First Amendment rulings awaited

Wednesday, May 16, 2007

It’s nearly June and the Supreme Court’s First Amendment docket is still full.

Ten free-expression cases and one religion case have yet to be decided. In these cases for which review has been granted, the subject matter includes student expression, campaign ads, voting rights, union free-speech rights, child pornography, and the First Amendment rights of a private school football coach. On the religion side of the First Amendment, there is an establishment-clause standing case. Another case raises a First Amendment-related issue concerning the scope of the speech-and-debate clause. Here is an overview of those cases, most of which should be decided this term; four others will be argued next term.

Student expression & the future of Tinker
Morse v. Frederick raises the issue of whether the First Amendment allows public schools to prohibit students from displaying messages that allegedly promote the use of illegal substances at school-sponsored events. The case also raises the related issue of whether there is qualified immunity for a public high school principal who was sued for allegedly violating a student’s First Amendment rights. This case could well determine the future staying power of the Court’s landmark ruling in Tinker v. Des Moines Independent Community School Dist.

The facts involved a Juneau, Alaska, high school principal, Deborah Morse, who suspended Joseph Frederick for unfurling a banner with the message “BONG HITS 4 JESUS” outside the school. Frederick, then a student, maintains that the sign was nonsensical, meant as a First Amendment experiment. School officials, however, interpreted Frederick’s action as a pro-drug message, one that undermined the school’s campaign against illegal drug use.

Here is how First Amendment Center Online correspondent Tony Mauro (see links below) summed up the oral arguments in the case: “By the end of yesterday’s hour-long argument before the Supreme Court, two things seemed clear on both ends of the spectrum of possible outcomes.”

“First, the Court balked at giving schools a broad charter to censor any speech that merely falls outside the school’s educational mission. But second, the Court also seemed resolved that Principal Morse — and school officials like her in the future — should not be held personally liable for misinterpreting the welter of nuanced and conflicting Court precedents on student free speech.”

Sports-recruiting case
Do private prep schools have a constitutional right to talk to prospective student athletes to “recruit” them, when that violates a no-recruiting rule those schools have voluntarily agreed to obey as members of a state sport competition organization. That is the issue raised in Tennessee Secondary School Athletic Assoc v. Brentwood Academy.

Here are the respective arguments in the case as set out by Mauro: On the one hand, “TSSAA argues that if the First Amendment applies to this dispute, the Court should use a standard that is deferential toward the association, because Brentwood volunteered to join the association and knew the rules when it joined. Allowing the 6th Circuit ruling to stand would ‘unleash a wide array of litigation over rules that limit speech in the context of athletic or other competition,’ the association asserts.”

On the other hand, “Brentwood Academy argues that the letters from then-coach Carlton Flatt were ‘harmless communications to non-matriculated students’ inviting them to spring practice — which was legal under the regulations. ‘TSSAA has fought a scorched-earth battle to suppress [the academy’s] harmless speech that informed students of an authorized athletic opportunity.’ The academy’s brief also argues that because the TSSAA has been designated as ‘the state’s regulator of interscholastic athletics,’ it is a state actor whose regulations should be scrutinized under First Amendment standards.”

The case was argued on April 18. An opinion should be handed down by June.

Union free-speech rights
In Davenport v. Washington Education Association (and its companion case, Washington v. Washington Education Association) the Court will consider whether states may prohibit labor unions from using non-union employees’ dues for political activities without the workers’ express consent.

The relevant facts, as Mauro notes, are these: “Washington State voters in 1992 approved a measure requiring instead that non-members ‘opt in’ to allow their fees to be used for union political activities. In other words, the fees paid by non-members could not be used for political activities unless the employees affirmatively chose to allow it. The Washington attorney general accused the teachers’ union of violating the new rule and won a judgment in court, but the Washington Supreme Court said the opt-in requirement ‘upset the balance between nonmembers’ rights and the rights of the union.”

The cases were argued on Jan. 10. Some Court observers thought the justices may have been unsympathetic to the union’s free-speech arguments. The ruling should come down in June.

News update: Recently, the Washington Legislature passed a bill modifying the law at issue in Davenport and the bill was signed by the governor. The stated purpose of the bill, H.B. 2079, was to mitigate any possible ruling against the teachers’ union.

Campaign finance: ‘as-applied’ challenges
Two companion campaign-finance cases — Federal Election Commission v. Wisconsin Right to Life, Inc. and McCain, et al., v. Wisconsin Right to Life — await a decision. The cases involve “as-applied” challenges to a part of a federal law that forbids “electioneering communications” that are directly funded by corporations and unions in the 30 days before primary elections and 60 days before general elections. More than three years ago, the Court, with now-retired Justice Sandra Day O’Connor in the majority, upheld the law on its face in McConnell v. FEC, but the justices left the door open to challenges once the law took effect.

The oral arguments appeared to favor those challenging the McCain-Feingold law. With “speech-sympathetic comments from Roberts and Scalia, as well as skeptical questioning of defenders of the law from Justice Samuel Alito Jr.,” observed Mauro, “it seemed possible to think that the Court’s embrace of campaign-finance regulations in the face of free-speech concerns is about to weaken. Justice Anthony Kennedy’s questioning was ambiguous, and Justice Clarence Thomas as usual was silent — though he is a solid vote against any speech-limiting campaign-finance laws.”

