Last term, the Supreme Court issued seven First Amendment-related rulings, and in each one, the First Amendment claim lost, in whole or in part.
So far, it seems safe to predict that the upcoming term of the Court will produce fewer First Amendment defeats. But that is a good bet only because the court’s First Amendment docket is so thin thus far.
Among the nearly 50 cases the Court has already docketed for the coming term, only two are direct First Amendment cases, with three more raising related issues. On the horizon, among cases that are pending but not yet granted review, are a handful of other First Amendment cases that could be added to the docket including the volatile issue of whether the words “under God” belong in the Pledge of Allegiance.
The two First Amendment cases already granted are also among the most important on the Court’s overall docket. The first set of cases is known as McConnell v. Federal Election Commission, the challenge to the McCain-Feingold campaign-finance law passed last year. The cases were argued in a special session Sept. 8 – technically last term – but the decision will be counted among the new term’s rulings.
Opponents of the law characterized it as a broad-scale attack on the most protected kind of expression – political speech – at a time when it counts the most: at the height of election campaigns. Justices appeared critical of several features of the law during oral argument, but most analysts think the Court’s ultimate decision will be a mixed bag, with some but not all of the statute being upheld.
The second key case, set for argument Dec. 2, is Locke v. Davey. At issue is a Washington state law that bars students from using state scholarship money to major in theology.
Joshua Davey, a student at Northwest College, an evangelical Christian college in Kirkland, Wash., sued the state after being told he had to change his major from theology if he wanted to receive a state Promise scholarship. The 9th U.S. Circuit Court of Appeals sided with Davey, finding that the state law amounted to discrimination against his religious free-exercise rights under the First Amendment. Davey, who began the case wanting to be a minister, entered Harvard Law School this fall.
The case is in a sense a follow-up to last year’s decision in Zelman v. Simmons-Harris, which allowed state voucher funds to be used toward parochial-school tuition. Steve Shapiro, legal director of the American Civil Liberties Union, which supports Washington governor Gary Locke in the case, says the Zelman ruling does not mean Davey will win. "The free exercise clause does not compel everything that the establishment clause might permit," he said.
Another case that relates to public subsidy of parochial-school tuition is also on the docket, but not in a First Amendment context. In Hibbs v. Winn, a group of Arizona taxpayers challenged a state program begun in 1997 that gives parents a tax credit for tuition paid to parochial and other private schools.
Arizona courts upheld the program, but its opponents took the case to federal court on First Amendment grounds. The state countered that under the federal Tax Injunction Act, federal courts are barred from having jurisdiction over disputes relating to the collection of state taxes.
The 9th Circuit, in a decision authored by Judge Stephen Reinhardt, ruled that the suit could go forward anyway, since a tax credit is different from the collection of taxes. The state appealed, and the high court agreed to interpret the scope of the Tax Injunction Act.
The second of the three other cases already docketed for the fall that relate to free expression is the first-ever direct Supreme Court test of the Privacy Act of 1974.
Doe v. Chao began with a suit brought by a group of coal miners who objected to the Department of Labor’s release of their Social Security numbers in connection with the government black-lung benefit program. The government used their Social Security numbers to identify and keep track of their cases, but in the course of litigation and other administrative matters, the numbers became public. The Privacy Act allows citizens to recover damages from the government for improper release of private information, but the 4th U.S. Circuit Court of Appeals ruled for the government, finding that the miners had not shown they suffered any actual harm from the disclosure.
The ACLU, expressing concern about the growing problem of identity theft, filed a brief on the side of the miners. It argues that the privacy law should protect against even intangible harms stemming from the release of private information. But the Reporters Committee for Freedom of the Press filed a brief siding with the government. If the law’s protection is too easily triggered, the Reporters Committee fears, then government agencies will be chilled from releasing information the public should be allowed to have.
The third case relates to another privacy provision in federal law, this one part of the Freedom of Information Act. In Office of Independent Counsel v. Favish. California lawyer Allan Favish is seeking the release of death-scene photographs of Clinton White House aide Vince Foster, who died 10 years ago in an apparent suicide.
The government and Foster’s family resisted the release, and the 9th Circuit ordered some of the photos withheld under a provision of the FOIA that bars release of government information that affects personal privacy. Favish appealed to the Supreme Court, arguing that the privacy exemption meant only to protect the privacy of individuals who are alive – not the privacy of surviving family members.
Favish plans to argue the case himself. “It’s what I do for a living,” he says, adding that he would not trust anyone else to know the record as he does, and also noting that he has no money to hire a Supreme Court specialist. Favish says he plans to include in his arguments a discussion of the evidence that casts doubt on whether Foster actually committed suicide.
“It is definitely relevant,” says Favish, because it demonstrates the public interest in releasing the disputed photographs, as a counterbalance to the privacy interest cited by the government.
Michael Newdow, the Sacramento atheist who challenged the wording of the Pledge of Allegiance, is also planning to argue in his own behalf if the high court grants review in United States v. Newdow. At issue is another 9th Circuit ruling that says inclusion of the words “under God” in the Pledge of Allegiance recited by public school students violates the establishment clause of the First Amendment, which forbids government establishment of religion.
The case has not yet been granted review, and it is complicated by a dispute over whether Newdow has standing to challenge the pledge. When he filed the suit, he had no legal custody over his daughter, on whose behalf he sued. Last month he regained partial custody and asserts that the change in status now gives him clear standing.
Among other First Amendment cases pending before the Court, four stand out as cases the justices might accept for review:
Glassroth v. Moore, about whether Alabama Chief Justice Roy Moore's placing of a granite Ten Commandments monument in the rotunda of the Alabama Judicial Building violates the establishment clause of the First Amendment.
Ashcroft v. ACLU, a second chance for the justices to review the constitutionality of the Child Online Protection Act. The Court split over the law several terms ago and sent it back to the 3rd U.S. Circuit Court of Appeals for further review. The appeals court found it unconstitutional again, and now the justices are likely to take it up again.
Walters v. Conant, a free-expression dispute over whether physicians can be barred under federal law from recommending or discussing the medical use of marijuana with patients. San Francisco AIDS doctor Marcus Conant sued after federal authorities threatened to arrest and revoke the license of physicians who recommend marijuana. The threat came after California voters passed a ballot measure allowing such recommendations to be used as a defense against prosecution for marijuana possession.
Consumers Union of United States v. Suzuki, which results from a product-disparagement suit brought by the car company. Suzuki challenged statements made by Consumers Union about its product testing that showed the Samurai model tipped too easily. The 9th Circuit ruled the case should go to trial. Dissenting judge Alex Kozinski said, “If Suzuki can get to trial on evidence this flimsy, no consumer group in the country will be safe from assault by hordes of handsomely paid lawyers deploying scorched-earth litigation tactics."