WASHINGTON — On Nov. 4, while the nation votes in a momentous presidential election, the Supreme Court will be discussing Nicole Richie, Cher, and some unpopular words that begin with “f” and “s.”
Those words will be uttered in both euphemized and unaltered form. But the more important question in the oral arguments in FCC v. Fox Television Stations, Inc. that day may be how often two other words are spoken: “First Amendment.”
The First Amendment is a major or bit player in only four cases thus far in the term that opens Oct. 6. And in the two of those cases that will make the biggest headlines, the First Amendment issue is either in the background or arises in an unusual way.
“So far, not much going on” on the First Amendment before the Supreme Court, says Richard Garnett, a Notre Dame Law School professor who teaches First Amendment law.
One reason for that assessment is that the FCC case, strictly speaking, is not a First Amendment case at all, even though it involves efforts by the FCC to punish broadcast networks for the airing of “fleeting expletives” in recent television shows.
Instead, the case is a test of how the FCC arrived at its policy in 2004, after decades of permitting most chance, one-time utterances of words like those used by the late George Carlin in his comedy sketches. The 2nd U.S. Circuit Court of Appeals ruled that the commission’s change of mind was not adequately explained under the requirements of the Administrative Procedures Act. The new policy was invoked in warnings against broadcasters for allowing expletives on live awards and reality shows featuring Richie, Cher, the singer Bono and others.
“The FCC abruptly abandoned the restraint that previous commissions accepted as constitutionally required, embarking on regime of draconian enforcement and multimillion dollar fines,” wrote Carter Phillips, lawyer for Fox, in a brief to the Court. “The new regime unsettled broadcasters’ expectations, chilled spontaneous programming and threatened the viability of live television.”
Phillips goes on to argue that the new policy violates the First Amendment, whether or not the FCC followed the right procedures in changing its mind and approving the new policy.
Media have changed, Phillips asserts, since the 1978 FCC v. Pacifica Foundation decision that said Carlin’s “filthy words” were indecent and broadcast of the words could be punished. That ruling was based in part on the pervasiveness of broadcast media, but Phillips points out that those traditional media now coexist with cable and satellite channels — available to 86% of U.S. households — that are not restricted by the FCC policy. He also notes the children now can access indecent material on the Internet, blunting the 1978 argument that broadcasting was “uniquely accessible to children.”
But the Bush administration argues that the justices should not reach the constitutional issues at all, confining its inquiry only to the administrative procedure issue. “There is no reason for this Court to depart from its customary practice and reach out to decide constitutional questions not passed on below,” argued then-solicitor general Paul Clement in the administration's brief to the Court.
Numerous friend-of-the-court briefs, however, urge the Court to reach the First Amendment issue, in part to reevaluate the Pacifica case, but also on the theory that if the policy is unconstitutional, the administrative-procedure issue becomes irrelevant.
“While the ruling below could be affirmed solely on non-constitutional grounds, the lurking presence of several troubling First Amendment questions warrants” a broader decision, said First Amendment scholar Robert O’Neil in one brief on behalf of his Thomas Jefferson Center for the Protection of Free Expression, and of the Media Institute.
At a recent Washington Legal Foundation briefing on the upcoming term, O’Melveny & Myers lawyer Sri Srinivasan said, “The more that the First Amendment comes into the case, the stronger it will be for the plaintiffs,” referring to the broadcasters.
First Amendment Center scholar Ronald Collins agrees that “the shadow hanging over the case is the First Amendment,” but says he will not be surprised if the Court avoids the First Amendment issue altogether. Collins says the “old-fashioned” practice of the Court, which still often holds sway among the justices, is that “you don’t reach the constitutional question until you resolve the statutory question.”
In the other major First Amendment case of the term, set for argument Nov. 12, the Court will consider yet another dispute over placement of a religious memorial on public grounds. But Pleasant Grove City v. Summum is not an establishment-clause case, unlike the Ten Commandments cases the Court has decided in recent years.
Instead, the main question is whether the messages conveyed by such monuments amount to government speech, or the private speech of the religious group that espoused the monument. The dispute began when Summum, a little-known religious sect, sought permission to erect a monument with its “Seven Aphorisms” in a park in Pleasant Grove City, Utah, where a comparable Ten Commandments monument has been on display since 1971.
The city said no, on the grounds that Summum did not “relate to the history” of the city and did not have longstanding ties to the community. The religious group sued, claiming a free-expression violation rather than a violation of the religious clauses of the Constitution. The 10th U.S. Circuit Court of Appeals ruled in favor of Summum, finding that the park was a public forum and that displays such as the Ten Commandments or the Seven Aphorisms were private speech in that public forum. As such, the city’s rejection of the Summum request was to be subject to “strict scrutiny,” the most difficult standard for governments to meet. The panel decided the city’s decision was “content-based” and therefore a First Amendment violation.
