High court declines to review 5 free-speech cases

Tuesday, October 3, 2000

The U.S. Supreme Court opened its current session yesterday by
refusing to hear five cases involving a variety of free-speech claims. The high
court also ordered a lower court to re-examine its earlier ruling in a school
prayer lawsuit.

The high court refused to hear — denied certiorari — in
the following cases:

West v. Derby Unified School
District No. 260
— A Derby, Kan., middle-school student
alleged that school officials violated his First Amendment rights when they
suspended him for drawing a picture of the Confederate flag in math class. In
March, a three-judge panel of the 10th U.S. Circuit Court of Appeals
ruled in favor of the school
officials and their policy which forbids students from wearing or
possessing material that is “racially divisive or creates ill will or

Amelkin v. McClure
— A group of lawyers and chiropractors challenged a Kentucky law that
limits public release of information regarding accident victims to journalists
and other noncommercial users of the information. This is the second time the
Amelkin case had been appealed to
the Supreme Court. Last year,
the high court ordered
the 6th U.S. Circuit Court of Appeals to reconsider its ruling striking down
the Kentucky law in light of the high court’s decision in
Los Angeles Police Department v. United Reporting
Publishing Corp.
In that decision, the Supreme Court upheld a
similar California law that allowed the release of public records only to
people with a “scholarly, journalistic, political or governmental

American Target Advertising v.
— American Target Advertising, a Virginia firm that
acts as a consultant assisting nonprofit organizations’ fundraising efforts,
challenged a Utah law imposing licensing and disclosure requirements. Last
January, a three-judge panel of the 10th U.S. Circuit Court of Appeals
upheld parts of Utah’s
Charitable Solicitations Act. However, the appeals court did rule
unconstitutional a provision in the law requiring companies to post a bond or a
letter of credit in the amount of at least $25,000. The appeals court noted
that the “chilling financial reality of the bond ‘unnecessarily interferes
with First Amendment freedom.’” Both American Target Advertising and the
director of the Utah Division of Consumer Protection had appealed portions of
the 10th Circuit’s decision to the Supreme Court, which rejected both

Chmura v. Michigan Judicial Tenure
— A Michigan state judge challenged, on First
Amendment grounds, a state ethics rule prohibiting judicial candidates from
making false statements. The judge contended the rule would lead to
self-censorship among judicial candidates and restrict political speech. Last
March, the
Supreme Court determined that the rule — which also banned misleading
statements — was unconstitutional, and the state high court narrowed the
scope of the statute to prohibit judicial candidates from either knowingly or
recklessly using forms of public communication that are false. However, Judge
Chmura pursued his appeal to the Supreme Court in the belief that the revised
rule still would have a chilling effect on speech.

MLBPA v. Cardtoons
— The labor union for the Major League Baseball Players Association
contended that it had First Amendment immunity from a libel lawsuit filed by a
baseball card marketer. MLBPA contended that the First Amendment
free-petition clause immunized it from liability for a letter to Cardtoons
threatening to sue the company it if produced certain parody baseball cards.
Last April, the full 10th U.S.
Circuit Court of Appeals ruled that “when the basis for immunity is
the right to petition, purely private threats of litigation are not protected
because there is no petition addressed to the government.”

The high court took a different action with respect to the
school-prayer case of Adler v. Duval County School
which asks whether graduation ceremonies should include
unrestricted student messages, including religious messages. This decision
vacated the 11th U.S. Circuit Court of Appeals’ ruling. Last March, a full
11th Circuit panel had ruled that
the Florida county’s policy was constitutional, in part because it recognized
the “crucial difference between government speech endorsing religion”
and private speech that may contain a prayerful message.

Mat Staver, head of the Florida-based Liberty Counsel and defender of
the policy, said in a news release: “I am confident that once the Eleventh
Circuit Court of Appeals reconsiders the case, the appeals court will come to
the same decision because the court already distinguished the student message
policy in Jacksonville, Florida, from the prayer-only policy in Sante Fe,

However, Jackson Gray and William J. Sheppard, attorneys for the
persons challenging the policy, said they believe the 11th Circuit will issue a
different ruling this time.

“We are pleased that the Supreme Court has vacated the 11th
Circuit’s judgment in the case,” they said in a news release. “We
look forward to the court of appeals proceeding in light of the Supreme Court’s
Santa Fe decision, which we believe controls the outcome in our case.”

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