1 First Amendment case on Court docket

Tuesday, September 26, 2006

WASHINGTON — The Supreme Court announced today it would hear at least one
First Amendment-related case this term, involving whether states may prohibit
labor unions from using non-union employees' dues for political activities
without the workers' express consent.

The case is a consolidation of Washington v. Washington Education
(04-1657) and Davenport v. Washington Education

The Court has refereed several disputes between labor unions and employees
who object to the use of their dues or fees to advance the union’s political
agenda. The Court has said unions may collect fees from non-member employees,
because the collective bargaining that unions conduct benefits the

But in Abood
v. Detroit Board of Education
in 1977, it said these employees must be
given the chance to “opt out” of letting their fees be used to fund in addition
the union’s political activities.

Washington state voters in 1992 approved a measure requiring instead that
non-members “opt in” to allow their fees to be used for union political
activities. In other words, the fees paid by non-members could not be used for
political activities unless the employees affirmatively chose to allow it. The
Washington attorney general accused the teachers’ union of violating the new
rule and won a judgment in court, but the Washington Supreme Court said the
opt-in requirement “upset the balance between nonmembers’ rights and the rights
of the union.”

In Washington v. Washington Education Association, the
state asks the U.S. Supreme Court to reverse.

Michael Reitz, the director of the
Evergreen Freedom Foundation’s Labor Policy Center, which supports the state in
the case, says, “Unions must learn the same lesson every first-grader learns:
You must ask permission before taking something that does not belong to

The First Amendment elements in the cases weave political speech into matters
of freedom of association.

The Court announced eight other cases had been granted cert yesterday during
its so-called “long conference.” That's when the justices sift through hundreds
of petitions that have been filed during the summer recess.

For the first time in years, the Supreme Court ended last term in June
without agreeing to consider any First Amendment cases in the next term, which
this year begins Oct. 2.

But with additions to the docket today and through the fall, the coming term
could still produce significant First Amendment decisions on issues ranging from
gag orders to school choice.

The scarcity of First Amendment cases on the argument calendar thus far
results from several factors. First, last term the Court granted review in only
31 cases of any kind for the fall term, a significantly smaller number than
usual. Second, commentators have noted an increased interest by the Roberts
Court in bread-and-butter business cases, including antitrust, patents and
employment discrimination, which might be “displacing” First Amendment and other
kinds of cases from the docket. Finally, as justices themselves would say, the
array of the Court’s cases at any given moment is mainly a function of the kinds
of appeals that are placed before it, rather than any grand design to exclude
any one category.

One case with First Amendment overtones won't be decided on First Amendment
grounds. That's Carey v. Musladin, which involves the wearing of photo
buttons in a courtroom.

In that case, convicted California murderer Mathew Musladin asserted that his
due-process rights were violated because during his trial, the family of his
victim wore buttons bearing a photo of the victim. Judge Stephen Reinhardt,
writing for a 9th U.S. Circuit Court of Appeals panel, said the buttons
“conveyed the message that the defendant was guilty.” He likened the buttons to
the 1976 Supreme Court case Estelle v. Williams, which said a defendant's
right to a fair trial was violated when the defendant was forced to face the jury
in shackles and prison garb.

Even though the case involves a form of expression by the victim's family,
the case is not being argued on First Amendment grounds, but rather on the more
technical grounds of which precedents should be used in assessing Musladin's
habeas corpus appeal. California's appeal of the 9th Circuit decision will be
argued Oct. 11.

Among the other cases on the agenda for yesterday’s conference were a
challenge by famed lawyer Gloria Allred against a judge-imposed gag order and a
discrimination suit brought by a Catholic Church employee. These cases could be
granted or denied cert later.

Details of the cases:

  • Church employment. In Tomic v. Catholic Diocese of Peoria, a
    three-judge panel of the 7th Circuit, led by influential
    Judge Richard Posner, upheld a lower court ruling that dismissed an
    age-discrimination lawsuit filed by a Catholic Church organist. In the ruling,
    Posner affirmed the “ministerial exception” to the jurisdiction of the federal
    courts, which keeps federal judges out of resolving disputes involving church
    governance. Lawyers for organist Richard Tomic countered that doctrine in lower
    courts by asserting that neither his job nor the music he played had religious
    significance. Posner confessed he was “astonished” by that assertion, which if
    true would mean that “it is a matter of indifference to the Church and its flock
    whether the words of the Gospel are set to Handel’s Messiah or to ‘Three Blind
    Mice.’” The case could interest the Supreme Court because Posner wrote that
    while it was pending, the 2nd Circuit issued a conflicting age-discrimination
    decision, in essence wiping out the ministerial exception.

  • Lawyer gag order. In Allred
    v. Superior Court of the State of California,
    noted California lawyer
    Gloria Allred claims a gag order imposed on her during a murder investigation
    violated her First Amendment rights. Allred was hired to represent a potential
    witness, an unidentified minor, in the high-profile prosecution of Scott
    Dyleski, who was accused of murdering Pamela Vitale, a prominent California
    criminal defense lawyer. Soon after, Allred’s client’s house was searched, and
    the client was subpoenaed before a grand jury. Allred protested the actions.
    During court proceedings, the lawyer for the defendant asked the judge to impose
    a gag order to restrict public statements by the police and prosecutors. The
    Contra Costa district attorney joined the motion and asked that the gag extend
    to the defendant’s lawyer and to Allred. The judge agreed. Allred’s lawyer
    before the high court, Duke University School of Law professor Erwin
    Chemerinsky, said in the petition to the Court that the federal courts are
    widely split over standards for issuance of gag orders. He also asserted that
    the order was issued to “stifle Ms. Allred’s justifiable criticism of [the
    district attorney] and the actions of his office.”

    Later in the term, the Court will discuss adding several other First
    Amendment cases to its docket. Among them are two public school-related

    In Morse v. Frederick, former Solicitor General Kenneth Starr is
    asking the Court whether, under the First Amendment, a public school can
    prohibit students from displaying messages promoting the use of illegal drugs.
    In advance of the 2002 Olympics in Salt Lake City, the Olympic torch passed
    through Juneau, Alaska. At a school rally to mark the event, a group of students
    unfurled a banner that displayed the phrase, “BONG HITS 4 JESUS.” The principal
    told the students to take down the banner, and she later suspended one student
    who refused.

    Joseph Frederick, the student, sued, but a federal district court judge
    dismissed the suit, ruling that the banner’s message could be prohibited. But
    the 9th Circuit reversed, finding that the banner’s massage was not “plainly
    offensive” or sexual. The appeals court also noted that the banner was not
    displayed on school property, but rather on a sidewalk facing campus. Starr says
    the ruling has “profoundly disrupted” the previously accepted view that schools
    could restrict pro-drug messages.

    In Anderson v. Durham School Department, a group of parents seek to
    restore Maine’s so-called “tuitioning” program, which supporters describe as one
    of the nation’s oldest school-choice programs. Aimed at educating students in
    rural towns that are too small to support a public school of their own, the
    program allows students to attend private schools — including religious ones —
    at government expense. In 1980, however, the state stopped paying tuition for
    religious schools, adopting the view that doing so would violate the First
    Amendment’s establishment clause.

    The Maine Supreme Court upheld the policy, finding that under the high
    court’s decision in Locke
    v. Davey,
    states have “some leeway” to choose not to fund religious
    education even if funding it might not violate the establishment clause.

    The Institute for Justice, which represents parents seeking to restore the
    program, asked the high court to fix Maine’s “25-year-old misunderstanding of
    the Establishment Clause.”

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