Establishment-clause ‘standing’
Hein v. Freedom from Religion Foundation, et al. raises the issue of whether taxpayers have standing under Article III of the Constitution to challenge on establishment-clause grounds the actions of executive branch officials pursuant to an executive order, where the plaintiffs challenge no act of Congress, the executive branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government.

The action in question was a series of conferences funded by President Bush’s faith-based initiative, which in the view of the Wisconsin-based foundation of atheists and agnostics, favored religious organizations over nonreligious groups.

In 1968, the Court in Flast v. Cohen held that because of the unique history of the establishment clause, taxpayers do have Article III standing when they make such challenges. That ruling created an exception to the general Article III rule, which requires litigants to suffer a direct injury before they can sue.

The Hein case was argued on Feb. 28. “After the hour-long arguments,” wrote Mauro, “it seemed possible, if not probable, that a majority of the Court would cut back on the Flast exception, but just how far was hard to predict. As is often the case in the new Court, Justice Anthony Kennedy may be the swing vote.”

“One thing was certain: the Court’s newest members, Chief Justice John Roberts and Justice Samuel Alito, were skeptical of Flast, and not happy with the state of the Court’s religion-clause jurisprudence,” Mauro observed.

Speech-or-debate-clause case
Dayton v. Hanson, not strictly a First Amendment case, presents three issues for the justices to consider: (1) Whether the speech-or-debate clause requires dismissal of these suits brought under the Congressional Accountability Act of 1995; (2) Was the Office of Sen. Mark Dayton, D-Minn., entitled to appeal the judgment of the D.C. Circuit Court of Appeals directly to the Supreme Court?; and (3) Was this case rendered moot by the expiration of Dayton's term of office?

The case was argued on April 24.

News update: On May 21, the justices said the Supreme Court lacked jurisdiction to consider the lawsuit by ex-Dayton staffer Brad Hanson.


Election primaries & free-association rights
The basic issue in Washington State Grange v. Washington Republican Party and State of Washington v. Washington Republican Party is whether a so-called “blanket primary” is truly nonpartisan if candidates are allowed to identify their parties on the common ballot, and the top two winners are nominated to run in the general election. The Democratic, Republican and Libertarian parties challenged the law, claiming that it unconstitutionally restrained their supporters’ freedom of association.

These cases, Mauro notes, require a “tricky balancing act between the association rights of political parties and the rights of voters and candidates to have access to the political system.” The Court granted certiorari in the cases on Feb. 26. They will be argued next term.

On Feb. 20, the Court also granted certiorari in New York State Board of Election v. Torres, a test of the political party nominating conventions that control who gets on the ballot in elections for state trial-court judgeships. The challenge to the system was brought by Margarita Lopez Torres after repeatedly failing to win a Democratic Party nomination for state Supreme Court, the trial-level court in New York.

The main issues in the case are: (1) In American Party of Texas v. White (1974), the Court held that it was “too plain for argument” that a state may require intra-party competition to be resolved either by convention or primary. Did the 2nd U.S. Circuit Court of Appeals run afoul of White by mandating a primary in lieu of a party convention for the nomination of candidates for New York state trial judge? (2) What is the appropriate scope of First Amendment rights of voters and candidates within the arena of intra-party competition, and particularly where the state has chosen a party convention instead of a primary as the nominating process?

Challenge to the PROTECT Act
The PROTECT ACT prohibits “knowingly advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is illegal child pornography.” The issue raised in United States v. Williams is whether that section of the act is overly broad and impermissibly vague, and thus facially unconstitutional.

Here is how the 11th U.S. Circuit Court of Appeals characterized the facts in the case: “On April 26, 2004, as part of an undercover operation aimed at combating child exploitation on the Internet, United States Secret Service Special Agent (SA) Timothy Devine entered an Internet “chat” room using the screen name “Lisa Miami” (LMN). SA Devine observed a public message posted by a user employing a sexually graphic screen name, which was later traced to the defendant Williams. Williams’s public message stated that “Dad of toddler has ‘good’ pics of her an [sic] me for swap of your toddler pics, or live cam.” SA Devine as LNM engaged Williams in a private Internet chat during which they swapped non-pornographic photographs. Williams provided a photograph of a two to three year-old female [in a] bathing suit, and five photographs of a one to two-year-old female in various non-sexual poses, one of which depicted the child with her breast exposed and her pants down just below her waistline. LNM sent a non-sexual photo of a college-aged female digitally regressed to appear ten to twelve years old, who LNM claimed was her daughter. After the initial photo exchange, Williams claimed that he had nude photographs of his four-year-old daughter, stating “I’ve got hc [hard core] pictures of me and dau, and other guys …’ [Later, Williams posted a] computer hyperlink, which SA Devine accessed. The computer hyperlink contained, among other things, seven images of actual minors engaging in sexually explicit conduct. The nude children in the photos were approximately five to fifteen years old, displaying their genitals and/or engaged in sexual activity.”

Review was granted on March 26; the case will be argued next term.