High court refuses to hear First Amendment appeals

Tuesday, October 2, 2001

The Supreme Court yesterday turned away several cases of interest to First Amendment watchers.

The high court refused to hear:

  • Amway Corp.'s appeal of a lower court's decision that rumors spread to hurt a company aren't entitled to free-speech protection.

  • The Church of Scientology's effort to reinstate its libel case against Time magazine for a 10-year-old article portraying the church as a greedy cult.

  • A legal effort to resurrect the waving of Confederate battle flags at college football games in Mississippi.

  • A case that accused a New York public school district of promoting Satanism through its Earth Day lessons and activities.

  • Anti-rap activist C. DeLores Tucker's bid to sue Newsweek and Time for libel. Tucker claimed the magazines mischaracterized her dispute with the estate of slain rapper Tupac Shakur.

  • A challenge to Florida's system of holding private hearings in parental rights cases.

  • An appeal by abortion protesters arrested in 1991 for violating a Fargo, N.D., picketing ordinance.

  • Business and mining groups' appeal of a lower court decision that found Montanans didn't have to re-vote on a mining restriction approved in 1998, even though an unconstitutional limit on corporate spending was in place at the time.

Amway v. Procter & Gamble
When the high court turned away its appeal yesterday, Amway lost its six-year fight with rival Procter & Gamble over rumors that P&G was linked to devil worship.

The court, without comment, declined to review a lower court's decision that rumors spread to hurt a company are not entitled to First Amendment protection. The case grew from Cincinnati-based P&G's allegation that Amway and a group of Amway distributors spread an old rumor about P&G and Satanism.

False rumors began linking P&G's former crescent-shaped “man in the moon” logo to Satanism in the late 1970s. The false story also spread that P&G's president had revealed his association with the Church of Satan during a national television interview.

P&G claims distributors for Amway revived the rumors in 1995 when a distributor recounted a version of the TV-show rumor on the company's national voice-mail system for distributors. Ada, Mich.-based Amway sells household products, many of which compete with Procter & Gamble's brands, directly to customers.

P&G has sued 15 times to stop the rumors, eight times involving Amway or its distributors. P&G won't disclose how much it has spent on the fight, but Amway, now known as Alticor Inc., says it has tallied $30 million in legal bills since the suits began.

A federal judge in Texas threw out some of P&G's claims in 1999, and ruled for Amway in another part of the case. On appeal, a three-judge panel of the 5th U.S. Circuit Court of Appeals upheld part of the lower court ruling but ruled that P&G's trademark and racketeering claims should go forward.

Speech, in this case a rumor, gets no First Amendment protection if the “speakers' motives in spreading the Satanism rumor were economic,” the appeals court wrote. The appeals court sent the case back to the lower court and ordered the judge to look at P&G's claims under a trademark law that makes it a civil offense to misrepresent goods, services or commercial activities.

Amway has said the company has tried to help P&G stamp out the rumors. The Amway distributor who left the first message issued a retraction days later, but P&G claims the damage was done.

Amway argued in court that even though the rumor was false, spreading it was allowed as a matter of free speech. The company drew the backing of several media organizations when it asked the full 5th Circuit to rehear the issue. P&G was trying to stifle what the press, consumer advocates and others can say about businesses, Amway argued.

When that argument failed, Amway hired Kenneth Starr, a former solicitor general and independent counsel, and appealed to the Supreme Court. Starr argued that the high court should clarify its views on the First Amendment and commercial speech, such as advertisements.

It is a tangled area of the law, and the Supreme Court has been unable to work out a single, clear test for defining commercial speech and its coverage under the First Amendment. Advertisements are subjected to government regulation that is not applied to other kinds of speech.

The court is also divided. Justice Clarence Thomas is on record as supporting equal treatment for commercial and noncommercial speech — advertisements could get the same free-speech shield as a protester in the town square. So far, the other justices have not agreed.

Church of Scientology International v. Time Warner Inc.
Ten years after Time magazine ran an award-winning article portraying the Church of Scientology as a greedy cult, the Supreme Court refused to consider reinstating the church's libel case.

Time Warner Inc. had steadfastly defended the 10-page article and said it refused to be “intimidated by the church's apparently limitless legal resources.”

The church contended that the writer was biased and interviewed only critics.

Scientology, founded by science-fiction writer L. Ron Hubbard, requires members to take classes and counseling that can cost thousands of dollars.

The May 1991 article titled “Scientology: The Cult of Greed” said that the so-called religion is “really a ruthless global scam.”

