Supreme Court term proves justices standing up for First Amendment

Tuesday, June 29, 1999

The Supreme Court ended another term last week in which one of the few clear themes was its hearty support for core First Amendment principles.

In decisions on government efforts to restrict casino advertising, ballot initiatives and curbside loitering, the justices showed no reluctance in telling federal, state and local agencies respectively, to back off.

“This is a court that doesn’t defer to government. It doesn’t defer to anybody,” said Duke University law professor and former solicitor general Walter Dellinger. “And this is a court that is very strong on the First Amendment.”

That allegiance to the First Amendment does not necessarily translate into a fondness for the news media, however. Two Fourth Amendment cases decided May 24, Hanlon v. Berger and Wilson v. Layne, said police violate the Constitution when they invite the media along on raids of private homes. Though not based on the First Amendment, the rulings gave short shrift to media arguments about the importance of press scrutiny of police practices.

The decision on a Chicago loitering ordinance, Chicago v. Morales, could also only scarcely be described as a First Amendment decision. The anti-gang ordinance allowed police to arrest anyone who disobeyed a police order to move along. And police could give that order to any group of people that was congregating with “no apparent purpose,” if one or more members of the group were suspected gang members.

The court struck the ordinance down mainly as a violation of 14th Amendment principles requiring that criminal laws not be vague. But some of the justices spoke of a freedom to loiter that is akin to the freedom of association protected by the First Amendment. “An individual’s decision to remain in a public place … is … part of his liberty,” wrote Justice John Paul Stevens. And because of that, the court was willing to let the ordinance fall, in spite of the serious threat to the community posed by gang dominance.

Only two of the court’s 75 rulings last term were clear-cut First Amendment decisions, and in both, an expansive reading of the First Amendment won out.

The bolder of the two decisions was Buckley v. American Constitutional Law Foundation, handed down on Jan. 12. The court struck down a series of Colorado regulations ostensibly enacted to reduce fraud in circulating ballot-initiative petitions. People circulating petitions were required to be registered voters and to wear name badges. The court said the rules caused “undue hindrances to political conversations and the exchange of ideas.”

Dellinger points to the Buckley decision as a sign that the court on occasion is so zealous on the First Amendment that it expands First Amendment protections “beyond [their] original purpose.”

The other clear-cut First Amendment ruling of the term came in Greater New Orleans Broadcasting Association v. U.S. Continuing its trend toward giving commercial speech an ever-higher level of constitutional protection, the court struck down the 65-year-old federal ban on broadcast advertising of gambling casinos.

The justices were unanimous — including Chief Justice William Rehnquist, author of the Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico decision, which found a restriction on gambling advertising in Puerto Rico constitutional. The court has evolved considerably in the 13 years since that ruling.

Significantly, in both the Greater New Orleans and Buckley decisions this term, Justice Clarence Thomas wrote separate concurring opinions to say he would have gone further than the majority in protecting the First Amendment values at stake. He would have assessed the laws at issue by a stricter standard of review than the court majority used. On core First Amendment issues, Thomas is becoming a Hugo Black-like hard-liner. Black took the opening words of the First Amendment (“Congress shall make no law”) literally and voted to strike down most restrictions on speech.

Thomas’ strict approach, and that of the rest of the court, will be tested again in the fall, when the court takes up an even broader range of First Amendment issues. The First Amendment cases the court has already agreed to consider in the fall are:

  • Mitchell v. Helms, a challenge to a federal law that allows public school districts to loan equipment including computers to parochial schools. It has been described by Barry Lynn of Americans United for Separation of Church and State as “the most important church-state case to come before the Supreme Court in two decades.”
  • Nixon v. Shrink Missouri Government PAC, which will consider whether a limit on state campaign contributions violates the First Amendment.
  • City of Erie v. Pap’s A.M., a case that asks the court to re-examine its view that nude dancing deserves limited First Amendment protection.
  • Board of Regents, University of Wisconsin v. Southworth, in which college students have objected to the use of their activity fees to support campus groups they disagree with.
  • U.S. v. Playboy Entertainment Group, an effort by the Clinton administration to revive a law that forces adult cable channels to block the “signal bleed” that allows non-subscribers, including children, to observe fuzzy but viewable signals.
  • Los Angeles Police Department v. United Reporting Publishing, an examination of a law that bars the commercial, non-journalistic use of police blotter information.

In addition, the court will hear Reno v. Condon, which is not a First Amendment case but has been closely watched by media groups. It concerns the constitutionality of a federal law that requires states to block the release of personal driver’s license information. The law has been challenged, not on First Amendment grounds, but as an intrusion on state powers.