High court hands government sweep in free-speech cases

Monday, July 7, 2003

WASHINGTON — When Chief Justice William Rehnquist addresses the conference of the 4th U.S. Circuit Court of Appeals every summer, he customarily reviews some of the Supreme Court’s less-publicized rulings of the past term.

Paraphrasing the poet Thomas Gray, he describes them as “flowers born to blush unseen in the desert.”

In Rehnquist’s presentation this year, one of his unseen flowers was Madigan v. Telemarketing Associates, in which the Court unanimously reversed a ruling by the Illinois Supreme Court that said subjecting telemarketers to fraud prosecutions in certain circumstances violated their First Amendment rights.

Rehnquist said “ordinary fraud” was at stake in the case, and that the Supreme Court had decided not to extend a series of prior rulings that had given substantial First Amendment immunity to telemarketers. “I am pleased to see that trend stop,” Rehnquist said, adding that he had dissented in the previous line of cases.

Rehnquist’s fleeting reference to the telemarketing case capsulizes, in a way, what happened to the First Amendment this term at the Supreme Court, which adjourned for the summer on June 26. In most of the seven First Amendment cases decided in the 2002-2003 term, free speech or association seemed to be secondary concerns behind other government interests. And in many cases, the Court seemed intent on setting limits on past trends that favored the First Amendment.

The bottom-line result meant defeat for the First Amendment claimant in all of the cases this past term — a pro-government sweep unprecedented in recent memory.

“We’re seeing a new hesitation on the part of a Court that has been viewed as libertarian on the First Amendment,” said Ronald Collins, a scholar with the First Amendment Center. “The First Amendment was put on hold this term.”

On hold, but not in full-speed reverse, the consensus appears to be. While some of the losses stung, and could have unforeseen free-speech consequences — such as for the campaign-finance cases set for argument in September — there was no broad feeling among commentators that the high court had suddenly become inhospitable to the First Amendment. “It was not that awful,” said Collins.

Washington, D.C., lawyer Ronald Klain also said “the First Amendment had a really lousy year.” To him, the common thread in many of the cases was the Court’s rejection of invoking the First Amendment “to resist laws of general applicability.” In other words, the Court was less sympathetic than usual to First Amendment arguments made by those accused of violating laws that are not specifically aimed at repressing speech — such as laws against fraud, trespassing or drug use in prisons.

The Court’s First Amendment docket for the term, strictly speaking, is not over. The campaign-finance cases, known collectively as McConnell v. Federal Election Commission, will be argued this term, on Sept. 8 — but the decision almost certainly will be handed down next term, which begins in early October.

If this term’s trend extends to those cases, then the First Amendment objections to the law will have a hard time being heard above the government’s claim that restrictions on campaign money are needed to curb corruption.

Here, then, is a quick review of the Court’s First Amendment decisions of the term, broken down into two categories. In the first, the First Amendment issue took a back seat to other government interests. In the second, the Court seemed intent on reining in or stopping the progress of a prior trend of court precedents. (Note: Some of the cases could fit in both categories.)

