Courting Disaster: Update 2001-2002

Free Expression and Censorship

Supreme Court cases on freedom of expression yielded mixed results in 2001-2002. The Court majority invalidated one congressional effort concerning Internet related speech on First Amendment grounds, and cast significant doubt on another. In several cases, the Court upheld municipal authority to restrict speech activities, while striking down a restrictive municipal ordinance in another. The Court was narrowly divided in a number of these free speech cases.

In one important Internet related case, Ashcroft v. The Free Speech Coalition, 122 S.Ct. 1389 (2002), a divided Court struck down two sections of the Child Pornography Prevention Act of 1996 that prohibited the visual depiction of sexually explicit images that “appear” to show minors or that are presented in a manner that “conveys the impression” that they show minors, but that are actually produced without using real children, sometimes through computer-generated images. The Court found these provisions to be fatally overbroad since they banned material that was neither obscene nor produced by the exploitation of actual children, and abridged “the freedom to engage in a substantial amount of lawful speech.” The Court flatly rejected the government’s suggestion that “protected speech may be banned as a means to ban unprotected speech,” observing that such an argument “turns the First Amendment upside down.” Chief Justice Rehnquist and Justice Scalia dissented and would have upheld the law in full. Justice O’Connor would have upheld the ban on pornographic depictions that “appeared” to be of minors as long as it was “not applied to youthful-adult pornography.” Although Justice Thomas concurred in the judgment, he expressed a willingness to uphold a ban on virtual child pornography in the future if technology makes it impossible to prove whether “certain pornographic images are of real children” and the regulation “contains an appropriate affirmative defense or some other narrowly drawn restriction.”

In Ashcroft v. American Civil Liberties Union, 122 S.Ct. 1700 (2002), the Court this Term also considered the constitutionality of the federal Child Online Protection Act (COPA), which criminalizes communications made for commercial purposes that are distributed on the World Wide Web, that are available to minors, and that include material deemed “harmful to minors.” In an 8-1 ruling in which Justice Thomas wrote the opinion of the Court, the Court reversed an appellate court and ruled that the law’s reliance on “community standards” to determine what material is harmful to minors does not by itself render COPA unconstitutional. Nevertheless, at least five Justices, not including Thomas or Scalia, suggested that COPA may well violate the First Amendment by improperly restricting adult use of the Internet. The Court left in effect an injunction prohibiting the federal government from enforcing COPA pending a lower court ruling on the other First Amendment objections to the law.

Scalia and Thomas were part of a 5-4 majority in City of Los Angeles v. Alameda Books, Inc., 122 S.Ct. 1728 (2002), which ruled in favor of Los Angeles in connection with a city zoning ordinance that restricted free speech by prohibiting the establishment of more than one adult entertainment business in the same building. Justice Scalia not only joined the plurality opinion, but also wrote a separate concurrence in which he stated that “[t]he Constitution does not prevent those communities that wish to do so from regulating, or indeed entirely suppressing, the business of pandering sex.” The four dissenting Justices believed the ordinance was effectively a content-based regulation and that the regulation was not justified by the city’s evidence. In Thomas v. Chicago Park District, 122 S.Ct. 775 (2002), all nine members of the Court upheld another municipal restriction on speech, ruling that an ordinance requiring individuals to obtain a permit to conduct large scale events in public parks was a content-neutral, time, place, and manner restriction that provided adequate standards to guide officials’ decisions.

In another 5-4 decision, Thompson v. Western States Medical Center, 122 S.Ct. 1497 (2002), Thomas and Scalia joined the majority in holding that a provision of the Food and Drug Administration Modernization Act of 1997 violated the First Amendment. The provision exempted “compounded drugs” – typically medications not available commercially and mixed by a pharmacist – from the FDA’s standard drug approval requirements as long as the providers of the compounded drugs abided by certain restrictions, including the requirement that they not advertise or promote them and that any prescription for them be “unsolicited.” The Court held that this ban on commercial speech did not survive constitutional scrutiny because the government had not demonstrated that the regulation directly advanced a substantial governmental interest using the least restrictive means necessary. Justice Thomas concurred and suggested that even broader protection should be given to such commercial speech. The dissenting Justices would have held that the advertising restriction directly and permissibly advanced the government’s important safety objective of confining “the sale of untested, compounded, drugs to where they are medically needed,” and expressed a concern that the Court had “seriously undervalue[d] the importance of the Government’s interest in protecting the health and safety of the American public.”

In an 8-1 ruling with only Chief Justice Rehnquist dissenting, the Court in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 122 S.Ct. 2080 (2002), struck down a local ordinance that prohibited “canvassers” from going door-to-door without first registering with the mayor and obtaining a permit that contained the solicitor’s name, and that required the “canvasser” to display the permit upon demand. Although the suit was brought by the Jehovah’s Witnesses, the Court noted that the ordinance applied broadly not only to religious proselytizing but also to “anonymous political speech and the distribution of handbills.” The Court’s opinion, written by Justice Stevens, found it “offensive – not only to the values protected by the First Amendment, but to the very notion of a free society – that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.” Justices Scalia and Thomas concurred only in the Court’s judgment, issuing a separate opinion to point out that they did not agree with a number of the reasons for the majority’s decision to strike down the ordinance.

In a 5-4 decision, the Court in Republican Party of Minnesota v. White, 2002 WL 1378604 (2002), struck down on free speech grounds a judicial conduct rule of the Minnesota Supreme Court prohibiting candidates for elective judicial office from “announcing their views on disputed legal and political issues.” In an opinion written by Justice Scalia and joined by Rehnquist, Thomas, O’Connor, and Kennedy, the Court concluded that the rule (called “the announce clause”) was a content-based prohibition that burdened a category of speech “that is at the core of our First Amendment freedoms – speech about the qualifications of candidates for public office.” Applying strict scrutiny, the Court held that the rule was invalid because it was not narrowly tailored to serve a compelling state interest. Justice Scalia used his majority decision to take a swipe at the American Bar Association, which originated the “announce clause.” According to Scalia, there is an “obvious tension” between Minnesota’s constitutional requirement that judges be elected, and the “announce clause,” which “places most subjects of interest to the voters off limits.” Scalia found this “perhaps unsurprising,” since the ABA “has long been an opponent of judicial elections.” Justices Ginsburg, Stevens, Souter, and Breyer dissented, drawing a distinction between candidates for judicial office and other elected officials. They would have held that the First Amendment did not prevent Minnesota “from furthering its interest in judicial integrity through this precisely targeted speech restriction.”

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