Despite high profile, few First Amendment disputes settled by high court

Friday, March 4, 2011

The late Supreme Court Justice William Brennan Jr. was once asked to name the most important part of the Constitution. “The First Amendment,” he answered without hesitation. “All the rest is window dressing.”

But a look at the Supreme Court’s recent dockets would not always bear out Brennan’s sweeping statement. First Amendment issues are a changeable and sometimes sparse part of the Supreme Court’s diet, with the justices spending most of their time on what Brennan would call the “window dressing,” namely interpreting statutes and other parts of the Constitution. This term’s First Amendment docket, for example, has been dominated by high profile freedom-of-expression disputes, but few headline-making religion cases.

The Court does not appear to be consciously pushing away First Amendment cases. It is mostly a matter of the somewhat random nature of the cases placed before it. Some years, the Court is confronted with several major religious freedom cases — invoking either establishment clause or free-exercise clause issues — and other years very few. Freedom of assembly and petition cases are infrequent. Even freedom of the press, a cornerstone of the Court’s rights-expanding history, rarely makes it onto the justices’ to-do list. Why? Press freedom is a fairly settled area of the law that the justices — and the press itself — may be content to leave undisturbed.

And then there is freedom of speech — the hottest clause of the First Amendment in terms of the attention paid to it by the Supreme Court. Almost every term, the justices can be counted on to take up a freedom-of-speech case that turns into the headline maker of the term. Sometimes the Court takes more than one. It is such a robust area of the law that sometimes, cases that could be framed as assembly or press cases come in the Court’s door as freedom-of-speech issues.

The current term of the Supreme Court reflects these variables. One of the blockbuster decisions of the term was the March 2 ruling in Snyder v. Phelps, which is actually a “three-fer,” raising questions of religion, speech and assembly. Albert Snyder, whose son was a U.S. Marine killed in Iraq, was asserting his right to sue to hold members of a controversial Kansas church liable for the “emotional distress” he suffered when church members picketed his son’s funeral as a way to publicize their views on homosexuality and the decline of American society. The 4th U.S. Circuit Court of Appeals ruled that because the funeral protest was protected by the right to free speech, the picketers could not be sued. The high court upheld that ruling, 8-1 in a decision that continued the Court’s long tradition of protecting even the most unpopular speech from censorship or punishment.

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain,” Chief John Roberts wrote for the Court. “On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Another case that could be decided soon is Schwarzenegger v. Entertainment Merchants Association, a more classic, purely free-speech dispute. California is defending its law that bars the sale or rental of violent video games to minors. The video-game industry and its First Amendment allies call the law “the latest in a long history of overreactions to new expressive media.” On March 28, the justices will also consider free-speech issues in the context of campaign-finance reform when they hear arguments in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett.  At issue is an Arizona law aimed at “evening the playing field” by giving public funds to candidates whose opponents make campaign expenditures higher than a certain level.

The religion clauses do not figure prominently among the Court’s current cases. The only one raising establishment-clause issues is Arizona Christian School Tuition Organization v. Winn, a test of an Arizona program that allows taxpayers to take a tax credit for donations they make to organizations that give scholarships that mostly go to students attending religiously affiliated schools. The 9th U.S. Circuit Court of Appeals ruled that, as applied, the program violates the establishment clause by skewing the scholarship funding toward religious schools.

This term  the Court has also decided two cases involving freedom of information. In fact, March 2011 is turning out to be a very good month for advocates of maximum disclosure of government documents under the Freedom of Information Act. Less than a week after an important victory limiting one of the law’s exemptions in FCC v. AT&T, the Court on March 7 handed down an even more significant decision narrowing another exemption, in Milner v. Department of the Navy.

The 8-1 Milner decision upended 30 years of federal government practice invoking the exemption at issue to withhold a broad swath of material — well beyond documents relating to “internal personnel rules and practices” that the exemption was written to protect from disclosure.

A rare petition case is also pending before the Court. In Borough of Duryea v. Guarnieri, a Pennsylvania police chief filed a grievance after being fired from his position. He was reinstated, but he claims that other actions by the city amounted to retaliation against him for filing the grievance — retaliation that he claims violates his right to petition the government. The case is to be argued on March 22.