THE FREE AND CLEAR PRESS

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Court barreling through First Amendment cases


01.13.04
WASHINGTON — The U.S. Supreme Court, well into its current term, has already ruled on campaign finance, public funding of theological degrees and access to autopsy photos, and has heard arguments in a number of other important First Amendment-related cases.

Of the 80 or so cases it agrees to hear each term, the Court usually has seven to 10 First Amendment cases on its docket. In the last term, the Court departed from its usual pattern of granting First Amendment claims — by denying those claims in virtually every case it decided.

The nonprofit, nonpartisan First Amendment Center offers a variety of resources on the Supreme Court and its decisions, including:


This Web site, First Amendment Center Online, one of the foremost sites about First Amendment issues and the Supreme Court, containing breaking news, essays by noted scholars and experts, and commentary on a wide range of free speech, free press and religion topics.
A 2003-04 docket sheet, with complete case listings and information. The docket sheet is within The First Amendment Library on First Amendment Center Online. The library is the most comprehensive collection of information on Supreme Court First Amendment jurisprudence, including rulings, arguments, briefs, historical material, commentary and press coverage.
White papers and research packages on many of the issues and cases the Supreme Court will consider. This term there is a special research package on Locke v. Davey, a type of school-vouchers case decided by the Court.

In addition, the First Amendment Center offers several experts for interviews and assistance in covering First Amendment court cases:


Ken Paulson, executive director.
Ronald K.L. Collins, constitutional scholar and attorney.
Charles Haynes, senior scholar.
Paul McMasters, First Amendment ombudsman.

To arrange interviews with experts from the First Amendment Center, please contact Gene Policinski: 615/727-1303 or [e-mail].

The Court began its term with a special session to take up a case left over from the previous term, McConnell v. Federal Election Commission, a challenge to the McCain-Feingold campaign-finance law. Because of the complexity of the case and the lower court ruling, the justices held a special session Sept. 8 to hear arguments. The Court ruled in the case on Dec. 10.

The high court already had put on its docket Locke v. Davey, which concerns the state of Washington’s refusal to grant college scholarships to otherwise eligible students who pursue a degree in theology. The justices heard arguments on Dec. 2 and ruled on Feb. 25.

A Freedom of Information Act case decided this term is National Archives and Records Administration v. Favish (formerly Office of Independent Counsel v. Favish). A California lawyer, Allan J. Favish, had requested access to autopsy photos of Vincent Foster, a former Clinton administration official who committed suicide. The Court heard the case on Dec. 3 and ruled on March 30.


Summary of First Amendment cases that have been decided, accepted or denied Supreme Court review:

Decided

McConnell v. Federal Election Commission
Issue: Whether the new campaign-finance law violates the free-speech rights of contributors to candidates and parties.
Argument date: Sept. 8, 2003.
Decided: Dec. 10, 2003. Decision analysis

Doe v. Chao
Issue: Whether a person should be required to prove actual damages to obtain relief under the Privacy Act. More specifically, whether civil-damages relief under the Act should be narrowly confined so as to maximize public and press access to government information.
Argument date: Dec. 3, 2003. Argument analysis
Decided: Feb. 22, 2004. Decision analysis / Quick look

Locke v. Davey
Issue: Whether public funding of theological degrees is prohibited by constitutional concerns about separation of church and state.
Argument date: Dec. 2, 2003. Argument analysis / Argument excerpts
Decided: Feb. 25, 2004. Decision analysis / Quick look

National Archives and Records Administration v. Favish (formerly Office of Independent Counsel v. Favish)
Issue: Whether the government is obligated under the Freedom of Information Act to release post-mortem pictures of Vincent Foster or whether the privacy interests of Foster's family outweigh any such rights under federal law.
Argument date: Dec. 3, 2003. Argument analysis
Decided: March 30, 2004. Decision analysis / Quick look

Accepted for review

Ashcroft v. ACLU II
Argument date: March 2, 2004. Argument analysis
Issue: Whether the Child Online Protection Act violates the First Amendment rights of adults. The act bars Web-page operators from posting information inappropriate for minors unless the site is limited to adults by various screening devices, including a credit-card number requirement.
Summary: This case concerns a provision of the Child Online Protection Act (COPA) that requires that operators of commercial Internet sites use credit cards or some form of adults-only screening system to ensure children cannot see material deemed harmful to them. Operators could face fines and jail time for not complying.
Lower court ruling: The 3rd U.S. Circuit Court of Appeals has twice ruled that certain provisions of COPA violate the First Amendment. The 3rd Circuit’s latest ruling came in March 2003; the federal government has appealed that ruling. In its brief to the Supreme Court, the federal government contends that the filter technology alone is not enough. Children are “unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web,” Solicitor General Theodore Olson wrote.
Earlier Supreme Court rulings concerning the Internet include United States v. American Library Association (2003), in which the Court upheld a federal law requiring require public libraries that receive federal funding to equip computers with anti-pornography filters. And in Ashcroft v. ACLU (2002), a divided Supreme Court sent the COPA case back to the 3rd Circuit for more consideration of certain First Amendment issues. Since the 3rd Circuit has affirmed the First Amendment challenges, the matter is again before the Court in the Ashcroft case.

