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Court concludes 2003-04 First Amendment docket

By First Amendment Center Online staff
07.01.04

WASHINGTON — The U.S. Supreme Court has finished its most recent term, ruling on the Pledge of Allegiance, campaign finance, public funding of theological degrees and 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:

  • 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 gpolicinski@fac.org.

    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 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

    City of Littleton v. Z.J. Gifts
    Issue: To what extent, consistent with the First Amendment, must prompt judicial review be assured in adult-business licensing cases?
    Argument date: March 24, 2004. Argument analysis
    Decided: June 7, 2004. Decision analysis / Quick look

    U.S. v. Newdow, Elk Grove Unified School District v. Newdow, & Newdow v. U.S.
    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.
    Argument date: March 24, 2004. Argument analysis / Argument excerpts
    Decided: June 14, 2004. Decision analysis / Quick look

    Cheney v. United States District Court
    Argument date: April 27, 2004.
    Issue: Whether records of Vice President Dick Cheney’s contacts with the energy industry, as the Bush administration was drafting its energy policy, can be disclosed under the Federal Advisory Committee Act. The case raises constitutional issues about the separation of powers among the branches of government. The watchdog group Judicial Watch and an environmental organization, the Sierra Club, had won permission from a lower court to gather records related to the energy task force. The Court agreed to hear an appeal from the administration.
    Decided: June 24, 2004. News story

    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.
    Decided: June 29, 2004. Decision analysis / Quick look

    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.


    Related

    Federal appeals panel revives Suzuki's suit against Consumer Reports

    Judges rule 2-1 that jury should decide whether magazine's publisher rigged testing of Samurai before labeling vehicle 'not acceptable.' 06.26.02

    White House urges high court to allow state aid for religious studies
    Meanwhile, California man who wants 'under God' removed from Pledge asks Justice Antonin Scalia to stay out of case because of remarks he made at religious event. 09.11.03

    Moore asks U.S. Supreme Court to allow monument
    Suspended Alabama chief justice's brief says Court 'has failed to provide a uniform rule of law' on public display of religious symbols. 09.30.03

    High court urged to consider Earnhardt autopsy-photos case
    Independent Florida Alligator publisher argues that law passed after race-car driver's death barring public access to the records is unconstitutional. 09.30.03

    High court asked to keep Cheney records secret
    Bush administration urges justices to intervene in case, arguing that demands for disclosure of energy task-force papers present serious constitutional issues. 10.01.03

    Supreme Court to hear Arizona school tax-credit case
    Justices agree to review state's appeal of 9th Circuit ruling concerning donations for scholarships to private and sometimes religious schools. 10.02.03

    High court refuses several First Amendment cases
    Justices' decision not to hear appeals means victory for Idaho newspaper, Chicago peddler, defeat for California salutatorian, Florida judge, Indiana attorney. 10.07.03

    Justices reject government's appeal on medical marijuana
    At stake were doctors' free-speech rights under laws in nine states legalizing pot for patients whose doctors recommend it. 10.14.03

    High court agrees to revisit Net porn law
    3rd Circuit has twice struck down COPA, most recently and conclusively last March when it ruled that the law is riddled with problems that make it 'constitutionally infirm.' 10.14.03

    Supreme Court takes up Pledge of Allegiance fight
    Justices agree to consider whether 'one nation under God' should remain part of patriotic oath as it is recited in most classrooms. 10.14.03

    Ethicists don't see Scalia sitting out most church-state cases
    But remarks about pledge dispute were specific enough to keep him out of that case, experts say. 10.20.03

    High court refuses to hear Iowa 'spirit of Satan' case
    Justices also turn away dispute over campaign ad in North Carolina. 10.21.03

    Justices won't hear Alabama dispute over Ten Commandments
    Roy Moore had challenged high court to settle question, and accused justices of ducking responsibility to clarify questions about church-state separation. 11.03.03

    High court refuses to block suit against Consumer Reports
    News organizations had hoped justices would use Suzuki's lawsuit against magazine to clarify protections for journalists who warn about dangers from products. 11.03.03

    Justices set to hear religious-scholarship case
    High court to hear appeal of 9th Circuit decision that found Washington state couldn't limit what Joshua Davey could study using state money. 12.01.03

    Justices hear case testing public disclosure, family privacy
    High court using dispute over post-mortem photos of Vincent Foster to clarify when sensitive law enforcement records must be released. 12.03.03

    Supreme Court backs key parts of campaign-finance law
    Sharply divided justices rule that reality or appearance of corruption in politics outweighs free-speech concerns. 12.10.03

    U.S. can keep Sept. 11 detainee names, details secret
    High court turns down request to review secrecy surrounding foreigners who were rounded up immediately following 2001 attacks. 01.12.04

    High court won't hear Sammy the Bull's beef over book profits
    Justices refuse to take appeal from ex-hit man who claimed Arizona officials violated First Amendment by seizing more than $380,000 in royalties. 01.26.04

    High court won't hear detainee secrecy case
    Algerian waiter's attorneys had asked justices to rule whether lower courts were right to block info from press, public. 02.23.04

    Justices refuse to review Washington blanket-primary case
    Supreme Court also declines to consider appeal from Texas lawyer who argued state highway-beautification law violated free speech. 02.23.04

