Civil Rights and Civil Liberties in the Supreme Court's 2002-2003 Term

Free Expression and the First Amendment

The Court decided several First Amendment cases in 2002-03, mostly ruling against First Amendment claims. In United States v. American Library Association, 2003 U.S. LEXIS 4799 (2003), the Supreme Court held that the Children’s Internet Protection Act (CIPA) did not unconstitutionally violate the First Amendment protection of freedom of speech, and thus did not exceed Congress’s powers under the Spending Clause. A plurality opinion written by Chief Justice Rehnquist and joined by Justices O’Connor, Scalia, and Thomas flatly rejected the idea that Internet access at public libraries represented a public forum and that restrictions on such access must be subjected to heightened scrutiny. Since libraries can exclude pornographic materials from their written collections, explained the Court, “Congress could reasonably impose a parallel limitation on its Internet assistance programs.” 2003 U.S. LEXIS 4799 at 32. While concurring in the judgment, Justice Kennedy made clear that his vote was contingent on the government’s representation that under the law, an adult can have the filtering removed; if the capacity of libraries to unblock the filters is substantially burdened, Kennedy explained, the Act may be subjected to an “as-applied” challenge. Justice Breyer also concurred in the judgment, suggesting a more stringent standard than the plurality that he believed was met, also largely because of adults’ ability under the law to have filters removed. Justices Stevens, Souter, and Ginsburg dissented, finding that the restraint on constitutionally protected speech that is necessarily filtered from public libraries’ Internet access through the CIPA requirements violated First Amendment free speech rights. In their view, the law forced libraries into the equivalent of buying an encyclopedia and then tearing out some of its pages. Although the decision clearly harms First Amendment rights, the damage would have been even worse if at least two Justices in the majority had not emphasized the importance of adults’ ability to remove filters and if the minimal standard of review suggested by the plurality had been adopted by the majority. Rather than ending litigation in this area, the decision may well give rise to future “as applied” challenges to CIPA. (PFAWF was co-counsel in this case.)

In Virginia v. Black, 123 S. Ct. 1536 (2003), the majority of the Court ruled that states may ban cross burnings carried out with the intent to intimidate, but that a part of Virginia’s cross burning statute was unconstitutional. In a divided opinion, the Court found that a provision in Virginia’s cross burning statute that states that “[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons” is unconstitutionally broad, as it “permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense” and does not distinguish between cross burnings conducted to intimidate as opposed to express political or other views. 123 S. Ct. at 1550. While concurring in part, Justice Scalia, joined by Justice Thomas, dissented with respect to the invalidation of Virginia’s statute, finding that the burning of a cross “is sufficient, at least until the defendant has come forward with rebuttal evidence, to create a jury issue with respect to the intent element of the offense.” Id. at 1554. In a separate dissenting opinion, Justice Thomas contended that the Virginia legislation regulates conduct, not expression, and it is therefore not in any way a violation of the First Amendment to ban cross burning and to presume an intent to intimidate. Thomas’ and Scalia’s views thus take a narrow view of the scope of the free expression guarantee of the First Amendment. Justices Souter, Kennedy, and Ginsburg took the opposing view, claiming that the Virginia statute makes an unconstitutional “content-based distinction within the category of punishable intimidating or threatening expression,” which ultimately “skews the statute toward suppressing ideas,” Id. at 1559, 1562, and that the entire statute violates the First Amendment. (PFAWF filed an amicus brief in this case.)

Eldred v. Ashcroft, 123 S. Ct. 769 (2003), concerned the validity of the Constitution’s Copyright Term Extension Act (CTEA), which extended both new and existing copyrights for an additional 20 years under the First Amendment and the “limited time” provision in the Copyright Clause. In a 7-2 opinion, the majority ruled that Congress acted within its constitutional authority when it extended the term of years covered by copyright laws for both pre-existing and newly-created works. “History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime.” 123 S. Ct. at 778. In addition, the majority stated, the Court properly defers to Congress with respect to copyright laws based on the authority invested in the legislative branch through the Copyright Clause. The Court also rejected petitioners’ First Amendment claims, holding that copyright law contains “its own speech-protective purposes and safeguards…. Indeed, copyright’s purpose is to promote the creation and publication of free expression.” (Id. at 788, emphasis in original). Justice Stevens and Justice Breyer dissented from the opinion, contending that Congress may not properly extend the life of a copyright beyond its expiration date, that the Act’s extension makes the copyright terms “virtually perpetual,” and that the CTEA falls beyond the constitutional limits of the Copyright Clause.

In a unanimous opinion delivered by Justice Scalia, the Court held in Virginia v. Hicks, 2003 U.S. LEXIS 4782 (2003) that the trespass policy of the Richmond Redevelopment and Housing Authority (RRHA) was not facially invalid under the overbreadth doctrine of the First Amendment. Pursuing orders from the city of Richmond to privatize the streets surrounding a low-income housing development, RRHA enacted a policy authorizing the city police to serve notice “to any person who is found on Richmond Redevelopment and Housing Authority property when such person is not a resident, employee, or such person cannot demonstrate a legitimate business or social purpose for being on the premises,” and further permitted the police to arrest any such individual who returns to the property after having been served the notice. 2003 U.S. LEXIS 4782 at 5-6. In order to be found facially invalid, explained the Court, a law must be shown to punish a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep.’” Id. at 9. The Court found that this standard had not been met.

Finally, the Court decided not to decide Nike v. Kasky, a case concerning the extent to which the First Amendment protects information disseminated by Nike regarding its labor practices. The Court decided in a per curiam opinion to dismiss the writ of certiorari as improvidently granted, choosing to wait until a final judgment was reached in a lower court rather than attempting to address the important First Amendment issues presented without a fully developed record. Justices Kennedy, Breyer, and O’Connor dissented from this dismissal.

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