First Amendment overshadowed in 2011-12 term

Monday, July 16, 2012

WASHINGTON — On any other day, the Supreme Court’s First Amendment decision in United States v. Alvarez would have made front-page headlines and online news alerts.

The Court, on a 6-3 vote, took the rare step of striking down an act of Congress, in this case a law that made it a crime to falsely claim having won a military honor.

But the decision was issued June 28, the same day as the landmark ruling largely upholding another act of Congress, the health-care law known as the Affordable Care Act. The Alvarez case was relegated to the back pages.

That was generally the case in the Supreme Court term of 2011-12 when it came to the First Amendment docket: overshadowed by other matters and, to a considerable extent, predictable.

The Court’s six First Amendment-related rulings followed its by-now well-established pattern.

In classic free-speech cases, such as Alvarez, the Court holds its collective nose and embraces the right to engage in really unpopular expression. It does so in opinions that would warm the heart of the late liberal justice William Brennan Jr.

In Alvarez, Justice Anthony Kennedy invoked the Orwellian specter of a “ministry of truth” as he also revived the doctrine that says more speech is the cure for bad speech. In this case, the plurality, concurrence and dissent all expressed disgust at those who falsely claim winning a Medal of Honor. But Kennedy said the government could create, as private entities have already done, a database enabling the public to learn whether a claim of winning a military honor was true or false.

In other cases invoking the free-speech clause, the Court also sometimes endorses the rights of speakers who deeply upset liberals. Think Citizens United v. FEC, the 2010 decision that expanded the First Amendment rights of corporate speakers as participants in political campaigns.

This term’s pro-corporate First Amendment ruling was Knox v. Service Employees International Union, in which the Court, using strong anti-union rhetoric, ruled in favor of the free-speech rights of workers who don’t belong to unions and don’t want their money to support union political messages.

The Court required a public-employee union to let non-members “opt in” for special assessments that fund political campaigns, rather than making them “opt out.” If that ruling is applied more broadly in future cases, union coffers will be emptier than they already are.

In an editorial, “The Anti-Union Roberts Court,” The New York Times did not applaud the Court’s expansion of the First Amendment, but instead called the Knox ruling a “brazen” effort to advance the court’s “aggressive conservatism.”

On the religion clauses of the First Amendment, the Court also continued on the path it usually — though not always — follows of giving more recognition to the rights of the religious. In a unanimous decision, the Court in Hosanna-Tabor Evangelical Lutheran Church v. EEOC said that both the free-exercise and establishment clauses of the First Amendment allow for a “ministerial exception” to certain laws, barring employment lawsuits by ministers against their churches.

Stanford Law School professor Michael McConnell said the ruling could have “major ramifications” expanding the autonomy of religious organizations from government regulation.

“It is not too much to say that the decision augurs a ‘new birth of freedom’ for the religious communities of America,” McConnell wrote.

Then there are the cases that kick the First Amendment can down the road. This term’s example of that phenomenon was FCC v. Fox Television Stations, the second and probably not the last time the high court has scrutinized the government’s rules on broadcast indecency. The justices explicitly sidestepped the First Amendment issue in their June 21 decision, ruling instead that under Fifth Amendment due-process rules, the indecency guidelines did not give broadcasters adequate notice of what is legal and what is illegal.

Supporters of the indecency guidelines said they were pleased that the Court did not reject outright any role for the FCC in regulating broadcast content. But Carter Phillips, who argued the case for broadcasters, said the ruling was a clear victory. According to Phillips, the justices told the FCC it had “violated the Fifth Amendment, and maybe the First. There is no way to read that as a win for the FCC. The most you can do is say it is not Little Big Horn for them.”

Finally come the cases in which the First Amendment loses, or gets little respect. This term’s loss for the First Amendment was Golan v. Holder, which upheld a 1994 law that implemented a treaty by restoring copyright protection to a range of foreign creative expressions that had been in the public domain. The Court rejected the First Amendment argument that the law restricted speech.

And in Reichle v. Howards, the Court said almost nothing about the First Amendment, even though the case involved words of protest uttered in 2006 by a man who encountered then-Vice President Dick Cheney at a Colorado shopping mall. Steven Howards was detained by Secret Service agents after the incident, and the high court said those agents should be immune from being sued for violating the First Amendment.

Related: Stolen Valor ruling a win for free speech, common sense

Court affirms religious groups’ right to say who’s a minister

Ministerial-exception ruling could increase discrimination

Some expression now unfree after Court’s ruling

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