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1 First Amendment case on Court docket
2006-07 term preview

By Tony Mauro
First Amendment Center legal correspondent
09.26.06

WASHINGTON — The Supreme Court announced today it would hear at least one First Amendment-related case this term, involving whether states may prohibit labor unions from using non-union employees' dues for political activities without the workers' express consent.

The case is a consolidation of Washington v. Washington Education Association (04-1657) and Davenport v. Washington Education Association (05-1589).

The Court has refereed several disputes between labor unions and employees who object to the use of their dues or fees to advance the union’s political agenda. The Court has said unions may collect fees from non-member employees, because the collective bargaining that unions conduct benefits the non-members.

But in Abood v. Detroit Board of Education in 1977, it said these employees must be given the chance to “opt out” of letting their fees be used to fund in addition the union’s political activities.

Washington state voters in 1992 approved a measure requiring instead that non-members “opt in” to allow their fees to be used for union political activities. In other words, the fees paid by non-members could not be used for political activities unless the employees affirmatively chose to allow it. The Washington attorney general accused the teachers’ union of violating the new rule and won a judgment in court, but the Washington Supreme Court said the opt-in requirement “upset the balance between nonmembers’ rights and the rights of the union.”

In Washington v. Washington Education Association, the state asks the U.S. Supreme Court to reverse.

Michael Reitz, the director of the Evergreen Freedom Foundation’s Labor Policy Center, which supports the state in the case, says, “Unions must learn the same lesson every first-grader learns: You must ask permission before taking something that does not belong to you.”

The First Amendment elements in the cases weave political speech into matters of freedom of association.

The Court announced eight other cases had been granted cert yesterday during its so-called “long conference.” That's when the justices sift through hundreds of petitions that have been filed during the summer recess.

For the first time in years, the Supreme Court ended last term in June without agreeing to consider any First Amendment cases in the next term, which this year begins Oct. 2.

But with additions to the docket today and through the fall, the coming term could still produce significant First Amendment decisions on issues ranging from gag orders to school choice.

The scarcity of First Amendment cases on the argument calendar thus far results from several factors. First, last term the Court granted review in only 31 cases of any kind for the fall term, a significantly smaller number than usual. Second, commentators have noted an increased interest by the Roberts Court in bread-and-butter business cases, including antitrust, patents and employment discrimination, which might be “displacing” First Amendment and other kinds of cases from the docket. Finally, as justices themselves would say, the array of the Court’s cases at any given moment is mainly a function of the kinds of appeals that are placed before it, rather than any grand design to exclude any one category.

One case with First Amendment overtones won't be decided on First Amendment grounds. That's Carey v. Musladin, which involves the wearing of photo buttons in a courtroom.

In that case, convicted California murderer Mathew Musladin asserted that his due-process rights were violated because during his trial, the family of his victim wore buttons bearing a photo of the victim. Judge Stephen Reinhardt, writing for a 9th U.S. Circuit Court of Appeals panel, said the buttons "conveyed the message that the defendant was guilty." He likened the buttons to the 1976 Supreme Court case Estelle v. Williams, which said a defendant's right to a fair trial was violated when the defendant was forced to face the jury in shackles and prison garb.

Even though the case involves a form of expression by the victim's family, the case is not being argued on First Amendment grounds, but rather on the more technical grounds of which precedents should be used in assessing Musladin's habeas corpus appeal. California's appeal of the 9th Circuit decision will be argued Oct. 11.

Among the other cases on the agenda for yesterday’s conference were a challenge by famed lawyer Gloria Allred against a judge-imposed gag order and a discrimination suit brought by a Catholic Church employee. These cases could be granted or denied cert later.