Time said the cover story was awarded the Gerald Loeb Award for distinguished business and financial journalism, the Worth Bingham Prize and the Conscience in Media Awards from the American Society of Journalists and Authors.

The church had said the story had multiple defamatory comments.

“While in the past certain church officials concededly committed improper acts … most of the allegations of past misconduct were false and distorted, the result of the misunderstanding, suspicion and prejudice that typically greet a new religion,” the church told the Supreme Court.

A judge had dismissed the lawsuit and the 2nd U.S. Circuit Court of Appeals ruled that Time was not guilty of writing the report with actual malice, which is the standard for libel cases involving public groups or people.

The church told the Supreme Court that the rulings “rather than encouraging the search for truth, provide a safe harbor for biased journalism.”

Giles v. University of Mississippi
A legal effort to resurrect the waving of Confederate battle flags at college football games in Mississippi died yesterday in the high court.

The Court declined to take the appeal of a flag-carrying spectator who had been asked to leave a University of Mississippi football game in 1999.

The college, also known as Ole Miss, banned flags with sticks from athletic events in 1997. Before that, football fans often waved small Confederate flags, sang along to the fight song “Dixie” and cheered with mascot Colonel Rebel, outfitted like an old Southern gentleman.

At the time, the team's football coach complained that the flag hurt recruitment of black athletes. The university had hired a New York public relations firm to help reform its image.

In banning all flagstaffs and pointed objects, the school cited spectator safety.

“Fifty years of enthusiastic flag-waving experience have proven stick flags harmless,” Jimmy Giles, who sued the college, told the Supreme Court. “While the university's pretext is slick and clever … it nonetheless is unconstitutional because its intent and consequence is to suppress free speech.”

Riots broke out at Ole Miss in 1962 after a court ordered the enrollment of a black student. About 20,000 federal troops were sent to Oxford, where two people died in rioting over the desegregation.

The state university dissociated itself from the battle flag in 1983, but spectators still brought flags to games. Under the ban that started in November 1997, police can confiscate flags or ask fans who bring them to leave.

Giles sued Ole Miss after he was approached by police while waving a flag at a 1999 game. He left instead of having his flag confiscated. Under the policy, people can take flags or signs into the football stadium, but not on sticks.

“The sole purpose of a flag is to communicate ideas and a flagstaff is essential in the effective display of a flag,” wrote Giles, leader of a Southern heritage group.

Giles' case had been dismissed in a lower court, and the 5th U.S. Circuit Court of Appeals upheld the dismissal.

DiBari v. Bedford Central School District
The Supreme Court refused yesterday to accept a case that challenged ceremonies and teachings in a Westchester County, N.Y., school district as hidden promotion of Satanism.

Mary Ann DiBari, legal guardian of her two grandchildren and a Catholic, lost a chance to revive her lawsuit accusing the school system of forcing children to worship a large globe as part of Earth Day activities.

DiBari also claims the district was wrong to require third-graders to make cutouts of the Hindu elephant-headed god, Ganesha, during the study of India and to allow the making and sale of worry dolls with toothpicks and thread.

DiBari filed suit along with other Catholic parents in 1996 against the Bedford Central School District. A judge sided with the parents in 1999, finding that the school district promoted religion. Two years later the 2nd U.S. Circuit Court of Appeals struck down that decision and said children were not coerced.

DiBari appealed to the Supreme Court and said the district was guilty of blatant First Amendment violations.

“Unless the First Amendment exempts Hinduism, Earth-worship and voodooism from its requirement of religious neutrality by state actors, these activities could not have survived evenhanded First Amendment scrutiny,” she said in the appeal.

DiBari also said the appeals court was incorrect in comparing the Earth Day ceremony, where children offer gifts of speeches to the Earth, to a ceremony with military officers showing respect to the American flag.

The Earth Day ceremony, which was organized by a high school club, varied year-by-year. Sometimes there were musical performances and speeches by administrators.

The school said the ceremony was only complying with New York Education law, which dates back to 1888 and designates the last Friday of April as Conservation Day.

Lawyers for the district told the Supreme Court that DiBari was trying to “characterize the benign ceremony as religious.” Children were not forced to attend the event, they said.

The appeals court ruled that the celebration did not suggest “that the earth was divine, or the Creator, of a being to be worshipped, or that the proceedings were religious in nature.”

DiBari also had argued that the school district in Westchester County crossed the line in allowing an elementary teacher to read a story about Buddha and permitting a self-described psychic to teach exercises in creativity and memory.

