Religion, broadcast cases highlight new term

Monday, October 3, 2011

WASHINGTON — Last term the Supreme Court made headlines with a pair of classic First Amendment rulings that gave protection to highly unpopular speech: protests at military funerals and violent video games. As the Court returns to the bench today, the First Amendment spotlight is on a major religion clause case that will be argued this week.

Later in the term, a free-speech case involving indecent language on broadcast television may also break new First Amendment ground.

Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, set for argument Oct. 5, has been billed as the biggest religion case before the Supreme Court in a decade. The ability of religious organizations to make certain employment decisions without government scrutiny is at stake.

The religion docket could also expand. The Court is expected to decide soon whether it will grant review in Davenport v. American Atheists, which asks what is the proper standard for reviewing a passive religious display on public property — in this case a roadside cross honoring fallen state troopers in Utah.

But for now, here is a quick look at the Court’s First Amendment cases docketed for argument so far this term:

  • Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission. This case raises both free-exercise clause and establishment-clause issues. Courts have long supported a so-called “ministerial exception” to federal workplace anti-discrimination laws, so that government would not be second-guessing religious organizations in the hiring and firing of pastors, rabbis and similar religious officials. But lower courts are split over the extent of the exception when it comes to employees with mixed religious and secular duties.In this case, a teacher who was a Lutheran minister but taught both religious and non-religious subjects challenged her firing by the Hosanna-Tabor Church in Michigan. The church is appealing a lower court decision that found she was not covered by the exemption because she spent most of her time teaching secular subjects. The Equal Employment Opportunity Commission, citing the 1990 decision in Employment Division v. Smith, argues that the church should not be immune from enforcement of generally applicable laws like the Americans with Disabilities Act.
  • FCC v. Fox Television Stations. This case could alter the long-standing distinction between broadcast and print media in the Court’s free-expression jurisprudence.Since the 1969 decision in Red Lion Broadcasting Co. v. FCC, the Court has allowed restrictions on broadcasting that would never be imposed on print media, on the theory that broadcasters use scarce public airwaves that need regulation. One of those restrictions concerns when and whether indecent language can be used on the air, even if fleetingly.In this case, the FCC found violations of its rules in three instances of “fleeting expletives” and one case of partial nudity. The FCC argues that for years, parents have viewed broadcast television as a haven from exposure of their children to such material. But the Court, in granting review in the case, reformulated the question presented to raise directly the question of whether the FCC’s indecency-enforcement regime violates the First Amendment.Justice Clarence Thomas has been pressing his colleagues for a review of the print-broadcast distinction in First Amendment protection. In a 1996 decision, Thomas wrote, “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so.” No date has been set for argument. Justice Sonia Sotomayor is recused in the case because of her involvement in earlier stages as a judge on the 2nd U.S. Circuit Court of Appeals.
  • Golan v. Holder. Under international treaty obligations, the United States in 1994 enacted legislation to give copyright protections in the United States for certain foreign works that had been in the public domain here but were still copyrighted in their country of origin. This case, scheduled for argument Oct. 5, was brought by composers, movie makers and others who relied on the public-domain status of those works and now claim that restoring copyright protection violated the copyright clause of the Constitution as well as their free speech.In an amicus curiae (friend of the court) brief, the American Civil Liberties Union argues that the law imposes a “substantial burden” on First Amendment rights because the petitioners and the public can no longer “freely perform, adapt, share, distribute or otherwise use those works as they see fit.” The Justice Department argues that the Constitution gives Congress wide latitude in regulating copyright.
  • Knox v. Service Employees International Union. This is the latest in a long series of cases in which “right to work” advocates seek, on First Amendment grounds, to limit the ability of unions to compel non-members to pay fees that fund union political activities.In this case, the union for state employees in California annually tells employees about the fees it seeks to collect for political activities. The 1996 Teachers Local 1 v. Hudson ruling by the Supreme Court requires such notice to give non-members the ability to seek a refund.But in 2005, according to the non-union petitioners, the union did not give the required notice when it imposed a special “temporary assessment” to oppose anti-union ballot initiatives.The 9th U.S. Circuit Court of Appeals sided with the union and the non-members appealed, asserting the circuit displayed an “utter lack of fidelity” to precedents that protect the First Amendment right of non-members to refuse to pay for political activity with which they disagree. No date has been set for argument.

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