First Amendment eludes spotlight this term

Thursday, July 6, 2006

WASHINGTON — After several years of playing a starring role on the Supreme Court’s docket, the First Amendment largely stayed out of the spotlight in the term just ended — the first term of the Roberts Court.

That may have been just as well; when the Court did rule on free-speech issues, the First Amendment claimant often lost. But a number of bright spots softened the damage.

“It was certainly a mixed bag,” said Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression.

“In general, it was not a great year for the First Amendment,” said the American Civil Liberties Union in its review of the term.

The biggest win for First Amendment interests, commentators seem to agree, came late in the term, in the campaign-finance case Randall v. Sorrell. It was a fractured ruling, but the bottom line was that the Court found Vermont’s severe limits on both contributions and expenditures to be unconstitutional restrictions on the free-speech rights of candidates, donors and political parties.

Noting that the Vermont law limited contributions by individuals and parties to candidates to as little as $200 per election cycle, Justice Stephen Breyer wrote that at some point “the constitutional risks to the democratic electoral process become too great.”

The Court’s opinion essentially upheld the 1976 ruling Buckley v. Valeo, which said government could restrict campaign contributions to candidates and parties, but not spending by candidates and parties — a formulation that has given some First Amendment advocates heartburn for 30 years.

But many advocates of campaign-finance restrictions hoped that the continued overwhelming influence of money in politics would persuade the justices that it was time to endorse campaign expenditure limits as well, even at the expense of First Amendment rights. That now seems unlikely.

And on the campaign-contribution side of the equation, Harvard Law School professor Laurence Tribe said the Randall decision counted as at least a “partial win” for the First Amendment because it was “the first case in which the Court has struck down a campaign-contribution cap as unduly restrictive of political speech and participation.”

The biggest loss for First Amendment interests in the past term was likely Garcetti v. Ceballos, which stripped public employees of First Amendment protection for job-related statements they make in the course of their employment. “That’s the one that really rankles,” says O’Neil, whose center filed a brief in the case.

The ruling was a significant shift from the Court’s so-called Pickering balancing test — named for the 1968 decision Pickering v. Board of Education — which gave considerable weight to First Amendment values in deciding whether government employees can be punished for speaking out. Whistleblower groups say the decision will make it riskier for government workers to report wrongdoing in their workplaces.

In dissent Justice David Souter wrote, “[A] government paycheck does nothing to eliminate the value to an individual of speaking on public matters, and there is no good reason for categorically discounting a speaker's interest in commenting on a matter of public concern just because the government employs him.”

Harvard’s Tribe agreed that the Garcetti decision was a First Amendment setback. But he said another workplace ruling this term, not decided on First Amendment grounds, gave an indirect boost to the free-speech rights of nongovernment workers who complain about discrimination on the job. The ruling, Burlington Northern & Santa Fe Railway Company v. White, interpreted the Civil Rights Act of 1964 to give broad protection to employees who experience any significant retaliation for making bias claims.

“The Burlington decision has to be seen as an important gain for First Amendment values,” said Tribe.

The Garcetti decision was only one of what People for the American Way described as “several troubling decisions this term on free expression and the First Amendment.”

Also high on the list was Beard v. Banks, which followed in a line of cases allowing prison officials to restrict inmates’ First Amendment rights. By a 6-2 vote, the Court upheld a Pennsylvania policy barring access to magazines and newspapers for the most troublesome inmates. The justices accepted the rationale offered by prison officials that depriving inmates of these materials would give the prisoners a powerful incentive to improve their behavior.

If there is any silver lining to Beard v. Banks, it may be that Justice Breyer, in the main opinion in the case, framed it in a limited way, focusing on the standards the inmates who challenged the policy needed to meet to get past summary judgment. He faulted inmates for not countering an affidavit by a Pennsylvania prison official at the early stages of the case, which made it justifiable for the judge in the case to dismiss the case on summary judgment — in other words, before it got to trial.

If another group of inmates could build a better case against the policy at the very beginning of their lawsuit, Breyer implied that they could be more successful than inmate Ronald Banks. “We do not suggest that the deference owed prison authorities makes it impossible for prisoners or others attacking a prison policy like the present one ever to succeed or to survive summary judgment,” Breyer wrote.

Without that aspect of the ruling, ACLU lawyer Jeff Monks said, “It could have been much worse.”

He added, “The Court felt the plaintiffs didn’t do enough to rebut what the prison officials were saying in defense of the policy. With a different record, it could have come to a different conclusion.”

Another case in which the Court ruled against the First Amendment claimant was Rumsfeld v. FAIR, decided early in the term. In that case, several law-school faculties challenged the so-called Solomon Amendment, which calls for withdrawal of federal funds to any university that does not give the same campus access to military recruiters that it gives to others. The professors argued that the federal law improperly forces them to foster and communicate a government message with which they disagree: namely, the policy against openly gay men and women in the military.

Writing for a unanimous Court, Roberts resolved the case in part by saying that the First Amendment was not even involved. “As a general matter, the Solomon Amendment regulates conduct, not speech,” Roberts wrote. “It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say.” Law schools still have many ways of expressing their views about the military policy — including protests near where the military representatives are doing their recruiting.

Because Roberts in effect turned Rumsfeld v. FAIR into a non-First Amendment case, the ruling did not change or expand on the Court’s line of precedents on government-funded speech. “I thought it a victory for the First Amendment that the Court was able to decide Rumsfeld v. FAIR in a manner that didn't expand on Rust v. Sullivan or cut into the unconstitutional-conditions doctrine,” Tribe said. Tribe argued in the 1991 Rust case, which upheld restrictions on abortion counseling in government-funded clinics.

O’Neil took the Rumsfeld decision as “a clear signal that you shouldn’t challenge a government policy on First Amendment grounds unless you have a solid case.”

The only church-state case of the term amounted to a victory for the free-exercise rights of religious adherents. In Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, the Court said the federal government violated the Religious Freedom Restoration Act when it barred a religious group from using a hallucinogenic tea in its ceremonies. The Bush administration argued that because a substance in the tea is illegal under the Controlled Substances Act, the practice could be stopped. In a decision authored by Roberts, the Court said the government had failed to show that prohibiting the sect from using the substance served any compelling interest.

No church-state cases are on the docket for the Court’s next term, which begins on the first Monday in October. Nor, for that matter, has the Court docketed any cases directly testing the free-expression or free-press clauses of the First Amendment. The Court will continue to grant review in incoming cases through the fall, but so far no First Amendment cases are scheduled for argument.

And that has caused a small problem at O’Neil’s center. Normally, interns at the center in Charlottesville, Va., gather information on pending First Amendment cases before the high court. Says O’Neil, “This is the first summer I can remember when I haven’t had some case for them to look at.”