Tucker v. Fischbein, et al.
An anti-rap activist lost her bid yesterday to sue newsmagazines she claimed mischaracterized her dispute with the estate of slain rapper Tupac Shakur.

The Supreme Court refused yesterday to take C. DeLores Tucker's libel case against Newsweek and Time.

Tucker and her husband initially sought $10 million from the rapper's estate for “loss of consortium” and other claims because of references to her in songs on Shakur's 1996 album “All Eyez on Me.” Shakur rhymed Tucker's name with an obscenity. The rapper was shot to death in Las Vegas in 1996.

The Newsweek article said the couple claimed Shakur's lyrics “iced their sex life.” Time said lewd lyrics “caused her so much distress that she and her husband have not been able to have sex.”

Tucker maintained that the lawsuit had nothing to do with sex. She revised the suit and sued multiple media organizations, reporters and the attorney for the estate for remarks he made on the subject.

The 3rd U.S. Circuit Court of Appeals said the anti-rap crusader was a public figure and had to prove that Time and Newsweek reporters wrote the stories with actual malice. The court said there was no proof to support that.

Loss of consortium can involve impairment of sexual relations. Writers for both publications had consulted with staff attorneys on their stories.

Tucker told the Supreme Court in the appeal that 70% of news-media libel cases are dismissed before trial and that the Court should reconsider the issue. Tucker said she and her husband, both in their 70s, were victims of big media.

“Although sex, sleaze and celebrities sell, one cannot deliberately change facts and call fiction 'news' and not permit a jury to find malice,” they said in the appeal.

Tucker had served as Pennsylvania's secretary of state, headed the National Political Congress of Black Women and in 1994 formed an anti-rap campaign with William Bennett, a former White House drug policy director.

Her lawsuit over the lyrics was dismissed.

Her case against the Shakur estate attorney, Richard Fischbein, is still pending. The 3rd Circuit said there was evidence that Fischbein acted with malice by encouraging stories on the sex angle, even after the lawsuit was revised.

Fischbein had asked the Supreme Court to overturn that ruling. The court also refused yesterday to take that appeal.

Natural Parents of J.B. v. Florida Department of Children and Families
Florida authorities can move ahead with a private hearing to terminate the parental rights of a mother accused of making her child ill to get attention for herself.

The Supreme Court refused yesterday to hear a challenge of the state's system of holding private hearings in parental-rights cases.

Authorities are trying to strip Kathy and Craig Bush of parental rights of their daughter, who was hospitalized 200 times and underwent 40 operations before a state investigation in 1996.

Kathy Bush was convicted of child abuse in a public criminal trial in the case and wanted the civil case also open to the public.

Florida law mandates that the public be kept from parental rights proceedings because children are involved, with no exceptions. The Florida Supreme Court upheld that law in February.

If the Bushes' parental rights are taken away, they will have no connection to their daughter, who is now 14 and living with relatives.

The U.S. Constitution guarantees a right to public trials in criminal cases, but not civil cases. The Bushes argued in the appeal that parental rights cases are a “special class of civil cases threatening parents with the loss of a fundamental liberty interest.”

No member of the press or public had sought permission to attend the Bush hearing, the state argued, and the girl's psychologist supported closed hearings. The hearing could involve private information and by keeping it closed the courts would be “protecting the child from further psychological and emotional harm,” the state said.

The Court was told that only two other states, Massachusetts and Wisconsin, have laws closing all parental-rights hearings.

Prosecutors have maintained that Kathy Bush had Munchausen syndrome by proxy, a psychological disorder in which a parent causes a child's illnesses to get attention.

The daughter was placed with relatives in 1996 and has not been sick again, according to court records. Her mother is appealing her conviction and five-year prison sentence.

A trial judge first agreed with the Bushes that they were entitled to an open proceeding. That was overturned by an appeals court, and the Florida Supreme Court agreed with the appeals court.

Veneklase v. City of Fargo
The high court declined yesterday to hear an appeal by abortion protesters who were arrested 10 years ago for violating a picketing ordinance in Fargo, N.D.

The Court's decision ends a case that pitted the rights of anti-abortion activists to protest against an individual's right to privacy at home, said Mike Miller, a Fargo city attorney who argued the case from the beginning.

“It's a major win for the right to privacy in a person's own home,” Miller said. “It proves that protesters cannot lurk outside a person's home against that person's will.”

Paul Mehl, one of five abortion opponents who appealed, said he was hoping for a different outcome. But he said the city ordinance already had been struck down.

