Few First Amendment cases this term, but …

Monday, July 6, 2009

WASHINGTON — Although the Supreme Court term that went into summer recess last week was fairly uneventful for the First Amendment, the respite may be brief, with significant First Amendment issues looming on the Court’s docket for the fall.

One case that could have been a First Amendment event was a campaign-finance dispute that the Court put off deciding till September. In Citizens United v. Federal Election Commission, instead of issuing a decision the Court scheduled an unusual reargument of the case for Sept. 9 — technically still part of the 2008-09 term — and ordered briefing on a new issue it wants to resolve.

That issue — whether to overturn key precedents allowing a ban on direct corporate and union expenditures in campaigns — instantly raised the stakes in the case. The action by the Roberts Court, which has been increasingly critical of campaign-finance laws because of First Amendment concerns, alarmed some advocates of strict campaign-finance rules. The case was triggered by a movie critical of then-presidential candidate Hillary Clinton, which a lower court judge categorized as a prohibited electioneering communication.

Otherwise, the Court’s attention was clearly elsewhere during the term, as it resolved headline cases relating to race, business, and criminal law.

This term no decision, strictly speaking, dealt with the religion clauses of the First Amendment. The case most related to religious freedom, Pleasant Grove City v. Summum, was treated as a freedom-of-speech case, with the justices agreeing that when municipalities allow religious monuments like the Ten Commandments to be placed on public property, it is the government speaking, not the religious group that sponsored the monument. As such, the Court said unanimously that cities have leeway to refuse other religious displays.

The only rip-roaring case of the term involving controversial expression by individuals was also something of a First Amendment non-event. In Federal Communications Commission v. Fox Television Stations, the Court ruled 5-4 that the FCC had given sufficient reasons under administrative law for tightening its policy against broadcast indecency and the use of “fleeting expletives” over the air. It sent the case back to the lower courts to decide the unresolved question of whether the policy violated the First Amendment. The constitutional issue could return to the high court.

The only other Supreme Court cases where the First Amendment was directly addressed this term were the latest in a series of challenges involving public-employee unions and testing the First Amendment rights of union members and non-union members. The Court has ruled in the past that non-union members can be required to pay certain fees to unions to cover collective bargaining and other costs. But disputes still arise over government actions in this area that either union members or non-members challenge as restrictions on free speech or as coerced speech.

In Locke v.Karass, the Court unanimously ruled that the First Amendment rights of non-union state employees are not violated when they are required to contribute fees toward certain union-litigation activities.

That was a win for unions, but in Ysursa v. Pocatello Education Association, the Court ruled 6-3 against an Idaho teachers’ union. That union had challenged a new state law that banned the use of the state payroll system to send payroll deductions to local unions to fund political activities.

What is in store for the fall? In addition to the campaign-finance case, the Court has already added to its docket two other significant First Amendment cases.

Salazar v. Buono is another case involving a religious display on public property, this time a cross atop an outcropping at the federal Mojave National Preserve in California. A key issue is whether Congress, faced with an establishment-clause claim against the cross, can cure the problem by selling the land on which the cross sits to private entities.

In United States v. Stevens, the Court will be asked to add  cruelty to animals to the roster of forms of expression that are not protected by the First Amendment — along with obscenity, fighting words and child pornography. At issue is a law passed by Congress making it a crime to create or possess depictions of animal cruelty.

By this time next year, then, the Supreme Court, with at least one new member, will probably have made important First Amendment law. But this last year, not so much.

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