Supreme Court offers First Amendment-watchers meager rations

Tuesday, July 7, 1998

Elliot Mincberg, legal director of People for the American Way, writes a law review article every summer examining the First Amendment rulings of the Supreme Court’s past term. This summer, Mincberg is giving his word processor a rest.

“There’s not enough to write about,” says Mincberg.

Indeed, the First Amendment, which often occupies a substantial chunk of the Supreme Court’s decision docket, dropped back in significance in the term that ended June 26. Only two decisions related squarely to First Amendment issues: Arkansas Educational Television Commission v. Forbes, decided May 18, and National Endowment for the Arts v. Finley, issued June 25.

Significantly, both of those cases related to a troubled corner of the court’s free-speech jurisprudence: the question of what restrictions may be placed on speech when government provides the funds or the platform for the speech.

The court’s verdict on that question in both cases—though they differ a great deal with regard to the facts—is that government agencies may use some discretion in deciding what speech to sponsor, so long as that discretion is not used to discriminate against disfavored viewpoints. In both cases, some First Amendment advocates argued that government was, in fact, discriminating on the basis of viewpoint, but the court did not agree.

“The court still cares about viewpoint discrimination, but [the justices] are careful about where they find viewpoint discrimination,” says Mincberg, reviewing the court’s two free-speech cases.

But when it came to the religion, press, assembly and petition clauses of the First Amendment, the court was silent—even though a number of important cases in those areas were placed before it. The court declined to hear cases involving the sale of Penthouse on military bases, the publication of a how—to guide for murderers, religion in the classroom and campaign finance, among others.

In one campaign finance case the court did consider—FEC v. Akins, concerning the definition of a “political committee” for purposes of regulating its activities–the court explicitly avoided the First Amendment issue and sent it back to the Federal Election Commission. Another case that related tangentially to First Amendment concerns, Crawford-El v. Britton, made it easier for civil rights plaintiffs to challenge government actions that deprive them of their constitutional rights, including First Amendment rights.

The justices and most court-watchers would agree that the dearth of First Amendment cases on the court’s docket this past term is not the result of any conscious decision by the court. Mostly, it is a matter of which cases arrive on their doorstep. Each term the mix is different. But the court’s docket is not purely the result of random occurrences. In some areas of the law, the court may feel it has said enough on the subject in past terms, and that it should wait for its past pronouncements to be applied and interpreted before wading in again. Religion in the schools may be one such area. The court has ruled in recent terms on public university funding of religious student newspapers and on government special-education programs directed at parochial school students.

“They’ve had their fill of religion cases recently,” says E. Joshua Rosenkranz of the Brennan Center for Justice. “They may want to let the issue percolate for awhile. This is a court that generally seems reluctant to step into any constitutional issue unless it is forced to.”

The two free-speech cases the court did rule on, says Rosenkranz, serve as an important signpost showing where the court stands generally on the First Amendment. “Overall, the balance fell ever so slightly against free speech this term, but there are glimmers of hope,” says Rosenkranz. “There is a core of justices on the court that just won’t eviscerate the protection of unpopular speakers.”

In the Finley case, the court’s majority ruled that the First Amendment does allow the National Endowment for the Arts to include a decency standard among the range of subjective factors it uses in considering who should receive an arts grant. But the court reached the conclusion only by asserting that the standard is advisory, not a requirement, and that it has not yet been applied in a way that amounts to viewpoint discrimination. If the standard has that effect in the future, the court suggested, it could be found unconstitutional.

Only two justices, Antonin Scalia and Clarence Thomas, found that the standard is a requirement for funding—but is constitutional anyway. Only Justice David Souter found that the decency standard is a requirement–and is unconstitutional besides.

“The court seemed to be saying that there are important constitutional constraints when government provides funding for expression, but they don’t see this statute as crossing the line,” says David Cole, lawyer for Karen Finley and other artists who challenged the decency standard. Cole regards the decision as “almost a First Amendment victory.”

The Forbes case is harder to categorize as either a victory or a loss for the First Amendment, since both sides claimed First Amendment high ground. At issue was whether Arkansas public television stations could exclude Ralph Forbes, viewed by station officials as a fringe candidate, from a televised debate.

Forbes claimed his First Amendment rights were violated by the state-run network, but the public television network also asserted its First Amendment right to exercise editorial judgment.

The U.S. Court of Appeals for the 8th Circuit had ruled in favor of Forbes, establishing a standard of access to public television stations that some feared would prompt public broadcasters to avoid staging debates altogether. The Clinton administration took the opposite view, arguing that the First Amendment placed no restriction on what the public network could do in deciding which candidates to invite.

The Supreme Court ruled 6-3 that the network’s debate was a nonpublic forum, and that the network could use editorial judgment in determining who should be invited—so long as that judgment was not based on viewpoint.

“The court was not prepared to say the First Amendment had nothing to do with the case,” says Rosenkranz. “Instead it took the middle ground and said anyone could be excluded from a debate so long as the state could come up with a reason that did not have to do with viewpoint.”

In neither case did the court draw a bright line that will help government agencies or lower courts decide precisely what kind of discretion it can or cannot exercise. The Finley case, according to Cole, could encourage state and local governments to test the limits by imposing restrictions on universities, libraries or museums. The Forbes case, some fear, could allow government agencies to dominate the public airwaves with favored viewpoints. But both rulings contain enough pro-First Amendment language that those concerns could be remote.

In short, says Mincberg, “This term was a mixed bag for the First Amendment.”

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center