PHILADELPHIA - It will be another banner term for First Amendment issues when the U.S. Supreme Court convenes Oct. 4, according to panelists at the Supreme Court Preview at the National Constitution Center here.
"Last term was a fairly impressive term on the First Amendment," said Lyle Denniston, moderator of the Sept. 20 program, citing the Citizens United v. Federal Election Commission (No. 08-205) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] decision allowing corporations and labor unions to "spend as they wish" on elections.
Denniston, who covers the court for SCOTUSblog, said the court this year will consider Schwarzenegger v. Entertainment Merchants Association (No. 08-1448), a case questioning the constitutionality of a California law banning the sale or rental of violent video games to minors.
"It appears now that it's going to be a very active and hearty case because the number of friend of the court briefs is already 30," Denniston said.
Panelist Geoffrey Stone, a University of Chicago law professor and 2010-2011 visiting scholar at the Constitution Center, predicted the Supreme Court will vote 8-1, with Justice Samuel A. Alito Jr. dissenting, in finding the law unconstitutional.
"This is one of those laws that seems reasonable, and mainly is reasonable, but is nonetheless clearly incompatible with the larger purposes and functions of the First Amendment," said Stone, noting that the principle involved is that there is no good justification for restricting free speech except in cases involving obscenity or threats or incitement to crime.
"The court has historically, always rejected the proposition that said speech is not of any less value to the First Amendment because it shows violence and that there are many depictions of violence that are extremely important to a society," Stone said. "So, the intellectual and historic framework for that decision is well in place."
"I think Geoff's right, it might be Justice Alito [who] uphold[s] the law," said panelist Helgi Walker, a partner at Wiley Rein LLP and co-chair of the firm's appellate practice.
Denniston said the court will also hear Snyder v. Phelps (No. 09-751), which considers whether the right to freedom of speech trumps freedom of religion and peaceful assembly when protesters demonstrate at private funerals of fallen soldiers from the battlefields of Iraq and Afghanistan.
"This is a very, very emotional, high profile case," Denniston said.
Walker said Albert Snyder sued protesters for intentional infliction of emotional distress after they led an anti-homosexuality protest at his son's funeral. She said the issue is whether the protesters are entitled to protection under the First Amendment. She said the First Amendment offers lesser protection to public figures and that an issue in the case is whether the dead soldier was a public figure because of his military service.
The First Amendment's establishment of religion clause will be tested in an Arizona case over the constitutionality of state tuition tax credits when those are channeled primarily to parochial schools (Arizona Christian Tuition v. Winn, No. 09-987). The issues are: Does a taxpayer have standing to challenge a state tuition tax credit as unconstitutionally violating the separation of church and state; and Does a state program that gives parents tax credits for tuition at private schools violate the separation of church and state when most parents use the credits to pay for religious schooling?
In a program for the Supreme Court Preview, Denniston wrote that it is probably too early for some of the most difficult constitutional cases under way in lower courts to reach the Supreme Court during the current term, including same-sex marriage, the constitutionality of President Obama's health care reform and the power of border states like Arizona to take aggressive steps to locate and exclude illegal immigrants. Most, he said, appear to be at least a year away from the Supreme Court.
He said an immigration case is before the Supreme Court this term, testing state's powers to punish employers for hiring illegal immigrants (Chamber of Commerce of the United States v. Whiting, No. 09-115). Denniston wrote that another case could provide an indication of how the justices view "birthright citizenship," the 14th Amendment's guarantee of citizenship to those born in the United States.
A case that Denniston called a Citizens United "sequel" is also up for review. It involves an Arizona election case challenging a program that would provide a candidate with matching funds to "equalize" spending by another candidate wealthy enough to finance his or her candidacy.
In the program, Denniston noted that in the early part of the term, the court will often have only eight justices taking part because Justice Elena Kagan won't participate in about a dozen cases she had been personally involved in during her previous role as U.S. Solicitor General.
More than 240 people attended the program at the Constitution Center.
U.S. Supreme Court dockets and filings are available through LexisNexis CourtLink.
speech never killed anyone. violence does, threats of violence in speech never did. Anyone who wants to duct tape shut mouths of the american people is just making excuses. This would lead to being able to accuse more often. If a student accuses his/her classmate of saying a bad word, just because he's a bully and he doesn't like him doesn't mean that kid actually said it. Amazingly, some school staff will just believe the accuser everytime. Great job america
speech, so when someone says let's eat, grandma! They could accuse you of saying let's eat grandma, as in eating grandma