WASHINGTON — In the final month or so of a Supreme Court term, when the justices hand down many of their most controversial decisions, at least one First Amendment case is usually among the headline-makers.
But in the term just ended, most of the headlines went elsewhere — Guantanamo detainees, the Second Amendment, death penalty and punitive damages — relegating the First Amendment to unaccustomed second place.
As with most Supreme Court trends, the vagaries of the Court docket and the timing of certain issues’ arrival on the Court’s doorstep may explain most of the First Amendment’s retreat. The absence of issues involving the First Amendment religion clauses in cases decided by the Court this term was also a big factor. Church-state cases are usually among the most divisive and hard-fought ones the Court decides.
Still, the justices produced a range of significant though less attention-getting free-speech and association decisions on Internet obscenity, campaign-finance regulation and state elections.
And in New York State Board of Elections v. Lopez Torres, the associational rights of political parties trumped the speech rights of candidates who felt locked out of the party-dominated method for selecting candidates for judgeships. Even though some justices expressed concern about the politicization and unruliness of state judicial elections, the Court said states and parties have a relatively free hand in devising their election systems even if they disfavor insurgent candidates.
The Williams child-pornography decision may be the most important First Amendment case of the term, because it appears to expand the range of speech that falls outside of First Amendment protection.
John Attanasio, dean of Southern Methodist University law school, said the decision was the first to show that “the Court is willing to countenance some regulation of the Internet.”
The law criminalizes anyone who “knowingly … advertises, promotes, distributes, or solicits … any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains - (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.”
Congress crafted the wording in part to get around past Court rulings that said child pornography was unprotected by the First Amendment only if real children were used in producing it. The new law bars the pandering, solicitation and promotion of sexually explicit material involving children as a crime unto itself — separate from whether or not the material involved real children.
The Court dismissed efforts to show the law is overbroad or vague through hypotheticals in which innocent grandparents might tout “cute kids in bed” in an e-mail, or film producers might advertise a movie like “Lolita” in which underage sex is part of the plot. “The prosecutions would be thrown out at the threshold,” wrote Justice Antonin Scalia for the 7-2 majority.
But lawyer Richard Diaz, who argued for convicted child pornographer Michael Williams and lost, said the ruling gives police and prosecutors “incredible unfettered power” and “for the first time upholds a law that punishes thought belief, thought expression.”
Justice David Souter, joined by Justice Ruth Bader Ginsburg, dissented in Williams, arguing that the decision makes a crime out of pandering or soliciting material that in itself is not illegal. “What justification can there be for making independent crimes of proposals to engage in transactions that may include protected materials?” Souter asked.
Thomas Baker, who teaches First Amendment law at Florida International University College of Law, said, “The pandering concept is an old-fashioned doctrine from when the legislative and the judicial instincts favored more censorship of erotic material.” But now the Court has accepted that old argument, even though “technology — pay per view, video, CDs, Internet — has jumped so far ahead of the prosecutors and government censors that the legislature does not know how to catch up,” Baker said.
The campaign-finance case continued a string of rulings by the Court of Chief Justice John Roberts that have shown increasing skepticism about regulating campaign speech, even in the name of reducing the influence of money in campaigns.
While the Court generally accepts campaign-finance measures when they have a clear connection to reducing corruption, a majority is now skeptical of other rationales. The main reason for the “millionaire’s amendment” was not to reduce corruption, the Court agreed in Davis, but rather to “level the playing field” between wealthy candidates and their opponents.
But that is not a sufficient reason for regulating, Justice Samuel Alito Jr. wrote for the majority. “The argument that a candidate’s speech may be restricted in order to ‘level electoral opportunities’ has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office,” Alito wrote.
FIU’s Baker said, “It seems like a majority of the justices have been persuaded to Justice Scalia’s point of view that the government cannot constitutionally seek to limit spending to achieve some fairness or equality in public debate.” The ruling is not a good omen for public financing of campaigns, he added, especially now that Sen. Barack Obama has said he won’t take public financing for his 2008 campaign.
(See additional details on these and other First Amendment cases of the past term.)
What about next term?
The one-year drought in religion-clause cases will end when the Court returns in the fall. A major First Amendment case on the docket for next term is Pleasant Grove City v. Summum, a followup to its 2005 decision (Van Orden v. Perry) that allowed a longstanding Ten Commandments display to remain on public property. In the new case, a Utah community that has allowed a Ten Commandments display is asking the Court to allow it to refuse another religious display, this one by the religious group Summum, which wants its “Seven Aphorisms” to also be displayed on public grounds.
Also on the docket next fall will be FCC v. Fox Television Stations, a test of the Federal Communications Commission policy barring even the “fleeting” use of expletives over the public airwaves. The case has its roots in the 30-year-old decision in FCC v. Pacifica, which upheld the commission’s ban on George Carlin’s “seven dirty words” on radio. Carlin died last month.