First Amendment claims get mixed reception at Court

Tuesday, June 26, 2007

WASHINGTON — Yesterday was First Amendment Day at the Supreme Court. But it was not all celebration, fun and games.

In three separate rulings, First Amendment claimants won one (FEC v. Wisconsin Right to Life,) lost one (Morse v. Frederick,) and in the third (Hein v. Freedom from Religion Foundation,) were shut out of Court.

In each decision, the Court’s conservative majority prevailed. Yet the two newest members of that bloc — Chief Justice John Roberts and Samuel Alito — were not willing to go as far in overturning precedent as one or more of their more senior brethren, Antonin Scalia, Anthony Kennedy and Clarence Thomas, wanted them to go.

“The two new conservatives want to be modest,” at least in the First Amendment realm, said Jesse Choper, constitutional law scholar at University of California, Berkeley’s Boalt Hall School of Law.

“One thread that seems to hold these cases together is that, in all three, you had an older decision that the courts have had the option of either rejecting or reversing entirely or trying to live with,” Notre Dame Law School professor Richard Garnett said on the “News Hour” with Jim Lehrer last night. Some conservatives wanted to overturn those precedents, Garnett added, but “instead you saw what I regard as relatively narrow, modest opinions, which stayed within the framework of earlier decided cases.”

To which Walter Dellinger, the former acting solicitor general, replied, “The Court, while not saying that it's overruling cases, is effectively overruling cases and doing so on the basis of, in some cases, the absence of Justice (Sandra Day) O’Connor.”

All in all, it was a revealing day, shedding light on how the new Roberts Court looks at the First Amendment — and how the moderate-liberal wing is losing ground. The dissenters were more unified than the majority, it appears, but they could not muster a majority.

Here is a look at the three decisions issued yesterday:

Federal Election Commission v. Wisconsin Right to Life
It was Justice David Souter’s turn to read a dissent from the bench in this case, the latest in a series of dissents delivered orally by liberals in major cases this term.

The majority opinion, Souter lamented, “leaves Congress powerless” to curb the use of corporate and union funds to influence campaigns directly — funds that have been the targets of federal regulation for more than a century. The Court, Souter said, had “effectively and unjustifiably” overturned its ruling in McConnell v. FEC, decided just four years earlier. Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer joined in Souter’s dissent.

The majority, led by Roberts, found that part of the McCain-Feingold law, the 2002 law that represented the high-water mark of campaign regulation, was unconstitutional — at least as applied to the Wisconsin case before the Court. The law bans pre-election ads that mention candidates by name and are paid for directly by corporations and unions, and applies during the 30 days before a primary and the 60 days before a general election.

The majority found that the Wisconsin group’s 2004 advertisements on the issue of Senate filibustering of President George W. Bush's judicial nominees should not be banned, even though they named Sen. Russ Feingold, D-Wis., who was then up for re-election. Roberts devised a new standard that would allow such ads to be banned only if the ad is “susceptible of no other interpretation than as an appeal to vote for or against a specific candidate.”

Roberts made it clear he thought Congress had gone too far in restricting core political speech. “Enough is enough,” Roberts wrote. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” But Roberts, joined by Alito, declined to go all the way and declare that the ban was unconstitutional on its face. Alito wrote separately to state that if the Court’s new standard still “impermissibly chills political speech” in practice, the Court can take the next step of declaring the law unconstitutional in all cases.

But Scalia, Thomas and Kennedy would have skipped that intermediate step. Scalia declared the 2003 McConnell decision, which upheld the provision, “a flop” that has done nothing to stem the flow of money into campaigns.

Scalia was also unbothered by the prospect of overturning such a recent Supreme Court precedent. “Overturning a constitutional case decided just a few years earlier is far from unprecedented,” Scalia said, noting that in the First Amendment area, the Court in 1943 ruled that students could not be forced to recite the Pledge of Allegiance — reversing its decision to the contrary reached just three years earlier.

Supporters of campaign-finance reform decried the decision as a sea change that would allow corporate money to flow back into elections and thwart efforts at the state level to restrict corporate influence in political campaigns.

But James Bopp Jr., lawyer for the Wisconsin group that won its battle yesterday, said, “The Court has now restored to the people the most effective means, broadcast ads, for efforts to influence incumbent politicians when they pass laws to tax and regulate us.”

Morse v. Frederick
When Joseph Frederick unfurled a banner across the street from his high school in Juneau, Alaska, he says that even he wasn’t sure what his message — “Bong Hits 4 Jesus” — really meant. But Principal Deborah Morse took it to signify support for illegal drug use, told him to take it down, and suspended Frederick when he did not. Frederick displayed the banner in 2002 as the Olympic torch was passing by amid cameras and news coverage.