“This particular ordinance was struck from the city of Fargo's law books soon after this happened,” said Mehl, who lives in West Fargo. “The bottom line of the appeal was that we didn't want anything to hurt the right to free speech and the freedom to protest.”

But Tom Condit, the protesters' Cincinnati-based attorney, called the court's decision a “horrible injustice.” Condit, who has argued similar cases, said the decision not to take the case could have a chilling effect on abortion protesters and their free-speech rights.

“What I must now tell my clients is that if you want to be a Christian or pro-life on the public sidewalks in the United States of America, prepare to be arrested,” Condit said. “Any other advice than that is now malpractice.”

The case stemmed from the 1991 arrests of Mehl and four others — Darold Larson and Nancy Emmel, all of Fargo, and Jessica Uchtman of Robbinsdale, Minn., and Chris Veneklase of Grand Rapids, Mich. They were charged with violating a city ordinance that barred pickets from targeting a private home.

The abortion opponents were walking in front of three homes, one of which belonged to Jane Bovard, a Fargo abortion clinic administrator. They said they were not singling out Bovard's home and were not in violation of the ordinance.

A judge later dismissed the charges, and the protesters sued the city and four arresting officers, saying their constitutional free-speech rights were violated.

That case has bounced around the state and federal court system ever since, with decisions alternately favoring both sides.

In 1996, the protesters were awarded more than $54,000 in damages and attorney fees. The 8th U.S. Circuit Court of Appeals reversed the judgment in February.

In a 6-5 decision, the appeals court ruled that the anti-picketing ordinance did not violate the protesters' rights because it did not target any specific groups.

Miller says he knows of no immediate plans to reinstate Fargo's picketing ordinance.

Montana mining-vote cases
The high court yesterday let stand a lower court ruling that found Montanans do not have to vote again on a mining restriction approved in 1998, even though an unconstitutional limit on corporate spending kept companies from fighting the proposal for most of the campaign season.

The high court refused to consider an appellate court ruling that said even though the spending ban was illegal, a new vote is not needed on the initiative that bans the use of cyanide in open-pit gold mines.

Montana officials and voting groups have defended the ban on corporate donations in ballot initiatives, as well as the voter-approved prohibition on cyanide use.

“No potential voters were disenfranchised, no improper ballots were cast or counted, and no established election procedures were ignored,” the Supreme Court was told.

Webb Brown, president of the Montana Chamber of Commerce, called the court's decision a victory for corporations in Montana and in other states where similar spending limits might otherwise be enacted.

“We felt all along that it was a restriction on corporate free-speech rights,” said Brown, whose organization led the fight against the campaign-spending prohibition. “Corporations should be able to speak publicly with their pocketbook for or against a ballot issue.”

Brian Morris, Montana solicitor, said the state was disappointed the Court did not agree to decide the constitutionality of the corporate-spending restriction in ballot-measure campaigns.

But he applauded the high court's companion decision that leaves the cyanide mining ban in place without requiring a second vote. He said opponents of the ban had a weak case because evidence showed they had made little effort to spend any money under provisions of the ban, in order to buttress their legal challenge.

On the question of whether a new election is needed on the mining ban, the 9th U.S. Circuit Court of Appeals had said it would be expensive for the state to hold another election. Business groups and mining interests appealed, asking that the election results be thrown out.

“Suppression of political speech cannot be permitted and, when found, cannot go unrectified,” Communities for a Great Northwest told the court.

The campaign funding change was endorsed by voters in 1996 amid complaints about corporate spending on state initiatives.

About half the states allow people or groups to petition for new laws or constitutional amendments, known as initiatives. A study found that 75% of spending in Montana initiatives came from companies or their trade associations. It also found that top spenders usually won.

Under the change, businesses may create a separate fund to use in the elections with donations from shareholders or employees but not from the company itself.

Montana told the Supreme Court that “it is imperative that states have the ability to protect their democratic processes by enforcing reasonable, carefully drawn limitations.”

Less than two weeks before the mining election, a federal judge ruled that the limit was unconstitutional. A divided panel of the 9th Circuit upheld that.

Justices were told the industry “had only 11 days to counteract the effects of their prolonged, state-coerced silence; to provide the voters of the entire state of Montana with the suppressed, complex facts about the mining initiative; and to sway the opinions of voters who had heard but one voice on the subject for months.”

The cyanide ban was passed by 53% of voters.

The cases are Communities for a Great Northwest v. Argenbright, I-125 Proponents' Committee v. Montana Chamber of Commerce and Vaughey v. Montana Chamber of Commerce.

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