The First comes second

  • Eldred v. Ashcroft. This 5-4 opinion rejected the view that Congress violated the First Amendment when it extended copyright protection to existing works by 20 years. Internet publishers said the extension restricted the growth of public domain materials online. But those concerns took a back seat to the Court’s view that the Constitution gives Congress broad power to set the contours of copyright protection — especially when the First Amendment claim at issue was not very weighty. “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches,” Justice Ruth Bader Ginsburg wrote for the majority.
  • Federal Election Commission v. Beaumont. By a 7-2 vote, the Court embraced the traditional justification for restricting campaign money: restricting the power of big corporations to influence and corrupt the political system — even when, as in this case, the corporations are not-for-profit advocacy groups. “Any attack on the federal prohibition,” Justice David Souter wrote, “goes against the current of a century of congressional efforts to curb corporations’ potentially deleterious influences on federal elections.” Nonprofit status does not make corporations any less powerful or potentially corrupting, he said — citing organizations like AARP and the National Rifle Association. Again, it was a case of First Amendment concerns taking a back seat to other government interests deemed more important.
  • Nike v. Kasky. After months of buildup as a potential landmark commercial-speech case, the appeal involving Nike’s defense of its global labor policies was dismissed by the Supreme Court just before it adjourned for the summer. It stemmed from a suit brought by consumer activist Marc Kasky, who invoked California laws against fraudulent advertising. Nike countered that its statements and op-eds deserved to be treated as political speech, not advertising. The Court’s dismissal — probably motivated by procedural flaws — has the effect of allowing the case against Nike to proceed in California courts, so it was counted as a loss for the First Amendment. The Court also was, in effect, making a judgment that the First Amendment issue was not so urgent or paramount that it had to be decided in advance of a final judgment in the California courts. But several justices, in writings that accompanied the dismissal, sent signals that Nike’s First Amendment argument had merit.
  • Virginia v. Hicks. Again giving priority to other government interests, the Court said in this case that the city of Richmond could make the streets and sidewalks of a housing project off-limits to unauthorized people to curb drugs and other crime in the area. Kevin Hicks, a visitor who was arrested, claimed his rights of association and free speech were violated. But a unanimous high court said Hicks, who was purportedly delivering diapers to his child in the housing project, was not engaged in any First Amendment-protected activity. The ruling may have reined in the scope of the Court’s “overbreadth doctrine,” which has traditionally allowed those First Amendment challenges to be made by people who were not themselves prosecuted for speech-related activities.
  • Overton v. Bazzetta. It was unsurprising that the Court unanimously placed the interest of prison discipline and order higher than the First Amendment rights of inmates in this case. A group of Michigan inmates had objected to new restrictions on non-contact visits by relatives and minors, saying the rules restricted their rights to family associations. “The very object of imprisonment is confinement,” Justice Anthony M. Kennedy wrote. “Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner.” The regulations merely had to be rationally related to penological interests, wrote Kennedy, and the ones at issue met that standard in the Court’s view.

Block that trend

  • Madigan v. Telemarketing Associates. In a series of rulings in the 1980s, the Court ruled that because of the First Amendment, states could not dictate to charities what percentage of donations they had to fork over to professional fund-raisers. The Illinois Supreme Court took those rulings a step further, finding that as a result of that principle, a high fund-raising fee could not form the basis of a fraud prosecution against a charitable group or its fund-raiser. The U.S. Supreme Court said that conclusion did not follow from its earlier rulings — even as it embraced the prior line of cases. “The First Amendment protects the right to engage in charitable solicitation,” Ginsburg wrote. “But the First Amendment does not shield fraud.” Fund-raisers and charitable organizations said they could live with the ruling.
  • United States v. American Library Association. In its prior cases evaluating congressional attempts to restrict Internet pornography, the Court had embraced the Internet’s role as a First Amendment medium of the highest order. But in this library case, the Court appeared to signal that its love affair with the Internet had its limits. At issue was the Children’s Internet Protection Act, which said that public libraries receiving federal funds for Internet and computer access would have to use blocking software to ensure that minors do not have access to pornography. Since the software often also blocks First Amendment-protected speech, the library association claimed the law violated free-speech rights. The Court by a 6-3 vote said the blocking requirement was valid — especially as a string attached to federal funds. The blow of the ruling was softened by the fact that several justices said that if libraries did not allow adult patrons to have the software removed in individual cases, those patrons could return to court with a First Amendment challenge.
  • Virginia v. Black. The Court’s usual tolerance for highly unpopular speech finally reached its limit in this case involving a ban on cross-burning with the intent to intimidate. The 5-4 ruling upholding Virginia’s cross-burning law may have just created a “category of one” with few consequences outside cross-burning statutes. It also offered a partial victory to the First Amendment side, striking down a part of the Virginia law that allowed the simple fact of burning a cross to create the presumption that it was done with the necessary intent to intimidate. Most justices agreed that the presumption violated the First Amendment and that government should have to prove intimidating intent if it is to prosecute cross-burners. In dissent, Justice Clarence Thomas, a usually strong First Amendment advocate, said the First Amendment was not even involved in the case. “This statute prohibits only conduct, not expression,” wrote Thomas. “Just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.”

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