2001-02 high court deals First Amendment wins, losses

Friday, July 12, 2002

At a recent judicial conference, U.S. Chief Justice William Rehnquist observed that as far as the news media are concerned, many of the Supreme Court’s decisions are like flowers that bloom unnoticed in the desert.

The cases that get the most media attention, he suggested with disdain, are those blossoms that have received “First Amendment fertilizer.”

It may have been a crude way for Rehnquist to make his oft-repeated point that the media care the most about the high court’s First Amendment cases. But he was right that during this past 2001-2002 term, as with many, the Court’s First Amendment cases made the headlines most often.

And once again, the justices proved the point that a mostly conservative Supreme Court can issue opinions that embrace an expansive interpretation of the First Amendment.

“This is the most speech-protective court in history, bar none. And that includes the Warren Court,” Nadine Strossen, president of the American Civil Liberties Union, said recently.

Of the eight decisions whose outcome turned on the First Amendment, four expanded on First Amendment principles, or struck down laws that had been challenged on First Amendment grounds:

  • Ashcroft v. Free Speech Coalition, rejecting the federal law banning “virtual” child pornography on the Internet.

  • Watchtower Bible & Tract Society of New York v. Village of Stratton, ruling that government may not require licenses for door-to-door advocates.
  • Thompson v. Western States Medical Center, striking down a federal restriction on the advertising of certain pharmaceutical products.
  • Republican Party of Minnesota v. White, tossing out a Minnesota restriction on what candidates for judicial office may say during campaigns.

On the other side of the coin, in four cases the Court upheld laws or programs in spite of First Amendment challenges:

  • Zelman v. Simmon-Harris, which upheld Cleveland’s school voucher program that allows parents to use public funds to pay for students’ parochial school tuition. It had been challenged as a violation of the establishment clause.

  • Ashcroft v. ACLU, which did not reject, at least for now, a federal law that used a “community standards” approach for determining what material is harmful to minors and should not be permitted on the Internet. The case was sent back to lower courts for further review.
  • City of Los Angeles v. Alameda Books, giving cities leeway in justifying legal restrictions on adult businesses.
  • Thomas v. Chicago Park District, upholding a Chicago regulatory procedure for groups seeking to demonstrate in public parks.

The First Amendment defeats may have been the most dramatic, with some of the more ominous implications for the future. The 5-4 school voucher decision was predictable, given the Court’s steady march in recent years toward greater tolerance of government money going to religious institutions. But it was still viewed widely as a turning point for the Court, especially given that a previously reluctant Sandra Day O’Connor has unequivocally joined the majority in favor of religious accommodation.

“It signals a constitutional counter-revolution,” said Norman Redlich of the American Jewish Congress. The ruling has broad implications for faith-based initiatives, which would allow greater use of tax dollars for religious groups sponsoring social services.

Ashcroft v. ACLU also represented at least a psychological turning point. In the 1997 ruling Reno v. ACLU, the Court embraced the Internet as a communications medium deserving the highest First Amendment protection. This year’s ruling represented the first time since then that a law restricting Internet communication had survived the Court’s scrutiny. The case returns to a Philadelphia appeals court and may ultimately be struck down, but for now, legislators are likely to seize on the ruling as an opening for more regulation.

Some of the First Amendment victories were also notable turning points. The most significant may be the Minnesota case striking down a canon of judicial ethics that barred judicial candidates from expressing views on issues that could come before them on the bench.

In one sense, the ruling infused the judicial branch of government with a First Amendment dimension that it has not had before — the implications of which are hard to predict. Not only judicial candidates but judges themselves and even nominees for federal judgeships may feel the muzzle loosen.

But the 5-4 decision also represents a strong affirmation of the central role of political speech in the operation of the First Amendment. The Court said unequivocally that once the democratic process of election has been launched, the First Amendment goes with it every step of the way — even if the election is for judges. “We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election,” Justice Antonin Scalia said in the majority opinion.

That kind of language will surely be invoked in the next big political speech case — the looming litigation over the campaign-finance law passed by Congress this year. Those aspects of the law that restrict advertising, for example, may be more vulnerable than before because of the Minnesota ruling.

The campaign-finance case is likely to arrive at the Supreme Court in time for a decision by a year from now. Other First Amendment cases already docketed include Eldred v. Ashcroft, which will examine the relationship between copyright law and free speech, and Virginia v. Black, a test of that state’s anti-cross-burning law. With good reason, these cases may dominate the Supreme Court headlines next year as well, giving Rehnquist more reason to lament that other areas of the Court’s docket are neglected by the media.

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