First Amendment gets top billing on Supreme Court docket

Monday, October 4, 1999

When the Supreme Court returns to the bench from its summer recess today, it faces a docket of cases in which the First Amendment stands first and foremost.

Fully seven of the 44 cases the court has already decided to hear this term directly raise First Amendment issues, an extraordinarily high proportion of the docket. Three additional cases will be fought on non-First Amendment grounds but involve issues that relate to free speech and freedom-of-information concerns.

Church-state relations, campaign-finance reform, student free speech and nude dancing are just a few of the issues the court will tackle in decisions that will come out this term, usually beginning in December and running through next June. More cases could be added to the docket in coming months.

“It will be a blockbuster term for the First Amendment,” said University of Southern California law professor Erwin Chemerinsky.

No single reason can be pinpointed for the unusually high number of First Amendment cases on the docket this term. The court usually portrays itself as a passive recipient of whatever issues are bubbling up from the lower courts. The justices say they don’t pick cases for review based on any previously set agenda of issues they want to tackle.

“I don’t read anything into the sheer quantity of the cases,” said Steve Shapiro, legal director of the American Civil Liberties Union.

But with some of the First Amendment cases the court will hear, it could be argued that the justices do have an agenda — perhaps not an ideological one, but more of a to-do list of issues that need cleaning up.

One case that could be on that list will be argued tomorrow: Nixon v. Shrink Missouri Government PAC. It could be the court’s opportunity to reassess the landscape of campaign-finance reform, which it shaped in the first place with the 1976 decision Buckley v. Valeo. That case found limits on campaign spending to be unconstitutional on First Amendment grounds, while limits on campaign contributions were found acceptable.

Critics have been complaining for years that the court’s distinction has allowed the demand for campaign cash to skyrocket, while limiting supply in the form of donations. That skewing of the campaign marketplace has encouraged the growth of soft money and other unregulated forms of contributions, as well as the entry into politics of more wealthy candidates who can spend their own money without restriction.

The Brennan Center for Justice and others decided several years ago that the time had come to try to convince the court to revisit Buckley, and it supported litigation at the state level to bring cases that could be the vehicle for such a review to the court. Perhaps heeding the call, the court agreed to consider Nixon, named for Missouri Attorney General Jay Nixon. A lower court struck down a $1,075 Missouri limit on campaign contributions to state candidates, which is higher than the $1,000 federal limit on candidates for federal office. If the Supreme Court agrees that the Missouri limit violates the First Amendment, then the federal limit could also fall — and a full-scale reassessment of campaign-finance doctrine could be under way.

Another case that could represent a desire by the justices to clean up its doctrine from past cases is the nude dancing case City of Erie v. Pap’s A.M. The high court in 1991 said nude dancing was marginally protected by the First Amendment, but it said so in a fractured series of opinions and concurrences. Lower courts have struggled ever since to interpret what the court really had in mind.

In City of Erie, the Pennsylvania Supreme Court pointedly and repeatedly complained about the court’s unclear message in the 1991 case, Barnes v. Glen Theatre. The Pennsylvania jurists, in striking down Erie’s anti-nude dancing ordinance, said the Supreme Court was “hopelessly fragmented” and had produced “four separate, non-harmonious opinions.” The Supreme Court may have heard the message, and may have taken the case to clarify its holding — or at least to scold the Pennsylvania Supreme Court for misunderstanding it.

One possible problem in reaching a decision, however, is that the Kandyland club, at issue in City of Erie, no longer offers nude dancing on its premises. It has been converted into a comedy club, where the entertainers are fully clothed.

Last week, the court added to its docket the abortion-protest case of Hill v. Colorado, which also could represent a determination by the Supreme Court that its past rulings have been less than clear. In rulings in 1994 and 1997, the court had sought to balance the free-speech rights of abortion protesters with the safety of abortion clinic patients and staff. The court approved judges’ orders that created fixed “protest-free” zones around clinics, but rejected “floating” buffer zones that would insulate individual patients and staff from being approached by protestors as they moved toward and away from clinics.

The Colorado law at issue in Hill contains elements of both; within a fixed zone of 100 feet around a clinic, protesters are not permitted to come within eight feet of another person coming to or leaving a clinic, unless invited. The Colorado court upheld the law, and the U.S. Supreme Court could use the case to clarify the issue more fully.

The case of Board of Regents of the University of Wisconsin v. Southworth represents more of a follow-up on past cases than a cleaning up of past doctrine. In the 1995 case Rosenberger v. Rector, the court said that state universities must be even-handed in distributing student activity fees to campus organizations. Once a university creates a public forum, the court said, it could not selectively withhold funds from a Christian student newspaper.

Southworth deals with an almost inevitable consequence of that decision. If a university has been even-handed in distributing student fee money, then what happens if certain students object to some of the groups the money goes to fund? In Wisconsin, conservative students did not want their fee money going toward gay and lesbian student organizations. The outcome of this case is difficult to predict.

The rest of the First Amendment docket represents the full range of speech and religion issues.

In Mitchell v. Helms, the court will have to decide whether a federal program that allows public schools to loan equipment to parochial schools amounts to government “establishment” of religion.

U.S. v. Playboy Entertainment Group, involving government regulation of offensive content on cable television, could prompt the court to decide where, exactly, cable television fits on the First Amendment spectrum.

In Los Angeles Police Department v. United Reporting Publishing, the court resumes its seemingly annual task of refining its views on commercial speech. The case involves a California law that forbids the commercial use of police blotter information, while giving access to the information to journalists and others.

Among the cases that are of interest to the First Amendment community but are not, strictly speaking, First Amendment cases, probably the biggest is FDA v. Brown and Williamson. The issue before the court is whether the Food and Drug Administration has jurisdiction over tobacco products. One of the ways in which the FDA is seeking to regulate tobacco is through severe restriction of advertising and marketing, which raises commercial-speech issues.

In Reno v. Condon, the court will decide the fate of the 1994 Driver’s Privacy Protection Act, which bars states from releasing driver’s license information. The law was attacked by journalists’ groups which claim that the public benefits from the release of this information. But lower courts have struck down the law on entirely different grounds, ruling that it intrudes on the powers of the states in violation of the 10th Amendment. The final case of interest is U.S. v. Weatherhead, which is the first case in several years testing the scope of the Freedom of Information Act. At issue is the exemption that allows the federal government to withhold documents on national security grounds.

“All in all,” said veteran Supreme Court litigator John Roberts, “this is going to be a very significant year for the First Amendment.”

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