U.S. v. Newdow, Elk Grove Unified School District v. Newdow, & Newdow v. U.S.
Argument date: March 24, 2004. Argument analysis / Argument excerpts
Issue: Whether a requirement to recite the Pledge of Allegiance in public schools is an unconstitutional endorsement of religion in violation of the First Amendment.
Summary: This action began when Michael Newdow, a Sacramento lawyer, sued the Elk Grove School District, alleging that his 8-year-old daughter should not be subjected to collective recitations of the Pledge of Allegiance with its “In God We Trust” passage. He challenged the constitutionality of a California law that required the recitation of the pledge, a school policy to the same effect, and also a 1954 federal statute that added the words “under God” to the Pledge of Allegiance.
Lower court rulings: A federal district court upheld the state and federal laws. On June 26, 2002, a three-judge panel of the 9th U.S. Circuit Court of Appeals held that the pledge requirement violated the First Amendment. The court struck down that portion of a 1954 federal law that added the words “under God” to the pledge and the local school policy of requiring recitation of the pledge. Sitting en banc, the full 9th Circuit declined to reverse the ruling of the three-judge panel. The 9th Circuit, however, stayed enforcement of its ruling pending review in the U.S. Supreme Court. The Bush administration has petitioned the Supreme Court for review. On March 20, 2003, the U.S. House of Representatives issued a non-binding resolution to condemn the 9th Circuit ruling. The vote was 400-7 with 15 members voting “present.”
In a similar challenge in 1992, the 7th U.S. Circuit Court of Appeals held that reciting the pledge in public schools was not an unconstitutional endorsement of religion. On Feb. 21, 2003, a federal district court in Alexandria, Va., upheld a Virginia law that required daily recitation of the Pledge of Allegiance and the posting of the motto “In God We Trust” in state schools.

City of Littleton v. Z.J. Gifts
Argument date: March 24, 2004. Argument analysis
Issue: To what extent, consistent with the First Amendment, must prompt judicial review be assured in adult-business licensing cases?

Review denied

Consumers Union v. Suzuki
Certiorari denied: Nov. 3, 2003. News story / Commentary
Issue: Whether a consumer magazine’s negative review of a motor vehicle is protected speech.
Summary: This case involves a defamation action brought by Suzuki Motor Corp. against Consumers Union of United States Inc. The action stems from a 1988 Consumer Reports article that stated that Suzuki Samurai sport-utility vehicles “roll over too easily.” The National Highway Traffic Safety Agency declined a petition to declare the Suzuki Samurai sport-utility vehicle defective; the agency also contested the accuracy of the magazine’s testing procedures. The issue in the case is whether there is sufficient evidence to proceed to a jury trial in the case.
Lower court ruling: By a 2-1 vote, the 9th U.S. Circuit Court of Appeals reversed a federal district court dismissal of the suit and ordered that the case proceed to a jury trial. Writing in dissent, Judge Warren J. Ferguson argued that the evidence in the case was inadequate and therefore the matter ought not to proceed to trial. Preventing a trial is “necessary to both avoid the inhibition of free speech by the media and to protect public safety and health,” wrote Ferguson. Last May, the 9th Circuit, sitting en banc, affirmed the three-judge panel's ruling by a 14-11 vote.

Moore v. Glassroth
Issue: Whether placing a granite Ten Commandments monument in the rotunda of the Alabama Judicial Building violates the establishment clause of the First Amendment.
Certiorari denied: Nov. 3, 2003. News story
Summary: On Aug. 1, 2001, Alabama Supreme Court Chief Justice Roy Moore unveiled a 5,280-pound granite monument containing the Ten Commandments in the rotunda of the Alabama State Judicial Building. Secular quotations about God are also on the sides of the monument. The American Civil Liberties Union of Alabama went to federal court to challenge the chief justice’s action. Stephen R. Glassroth was the lead plaintiff in that action. In different but related actions, the 7th U.S. Circuit Court of Appeals has ruled that such monuments violate the First Amendment, whereas the 10th Circuit and the Colorado Supreme Court have ruled otherwise. Thus far, the Supreme Court has declined to review such cases.
Lower court rulings: In 2002, U.S. District Judge Myron Thompson ruled the monument violates the establishment clause of the First Amendment. On July 1, 2003, that ruling was upheld by the 11th Circuit. Judge Thompson thereafter set an Aug. 20, 2003, deadline for its removal, threatening $5,000 daily fines against the state. The U.S. Supreme Court thereafter refused to stay Thompson's order. On Aug. 21, the associate justices of Alabama’s Supreme Court unanimously overruled their chief justice and ordered that the Ten Commandments monument be removed. Complying with Thompson's order, the monument was removed on Aug. 27.

http://www.firstamendmentcenter.org/news.aspx?id=11929