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High court takes low number of First Amendment cases

By Tony Mauro
Special to freedomforum.org

10.04.02

The Supreme Court opens its fall term on Monday, Oct. 7, with the fewest First Amendment cases on its docket in recent memory.

Only two cases among the three dozen or so the Court has already agreed to consider — Eldred v. Ashcroft and Virginia v. Black — directly deal with the First Amendment. A handful of others indirectly implicate speech or freedom-of-information issues.

But before the term ends, the justices are expected to add to their docket one or more blockbuster First Amendment cases that could turn the term into a major one in the development of free-speech jurisprudence. Cases involving campaign-finance reform, commercial speech, Internet censorship, openness for alleged terrorist deportation hearings, and even the free-speech rights of tattoo artists, are on their way to the high court.

The First Amendment case that will be argued the earliest this term has also gotten the most attention: Eldred v. Ashcroft, which goes before the justices on Oct. 9. It is a challenge to the Sonny Bono Copyright Term Extension Act of 1998, which extended existing and future copyrights by 20 years.

Much has been written about how the bill was passed at the behest of Disney, whose mainstay characters — the likes of Mickey Mouse and Donald Duck — were about to lose their copyright protection and pass into the public domain, thereby costing Disney billions in annual revenue. But the law is being challenged by individuals, including Eric Eldred, who are less interested in cartoon characters than in acquiring classic written works for inclusion in the growing digital archives and libraries that populate the Internet. The copyright extension, they say, violates their right to free expression.

But the main constitutional battleground in the case is over the Constitution’s copyright clause, which gives Congress the power to protect creative works with copyrights “for limited times.” Eldred’s lawyer, Lawrence Lessig, argues strenuously that the latest extension, which for existing works means a copyright for 95 years, is really no limit at all.

The First Amendment argument is somewhat secondary to the copyright-clause issue, many commentators agree. But if the justices get to the free-expression argument, it could open a new period of First Amendment scrutiny for copyright law. And that, some fear, could undermine the purposes of copyright, which, by its nature, imposes some limits on expression. First Amendment lawyer Floyd Abrams, in a brief filed in the Eldred case for the Songwriters of America, cautions that subjecting copyright law to even middle-level or intermediate First Amendment scrutiny would “call into question the validity of all copyright law.” Under intermediate scrutiny, copyright law would have to be shown to advance important government interests and not to overly burden speech.

The appeals court that ruled in Eldred concluded that the Supreme Court had already shut the door on subjecting copyrights to First Amendment scrutiny. The U.S. Court of Appeals for the D.C. Circuit cited a 1985 case, Harper & Row Publishers v. Nation Enterprises, in which the Supreme Court called copyright an “engine of free expression.” But the high court also said that copyright law already embodied First Amendment values by denying copyrights to facts or ideas and giving them only to an author’s form of expression. That dichotomy, according to the D.C. Circuit, leads to the conclusion that “copyrights are categorically immune from challenges under the First Amendment.” It upheld the Sonny Bono law.

The job of Eldred’s lawyers will be to convince the Supreme Court that the D.C. Circuit is wrong and that copyright laws must withstand First Amendment scrutiny.

Revisiting cross-burning
In the second First Amendment case before the Court, Virginia v. Black, the justices will revisit a virulent form of expression: cross-burning. At issue is a Virginia law that bans cross-burning in public places or on someone else’s property “with the intent of intimidating any person or group of persons.” The law also adds that burning of a cross is itself “prima facie evidence of an intent to intimidate.” Ten years ago, in R.A.V. v. City of St. Paul, the Court struck down a local ordinance that similarly singled out burning crosses and swastikas in a law that made it a crime to display symbols that would arouse racial, ethnic or religious anger. The Supreme Court agreed the St. Paul ordinance was a form of viewpoint and content discrimination that violates the First Amendment.

The state of Virginia says its law is different from the law struck down in R.A.V., because it is content-neutral. “It is not limited to disfavored subjects or particular victims,” Virginia State Solicitor William Hurd argues in the state’s brief. “Rather, it applies to anyone who burns a cross with the intent to intimidate anyone for any reason.”

But University of Richmond law professor Rodney Smolla counters that by singling out cross-burning, the Virginia law does discriminate on the basis of content and viewpoint. “If the government is permitted to select one symbol for banishment from public discourse, there are few limiting principles to prevent it from selecting others,” Smolla writes. “And it is but a short step from the banning of offending symbols such as burning crosses or burning flags to the banning of offending words.” Smolla represents three defendants arrested in two incidents of cross-burning — one at a Ku Klux Klan rally in 1998, and the other in the back yard of an African-American in Virginia Beach.

