Supreme Court term provides mixed bag for First Amendment supporters

Friday, June 30, 2000

The Supreme Court served up a smorgasbord of First Amendment decisions this term, capped by a trilogy of headline-making cases.

Freedom of religion, speech and association were all touched on in decisions June 28, the justices' final sitting before its summer recess.

In Boy Scouts of America v. James Dale, the justices ruled 5-4 that New Jersey violated the organization's associational rights by requiring it to accept homosexuals as troop leaders. The 6-3 decision in Hill v. Colorado upheld a state law that restricts unwelcome approaches by protesters outside medical facilities including abortion clinics. And in Mitchell v. Helms , another 6-3 majority ruled that a federal program that loans equipment to parochial schools does not violate the establishment clause.

The three rulings underscored what can be said of the entire term in First Amendment law: The variety of the court's First Amendment docket was matched by its inconsistency. First Amendment claimants won some and lost some, and by majorities that defied easy labeling.

Washington lawyer John Roberts Jr., looking at the court's six most important First Amendment cases, found that three decisions upheld the First Amendment claim involved and three rejected it. The two justices who voted most consistently in favor of the First Amendment claim, he said, were conservatives Clarence Thomas and Antonin Scalia, while moderate Stephen Breyer opposed it in all but one case.

“I'm waiting to read stories about what Breyer's problem is with the First Amendment,” said Roberts sarcastically. “This shows how loosely people use the label liberal and conservative.”

The justices' First Amendment decisions appeared to rearrange the constitutional landscape more than usual this term.

At least in the view of the dissenters, Hill v. Colorado may have signaled the biggest shift in First Amendment doctrine. In his majority opinion, Justice John Paul Stevens gave unusual emphasis to the privacy interests and the “right to be let alone” in endorsing Colorado's law restricting demonstrations around abortion clinics. Under the law, within an 8-foot “bubble” around any person near a medical facility, demonstrators may not “knowingly approach” that person to hand out a leaflet or engage in “oral protest, education or counseling” without the person's consent.

In unusually passionate dissents — parts of which were read from the bench – Justices Scalia and Anthony Kennedy said the majority had repudiated decades of First Amendment doctrine that protects even unwanted or unpopular speech. The objections of a person on a public sidewalk — a traditional public forum — should not be enough to silence an anti-abortion protester, they said.

“If protecting people from unwelcome communications… is a compelling state interest, the First Amendment is a dead letter,” said Scalia. Scoffing at the state's contention that the restriction is “narrowly tailored,” Scalia also said, “narrowly tailored must refer not to the standards of Versace but to those of Omar the tentmaker.”

Kennedy said, “If from this time forward the Court repeats its grave errors of analysis, we shall have no longer the proud tradition of free and open discourse in a public forum.”

Other analysts say Hill, while significant, does not change First Amendment doctrine as much as the dissenters fear.

“If I were a labor activist, I'd be bothered by it,” said UCLA law professor Eugene Volokh. But he said the decision does not amount to a “heckler's veto” whereby speech can be prohibited altogether because of the objection of one listener. “The Colorado law goes one by one,” said Volokh. “If one person says 'no, don't talk to me,' that doesn't interfere with your ability to talk to everyone else.”

The other First Amendment decisions issued June 28 also broke new ground, in the view of many analysts.

The Boy Scouts case may have given the most extensive treatment of freedom of association — and the ability it gives to private groups to choose their members — in years, if not decades. The freedom of association is rarely ruled on by the court, but the Boy Scouts case was one of three this term that dealt with that right in whole or in part.

The majority, led by Chief Justice William Rehnquist, found that the Boy Scouts engages in “expressive association” when its leaders inculcate members with the values espoused by the organization. Requiring the organization to accept a homosexual leader would “burden” its associational rights, the court agreed.

What civil rights groups found most ominous in the decision was the majority's ready willingness to accept, with little scrutiny, the Scouts' assertion that homosexuality is contrary to its core beliefs. Private organizations have used similar arguments to exclude blacks and other minorities for decades.

“The court's decision permits the Boy Scouts to hide their discrimination behind the First Amendment,” said Ralph Neas, president of the People for the American Way Foundation. “The court has allowed freedom of association to become a tool by which groups unfairly exclude a group of Americans.”

Mitchell v. Helms also represents a shift in First Amendment doctrine, away from a fairly strict rule against direct public aid to pervasively sectarian schools. The 6-3 ruling said federal funds could be used to provide classroom equipment if neutrally distributed. But only four justices — led by Thomas — agreed to a broad ruling that would approve of parochial aid programs even if they give money directly to parochial schools. Justices Sandra Day O'Connor and Breyer wrote a separate opinion stressing that such direct aid is still unconstitutional.

Because neither Thomas's opinion nor O'Connor's commanded a majority, it is unclear how much of a boost the decision will give to advocates of school voucher programs. But it is certain that a majority has overruled two Supreme Court precedents from the 1970s — Meek v. Pittengerand Wolman v. Walter — that struck down similar programs providing equipment to parochial school classrooms.

The Mitchell v. Helms decision appeared more accommodating to religious interests than the other major church-state ruling of the term. In Santa Fe Independent School District v. Doe, a majority struck down a Texas public school program that allowed a student to lead football game attendees in prayer. The court decided the system for choosing the student — as well as the student's use of public school facilities to lead the prayer — gave too much government endorsement to religious activities.

In the two other associational rights cases this term, the Court struck down California's blanket-primary system (California Democratic Party v. Jones) and upheld a state university's student-fee program that in effect required students to help fund campus groups whose views they disagree with. (Board of Regents of the University of Wisconsin System v. Southworth) In the California decision, the court said political parties have the right to limit participation in candidate selection to party members.

Earlier this year, the court gave some encouragement to campaign-finance reformers in the First Amendment case Nixon v. Shrink Missouri Government PAC. The court upheld a state limit on campaign contributions that had been challenged on First Amendments grounds. The majority's rationale was in line with Buckley v. Valeo, the 1976 decision that said restrictions on campaign contributions were constitutional but limits on expenditures were not.

Two other cases of special interest to journalists were decided on non-First Amendment grounds this term. In Reno v. Condon,the court upheld a federal law that keeps state driver's license information private, and in Los Angeles Police Department v. United Reporting Publishing, the court said governments could place restrictions on the commercial use of police blotter information.

Finally, the justices ruled on two cases of the sort that former independent counsel Kenneth Starr once said were the favorites of Supreme Court law clerks: in U.S. v. Playboy Entertainment Group, which struck down a federal law regulating adult cable programming, and in City of Erie v. PAP's A.M., which upheld a local ban on public nudity.

“This is the sort of year that makes Supreme Court watchers bleary-eyed,” said Steven Shapiro, legal director of the American Civil Liberties Union. “Its final flurry of decisions included both good news and bad. In the midst of a presidential election, the court's far-reaching agenda serves as another reminder of the central role that the court plays in our political life.”