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High court nominee well-acquainted with First Amendment

By David L. Hudson Jr.
First Amendment Center research attorney

U.S. Supreme Court nominee John G. Roberts Jr. has not established a recognizable First Amendment jurisprudence record since being confirmed for the U.S. Circuit Court of Appeals for the District of Columbia in May 2003. But Roberts has handled many First Amendment cases in both the private and public sectors — in the private area as an attorney with the Washington, D.C.-based firm Hogan & Hartson and in the public sector as deputy solicitor general of the United States.

In his position as an advocate, he has argued both sides in different First Amendment cases, including both freedom of expression and freedom of religion cases. Given an advocate’s duty to represent one’s client zealously, positions taken in those cases may not reflect Roberts’ personal views on the First Amendment.

What is discernible is that he has had the opportunity to study and reflect on many First Amendment arguments.

First Amendment litigation as private attorney
Roberts was one of the attorneys representing Soldier of Fortune Magazine in a lawsuit filed by a Texas family in Eimann v. Soldier of Fortune Magazine.

The son and mother of a murder victim sued the magazine after it published an advertisement through which the victim’s husband hired an assassin to kill her. After a federal jury ruled for the victim’s family, Roberts and fellow attorneys convinced the 5th U.S. Circuit Court of Appeals to reverse the district court.

“SOF owed no duty to refrain from publishing a facially innocuous classified advertisement when the ad’s context — at most — made its message ambiguous,” the 5th Circuit wrote in Eimann v. Soldier of Fortune Magazine Inc., 880 F.2d 830 (5th Cir. 1989).

Although the case was decided on tort-law grounds (whether there was a legal duty), the litigation included many First Amendment-based arguments.

Roberts also co-authored an amicus brief for Time Inc. in the U.S. Supreme Court case Arkansas Writers’ Project Inc. v. Ragland, 481 U.S. 221 (1987). That case involved a First Amendment challenge to a state law that imposed a selective tax upon certain print publications.

The Arkansas Supreme Court had upheld the statute, and Time Inc. and many other amici urged the U.S. Supreme Court to reverse. It did: The Court struck down the state tax, writing that the state “has advanced no compelling justification for selective, content-based taxation of certain magazines, and the tax is therefore invalid under the First Amendment.”

Roberts represented a parochial school in a zoning case, Ehlers-Renzi v. Connelly School of the Holy Child Inc., 224 F.3d 283 (4th Cir. 2000). Homeowners who lived near the school challenged the constitutionality of a Maryland county ordinance that exempted schools from certain zoning requirements.

The homeowners argued that the city ordinance violated the establishment clause by granting special exemptions to this religious school. A federal district court agreed.

On appeal, Roberts argued the case for the school, contending that the ordinance represented a permissible accommodation of religion. The 4th Circuit agreed, writing: “The State does not engage in any of these establishments activities when it exempts religious institutions from land-use regulations. Rather, such an exemption removes the State from forums in which religious conflict might otherwise require improper State action. ... Montgomery County has permissibly accommodated religion by allowing these schools to operate or renovate their facilities without obtaining a special exception.”

Roberts represented the Nebraska Cattlemen Inc. in a lawsuit that examined whether mandatory assessments for generic price ads for beef violated the First Amendment rights of those beef producers who objected to the ads.

The Nebraska Cattlemen, actually favored the price ads. Roberts represented the group before the 8th Circuit in Livestock Marketing Association v. U.S. Dept. of Agriculture, 335 F.3d 711 (8th Cir. 2003).

The 8th Circuit rejected the position advocated by the government and Roberts’s client and ruled, instead, in favor of Livestock Association’s First Amendment claim. However, the U.S. Supreme Court reversed this decision last May in Johanns v. Livestock Marketing Ass’n, finding that the generic price ads represented a form of government speech immune from First Amendment scrutiny.

Roberts defended a public university on appeal from a lawsuit filed by a former professor at a junior college in Colorado fired in part for his in-class comments that were alleged to violate the school’s sexual harassment policy. The former professor, Stuart Vanderhurst, prevailed on First Amendment and contract-law claims at the federal trial court level.

Roberts represented the college on appeal. The college argued that Vanderhurst’s in-class speech was not entitled to First Amendment protection. The 10th Circuit rejected those arguments in Vanderhurst v. Colorado Mountain College District, 208 F.3d 908 (10th Cir. 2000).

“Indeed, it is widely recognized that teachers’ classroom speech is entitled to some First Amendment protection,” the court wrote. Roberts did not represent the college at the trial-court level.

Roberts was one of the attorneys who represented several amici in Rutgers 1000 Alumni Council v. Rutgers, 803 A.2d 679 (N.J. Super. 2002). This case involved whether a university alumni magazine violated the First Amendment when it refused to accept an advertisement from an alumni group.

The New Jersey appellate court ruled against the university. Roberts co-authored an amicus brief on behalf of several groups supporting the university, including the American Council of Education. (See for more information on this lawsuit.)

First Amendment litigation as government attorney
Roberts handled much First Amendment litigation in his time as the deputy solicitor general of the United States.

Roberts argued before the U.S. Supreme Court in U.S. v. Kokinda, 497 U.S. 720 (1990), which dealt with whether the government could bar solicitation on sidewalks outside a postal office. The Court determined that postal offices are nonpublic forums and that the regulations barring solicitation did not violate the First Amendment.

“It is clear that this regulation passes constitutional muster under the Court's usual test for reasonableness,” the Court concluded.

Roberts helped write a brief for the United States in the commercial-speech case U.S. v. Edge Broadcasting Co., 509 U.S. 418 (1993). In that decision, the Supreme Court upheld federal statutes that prohibited the broadcast of lottery advertising by broadcasters licensed to a state that does not allow lotteries.

Roberts also co-authored an amicus brief in the middle school graduation prayer case Lee v. Weisman, 505 U.S. 577 (1992). In that decision, the Court ruled 5-4 that a middle school’s practice of having a rabbi give a nonsectarian graduation school prayer amounted to unconstitutional coercion. The United States had authored an amicus brief in support of the school.

Roberts co-authored an amicus brief in the 1990 flagburning case U.S. v. Eichman, 496 U.S. 310. The Court ruled 5-4 in that case that the Flag Protection Act of 1989 violated the First Amendment.

Roberts also co-wrote an amicus brief in the 1991 Supreme Court decision Rust v. Sullivan, 500 U.S. 173. In that decision, the Court ruled 5-4 in favor of Department of Health and Human Services regulations that prohibited medical providers receiving federal funds for family planning services from discussing abortion with patients. The majority explained that “the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.” Sometimes referred to as the abortion “gag rule” case, it stands for the proposition that the government has its own First Amendment rights.

Roberts also co-authored an amicus brief in Lamb’s Chapel v. Center Moriches Union School District, 508 U.S. 384 (1993), a case concerning whether a school district violated the First Amendment by denying access to its facilities after school to a church group that wanted to show a religious-based film. The government argued against the position of the school district — that the school should not close its doors to a group simply because it advocates a religious viewpoint.

The Supreme Court ruled that the school district had engaged in impermissible viewpoint discrimination by denying access to the religious group.

The confirmation process is expected to begin soon. First Amendment issues may well take a backseat to questions regarding judicial philosophy and the landmark abortion case Roe v. Wade. Whatever else is said about nominee Roberts, he certainly has much experience with First Amendment law.


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