The city sought review from the full circuit court. It was denied, but Judge Michael McConnell, an authority on religion cases, warned of dire consequences in a dissent. “Every park in the country that has accepted a VFW memorial is now a public forum for the erection of permanent fixed monuments,” McConnell wrote. “They must either remove the war memorials or brace themselves for an influx of clutter.” Only if the monuments are regarded as government speech could the city be selective, McConnell said.
The city makes that argument before the Supreme Court, quoting from Johanns v. Livestock Marketing Association, a 2005 opinion in which the Court said the government’s own speech “is exempt from First Amendment scrutiny.” In other words, when the government speaks, it can pick and choose which messages to convey in ways that it cannot do if it plays favorites among private speakers.
“When government conveys such messages in its own voice, as Pleasant Grove has done here, it has no obligation to provide an equivalent forum for private speech,” says Jay Sekulow of the American Center for Law and Justice, who represents the city. For years, Sekulow has argued on behalf of the free-speech rights of Christian organizations, but in the Summum case he is on the other side of the equation.
For Summum’s part, its lawyers tell the Court that the government-speech rationale will not fly. If the scenario were slightly different — barring access to Summum supporters seeking to talk about their views at a “speakers’ corner” at the same park, for example — the city could not plausibly keep them out.
Pamela Harris of O’Melveny & Myers, arguing for Summum, also says the city’s stated reasons for rejecting the Summum request — the only such request the city has ever refused — amount to a “post hoc façade” that shows bias against Summum. “The record shows a targeted anti-Summum gerrymander, aimed at suppressing one particularly disfavored religious view.”
Thomas Baker, a Florida International University law professor who specializes in the First Amendment, says the case will give the Court — and especially its newest justices — a fresh opportunity to clarify its “confused and confusing precedents” on religious displays on public property.
Further development of the government-speech doctrine is also needed, Baker says. “There is more government speech than there is law about government speech,” he says.
Two other, lesser-known First Amendment cases have been docketed for argument in the fall, both relating to freedom of speech in the labor-union context — the latest in a series of such cases in recent years. Several have been brought by the National Right to Work Legal Defense Foundation, which argues — with frequent success — that certain union-dues arrangements in union workplaces violate the free speech of those workers who choose not to join the unions.
That is the situation in Locke v. Karass, which is to be argued on Oct. 6, the first day of the term. The case was brought by a group of Maine state workers who are not members of the state employees union. Under court precedents, even though they do not belong to the union and do not pay dues, they can be charged a lesser “agency fee” that goes to the union for collective bargaining and contract administration — services that benefit non-union and union members alike.
At issue is a portion of the fees that goes, through a pooling arrangement, toward litigation involving the Service Employees International Union, the parent of the Maine affiliate that collects the fees. The non-union workers, represented by the foundation, claim that use of the fee violates their First Amendment rights by potentially forcing them to pay for lawsuits they may not agree with. The union, represented by Jeremiah Collins of Bredhoff & Kaiser, argues that this use of the fees is proper under law and Supreme Court precedent.
The other union speech case, Ysursa v. Pocatello Education Association, is scheduled to be argued on Nov. 3. It involves a 2003 Idaho law that forbids payroll deductions for state and local employees for “political activities.” Idaho allows payroll deductions for union dues and fees if an employee requests it, but the law at issue specifically targets payroll deductions for political parties or political-action committees.
School employee unions challenged the law as a violation of their free-speech rights, and the 9th U.S. Circuit Court of Appeals ruled in their favor. The appeals court said the law was a form of content-based discrimination against speech that could not be justified under the First Amendment. It also viewed the payroll-deduction program as a public forum in which the state cannot discriminate against certain speech.
Idaho argues that government agencies have “no affirmative obligation” to help political groups by giving them access to their payroll systems.
The Mountain States Legal Foundation, in a friend-of-the-court brief, argues that the First Amendment does not “guarantee the right to acquire, by the most convenient method possible, the money that will ultimately be used to engage in political speech when other methods of funding are readily available.”
Notre Dame’s Garnett says, “I’m skeptical that this Court will agree with the 9th Circuit’s public-forum take on the case. My sense is that the new chief justice in particular would welcome opportunities to cabin the expansion of public-forum-for-speech doctrine.”
In addition to the cases already granted, several pending petitions to the Court involve significant First Amendment issues, says the First Amendment Center’s Collins. Among them are: American Coalition of Life Activists v. Planned Parenthood of Columbia/Willamette, an abortion-clinic protest case; Parker v. Hurley, asking whether parents have the right to keep their children from being exposed to books that depict same-sex marriage; Stanton v. Arizona Life Coalition, one of many disputes over a state’s treatment of groups seeking special license plates that tout their cause; and Lowery v. Euverard, asking whether high school football players can be dismissed from a team for criticizing the coach.
“It will be a blockbuster year for the First Amendment if one or more of those cases are granted,” says Collins.