Odd lot of cases tends to favor First Amendment

Monday, July 16, 2001

WASHINGTON — In the term that ended recently, the Supreme Court considered First Amendment claims from the following individuals or groups: a Tennessee mushroom grower, a controversial radio talk-show host, the Colorado Republican Party, tobacco companies and a Bible club.

Only one of this odd assortment of parties lost, and it may be surprising to learn which one it was. It was the Colorado Republican Party, which you might have thought would get the most respect from a conservative majority that locates political speech at the heart of the First Amendment.

It was that kind of term for the First Amendment. In most respects, the court continued its longstanding trend of reading the First Amendment expansively, especially when weighing the claims of commercial speakers (advertisers like the mushroom farmer and tobacco companies ruled on last month); religious speakers, such as the Bible club, also ruled on in June; and the press, represented by the talk-show host.

But another traditional thread of the court's jurisprudence, in the area of campaign-finance reform, runs in the other direction, giving government more leeway to restrict political expression in the form of money — even when the money belongs to the Colorado Republican Party and was being spent on getting its candidates elected.

“There are no trends, there are no principles,” said Washington lawyer Michael Carvin, surveying the range of First Amendment winners and losers in the past term.

And the lineup of justices in First Amendment cases is unpredictable, as well.

UCLA law professor Eugene Volokh recently released a report looking at how the current court has voted in free-speech cases. Tallying 40 First Amendment cases since 1994 — the last time a new justice joined the court — Volokh found that the conservatives have been considerably more likely to vote in favor of First Amendment claimants than liberals on the court.

Conservative justice Anthony Kennedy favored the free-speech claim 75% of the time, and Clarence Thomas, also conservative, favored it 61% of the time. Breyer, a Clinton appointee usually regarded as moderate to liberal, sided with the free-speech claimants least often among the nine justices, in only 40% of the cases. The lineup of the rest of the justices is not as stark ideologically in Volokh's study. Liberal-to-moderate justices David Souter and John Paul Stevens favored free-speech claimants 61% and 55% of the time, respectively. Liberal Ruth Bader Ginsburg's percentage was also 55, close to that of conservatives Antonin Scalia (52,) William Rehnquist (47,) and Sandra Day O'Connor (43.)

“Contrary to conventional wisdom that arose in the era of Justices Brennan, Marshall and Douglas, we can no longer assume that the left generally sides with speakers and the right with the government,” Volokh said.

Viewed in this political sense, one of the court's First Amendment decisions this term helped President George W. Bush's agenda, while the impact of another on Bush's policies was less clear.

Good news for Bible club
In Good News Club v. Milford Central School, the court said public schools could not discriminate against religious organizations by denying them access to school facilities after hours.

Justice Clarence Thomas, writing for the majority, said the decidedly religious nature of the club did not make it any different from the religious organizations given access to public facilities or funds in two prior cases: Lamb's Chapel v. Center Moriches Union Free School District and Rosenberger v. Rector and Visitors of University of Virginia. The New York school district had argued that unlike the Lamb's Chapel club that discussed child-rearing and other social issues from a religious perspective, the Good News Club amounted to religious instruction.

“What matters for Free Speech Clause purposes,” wrote Thomas, “is that there is no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.” Thomas was joined by Rehnquist, O'Connor, Scalia, Kennedy and Breyer.

Dissenting justice David Souter said the Good News Club meetings amounted to “an evangelical service of worship” that could properly be banned on school premises.

The decision is generally helpful to Bush's faith-based initiative, which would allow religious groups to provide government-funded social services. Jay Sekulow, chief counsel of American Center for Law and Justice, said the ruling “clearly shows there is no constitutional crisis when a religious organization receives the same treatment afforded to other organizations.”

Others argue that although the court is comfortable with equal access for religious groups to public facilities, giving government money to religious organizations poses tougher constitutional issues. Meanwhile, the Bush initiative has bogged down over other sensitive issues.

Campaign finance: Colorado surprise
Likewise, the congressional effort to reform the campaign-finance system has run aground for a number of reasons. But the Supreme Court is not one of them. In its June 25 decision in Federal Election Commission v. Colorado Republican Federal Campaign Committee, the court said that the federal restriction on direct expenditure of political party funds in coordination with candidates was constitutional.

The court, under the 1976 Buckley v. Valeo framework, has always viewed restrictions on expenditures to be unconstitutional because they directly impinge on the expression of political views.

