I’m off to class now, but I hope to get my recap of the Schwarzenegger v. EMA argument up at a reasonable hour. Briefly, the California lawyer got mercilessly pummeled by Sotomayor, Scalia, Ginsburg, Kagan, and Kennedy, while Roberts stayed almost completely quiet for the first half-hour, only to be EMA’s prime antagonist during the second half-hour. Breyer joined Roberts in support of the CA law, while Alito, who had sharply questioned CA, more sharply questioned EMA. Alito also had some lighthearted, but jurisprudentially serious, quips towards Scalia on the limits of originalism for First Amendment cases concerning media never imaginable in 1791, let alone 1951.
Until then, here are some scenes from the sidewalk:
Among the fourteen cases the Supreme Court added to its docket today, FCC v. AT&T most caught my attention. The case asks whether corporations can claim personhood so to qualify for the Freedom of Information Act’s Exemption 7(C), which exempts from mandatory disclosure records collected for law enforcement purposes when such disclosure could “reasonably be expected to constitute an unwarranted invasion of personal privacy.”
The Third Circuit ruled that because the statute defined “person” as an “individual, partnership, corporation, association, or public or private organization other than an agency,” then corporations were entitled to 7(C)’s “personal privacy” exemption. The FCC’s petition for certiorari, signed by then-Solicitor General Elena Kagan–who will be recused for this case–argued that the Third Circuit’s ruling upset a thirty-five year understanding that the “personal privacy” exemption only applied to individuals.
To bolster their case, the FCC cited then-Professor Scalia’s 1981 testimony before Congress that Exemption 7 did not protect “associational or institutional” privacy from mandatory disclosure upon request.
Although this case will ultimately turn on statutory construction, it still hearkens back to last year’s Citizens United, which established that corporations are legal persons whose independent campaign expenditures cannot be limited under the First Amendment’s free speech protections.
What makes this case even more interesting is that next Tuesday, the Court will hear argument in NASA v. Nelson, which asks whether a government employee has a right to “informational privacy” that allows him to withhold information in government background checks. Specifically at issue is whether an employee, once established he has done drugs, may then refuse to disclose if he has obtained treatment for the drug use. Justice Kagan will also recuse herself in this case.
Informational privacy is hardly a deeply established fundamental right. Even if it were, and if the Court’s conservative bloc embraced it, drug-tinged cases tend to soften the justices’ principles. In Gonzales v. Raich, Justice Scalia voted to approve Congress’s Commerce Clause power to ban the personal cultivation of medical marijuana, despite his earlier votes to restrict the Commerce Clause’s scope and later votes to cabin the power of the Necessary and Proper Clause. And in Morse v. Frederick, Chief Justice Roberts, who takes a largely robust view of the First Amendment, found a high school student’s unfurled banner reading “BONG HiTS 4 JESUS” to be unprotected pro-drug speech under the Court’s First Amendment-for-students doctrines.
In contrast to AT&T, the issue in NASA is not statutory, but constitutional. Further, it is grounded in an individual’s Fifth Amendment Due Process rights, not in one’s First Amendment rights, which was the flashpoint of last year’s corporate personhood contest. Still, if the Court rejects an individual’s right to informational privacy, but embraces a corporation’s ability to withhold information under the personal privacy exemption, expect some commentators’ heads to explode.
The Supreme Court broke its streak of pro-First Amendment decisions in today’s decision in Holder v. Humanitarian Law Project. This “very difficult case,” as Justice Kennedy described it at oral argument, was decided by a 6-3 vote in an opinion written by Chief Justice Roberts. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.
The opinion held that the First Amendment does not bar the criminal prosecution of the Humanitarian Law Project (HLP) under a federal statute criminalizing “material support” to groups designated as terrorist organizations by the United States government. HLP provided lessons on international law and non-violence to groups such as the Kurdistan Workers’ Party (PKK) and the Tamil Tigers. The majority refused, however, to determine whether the federal statute would be constitutional as applied to “more difficult cases” that could arise in the future.
This opinion comes on the heels of two prior cases in which the Court came out with robust pronouncements of First Amendment freedoms. In Citizens United, Justice Kennedy wrote for the conservative bloc striking down significant portions of the McCain-Feingold campaign finance reform act as violating the First Amendment. In United States v. Stevens, the Chief Justice wrote for an eight-justice majority deeming unconstitutional a federal statute that criminalized depictions of animal cruelty.
The case’s national security element may have colored the conservative bloc’s opinion, but it does not account for the votes of Justices Stevens and Kennedy, both authors of landmark cases striking down former President George W. Bush’s enemy combatant policies in Guantanamo Bay. Their fingerprints may be seen in the passages urging moderation:
We next consider whether the material-support statute, as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their “pure political speech.” …For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may pro hibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.