In a brief filed by the Thomas Jefferson Center for the Protection of Free Expression, Robert O’Neil says the law should be struck down because it restricts protected speech, even “for the worthiest of purposes.” No date has been set for arguments in the case.

Other cases of note
Other cases on the Court’s fall docket, while not raising First Amendment issues directly, have attracted interest among First Amendment advocates.

  • The Court is examining the constitutionality of so-called Megan’s Laws — laws that call for publicizing the names and addresses of convicted sex offenders when they return to the community. News media groups are concerned that a ruling striking down the laws might have implications for the dissemination of information that has been traditionally made public.

    “Placing restrictions on the dissemination of truthful information about those who have been convicted of crimes infringes on the First Amendment rights of the public and press, and limits the ability of the public to oversee the workings of its government,” said Lucy Dalglish in a brief filed for the Reporters Committee for Freedom of the Press in Connecticut Department of Public Safety v. Doe. “The Reporters Committee is troubled by any interpretation that would suggest that listing true information about criminal convictions could be defamatory.”

  • The Court will also revisit the issue of restricting the sometimes violent anti-abortion protests staged outside family planning clinics, which has already produced several First Amendment rulings. But in the case up for review this fall, Scheidler v. National Organization for Women, the issue is not the First Amendment freedom of assembly but whether federal racketeering and anti-extortion laws can be used as tools against the protests.

  • In the category of First Amendment cases that are destined for Supreme Court review but are not there yet, the most notable is probably McConnell v. Federal Election Commission, the overall title for the myriad challenges to the latest campaign-finance legislation passed by Congress. Under a fast-track procedure written into the law, a three-judge panel is to hear the challenges on Dec. 4. If a decision comes soon thereafter, the inevitable appeal from the losing side could be heard before the end of the Supreme Court’s term. The provisions generally viewed as most vulnerable to First Amendment attack are those that restrict advertising by certain groups just before elections.

  • Another First Amendment case expected to be filed with the high court later this month is an appeal of the California Supreme Court decision in Kasky v. Nike. The California court ruled that when Nike Inc. responded to allegations of sweatshop conditions at the Asian factories that produce its sports shoes, its statements were the equivalent of advertisements — even though Nike defended itself in press releases and letters to the editors of newspapers. As such, the California court ruled that misstatements or inaccuracies in what Nike said can be punished under California laws that prohibit false or misleading advertising.

    Nike hired Harvard Law School professor Laurence Tribe and former acting Solicitor General Walter Dellinger to appeal the California ruling to the Supreme Court. If Nike loses, they say, corporations will be chilled from participating in debates over social issues because they will not be protected by the First Amendment — even though the statements and misstatements made by their adversaries do enjoy First Amendment protection.

    “This could be one of the most important First Amendment cases decided in decades,” says Dellinger. “What Nike said is core political speech.”

  • A case that could be taken up sooner is the U.S. government’s defense of yet another congressional attempt to regulate Internet speech deemed harmful to children. The U.S. solicitor general recently filed an appeal in U.S. v. American Library Association, defending the Children’s Internet Protection Act, Congress’ third attempt to restrict Internet content. The law requires public libraries receiving federal funds to place filtering technology on all computers used for public access to the Internet. A three-judge panel found the law unconstitutional because the technology currently available blocks out large amounts of speech that is protected by the First Amendment.

    American Civil Liberties Union lawyer Christopher Hansen says the filtering software has been shown to block political, religious and even sports Web sites, while some sites that do fit the criteria of the law are not screened out. “There is vast underblocking and overblocking.”

  • Before the term is out next summer, the Court may also consider one or two cases stemming from the government’s post-Sept. 11 handling of deportation hearings of people with alleged terrorism connections. The 6th U.S. Circuit Court of Appeals has struck down the government’s policy of holding the deportation hearings in secret, in a case brought by Detroit news media. The issue is also before the 3rd Circuit in a challenge filed by New Jersey media organizations.

  • Finally, it is conceivable that the Court could grant review in Ronald White v. South Carolina, a challenge to that state’s flat ban on tattooing. Former Whitewater independent counsel Kenneth Starr represents a tattoo artist who was arrested under the law. Starr argues the ban violates the First Amendment because the art of tattooing is a form of protected expression. “A ban on the act of tattooing is effectively a double ban on the expression of tattoo artists and their patrons,” Starr wrote in his brief.

    • Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.