First Amendment plays second fiddle this term

Tuesday, July 13, 2004

WASHINGTON — It has been a gradual development, but undeniable. The First Amendment, long given prominence by a Supreme Court that paid homage to its value, has taken a back seat in the Court's jurisprudence.

The Supreme Court term just ended provides ample evidence of this trend. In nearly every case on its First Amendment docket, the Court gave the First Amendment short shrift — or worse.

In the biggest First Amendment case of the term — McConnell v. Federal Election Commission — the Court shrugged off First Amendment objections to the McCain-Feingold campaign-finance law. Dwelling instead on the dangers of campaign money corrupting the political system, the Court gave little weight to the restrictions on core political speech that the law embraced.

Only one minor provision of the law — the restriction on campaign donations by the under-17 set — was struck down on First Amendment grounds. A puzzled Floyd Abrams, the prominent First Amendment lawyer who was part of the team challenging the law, said afterward of the overall McConnell decision, “It almost reads like a tax case rather than a First Amendment case. In style, tone and nature, it reads like an opinion about regulation by government of some sort of improper activity.”

The same could be said of other decisions this past term. In National Archives and Records Administration v. Favish, the privacy of White House aide Vince Foster's surviving family was far more important to the Court than any public interest in obtaining more information about his death. In City of Littleton v. Z.J. Gifts, the Court said the First Amendment requires prompt adjudication of appeals in licensing disputes over adult businesses — but then said no special handling of these appeals is needed.

In several cases, the Court's desire to duck or dither about the dispute at hand overwhelmed the First Amendment objections raised. Justice John Paul Stevens cited “prudential” standing concerns in his majority opinion that dismissed what could have been the biggest First Amendment case of the term: Elk Grove Unified School Dist. v. Newdow, the challenge to the words “under God” in the Pledge of Allegiance. In the view of many commentators, the Court seized on atheist Michael Newdow's custody battle — and the resulting concern that he did not have the right to sue on behalf of his school-age daughter — as a welcome escape hatch from ruling in such a politically charged First Amendment case.

Similarly, in Cheney v. U.S. District Court, the justices sent the case back to lower courts for further review to determine just how much discovery is appropriate in a dispute over Vice President Dick Cheney's desire to keep records of his energy-policy task force secret.

The justices also sent Ashcroft v. ACLU II back to the 3rd U.S. Circuit Court of Appeals for further study to determine if new blocking and filtering technology is now a more suitable alternative for the restrictions of the Child Online Protection Act on adult Internet material. In essence the Court gave the government yet another chance to defend the law.

In that case, however, the Court did find that the law's potential danger to the First Amendment was great enough that an injunction against enforcement of the law should remain in place — thereby turning the decision into the only free-expression First Amendment victory of the term.

Locke v. Davey, the most important religion-clause case of the term, certainly gave important attention to the “play in the joints” between the free-exercise and establishment clauses of the First Amendment. And it seemed to halt — or pause — the Court's march toward accommodation of religious practices by government, especially in funding decisions. The Court by a 7-2 vote said Washington state had the right to structure its college scholarship program so as to ensure that the state was not subsidizing the training of ministers.

But even in that case, it could be said that non-First Amendment concerns were prominent in the Court's calculation. For one thing, the Court was able to tap into a rich history of statements and actions by the framers of the Constitution and early state governments specifically rejecting the use of public funds for training ministers. So in that sense, the outcome of Locke v. Davey may have appealed to the “originalist” justices who feel that what was good for the framers is good for modern America too.

In addition, some commentators have seen Locke v. Davey through a federalism lens, and in that regard it fits right into the Court's conservative majority view that states should have more power in the federal system. Viewed this way, the decision looks like not so much of a First Amendment ruling but rather as another effort by the Court to strengthen state sovereignty — in this case by allowing Washington state to experiment in its policy-making without a federal, nationwide standard keeping it from doing so.

So why is the First Amendment losing its prominence in the hearts and minds of the justices? In part it could be because they have other fish to fry. Issues of terror and national security, as well as affirmative action and gay rights, have loomed large on the Court's docket in recent years.

Another explanation might be that when the Court surveys the constitutional landscape, the First Amendment appears to be a stable, settled area not in need of much attention or fixing. This probably explains why the justices have not added a libel or defamation case to their docket in more than a dozen years.

Those are the more benign explanations for the Court's seeming insouciance toward the First Amendment these days. But there is another rationale that is also possible: that judicial concerns about other issues — personal privacy, child protection, political corruption, among others — have crowded out the First Amendment in the minds of the justices for the first time in decades.

When the late Justice William Brennan Jr. was asked what the most important part of the Constitution was, he said without hesitation that it was the First Amendment. All the rest of the Constitution flowed from the First Amendment, he said. It is difficult to imagine more than a justice or two today who would instinctively agree with that answer.

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