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New Supreme Court needs new First Amendment direction
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman

President Woodrow Wilson’s nomination of Louis D. Brandeis to the U.S. Supreme Court in 1916 provoked rather agitated responses from some quarters.

Calling the nomination “utterly indefensible and outrageous” and the nominee “a radical of the radicals,” the Los Angeles Times wrote in a Jan. 30 editorial, “A shout of rejoicing over his appointment has gone up from every dynamiter and hell-raiser in the land. His nomination is an obvious appeal by the President for the political support of the Socialists, Gompersites, law-defying labor unions bosses, corporation baiters, wreckers of business and all the discontented and dangerous elements of the population.”

The Times’ reservations notwithstanding, Brandeis went on to confirmation and a distinguished career on the Court.

Today, we have a new Supreme Court for the first time since 1994. John Roberts took his seat as the nation’s 17th chief justice on Oct. 3 when the Court began its 2005-06 term. On that same day, President Bush announced the nomination of White House counsel Harriet Miers to replace Sandra Day O’Connor. And although commentary is intense, it tends to be more measured — if not less hostile — than that which greeted Brandeis.

Then and now, there is ample proof that Americans do take Supreme Court nominations seriously. With good reason.

Sooner or later, the nation’s most vexing disagreements over our most vital issues wind up before the Supreme Court. None quite penetrates to the core of our democratic being more than those involving First Amendment rights and values.

Each term, the nine justices must grapple with profound questions involving freedom of speech, freedom of thought and freedom to participate in political discourse: Just how free is freedom of speech? What is the role of religion in public life? Does national security trump the public’s right to know?

During the Court’s last three terms, the First Amendment has not fared well. The high court has accepted for review far fewer free-expression-related cases than usual and it has been unusually stingy in recognizing First Amendment claims. In only two of the 15 decisions rendered in free-expression cases did the Court sustain those claims.

How the First Amendment will fare in the future depends on how Chief Justice John Roberts differs from his predecessor, William Rehnquist, and how Miers, if confirmed, differs from O’Connor.

During his 33 years on the Court as an associate justice and chief justice, Rehnquist consistently voted against free-speech and free-press claims. O’Connor, however, played a pivotal role during her time as justice, frequently casting the decisive fifth vote in religion cases and occasionally in expression cases.

The justices over the next 12 months will hear arguments, review briefs and render opinions in several cases that have direct bearing on whether we have full or constricted freedoms when we wish to play a role in the crucial political, cultural or religious issues that confront us.

In five cases, the Court will once more take up the question of whether state laws regulating campaign contributions and expenditures pose an unconstitutional threat to political expression: Is money speech?

The issues of compelled speech and government funding of speech are raised in another case. A coalition of university law schools — which object to the military’s ban against acknowledged homosexuals — contends that requiring them to allow military recruiters on campus violates their rights.

Another case tests the limits of the free exercise of religion. The justices will decide whether the federal government can prohibit a small group of followers of a Brazilian religious sect in New Mexico from importing a banned substance, a hallucinogenic tea, for use in its ceremonies.

In a case involving anti-abortion protests appearing before the Court for the third time since 1986, the justices’ ruling could affect protest and picketing rights and practices.

And a Los Angeles deputy district attorney wants the Court to declare that his free-speech rights were violated when he was disciplined for informing a defense attorney about ethical problems in a pending case.

The confirmation process for Miers should be complete by the end of the year. At present, chances seem good that she will be confirmed. Since 1789, the Senate has rejected only 34 of 155 nominations to the Supreme Court.

Not much is known about Roberts’ views on these issues; even less about Miers’. First Amendment advocates, of course, hope they set the new Court on a new course as far as free expression is concerned. In that regard, Justice Brandeis set a great example as a First Amendment champion during his 23 years on the Supreme Court.

“Those who won our independence,” he wrote in 1927, “believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

The cause of liberty would be better served if this Court’s future rulings transcend individual temperament and ideology to embrace the freedom for speech and the tolerance for belief that define a vital democracy.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail:


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