The Supreme Court, again led by Roberts, said Morse acted appropriately under the circumstances, did not violate Frederick’s freedom of speech, and should not be held liable for her actions. As nonsensical as the message may be, Roberts said it was fair for Morse to interpret it as a pro-drug message. And the majority also ruled that Frederick’s actions took place at a school event, even though it was not on school premises. “The First Amendment does not require schools to tolerate at school events student expression that contributes” to the danger of illegal drug use, Roberts wrote, joined by Scalia, Kennedy, Thomas and Alito.

But Roberts took pains to indicate he was not tinkering with Tinker v. Des Moines Independent Community School District, the 1969 decision that gave protection to student free speech. That case upholding the right of students to wear armbands protesting the Vietnam War involved “concerns at the heart of the First Amendment,” Roberts said. Roberts also said he was not relying on the 1986 decision Bethel School District v. Fraser, which allowed censorship of “offensive” student speech. “The concern here is not that Frederick’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use,” said Roberts.

Alito and Kennedy, writing separately, also stressed their view that the decision applies only in the context of student advocacy of illegal drug use. “I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions,” Alito said, adding that even regulation of drug speech stands “at the far reaches of what the First Amendment permits.”

Again, at least one of the conservative justices wanted to go much further. Justice Thomas said he would have preferred to overturn Tinker altogether. Tinker, Thomas said, “is without basis in the Constitution.”

So where do student free-speech rights — and the Tinker precedent — stand in the wake of the ruling? Many commentators, including the American Civil Liberties Union, which represented Frederick, criticized the ruling for creating a “drug exception” to the First Amendment. But its full impact is hard to know right now.

Former solicitor general Kenneth Starr, who represented the Juneau school district and Principal Morse, said the ruling gave welcome recognition of the importance of fighting drug use in schools, but he said it did not change his view that “this Court is a robustly pro-First Amendment Court.”

Dissenting Justice John Paul Stevens — who shook his head as Roberts read from the majority decision yesterday — saw greater danger in the decision. Stevens asserted that Frederick’s message was a “nonsense banner” that did not advocate illegal or harmful behavior. Students would not view it as a pro-drug message, Stevens said, adding that “Most students … do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it.”

Stevens also said, “The Court does serious violence to the First Amendment” by upholding a school’s decision to punish a student for expressing a view with which it disagrees. Even drug advocacy does not rise to the level of advocating imminent violence, which the Court has said can be punished, Stevens said. Justices Souter and Ginsburg joined Stevens’ dissent.

Justice Breyer said he would have handled the case by deciding only that Principal Morse should not be held liable for her actions, without getting to the First Amendment issue involved. On the question of liability, the Court agreed unanimously that Morse should not be penalized.

Hein v. Freedom from Religion Foundation
Once again in this case, Scalia and Thomas were in favor of overturning precedent — in this instance, Flast v. Cohen, the 1968 decision that said taxpayers, acting as taxpayers, had standing to challenge government actions that violate the First Amendment’s establishment clause.

But Justice Alito, writing for the majority, said he did not need to go that far, because the case before the Court did not fit the Flast precedent.

At issue was a suit brought by the Freedom from Religion Foundation against President Bush’s faith-based initiative program, in which religious institutions receive federal grants in a range of social service and other programs.

Normally, taxpayers may not challenge government programs merely on the grounds that they disapprove of the way their tax dollars are being spent. To achieve standing to sue, they most show a more direct and specific harm. But in Flast the Court created an exception to that general rule, in part because the framers of the Constitution saw harm in even the smallest amount of public money going to churches or ministers.

But Alito said that Flast only applied to cases in which taxpayers were challenging congressional appropriations that were going to religious institutions. The money used in Bush’s faith-based initiative, by contrast, was general treasury money that was spent by the executive branch without any specific congressional appropriation.

For that reason, Alito said the link between congressional action and constitutional action was “missing.” As a result, the majority ruled that the foundation had no standing to sue — but it did so without disturbing the Flast precedent.

Alito also dismissed the “parade of horribles” recited by the foundation that if the Court ruled as it did, the executive branch could fund houses of worship or make bulk purchases of crucifixes or the Star of David. “In the unlikely event that any of these executive actions did take place, Congress could quickly step in,” said Alito.

But Alito’s opinion was joined only by Roberts and Kennedy. Scalia and Thomas agreed with the result but would have overturned Flast altogether.

As with the other cases of the day, dissenters saw long-term harm in the majority ruling. Souter wrote the dissent, asserting that there was no meaningful difference in the harm posed by congressional appropriations and executive-branch spending. “I see no basis for this distinction in either logic or precedent,” Souter wrote. “If the executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.”

So does Flast still stand, or has it been seriously weakened even as the majority offers it tacit respect? Yesterday’s dissenters in the Court’s three First Amendment cases would ask the same question about Tinker and McConnell. The answer in all three cases may depend on how long the conservative majority will last — and on how often the Court’s newest conservatives will chart their own path.

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