    High court won't order damages in privacy lawsuit
    In Doe v. Chao, justices rule Virginia man had to prove federal agency actually harmed him by disclosing his Social Security number. 02.24.04

    High court OKs denial of divinity scholarships
    'Training someone to lead a congregation is an essentially religious endeavor,' writes chief justice for 7-2 Supreme Court majority in Locke v. Davey, concerning whether theology studies can be excluded from a state-funded scholarship program. 02.25.04

    High court revisits issue of kids' access to online smut
    Court takes third crack at subject today, as justices hear arguments about free-speech ramifications of Congress' latest attempt to shield children from porn. 03.02.04

    High court again refuses to examine Washington's blanket primary
    Justices, who had declined to hear state's appeal last month, turn down similar petition by group that backed creation of election system in 1930s. 03.22.04

    Supreme Court takes up Pledge case
    Atheist tells Court it has no choice but to keep oath out of schools, but some justices say they aren't sure if words 'under God' were intended to unite country or express religion. 03.24.04

    Justices hear Colorado adult bookstore's challenge to zoning law
    Attorney for Christal's says Littleton's licensing requirements violate earlier court rulings that guarantee prompt judicial review. 03.24.04

    High court won't order release of Foster photos
    Justices say survivors' privacy outweighs public's right to full information on Clinton aide's suicide in Favish case. 03.30.04

    High court won't hear from boy who tried to distribute religious gifts
    Lower courts agreed with decision by New Jersey school officials to prevent then 5-year-old from giving pencils, candy canes to classmates. 04.02.04

    Quick look at Elk Grove Unified School Dist. v. Newdow
    Justices vote 5-3 that Michael Newdow doesn't have standing to challenge Pledge of Allegiance. 06.14.04

    High court won't order release of Cheney energy records
    Justices vote 7-2 that lower court should consider whether federal open-government law could be used to get task-force documents. 06.24.04

    High court won't let online porn law take effect
    Justices send Ashcroft v. ACLU II back to lower court for trial that could give government a chance to prove that COPA doesn't go too far. 06.29.04

    Competing values of privacy, public disclosure to get high court test
    By Tony Mauro Justices to consider request by California lawyer for access under the federal Freedom of Information Act to death-scene photos of Vincent Foster. 05.13.03

    Scalia to Court: Heed First Amendment in reviewing campaign law
    By Tony Mauro Some justices seem troubled by Congress' free-speech restrictions in McCain-Feingold. 09.09.03

    Campaign-finance, theology cases to be watched closely
    By Tony Mauro McConnell v. FEC, Locke v. Davey most important cases on Court's short 2003-04 First Amendment docket. 10.06.03

    Justices take on high-profile First Amendment cases
    By Tony Mauro From the Pledge to Net porn to adult businesses, Supreme Court agrees to hear the tough ones. 10.15.03

    Theology-studies case gains in complexity
    By Tony Mauro Justices hearing Locke v. Davey raise doubts on allowing or disallowing clergy-training scholarships. 12.03.03

    Privacy issues under high court's scope
    By Tony Mauro Justices hear two cases about impact of government disclosure of private information. 12.04.03

    First Amendment gets short shrift at high court
    By Tony Mauro Justice Scalia calls campaign-finance ruling 'sad day for freedom of speech.' See info, links: McConnell v. Federal Election Commission. 12.11.03

    Justices make it harder to recover damages in privacy lawsuits
    By Tony Mauro FOI advocates had worried that if Court ruled differently, government officials would become reluctant to reveal even legitimately public information. 02.25.04

    No longer Net novices, justices re-examine online porn
    By Tony Mauro Familiarity may not be positive development as high court has learned how easy it is to access Internet smut. 03.03.04

    Atheist's stellar performance may not translate into win
    By Tony Mauro As surprising and effective as Michael Newdow's argument was, the question now is: Will it matter? 03.25.04

    Supreme Court revisits adult-business licensing
    By Tony Mauro Colorado case gives justices another chance to define 'prompt judicial review,' but based on oral arguments, issue may go unresolved yet again. 03.25.04

    Justices broaden FOIA privacy exemption
    By Tony Mauro High court's ruling in Favish places new burdens on records requesters to overcome privacy interests. 03.31.04

    Cheney case: sympathy for secrecy
    Justices concerned about disrupting behind-the-scenes work of government by forcing records open. Excerpts / Case 04.28.04

    Advocates find little to cheer in free-speech victory
    By Tony Mauro 'I don't know that they fixed anything,' First Amendment lawyer says of ruling in City of Littleton v. Z.J. Gifts. 06.08.04

    Net-porn law relied too heavily on content restrictions, Court holds
    By Tony Mauro But Justice Kennedy doesn't rule out that Child Online Protection Act could be found constitutional if someone can show it's least-restrictive way to protect kids online. 06.30.04

    First Amendment plays second fiddle this term
    By Tony Mauro In several cases, high court's desire to duck or dither about dispute overwhelmed First Amendment objections raised. 07.13.04

    Recent trends go against free speech
    By Ronald K.L. Collins Since 1994, a moderate record overall on free-expression cases — except in last two terms. 09.04.04

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