Details of the cases:

  • Church employment. In Tomic v. Catholic Diocese of Peoria, a three-judge panel of the 7th Circuit, led by influential Judge Richard Posner, upheld a lower court ruling that dismissed an age-discrimination lawsuit filed by a Catholic Church organist. In the ruling, Posner affirmed the “ministerial exception” to the jurisdiction of the federal courts, which keeps federal judges out of resolving disputes involving church governance. Lawyers for organist Richard Tomic countered that doctrine in lower courts by asserting that neither his job nor the music he played had religious significance. Posner confessed he was “astonished” by that assertion, which if true would mean that “it is a matter of indifference to the Church and its flock whether the words of the Gospel are set to Handel’s Messiah or to ‘Three Blind Mice.’” The case could interest the Supreme Court because Posner wrote that while it was pending, the 2nd Circuit issued a conflicting age-discrimination decision, in essence wiping out the ministerial exception.

  • Lawyer gag order. In Allred v. Superior Court of the State of California, noted California lawyer Gloria Allred claims a gag order imposed on her during a murder investigation violated her First Amendment rights. Allred was hired to represent a potential witness, an unidentified minor, in the high-profile prosecution of Scott Dyleski, who was accused of murdering Pamela Vitale, a prominent California criminal defense lawyer. Soon after, Allred’s client’s house was searched, and the client was subpoenaed before a grand jury. Allred protested the actions. During court proceedings, the lawyer for the defendant asked the judge to impose a gag order to restrict public statements by the police and prosecutors. The Contra Costa district attorney joined the motion and asked that the gag extend to the defendant’s lawyer and to Allred. The judge agreed. Allred’s lawyer before the high court, Duke University School of Law professor Erwin Chemerinsky, said in the petition to the Court that the federal courts are widely split over standards for issuance of gag orders. He also asserted that the order was issued to “stifle Ms. Allred’s justifiable criticism of [the district attorney] and the actions of his office.”

    Later in the term, the Court will discuss adding several other First Amendment cases to its docket. Among them are two public school-related disputes.

    In Morse v. Frederick, former Solicitor General Kenneth Starr is asking the Court whether, under the First Amendment, a public school can prohibit students from displaying messages promoting the use of illegal drugs. In advance of the 2002 Olympics in Salt Lake City, the Olympic torch passed through Juneau, Alaska. At a school rally to mark the event, a group of students unfurled a banner that displayed the phrase, “BONG HITS 4 JESUS.” The principal told the students to take down the banner, and she later suspended one student who refused.

    Joseph Frederick, the student, sued, but a federal district court judge dismissed the suit, ruling that the banner’s message could be prohibited. But the 9th Circuit reversed, finding that the banner’s massage was not “plainly offensive” or sexual. The appeals court also noted that the banner was not displayed on school property, but rather on a sidewalk facing campus. Starr says the ruling has “profoundly disrupted” the previously accepted view that schools could restrict pro-drug messages.

    In Anderson v. Durham School Department, a group of parents seek to restore Maine’s so-called “tuitioning” program, which supporters describe as one of the nation’s oldest school-choice programs. Aimed at educating students in rural towns that are too small to support a public school of their own, the program allows students to attend private schools — including religious ones — at government expense. In 1980, however, the state stopped paying tuition for religious schools, adopting the view that doing so would violate the First Amendment’s establishment clause.

    The Maine Supreme Court upheld the policy, finding that under the high court’s decision in Locke v. Davey, states have “some leeway” to choose not to fund religious education even if funding it might not violate the establishment clause.

    The Institute for Justice, which represents parents seeking to restore the program, asked the high court to fix Maine’s “25-year-old misunderstanding of the Establishment Clause.”


  • Related

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    Unanimous three-judge panel overturns lower court ruling, finds Alaska school officials violated Joseph Frederick's free-speech rights. 03.13.06

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    Justices appear unsympathetic to union's free-speech arguments
    By Tony Mauro It seems likely that Roberts Court is poised to make dramatic shift concerning use of nonmembers' union dues. 01.11.07

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    By Ronald K.L. Collins Ten free-expression cases, including 'Bong Hits,' and one religion case are still to be decided this term and next. 05.16.07

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    2006-07 Supreme Court case tracker

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