Preview: First Amendment issues on Supreme Court docket

Monday, October 7, 2013

First Amendment disputes are at the forefront of  the Supreme Court’s docket as it begins its fall term today (October 7), after a couple of terms in which other issues ranging from health care reform to same-sex marriage dominated the headlines.

Six cases on its docket raise First Amendment issues, including high-profile disputes over campaign finance reform and church-state relations.

Those cases, McCutcheon v. Federal Election Commission and Town of Greece v. Galloway, could unsettle, if not overturn, long-standing precedents.

McCutcheon, which challenges the limit placed on campaign contributions to multiple candidates in an election cycle, could shake the foundations of the landmark 1976 decision in Buckley v. Valeo. That precedent endorsed restrictions on contributions because of their potential to corrupt.

The Town of Greece case, involving prayers at the beginning of local town board meetings, also could upend or expand on a 1983 precedent, Marsh v. Chambers. That decision said legislatures could hire chaplains to open sessions with a prayer without violating the First Amendment’s Establishment Clause.

Richard Garnett, a First Amendment scholar at the University of Notre Dame, cautions against predicting that the court will break major new ground in either case.

“With respect to each issue, there has been a decades-long settlement:  Marsh with respect to legislative prayer, Buckley with respect to limits on contributions.  Both of these precedents have their critics and neither is theoretically pure,” said Garnett, but they work. “It would be, it seems to me, fairly conservative and consistent with the Roberts Court’s preference for narrow rather than sweeping rulings, to stick with the settlements.”

A brief description of the six First Amendment cases the court has so far agreed to hear this term:

McCutcheon v. FEC: Shaun McCutcheon, an Alabama businessman, claims his First Amendment rights are violated by a provision of the Federal Election Campaign Act that limits a person’s contributions to all federal candidates and parties to a total of $48,000 per election cycle. The U.S. Court of Appeals for the D.C. Circuit upheld the limits as a valid way to prevent donors from evading individual limits by making multiple contributions that might end up helping a single candidate. McCutcheon and the Republican National Committee say the aggregate limit should fall under a strict scrutiny standard. The case will be argued October 8.

Town of Greece v. Galloway: Board meetings in Greece, New York begin with a prayer offered by local clergy, and over the years, Christian ministers gave the overwhelming number of those prayers. That led the U.S. Court of Appeals for the Second Circuit to rule that the practice amounted to the town’s endorsement of one faith over another, in violation of the Establishment Clause. But the town asserts that legislative prayer is permissible as a historical practice that allows the expression of citizens’ religious beliefs. Set for argument November 6.


McCullen v. Coakley: A Massachusetts law created a 35-foot zone around the entrances to abortion facilities where no one can enter or remain – except for patrons and employees of the facility. Protesters who try to inform patients of alternatives to abortion challenged the law as a content-based restriction of speech that violates the First Amendment. The state defends it as a valid time, place and manner restriction that furthers public safety. No date has been set for the argument.

United States v. Apel: On December 4, the court will consider whether to reinstate the conviction of John Dennis Apel, a frequent protester at Vandenberg Air Force Base in California. He had been legally banned from the base because of past actions, including defacing a sign on the base with his own blood. But he returned to a designated protest area near the main gate of the base and was arrested and convicted on trespass charges. The U.S. Court of Appeals for the 9th Circuit threw out the conviction because the protest area, part of a public highway easement, is not exclusively controlled by the base.

Air Wisconsin v. Hoeper: To encourage airlines to report potential threats to air safety, federal law protects airlines from being sued for defamation for making such reports, except if made with reckless disregard of their falsity. That requirement of proving reckless disregard or “actual malice” is similar to the protection provided to news media against libel and other tort suits. The Colorado Supreme Court upheld a defamation judgment against Air Wisconsin, even though its report about a disgruntled employee was largely true. Media groups filed briefs on the side of Air Wisconsin, worried that upholding the Colorado ruling could expose the media to libel lawsuits involving true news reports. The case will be argued December 9.

Harris v. Quinn:  So-called “personal assistants,” paid by Illinois to help those with disabilities, are required to pay fees to the Service Employees International Union as their exclusive representative in petitioning the state for benefits. A group of assistants is challenging the requirement as a form of compelled speech and a violation of their First Amendment rights of association and petition. No argument date has been set.

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