But in the Colorado case, Souter advanced the view that party spending on candidates should be viewed as a contribution to the candidates, not as an expenditure. And since contributions to candidates can be restricted under Buckley, the regulation at issue was constitutional. Souter's opinion also displayed a remarkably cynical view of the role of political parties: “Whether they like it or not, they act as agents for spending on behalf of those who seek to produce obligated officeholders.” Souter was joined by Stevens, O'Connor, Ginsburg and Breyer.

Souter's reliance on the argument that party speech can be restricted in the interest of reducing political corruption was encouraging to “reform” advocates in the campaign-finance debate before Congress. “The court gets it,” said Common Cause President Scott Harshbarger after the decision. He said the same argument endorsed by the court has been used to justify the soft-money restrictions proposed by the McCain-Feingold bill before Congress.

“The court clearly understands how election laws are routinely evaded,” said E. Joshua Rosenkranz, president of the Brennan Center for Justice, which also favors McCain-Feingold.

Press kept unencumbered
In another case this past term, the first one involving free-press rights in nearly a decade, the court sided, as it usually does, with the press. In Bartnicki v. Vopper, the justices said the federal law barring disclosure of illegally intercepted phone conversations could not be used against the press. The case involved a radio talk-show host who aired the contents of a cell-phone conversation between union leaders in a local labor dispute. The conversation had been taped by an unknown third party.

Drawing a connection with the Pentagon Papers case 30 years ago, the court said the press could not be penalized for publishing news on an important public issue because of the illegal acts of its sources. Stevens wrote the majority, joined by O'Connor, Kennedy, Souter, Ginsburg and Breyer.

Though it was a victory for the press, the ruling contained ominous language that recognized the importance of the privacy interests in the case. Had the subject matter of the phone conversation been less newsworthy, it is possible the outcome would have been different.

But Robert O'Neil, head of the Thomas Jefferson Center for the Protection of Free Expression, said the ruling was still a cause for celebration. “I look at the bottom line. The press won, no matter what the language was.

Mushrooms, legal aid, scarlet letters
Other First Amendment decisions this past term gave the justices the chance to further develop their thinking on one of the knottiest of free-speech issues: To what extent may government compel others to speak through funding or other mechanisms?

In United States v. United Foods, one of the commercial speech cases, at issue was a government program that compels mushroom growers to contribute a fee toward generic advertising for mushrooms. A Tennessee grower objected, in part because he did not want to associate himself with ads that touted mushrooms as an aphrodisiac and as a good accompaniment to alcohol.

The court, shifting ground from a 1997 decision in which it upheld a similar program for California fruit growers, ruled that the mushroom program violated the First Amendment by forcing the grower to pay for speech with which he disagreed. Kennedy wrote the opinion, joined by Rehnquist, Stevens, Scalia, Souter and Thomas.

In a similar vein, the court struck down an effort by Congress to restrict the speech of federally funded lawyers who aid the poor. Congress imposed a series of restrictions on the Legal Services Corp., which funds these lawyers — including a rule that prohibited the lawyers from challenging existing welfare laws. The government defended the rule as a valid restriction of the government's own speech, which the court had endorsed in the 1991 case Rust v. Sullivan. Kennedy, writing for the majority, said the law amounted to an unconstitutional restriction on private speech and was therefore unconstitutional. Stevens, Souter, Ginsburg and Breyer joined him.

The court also found another form of government-compelled speech to be unconstitutional. In Cook v. Gralike, the justices struck down Missouri's so-called “scarlet letter” law. Under the law, candidates for Congress who did not make certain pledges or take specified actions in favor of term limits would be forced to carry the label “disregarded voters' instructions on term limits” when they appeared on ballots. The court struck down the law as an impermissible state-imposed qualification for federal officeholders. Justice Stevens wrote for a unanimous court.

Tobacco ads, inmate lawyering
In the case involving the tobacco industry, the court said a comprehensive series of restrictions imposed by Massachusetts on tobacco advertising was unconstitutional. In Lorillard Tobacco Co. v. Reilly, the court said at least some of the restrictions sweep too broadly.

Commercial-speech advocates had hoped the court would use the case to reassess the standard it has used for 20 years to evaluate restrictions on advertising. But the justices did not do so, instead using the same so-called Central Hudson test. Under that standard, the restrictions were unconstitutional because they were not narrowly tailored to fit the government objective of reducing under-age smoking. Though the court split widely over the reasoning in the case, O'Connor, Rehnquist, Scalia, Kennedy, Souter and Thomas were in the majority.

In one other First Amendment case, the court said prison inmates have no special First Amendment right to give legal assistance to fellow inmates. The decision in Shaw v. Murphy reaffirmed the court's usual deference toward prison officials in their efforts to maintain discipline and order among inmates. Justice Clarence Thomas wrote the opinion for a unanimous court.

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