Supreme Court to examine 5 First Amendment cases

Monday, October 1, 2001

Former Solicitor General Kenneth Starr once complained that Supreme Court law clerks had too much power. As evidence, he pointed to the large number of obscenity cases on the court’s docket. Those cases, he said, were probably more interesting to the law clerks than the duller business cases that Starr thought the court should be reviewing.

In the Supreme Court term that begins today, the justices have lots of both kinds of cases on its docket — three cases involving obscenity, and more than 20 cases on business.

Those three obscenity cases represent more than half of the court’s First Amendment docket of five cases, and represent the court’s continuing struggle to determine how sexually explicit expression should be regarded constitutionally.

One of the other First Amendment cases on the docket is likely to overshadow them all: Zelman v. Simmons-Harris, a challenge to Ohio’s school voucher program. Cleveland parents under the program may use government funds to pay for parochial school tuition, prompting a challenge based on the First Amendment’s establishment clause. “It is one of the most important public policy issues of our time,” says UCLA law professor Eugene Volokh. The court agreed just last week to review the case, so no argument date has yet been set.

Two of the obscenity cases arise in the context of the Internet — still a relatively new medium, but highly respected within the court’s First Amendment pantheon. In the 1997 case of Reno v. ACLU, the court said the Internet deserved the highest level of protection under the First Amendment, in part because it is so widespread and accessible. “Any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox,” wrote Justice John Paul Stevens as the court struck down the Communications Decency Act, which was aimed at restricting children’s access to adult materials on the Internet.

Ashcroft v. ACLU, is a successor to that decision, involving the Child Online Protection Act, the law Congress passed after its first attempt to regulate the Internet was struck down. The law is ostensibly more limited, leaving e-mail untouched and restricting only commercial Web sites that display material “harmful to minors” — defined as any images or words that are obscene or appeal to prurient interest as judged by “contemporary community standards.” That community-standard approach is drawn from the court’s 1973 Miller v. California case, which recognized that what is viewed as prurient in Provo, Utah, might not be in Las Vegas or New York.

But First Amendment advocates argue that community standards are unworkable in the context of the Internet, whose contents can be viewed worldwide no matter where the images are created. “Do we want all speech measured by the standards of the most restrictive community?” asks ACLU staff attorney Ann Beeson.

The 6th U.S. Circuit Court of Appeals sided with the ACLU on the issue, stating that “Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users.”

But victory may be less certain at the Supreme Court level. The government argues that community standards are fairly uniform nationwide, and that commercial enterprises are able to block access to their sites by children through various “adult I.D.” technologies that are now available. As a result, the government argues, complying with the law does not burden or chill free speech. The case is scheduled to be argued Nov. 28.

The outcome of the second Internet pornography case is also difficult to predict. In Ashcroft v. Free Speech Coalition, the issue is child pornography, which has always fallen outside the protection of the First Amendment. The rationale for restricting child pornography has always been to protect the children who are exploited and used in producing the material.

But in the case before the court, the law at issue also prohibits so-called “virtual” child pornography, produced without the use of actual children. Aimed at new technologies that permit the manipulation and creation of photos and graphics, the Child Pornography Prevention Act of 1996 prohibits the sale or possession of any visual depiction that “appears to be of a minor” engaging in any sexually explicit conduct.

The law was challenged by the Free Speech Coalition, representing producers of adult-oriented materials, as well as artists and photographers who specialize in depictions of nudity. They claimed the language of the law was too vague and had already chilled them from producing or distributing works that should be protected by the First Amendment. The law, they said, has had “a profound and adverse impact” on artists.

The 9th U.S. Circuit Court of Appeals agreed with the coalition, adding that “Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children.”

In its brief to the court, the Bush administration argues that even virtual pornography negatively impacts children since it can be used to lure them into abusive situations and increases the market for such materials. An exception for virtual porn, the government also argues, would make it almost impossible to prosecute the real thing because defendants will try to argue that they thought no actual children were involved. The First Amendment interests at stake, the government says, are “minimal.”

Volokh says both Ashcroft v. ACLU and Ashcroft v. Free Speech Coalition “are really very tough.” Both challenge traditional First Amendment precepts in the high-tech context, with the result uncertain. The virtual pornography case is set for argument Oct. 30.

The other pornography case involves adult bookstores. In City of Los Angeles v. Alameda Books, the court has a chance to elaborate on the increasingly important “secondary effects” doctrine in First Amendment law. Los Angeles shut down Alameda Books in 1995 for violating a city ordinance that bans multiple adult-business uses in the same building. The bookstore challenged the ordinance, claiming that before it was passed, the city had not adequately justified it on the basis of the secondary effects it would have on the neighborhood. The city had relied on another study of adult businesses that said real estate values and safety decrease in neighborhoods where they operate. But the study did not specifically look at the multiple-use issue.

First Amendment advocates argue that before speech can be restricted based on its secondary effects, government must be required to offer specific evidence that those effects are real. According to a brief filed by the First Amendment Lawyers Association, a victory for Los Angeles would “permit government to regulate the content of speech and expression predicated upon the pretextual incantation, and possibly non-existing concern, of the secondary effects of adult entertainment.” The case is to be argued Dec. 4.

The final First Amendment case on the docket, while dealing with Chicago’s procedures for issuing permits for protest demonstrations, could also have an impact on adult bookstores and other establishments.

In Thomas v. Chicago Park District, a group favoring the legalization of marijuana was denied a permit to hold a demonstration in a Chicago park in 1997 and 1998. The group, called Windy City Hemp Development Board, challenged the city’s permit procedure on the grounds that it did not provide for adequate or prompt judicial review of permit denials. The procedure, the protesters claim, amounts to censorship.

The court may use the case to resolve an issue that has been presented but not answered before — whether, in First Amendment cases, speakers are entitled to an appeals process that produces quick results, or merely quick access to judicial review. First Amendment advocates say that when a permit for an expressive activity is denied, a lengthy appeals process can have the effect of chilling the expression permanently — either by making the protest demonstration untimely or, in the case of an adult bookstore, running it out of business. The case is scheduled to be argued Dec. 3.

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