FIRST AMENDMENT

Freedom of Expression

In United States v. National Treasury Employees Union, 63 U.S.L.W. 4133 (Feb. 22, 1995)(6-3), the Court struck down a federal ethics law that, among other things, prohibited all federal employees from accepting any “honoraria” for any speech, article or appearance, whether or not it was related to their job responsibilities. In an important passage, the majority held that a broad prophylactic rule affecting the free speech rights of more than 1.7 million people must be supported by more than speculation, even in the public employment context. The Court also reaffirmed its prior holding that a restriction on payment for speech is a restriction on speech itself and, therefore, triggers First Amendment scrutiny. The dissenters argued that a “nexus” requirement should be read into the statute. The majority, however, concluded, that it was up to Congress to rewrite the statute as it saw fit. The ACLU was co-counsel for plaintiffs challenging the statute.

In McIntyre v. Ohio Elections Comm’n, 63 U.S.L.W. 4279 (April 19, 1995)(7-2), the Court invalidated a Ohio law that banned the distribution of any anonymous campaign literature. The law was challenged in this case by an Ohio parent who had been fined $100 for distributing anonymous fliers in opposition to a proposed school tax referendum. Writing for the majority, Justice Stevens noted the long tradition of anonymous political literature including, most notably, the Federalist Papers. The majority then rejected the state’s argument that it should be given greater latitude in regulating campaign literature than other forms of political speech. To the contrary, Justice Stevens wrote, “[n]o form of speech is entitled to greater constitutional protection than Mrs. McIntyre’s.” Id. at 4283. Finally, the Court held that the state’s interest in preventing fraud and libel, while legitimate, were insufficient to justify the statute’s “extremely broad prohibition.” Id. at 4284. The ACLU represented petitioner in the Supreme Court.

In Rubin v. Coors Brewing Co., 63 U.S.L.W. 4319 (April 19, 1995)(9-0), the Court unanimously ruled that a 1935 federal statute that prohibits any mention of alcoholic content on beer labels violates the First Amendment. Applying its familiar commercial speech test, the Court held that the challenged statute did not directly advance its asserted interest in limiting strength wars because of “the overall irrationality of the government’s regulatory scheme,” id. at 4323. The Court further noted that the restriction on beer labels “is not sufficiently tailored to its goal,” id., since the government could, if it chose, directly limit the alcoholic content of beer. In an important footnote, the Court rejected the notion that the government has greater latitude in regulating commercial speech about social harmful activity. Such regulations, the Court said, must satisfy the same standard of review as other regulations of commercial speech. Id. at 4321 n.2. The Court also appeared to back away significantly from earlier statements, most notably in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 346 (1986), suggesting that the government can ban promotional advertising whenever it can ban the underlying activity. The decision in Coors represents the latest in a series of recent decisions that have provided enhanced constitutional protection for commercial speech.

In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB), 63 U.S.L.W. 4625 (June 19, 1995)(9-0), a unanimous Court held that the private sponsors of Boston’s St. Patrick’s Day Parade could not be required to include a contingent of gay marchers in their parade. The Massachusetts courts had ruled that GLIB’s exclusion violated the state’s public accommodations law, which prohibits discrimination on the basis of sexual orientation. The Supreme Court reversed. Writing for the Court, Justice Souter noted that a parade is an expressive event and that its sponsors, like any other First Amendment speaker, have the right to determine the message they wish to convey. The ACLU supported the First Amendment claim of the private sponsors in its amicus brief. However, the ACLU also argued that the First Amendment issues would be different if the government had sponsored the parade, and that the question of government sponsorship required further consideration by the lower courts. The Supreme Court avoided this second question by holding that the issue of state action had not been properly preserved.

In Florida Bar v. Went For It, Inc., 63 U.S.L.W. 4644 (June 21, 1995)(5-4), the Court upheld a 30 day ban on direct mail from lawyers to accident victims or their families. The majority opinion, written by Justice O’Connor, stressed the historic role of the states in regulating the legal profession and the heightened privacy interest of recent accident victims. The majority opinion also emphasized that the justification for the Florida rule was supported by actual evidence rather than mere speculation.

The Establishment Clause

In Capitol Square Review Board v. Pinette, 63 U.S.L.W. (June 29, 1995)(7-2), the Court upheld the right of the Ku Klux Klan to place a cross in a public park bordering the statehouse in Columbus, Ohio. As the majority noted, the park was a traditional public forum that had long been used by residents of Columbus for all sorts of speech activities, including the placement of other religious displays during the holiday season. Under these circumstances, seven members of the Court concluded that there was no violation of the Establishment Clause in allowing the Klan display. Significantly, however, five members of the Court, reaffirmed that the appropriate Establishment Clause question is whether a reasonable person would perceive that the state had endorsed a religious message, expressly rejecting the effort by four members of the Court to further dilute the constitutional standard governing the separation between church and state. The ACLU supported the Klan’s free speech rights in this case.

In Rosenberger v. The University of Virginia, 63 U.S.L.W. (June 29, 1995)(5-4), the Court held that a student religious journal was entitled to the same subsidy from student activity funds that the University provided to student secular journals. Writing for the majority, Justice Kennedy stressed the University’s obligation to be “viewpoint-neutral” once it made the decision to subsidize student speech. As a matter of free speech law, the ACLU shares that position. However, our amicus brief concluded that the Establishment Clause forbid the direct funding of religious activity on the facts of this case. The majority’s response was to emphasize that the funding in the case went to the printer rather than directly to the religious activity. That distinction without a difference has potentially serious consequences for future litigation over school vouchers.