First Amendment triumphs mark attorney’s Supreme Court record

Friday, September 25, 1998

Bruce Ennis...
Bruce Ennis

Those who cherish their First Amendment freedoms owe a debt of gratitude to attorney Bruce Ennis.

Ennis has challenged numerous regulations on free expression before the nation’s premier court — the U.S. Supreme Court — as well as in other courts across the country.
And he usually prevails.

“The First Amendment … is instrumental in a democracy to ensuring the widest dissemination of competing views,” says Ennis in explaining what motivates him. “Secondly, the First Amendment serves as a safety valve by allowing people to express hostility toward government without resorting to actual violence.”

A partner in the Washington, D.C., office of Jenner & Block, Ennis has personally argued 13 cases before the U.S. Supreme Court, an astoundingly high number for an attorney in private practice. He has also filed friend-of-the-court briefs in over 200 First Amendment cases. Modest despite his Supreme Court track record, Ennis will say only that he has “been very privileged and lucky” to have argued major free-speech cases involving all types of media — print, broadcast, cable, telephone and the Internet.

Reno v. ACLU: A victory for the Internet

Perhaps most noteworthy of his Supreme Court cases and First Amendment triumphs was his resounding victory for free speech on the Internet in Reno v. ACLU. In that case, the high court last year struck down provisions of the Communications Decency Act of 1996 which criminalized indecent and patently offensive online communications.

Just after the historic decision was issued, Ennis described it as granting “the legal birth certificate to the Internet.”

“The decision was important for the standard of First Amendment review that the Supreme Court said applied to regulations on Internet speech,” Ennis told “When Congress entered into cyberspace for the first time with its indecency regulations, a question arose as to what standard would apply to the Internet.”

Ennis says that the government argued for a deferential standard of review similar to that applied to the broadcast medium. Under First Amendment jurisprudence, regulations on broadcast media are not subject to the same level of scrutiny as, say, restrictions on print media.

“We argued that the government should have to clear a very high hurdle when restricting speech on the Internet, that there should be a very stringent standard of review,” he says. “Fortunately, the court agreed with us.”

Present Internet legislation: The Son of CDA and filtering

Shortly after the Supreme Court issued its opinion in Reno v. ACLU, Congress reacted with more legislation designed to protect minors from Internet pornography. Most prominently, Sen. Coats introduced S. 1482, tagged “Son of CDA,” and Sen. John McCain, R-Ariz., introduced S. 1619, otherwise known as the Internet School Filtering Act of 1998.

These developments do not surprise Bruce Ennis.

“You have to remember the subject is sex and the current political climate in Washington, D.C., is self-righteousness about sexual issues,” he says.

Ennis says he doesn’t like any of the bills, calling them “ill-advised.” However, he acknowledges that the Coats measure and its companion House bill, the Child Online Protection Act introduced by Rep. Mike Oxley, R-Ohio, are “much narrower than the Communications Decency Act.”

Ennis thinks very little of McCain’s filtering legislation: “I think it is a ridiculous law and is pure posturing. The law sets no real standards but rather says each library must decide for itself what policy to adopt.”

Ennis, who serves as general counsel for the American Library Association, says that there is “no filtering system available today that can do the job of determining what material is constitutionally protected and what material is not.

“There is an immeasurable difference between filtering devices used by parents to protect their kids and filtering devices used by public entities,” he says. The problem, according to Ennis, is that “while individuals have different value systems, a filtering system can’t differentiate between different value systems. It adopts a one size-fits-all system.”

The filtering question is tough for public libraries, which have been sued (in Virginia) for installing filtering software and sued (in California) for not installing such software.

Other First Amendment cases before the high court

Ennis also argued before the U.S. Supreme Court in Barnes v. Glen Theatre, Inc., in which the Court ruled 5-4 in favor of Indiana’s public indecency law prohibiting public nudity. Two adult entertainment establishments challenged the law, contending it violated their First Amendment free-expression rights.

Though Ennis was hired only two weeks before the oral argument and had not represented the parties in the lower courts, he obtained four votes for his position and managed to convince eight justices — all save Justice Antonin Scalia — to state clearly that nude dancing was a form of expressive conduct that merits some degree of First Amendment protection.

Nude dancing is subject to a host of regulations, including zoning restrictions, buffer zones between patron and performer, bans on total nudity and restrictions on the hours of operation. These developments also do not surprise Ennis. “There are many restrictions because it’s nude dancing, a form of expression that is highly visible and offensive to certain segments of communities,” he says.

Ennis warns First Amendment advocates of the legal rationale used by Justice Souter to uphold the law in the Barnes decision: the secondary-effects doctrine. Under this rationale, government officials argue that restrictions on expression are not targeting the content of the expression (i.e., the erotic or sensual), but are aimed at certain harmful “secondary” effects, such as increased crime or decreased property values, associated with the expression.

“This was an ill-conceived doctrine to begin with in Renton [Renton v. Playtime Theatres, Inc. (1985)],” he says. “This doctrine is very dangerous if it is not carefully restricted to its original purpose — true secondary effects.”

