High court refuses 3 more First Amendment appeals

Tuesday, October 3, 2006

Three more First Amendment cases were turned away by the Supreme Court yesterday in addition to the five reported on here.

The additional cases the Court refused to consider are:

  • An Alaska anti-abortion group's challenge that state campaign-finance laws violate its constitutional right to free speech.
  • A lawsuit by California parents objecting to a three-week class for seventh-graders on Islam.
  • A petition from a Utah nightclub to hear arguments about whether a city ordinance that bans nude dancing violates free-speech rights.

Alaska Right to Life Committee v. Miles
The Supreme Court declined yesterday to hear the Alaska Right to Life Committee's free-speech challenge to that state's campaign-finance laws.

That means the group will have to register with the state and disclose its income and expenditures if it wants to conduct telephone campaigns within 30 days of elections.

That was the ruling of the 9th U.S. Circuit Court of Appeals earlier this year in denying the group's request to strike down Alaska's electioneering laws.

“It's good to know that our electioneering definition will withstand a court challenge,” Alaska Public Offices Commission Executive Director Brooke Miles said yesterday.

The case arose from a dispute prior to the 2002 gubernatorial election, but it is relevant in this year's election.

The anti-abortion group said in its petition to the Supreme Court that it planned to “engage in similar fundraising during the next general election in Alaska and future elections” if the Supreme Court granted its petition.

Republican candidate Sarah Palin is anti-abortion, although spokesman Curtis Smith said she is not and has not been a member of the Alaska Right to Life Committee. Democratic candidate Tony Knowles supports abortion rights.

The anti-abortion group is a tax-exempt nonprofit group that claims 8,000 donating households as members. The Alaska Right to Life Committee is affiliated with the Alaska Right to Life Political Action Committee, an advocacy organization, and Alaska Right to Life Inc., an educational organization.

The three share the same director and same boards and “the degree of financial separation among the three entities is unclear,” Judge William A. Fletcher wrote in the 9th Circuit opinion.

The political action committee spent more than $3,500 in bulk mail preparation and postage in the weeks prior to this year's primary election, according to APOC documents.

Alaska Right to Life Executive Director Karen L. Lewis said the group would still get its message out within the 30-day electioneering period through the political action committee, but she was disappointed the Supreme Court did not take up the case.

“It seems like we're being silenced. Free speech should always be in place,” she said.

Asked why the group simply did not register with APOC, Lewis said: “I think I'd have to get the board's input on that.”

The group had planned a telemarketing campaign shortly before the 2002 election to state Republican Frank Murkowski's and Democrat Fran Ulmer's views on abortion and urge people to vote. The calls were also supposed to be a fundraiser for the group, according to the petition to the Supreme Court.

But state law required the group to register with APOC before conducting such “electioneering communications.”

The law limits such campaigns that directly or indirectly mentions a candidate, are worth more than $500, are distributed within 30 days of an election and “addresses an issue of national, state or local political importance and attributes a position on that issue to the candidate identified.”

Alaska Right to Life claimed it was “chilled from expressing its political views in the 2002 election and fears enforcement actions against it by (APOC) in future elections,” according to the petition.

In the petition, the group argued that the state's rules for “electioneering communications” are too broad and too vague, and they impose prohibitions and burdens more suited for political action committees.

Discussion and debate of issues and candidates' qualifications are given broad protection by the First Amendment, and Alaska has increased its regulations beyond the federal scope, the petition read.

The 9th Circuit agreed with a lower court's dismissal of Alaska Right to Life's claims. Alaska's “electioneering communication” laws had closed a loophole that allowed evasion of disclosure requirements, Fletcher's opinion read.

The rules were not overbroad nor were they vague, and they clearly applied in the telephone campaign the anti-abortion group wanted to run, the opinion read.

The group is not barred from conducting telephone campaigns or how much money it can spend on them.

“Rather, the provisions require only that certain forms of disclosure be made,” Fletcher wrote.

Eklund v. Byron Union School District
Justices refused yesterday to consider an appeal by parents who objected to a California school's three-week course about Islam for seventh-grade students.

Jonas and Tiffany Eklund say pupils at a Contra Costa County public school were given pages from the opening chapter of the Quran to read and studied Islam's Five Pillars of Faith in a world history unit on Muslim culture.

The Eklunds wanted the Supreme Court to find that the world history unit titled “The Roots of Islam and the Empire” violates constitutional guarantees separating church and state.

“Parents entrust public schools with educating their children, not indoctrinating them in religion,” the Eklunds' lawyers stated in a brief asking the Supreme Court to take the case. “The public school here had children become Muslims for three weeks.”

The Byron Union School District “moved far beyond a mere explanation of the historical or literary significance of Islam,” the parents' lawyers argued.

The 9th Circuit said the Islam program activities at the Excelsior School were not overt religious exercises and therefore did not raise constitutional concerns.

The Eklunds say they were not told ahead of time that their son Chase could have chosen to opt out of the class on Islam. The next year, Chase's younger sister, Samantha, chose not to take the class, making her feel as though she was being singled out because of her religious beliefs, the Eklunds' lawyers argued.

Heideman v. South Salt Lake City
The Supreme Court has rejected a petition from a Utah nightclub to hear arguments about whether a city ordinance that bans nude dancing violates the constitutional right to free speech.

The case pitted the topless club American Bush against the city of South Salt Lake, which passed an ordinance in 2001 requiring dancers to wear G-strings and cover their nipples.

Justices rejected the petition, which was filed in May after state decisions in the case were upheld by the 10th Circuit.

In 3-2 decision issued July 28, Utah's own high court also upheld the ordinance under the Utah Constitution, saying that “extending free speech protections in this area would run contrary to the intent of the framers of our constitution and the Utah citizens who voted it into effect.”

American Bush attorney Andrew McCullough said he wasn't surprised by the decision, but thought there was a chance the Court might hear the case because recently several circuit courts have issued opposite rulings in cases involving nudity, free speech and the secondary effects of sexually oriented businesses in communities.

“The Supreme Court often takes cases where there is a split in the circuits,” McCullough said. “My clients thought it was worth a shot.”

McCullough said the high court also rejected petitions from similar cases from the 11th Circuit.

“So they're not issuing an opinion. They certainly are not saying the city is right,” McCullough said. “They simply are saying it's not something we wish to spend time on right now.”

But Scott Bergthold, a Chattanooga, Tenn., attorney who represents South Salt Lake, called the Court's refusal to hear the case “a good win for the city.” He said the move was consistent with previous actions of the Court.

In 1991 and 2000, the Court upheld the right of cities to place prohibitions on nudity by ordinance, he said.

“We're glad the Supreme Court decided not to take the case up,” Bergthold said. “They've already said twice that cities have a right to do this, as long as their laws are carefully written.”

The Court's decision means McCullough and American Bush have exhausted all legal avenues of appeal in the case.

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