As we explained in Texas v. Johnson: “If the [Government’s] regulation is not related to expression, then the less strin gent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is, then we are outside of O’Brien’s test, and we must [apply] a more demanding standard.”For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …
Stevens dissented in Texas v. Johnson, writing that he would have allowed the criminal law against flag burning to stand where the five-justice majority–in which Justices Scalia and Kennedy joined the liberal bloc of Brennan, Marshall, and Blackmun–applied a maximalist view of the First Amendment to strike down the Texas law.
Indeed, today’s case displays Stevens’s deep precedent-bound pragmatism. He not only signed onto an opinion that cited a case from which he dissented, but he also continued his less-than-absolute take on the First Amendment while also showing that he is not an unyielding civil libertarian when it comes to the war on terror.
Justice Breyer read his dissent from the bench today, stating that the federal statute could not survive strict scrutiny. Breyer, however, is no First Amendment maximalist himself, despite this morning’s oral dissent. Today’s decision, when compared with this term’s earlier First Amendment decisions, is a reminder that on the Roberts Court there is no unyielding free speech champion. Instead, the justices use the First Amendment as an ancillary issue to be used to their advantage on cases that touch their greater concerns, be they national security or campaign finance.
Breyer’s oral announcement of his dissent marked the second time this term a justice has done so. Justice Stevens spoke for 20 minutes to protest Citizens United back in January. There may be others yet, as a few more charged cases remain for the Court’s Thursday and Monday sessions.
The Court today granted certiorari in Snyder v. Phelps, et al. Here’s Lyle Denniston from SCOTUSBlog:
The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed Monday to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade. […]
The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting.
If Lyle’s description and the name “Phelps” didn’t already set off your mental bells, let me put the question before the Court another way–with illustrative hyperlinks: is this speech by this preacher‘s congregation protected under the First Amendment?
In other words, I may have to dust off F1@1F next term for a special encore report from this case’s line.
UPDATE: Back in 2006, Molly McDonough of the ABA Journal–she’s now my overseer over there–wrote about the constitutionality of the state and federal laws enacted to keep Phelps’s folk away from soldiers’ funerals. Next term’s case is based on a common law tort’s damage award, not on any statutory command, but McDonough’s story is still well-worth revisiting.
If the Court dipped its toes into the gay marriage debate through its ruling against the videostreaming of the Prop. 8 case, then the Court will step into the shallow end in April to hear Doe No. 1, et al., v. Reed, et al., a case arising from a petition to get an anti-domestic partnership referendum onto a Washington State ballot.
Here’s Lyle Denniston from SCOTUSBlog:
The Court’s vote to hear the case of Doe No. 1, et al., v. Reed, et al. (09-559) marked the second time this week that the Court opted to act on controversies involving opponents of gay rights’ claims that publicity about their political activity has led to threats and even some violence against them. On Wednesday, the Court shut down a plan to televise the federal court trial challenging California’s ban on same-sex marriage, displaying concern for the potential effect on supporters of that ban when they appear as witnesses at the trial.
The new case involves an effort to bring out in public the identities of individuals in Washington State who signed petitions to put on the state election ballot a referendum that would overturn a new state law extending the benefits of marriage (but not marriage itself) to couples registered as “domestic partners.” (That referendum failed, and the law remains in effect; voters approved the new law by a 53-47 percent margin last November.)
In taking the Washington case to the Court, the petition-signers’ lawyer said the confidentiality issue “is arising with great frequency across the country as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation.” One group, the filing said, has posted on its web site information about gay marriage petition-signers in Arkansas, Florida, Massachusetts and Oregon.
The yet-to-be-scheduled case will be a double-barrel First Amendment shotgun, blasting out of one side Free Exercise Clause and freedom of association arguments, and on the other side Establishment Clause and sexuality discrimination concerns. Here’s Coyle on the case’s background:
The high court case, Christian Legal Society v. Martinez, asks the justices whether a public university law school with a non-discrimination policy can refuse to fund a religious student group because the group requires its officers and voting members to agree with its core religious beliefs, thereby excluding gay and lesbian students. […]
Last March, the 9th Circuit affirmed a district court ruling in favor of the law school. The three-judge panel, in an unsigned opinion, said, “Hastings imposes an open membership rule on all student groups — all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.”
I can’t wait for this case–not only because it will be a Church-and-State blockbuster that will quite directly test F1@1F’s thesis, but also because it will likely take place in April. And I will gladly trade midnight April Showers for pre-dawn January Frostbite anyday.