers and ranchers who produce them. It reflects the continuing debate within the Court over the proper place for commercial speech in the First Amendment spectrum. The issue this time may boil down to a metaphysical question: Is beef more like mushrooms, or is it more like plums?

In the Johanns case, to be argued Dec. 8, the government is defending its “Beef. It’s What’s for Dinner” promotional program against a group of livestock producers who think the program — funded by ranchers at the cost of $1 per head of cattle — violates their freedom of speech. They object to being forced to pay for a message with which they disagree. The advertising program, they contend, is flawed because it does not distinguish between domestic and imported beef or between grain-fed and non-grain-fed beef. In 2003, the fee generated nearly $83 million for the promotional program.

Like several other courts that have examined the program, the 8th U.S. Circuit Court of Appeals found last July that it violated the First Amendment. The government argues that the program amounts to government speech, since government boards and agencies determine the content of the message conveyed in the advertisements. If it’s categorized as government speech, then the program should be upheld, the government argued, because under past Supreme Court precedents the government is entitled to pick and choose the messages it conveys to the public.

The 8th Circuit did not disagree with that doctrine, but said the policy did not protect the beef program from being challenged for its method of funding, which amounts to compelled speech. The objecting ranchers, said the 8th Circuit, “have not invoked the First Amendment to influence the content of the generic beef advertising at issue. Rather, they assert their First Amendment free speech and free association rights to protect themselves from being compelled to pay for that speech.”

The 8th Circuit also weighed the beef program against the high court’s two relevant precedents. In Glickman v. Wileman Bros. & Elliott, Inc. the Supreme Court in 1997 upheld a similar marketing program for California tree fruit (including plums) because, in effect, it was only one part of a broad regulatory scheme that affected fruit growers. But in a 2001 decision, U.S. v. United Foods, the Court ruled the opposite way, striking down another program that promoted mushrooms. The Court reasoned that because the mushroom advertising was the “principal object” of the contributions the mushroom growers were required to make, the program was a more direct and unconstitutional form of government-compelled speech.

In defending the beef program before the high court, the Justice Department argues, “The government speech doctrine not only permits the government to choose the content of its speech; it also allows the government to raise the money necessary to fund it.” If the Court rules otherwise, the government contends, the funding for all types of government speech would be vulnerable to legal attack. “Under the court of appeals’ novel analysis, persons could not object to the content of United States Army advertising, but they could seek a refund of the portion of their tax dollars devoted to it. Government could not function effectively if such suits could be maintained,” the government brief asserts.

The Livestock Marketing Association has hired Harvard Law School professor Laurence Tribe to argue against the beef program. It was Tribe who argued successfully against the mushroom marketing program in 2001.

The other two First Amendment cases on the Court’s docket were added yesterday, following the justices’ private “long conference” that examined more than 1,900 petitions filed during the summer recess.

Clingman v. Beaver
The Oklahoma case is Clingman v. Beaver, a challenge to the state’s “semi-closed” primary system. Under the law establishing that system, political parties that hold primaries are allowed to invite only their own party members, plus registered independents, to participate. The Libertarian Party of Oklahoma sued, asserting that the law violates its free-speech and associational rights by preventing it from inviting members of other parties to vote in its primary. The state counters that the semi-closed primary minimizes voter confusion and prevents the “swamping” and “raiding” of minor parties by members of large parties.

The 10th Circuit agreed with the Libertarian Party and struck down the Oklahoma system. The appeals court panel found that none of the state’s justifications for the law outweighed the Libertarians’ right to decide who should participate in picking their candidates.

In past cases, the Supreme Court has also adopted this view, striking down laws that completely opened up party primaries, as well as laws that closed them completely to non-members, on the grounds that the laws at both extremes over-regulated party affairs. The Oklahoma case falls somewhere in the middle and involves a minor party, which could change how the Court looks at the law.

Tory v. Cochran
The other First Amendment case the Court added to its docket this week is Tory v. Cochran, filed by Ulysses Tory in a long-running dispute with noted Los Angeles lawyer Johnnie Cochran Jr.

Cochran withdrew as Tory’s lawyer in a civil rights suit nearly 20 years ago, and in the late 1990s Tory began picketing Cochran’s office, carrying signs that called him a liar and a thief, among other things. Cochran successfully sued Tory for libel and invasion of privacy, but instead of awarding him damages, a judge issued an injunction ordering Tory never again to display a sign or speak about Cochran — favorably or otherwise — in a public place.

“He would not be able to walk down the street and make a remark about what a good job Johnnie Cochran did representing O.J. Simpson,” says Erwin Chemerinsky, the Duke University law professor who filed Tory’s appeal with the Supreme Court.

The California Court of Appeal upheld the injunction, emphasizing that it was aimed at “redressing private wrongs” rather than suppressing speech about public matters of concern. Tory’s appeal of that ruling will probably be heard by the Supreme Court in January. Coincidentally, Cochran was hospitalized yesterday because of an unspecified neurological disorder.

Other possibilities
In coming weeks, the high court is expected to decide whether it will review several pending establishment-clause cases.

One pending case with a high chance of winning review is Bass v. Madison, which offers the Court its first chance to rule on the constitutionality of the federal Religious Land Use and Institutionalized Persons Act of 2000 — RLUIPA. The law gave new protections for religious practitioners against government restrictions and was a successor to the Religious Freedom Restoration Act, which the Court in 1997 struck down as applied to the states.

The part of the law at issue before the Court prohibits federally funded programs from burdening the religious exercise of inmates and other institutionalized people without a “compelling governmental interest.”

Ira Madison, serving time in Virginia prisons on drug-possession charges, sued under the law after prison officials turned down his request to be served kosher food. While the state does provide for serving kosher food to inmates, officials “doubted the sincerity of Madison's religious beliefs,” according to its brief filed with the Court. Madison said he was a member of a Virginia-based congregation of “Hebrew Israelites,” but the state said he had also professed several other faiths since first being imprisoned in 1991.

Last December, the 4th Circuit upheld the law. “To hold otherwise and find an Establishment Clause violation would severely undermine the ability of our society to accommodate the most basic rights of conscience and belief in neutral yet constructive ways,” the panel agreed. Virginia challenges the law as an intrusion on state administration of prisons, and contends that prison inmates have invoked the law to thwart a wide range of prison regulations.

Also pending are several disputes over Ten Commandments displays in public schools and on public property. In Van Orden v. Perry, the issue is a Ten Commandments monument that has stood on the grounds of the Texas state Capitol in Austin since 1961. The 6-foot-high granite monument includes several religious and patriotic symbols — including the Star of David — along with what the 5th Circuit described as a “nonsectarian version” of the Ten Commandments. The appeals court ruled the monument could stay, finding that the Ten Commandments “have both a religious and secular message.” The constitutionality of Ten Commandment displays in Kentucky high schools and courthouses is also before the Court.

Former Alabama chief justice Roy Moore, whose position was taken away because he defied a federal court order to remove a Ten Commandments monument from the state judicial building, also has taken his case to the Supreme Court. But Moore’s appeal does not turn primarily on the First Amendment. Instead, he argues that his dismissal by Alabama’s judicial disciplinary court amounted to a religious test for holding office, in violation of Article VI of the U.S. Constitution and the free-exercise clause of the First Amendment.

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