Bevy of First Amendment cases awaits Supreme Court review

Wednesday, September 23, 1998

After a relatively quiet year on the First Amendment front, the U.S. Supreme Court could face major issues of religious freedom and freedom of expression in the term that begins Oct. 5, the first Monday in October.

Cases involving school vouchers, the rights of gays in the military, and the free-speech implications of campaign finance reform, all could find their way onto the court’s docket this term.

Only two of the cases the court has already agreed to decide in the coming term have a strong First Amendment connection. But “if the court agrees to consider some of the First Amendment cases on the horizon, it could be a blockbuster year,” says Elliot Mincberg of People for the American Way.

The case on the docket with potentially the greatest First Amendment impact is Chicago v. Jesus Morales, a test of a Chicago anti-gang ordinance that gave police greater ability to arrest identifiable gang members for loitering. The ordinance, used to arrest more than 40,000 Chicago residents, is being challenged as a violation of freedom of expression and assembly. The outcome could affect a broad range of “quality of life” enforcement efforts cities have undertaken to combat gangs and disorderly behavior such as aggressive panhandling.

The other First Amendment case on the docket is Buckley v. American Constitutional Law Foundation. Scheduled for oral argument on Oct. 14, the case will examine the constitutionality of regulations enacted by Colorado with the aim of preventing fraud in state ballot initiatives.

Under the regulations, people circulating initiative petitions must be registered voters, must identify themselves with identification badges, and must file reports with the state identifying the names of paid circulators. A lower court found that the law goes beyond what is needed to prevent fraud and violates the First Amendment by depriving circulators of their privacy and infringing on the right to petition government.

In addition to those cases already on the docket, dozens of First Amendment-related petitions have been filed with the court or are on their way. The court agrees to hear fewer than 100 cases from the 7,000 petitions placed before it each term, so most will be denied. A vote of four of the nine justices, taken at weekly private conferences, is needed for the court to agree to consider a case.

Among the First Amendment issues and cases that could be acted on during the coming term:

  • School vouchers: Both sides in the debate over a Milwaukee school voucher program agree that Supreme Court review is needed to decide whether the First Amendment allows the vouchers to be used to pay for parochial school education. In the case Jackson v. Benson, filed Aug. 31, the court is asked to consider a challenge to the program, which allots up to $70 million to pay tuition at private or religious schools. The Wisconsin Supreme Court said the program did not violate the establishment clause of the First Amendment, but challengers say it provides direct government subsidy to religious schools.
  • Campaign spending and free speech: Another effort is under way to get the Supreme Court to reconsider its view that campaign spending should be protected as free speech. Cincinnati is appealing a lower court ruling that struck down its limits on campaign spending for City Council candidates. A candidate successfully challenged the limit by citing the Supreme Court’s 1976 Buckley v. Valeo decision, which said such spending limits violate the First Amendment. Thirty-three states have joined Cincinnati’s appeal, along with other organizations that view the Buckley decision as the major obstacle to campaign finance reform.
  • Gays in the military: So far, the court has declined to consider cases testing the Clinton administration’s “don’t ask, don’t tell” policy for homosexuals in the armed services. Another attempt is made in Thorne v. U.S., filed July 8 at the court. It challenges, on free-speech grounds, the provision of the policy that allows gay service members to be discharged if they reveal to others that they are homosexual.
  • Media ride-alongs with police: A group of petitions before the court could prompt the justices to examine the long-standing journalistic practice of pre-arranged “ride-alongs” with police as they conduct raids and searches on private property. In two cases stemming from a 1993 raid on a Montana rancher, filmed by CNN, a lower court found that the network, in effect, had become a “government actor” in the raid, resulting in a violation of the rancher’s rights against unlawful search and seizure. A contrary ruling in a Maryland case found that police have “qualified immunity” from being sued for allowing ride-alongs. The court also found that such arrangements could have a law enforcement purpose of creating publicity that could deter other crimes.
  • Press access to grand jury-related hearings: In one of several spin-offs from the grand jury investigation of President Clinton by Independent Counsel Kenneth Starr, media organizations are appealing a lower court ruling that said the news media have no right of access to hearings “ancillary” to secret grand jury proceedings. The case, Dow Jones & Co. v. Clinton, argues that the hearings, which related to Clinton’s claims of executive and attorney-client privilege, were of substantial public interest and should have been open to the public.
  • Advocacy by government lawyers: A long-running dispute over the power of Congress to restrict advocacy by federally funded Legal Services lawyers for the poor goes before the court. In the case of Legal Aid of Hawaii v. Legal Services Corp., legal aid lawyers say the restrictions violate their free-speech rights.
  • Controlling ads on public buses: The dispute between New York magazine and New York Mayor Rudolph Giuliani over a sarcastic ad on a city bus went before the court in a petition June 15. A lower court said the city violated the First Amendment by removing a bus ad that described the magazine as “possibly the only good thing in New York Rudy hasn’t taken credit for.” In Metropolitan Transportation Authority v. New York Magazine, the city asks for the right to reject certain advertisements.
  • Casino advertising: Federal law bars advertisements for casino gambling on radio and television. Building on recent commercial-speech decisions in which the court has protected advertising of lawful products, broadcasters are seeking to have the law struck down. The case of Greater New Orleans Broadcasting Association v. U.S. was filed Sept. 2.
  • Free speech of military chaplains: An Air Force chaplain claims he was retired involuntarily to retaliate for his opposition to the U.S. bombing of Iraq in 1991 and other statements. In Garland Robertson v. U.S., Robertson says the job action violated his free-speech rights.
  • Also on the horizon: Petitions have not yet been filed in a number of First Amendment disputes that could make their way to the court before the upcoming term ends next June or July. Among them: the dispute between ABC and Food Lion over the television network’s undercover investigation of the supermarket chain’s food-handling; issues relating to proposed bans on tobacco advertising; several other campaign finance reform cases; and a dispute from Louisiana over a program that allows government funds to be used to provide special education services in parochial schools.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.