Ennis explains that “the government attempted to use the secondary-effects doctrine to justify the Communications Decency Act, when it was clear that they were going after the primary effect of the speech and its impact on minors.”

Other First Amendment cases Ennis has argued before the Supreme Court have included the commercial speech case Rubin v. Coors Brewing Co. and Turner Broadcasting System v. FCC.

At issue in the former was a federal law prohibiting beer labels from displaying alcoholic content. In its 1995 opinion, the high court ruled unanimously that this labeling ban on truthful, non-misleading information violated commercial free-speech rights.

“This case was important for many reasons, including the fact that it put the nail in the coffin of the Posadas decision,” Ennis says. The decision Ennis mentions is the 1986 decision of Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, in which the high court ruled that the government of Puerto Rico could ban promotional advertising of gambling because it could have prohibited gambling altogether.

Under this rationale, government can impose the lesser restriction on the advertisement of a product if it could impose a greater restriction of banning the product altogether. This “greater includes the lesser” argument could have grave implications for commercial speech.

“If we had lost the Rubin case, then the government could wipe out commercial speech about any product that the government could regulate directly,” Ennis says.

Turner Broadcasting System v. FCC involved a constitutional challenge to a federal law requiring cable TV operators to carry local broadcast stations. Cable operators contended the “must-carry” rule infringed on their First Amendment free-speech rights and editorial discretion. However, broadcasters countered that the rule was speech-enhancing and a protection for their free-speech interests.

Ennis, who represented the broadcasters, admits that this was a “hard case, because there were important First Amendment issues on each side.”

However, “The First Amendment interests of the broadcasters and non-cable operators were more important than the editorial discretion of cable operators,” he says because if
the must-carry rule were struck down, broadcast TV would be placed in serious jeopardy.

A rare defeat

Another of Ennis’ First Amendment Supreme Court cases was McDonald v. Smith (1985), a case in which the Supreme Court issued a decision that still bothers him.

In McDonald, Ennis represented Robert McDonald, who was sued for libel by David Smith for sending allegedly defamatory letters to President Reagan that criticized Smith and allegedly undermined his chances of being appointed U.S. attorney general.

Ennis argued that McDonald’s letters were absolutely protected by the petition clause of the First Amendment.

The Supreme Court ruled unanimously against McDonald, writing: “To accept petitioner’s [McDonald's] claim of absolute immunity would elevate the Petition Clause to special First Amendment status. The Petition Clause, however, was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish and assemble … and there is no sound basis for granting greater constitutional protection to statements made in a petition to the President than to other First Amendment expressions.”

Ennis says: “I lost soundly before the Supreme Court in a case that I should have won. I predict, however, that someday the law will be different in this area.”

“My client had a constitutional right to petition the government, even if the statements in the petition were false. If you look at the history of the Petition Clause from England, citizens there had an absolute right to petition Parliament and the King. Both from a historical and a constitutional perspective, the U.S. Supreme Court wrongly decided that case,” he says.

Threats to the First Amendment

Ennis sees several threats to the First Amendment on the horizon. One he cites is the Flag Desecration Amendment.

“I agree with the U.S. Supreme Court decision in Texas v. Johnson [where the high court struck down a Texas flag desecration statute],” he says. “This is a tough question for the Justices, but it is very important — in cases involving hard, controversial issues — for the First Amendment to prevail in order that society will realize that the First Amendment has real teeth.”

Ennis agrees with the late Justice William Brennan’s famous statement in the case: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

The other threat Ennis foresees involves restrictions on newsgathering. Ennis represents ABC in Food Lion v. Capital Cities/ABC, Inc. Food Lion sued ABC under numerous legal theories after a couple of “PrimeTime Live” producers used fake identities to obtain jobs at Food Lion and then used hidden cameras to capture certain allegedly unsanitary food-handling practices.

In 1996, a federal jury awarded Food Lion over $5.5 million in punitive damages for fraud, trespass and breach of the duty of loyalty. Though a judge reduced the punitive damage award to just over $300,000, ABC appealed. Ennis argued on behalf of ABC before the 4th U.S. Circuit Court of Appeals on June 2.

At stake, according to Ennis, is the practice of investigative reporting.

“This is an immensely important case,” he says. “If this damage award is upheld, news entities will basically be forbidden from engaging in any form of deception in gathering news; it will greatly circumscribe investigative reporting.”

Ennis says that a reporter should not torture people to get information or break into a home, but that there must be a “balance between, on the one hand, the importance of the information and the public’s need to know [as measured] against the extent of the intrusion.”

“The Food Lion jury found that reporters could engage in no form of deception. That does not strike a proper balance and will threaten First Amendment free-press freedoms.”

Ennis says he finds the gravest threat to the First Amendment in the fact that “the courts and the public often take a short-term view of the public interest. The popular sentiment in many controversial speech cases is to stop the controversial speech. We need to take a step back and look at the broader implications of restricting speech.”

At least those concerned about their constitutional freedoms can take solace from the fact that Bruce Ennis will be on the front lines, defending the First Amendment.