Important Cases Await the Supreme Court


Contact: Nathan Richter or Tracy Duckett at PFAW Foundation

Email: [email protected]

Phone Number: 202-467-4999

Internet Free Speech, ‘States’ Rights’, Cross-Burning Cases Highlight Impact of Supreme Court and Future Appointees

As the Supreme Court prepares to begin its 2002-03 Term on Monday, October 7, a series of important civil rights and civil liberties cases are already on its docket. The cases the Court is scheduled to hear deal with congressionally mandated Internet filtering in public libraries, legal protections for family planning clinics, whether state employees are protected under the Family and Medical Leave Act, and more. The Court may also decide to hear cases on a number of other key issues, such as affirmative action and state laws criminalizing sexual activity between consenting adults of the same gender.

“As always, civil rights and liberties are coming before the Court for very important votes,” said People For the American Way Foundation President Ralph G. Neas. “In the last several years, the conservative majority has taken the Court and the Constitution in a troubling direction. The decisions reached in the coming Term will remind Americans of the importance of the Supreme Court and the enormous impact of future appointments on our rights and freedoms.”

Important issues presented by the cases on the Court’s schedule include:

  • Internet free speech: In United States v. American Library Association, the Court will be asked to rule on the constitutionality of a federal law that mandates that all libraries receiving federal funds install and use blocking filters on their Internet terminals. A special three-judge court ruled the law unconstitutional earlier this year, explaining that the mandated filtering would “block access [by the public] to substantial amounts of protected speech whose suppression serves no legitimate government interest.” (Although the case is not yet formally on the Court’s calendar, federal law provides for mandatory Supreme Court review of the government’s appeal, which was filed in September.) PFAWF is co-counsel challenging the law.
  • Family planning clinic blockades: In Scheidler v. NOW, the Court is to decide whether a lower court properly issued a nationwide injunction under the federal RICO law prohibiting a group of anti-abortion protesters from blockading, trespassing at, or committing violence or property damage at family planning clinics. PFAWF has filed an amicus curiae brief in support of the clinics.
  • Cross-burning: Revisiting an issue decided ten years ago, the Supreme Court is to rule in Virginia v. Black whether a Virginia law prohibiting cross-burning is constitutional, or whether it should be struck down under the First Amendment as was a different Minnesota law in 1992. PFAWF has filed an amicus curiae brief stating that the Court should carefully respect both the First Amendment and the legitimate state interest in combatting harassment.
  • “States’ rights” and the FMLA: In Nevada Human Resources Dept. v. Hibbs, the Court is to decide whether the Family and Medical Leave Act applies to state employees, or whether its recent 5-4 “states’ rights” rulings mean that Congress cannot protect state employees under the Act. PFAWF is filing an amicus curiae brief in support of applying the FMLA to state employees.
  • Other civil rights and related issues on the Court’s docket include: a challenge to a Mississippi redistricting plan (Branch v. Smith), the issue of corporate liability for Fair Housing Act violations (Meyer v. Holley), whether legal aid for the poor can be funded through an Interest on Lawyers Trust Account program (Washington Legal Foundation v. Legal Foundation of Washington), and the liability of small companies under the Americans with Disabilities Act (Clackamas Gastroenterology Associates v. Wells).

    In addition to the cases that the Court is already expected to decide, the Court may decide to review a number of other decisions that would have broad ramifications for civil rights and civil liberties. Among the most prominent are a lower court decision upholding a University of Michigan law school affirmative action program and a Texas appeals court decision that consenting, adult males can be prosecuted for consensual sex, which may lead the Court to reconsider its infamous decision in Bowers v. Hardwick upholding state laws prohibiting sex between consenting adults of the same gender. In addition, the Court may well be asked this Term to rule on the constitutionality of the McCain-Feingold law, now being considered by a federal court in D.C., as well as on one or more challenges to the Department of Justice’s secretive conduct and assertion of unprecedented power in the war on terrorism.

    “On many of the most fundamental issues about our Constitution, the current justices are closely divided,” said Neas. “One or two more far-right ideologues on the Court would spell disaster.”

    Neas noted that it has been more than eight years since the most recent Supreme Court appointment, the longest period without a vacancy in 179 years. In 2000, People For the American Way Foundation published Courting Disaster, which analyzed the potential consequences of additional right-wing justices. Courting Disaster documented that more than 100 Supreme Court precedents – on civil rights, reproductive rights, religious liberty, environmental protection, and much more – would be overturned by a Court dominated by justices in the mold of Antonin Scalia and Clarence Thomas. Courting Disaster updates were published following the Terms ending in June 2001 and 2002. All these materials are available at

    “Every year, the Supreme Court makes decisions that shape Americans’ lives and liberties,” Neas said. “Our rights and freedoms are increasingly at risk – both in the Supreme Court and the federal appeals courts, which hear hundreds of times as many cases as the Supreme Court reviews each year. The danger of total right-wing domination of the federal judiciary is real and growing.”