This update summarizes the free speech decisions of the U.S. Supreme Court for the 2005-2006 term. Many commentators viewed the decision in Randall v. Sorrel, a case involving a challenge to a Vermont campaign finance law, as a victory for free speech. The Supreme Court seemed to narrow public employees' free speech rights in Garcetti v. Ceballos and rejected free speech claims in Beard v. Banks and Rumsfeld v. Forum for Academic and Institutional Rights. This update also summarizes decisions regarding physical violence in anti-abortion protests in Scheidler v. National Organization for Women and a ban on election communications in Wisconsin Right to Life v. Federal Election Commission. Finally, the update briefly comments on developments in Hosty v. Carter.

Chapter 10: Constraints of Time, Place, and Manner

• Scheidler v. National Organization for Women (extension of Hobbs Act to anti-abortion protest)

• Beard v. Banks (prisoner access to newspapers, magazines, and photographs)
• Garcetti v. Ceballos (free speech rights of public employees)
• Hosty v. Carter (censorship of a college newspaper)
• Rumsfeld v. Forum for Academic and Institutional Rights (military recruiters' access to law schools)

• Randall v. Sorrell (Vermont campaign finance law)
• Wisconsin Right to Life v. Federal Election Commission (electioneering communication ban in Bipartisan Campaign Reform Act of 2002)

Chapter 10: Constraints of Time, Place, and Manner
U.S. Supreme Court
Case: Scheidler v. National Organization for Women, (Legal Information Institute (html) or Slip Opinion (pdf)) 2006 U.S. LEXIS 2022 (February 28, 2006)
Subject: Acts of physical violence by anti-abortion protestors cannot be punished under the Hobbs Act.
Summary of decision: For nearly twenty years, the National Organization of Women (NOW) has tried to use the 1946 Hobbs Act (which prohibits interfering with commerce by threatening or committing violence against persons or property) and the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO) as a weapon against anti-abortion protest activities.

In a 2003 decision, Scheidler v. National Organization of Women (text, p. 277), the Supreme Court rejected this effort and held that anti-abortion groups could not be sued for extortion under racketeering laws intended to combat organized crime. The case was remanded to the Court of Appeals. NOW claimed the decision did not address the question of whether physical violence outside of clinics might still be punished under the Hobbs Act.

By a vote of 8 to 0 (Justice Samuel Alito did not participate), the Supreme Court held that the incidents that NOW cited did not qualify as "physical violence" covered by the Hobbs Act. Justice Stephen Breyer concluded that "Congress did not intend to create a freestanding physical violence offense in the Hobbs Act" and that the statute was only intended to forbid "acts or threats of physical violence in furtherance of . . . robbery or extortion."

Although the 2006 Scheidler v. National Organization for Women decision is consistent with the 2003 decision, NOW still has legal recourse. As Justice Breyer noted in his opinion, Congress passed the Freedom of Access to Clinic Entrances Act in 2004 to address "the type of abortion clinic violence and other activity at issue" in this case.

Chapter 11: Institutional Constraints:
Freedom of Speech in the Schools, the Military, and Prisons
U.S. Supreme Court
Case: Beard v. Banks, (Legal Information Institute (html) or Slip Opinion (pdf)) 2006 U.S. LEXIS 5176 (June 28, 2006)
Subject: A prison rule that denies disruptive inmates access to newspapers, magazines, and personal photographs does not violate prisoners' First Amendment rights.
Summary of decision: The Pennsylvania Department of Corrections houses "incorrigible" inmates in a Long Term Segregation Unit (LTSU). Inmates assigned to the LTSU are confined to their cells twenty-three hours a day. An inmate is allowed only one visitor--an immediate family member--per month and may not watch television or listen to the radio. An inmate is not allowed to have newspapers, magazines, or personal photographs, but is permitted to have personal and legal correspondence, religious and legal materials, two library books, and writing paper.

Ronald Banks, an inmate in the LTSU, sued Jeffrey Beard, the Secretary of the Pennsylvania Department of Corrections, claiming the ban on newspapers, magazines, and personal photographs furthered no "legitimate penological interest" and, therefore, violated his free speech rights under the First Amendment. Prison officials defended the restriction, arguing that it was only applied to the "worst of the worst," a population comprising less than 0.01 percent of the total prison population. They also asserted that the ban on newspapers, magazines, and personal photographs served to (1) "motivate" better behavior by creating incentives, (2) "minimize" the amount of personal property and make it easier to detect contraband, and (3) "diminish" the amount of raw material that prisoners might use to fashion attack weapons (spears, blowguns, or catapults for hurling objects).

The Justices in Beard recognized that "imprisonment does not automatically deprive a prisoner of certain important constitutional protections, including those of the First Amendment," but they acknowledged that the Constitution allows "greater restriction of such rights in a prison than it would elsewhere." The Supreme Court decision in Turner v. Safley (text, p. 327) affords considerable deference to prison officials so long as the regulations at issue are "reasonably related to legitimate penological interests."

By a vote of 6 to 2, the Supreme Court upheld the ban on newspapers, magazines, and personal photographs. Justice Stephen Breyer's plurality opinion concluded that prison officials, "relying on their professional judgment, reached an experience-based conclusion that the policies helped to further legitimate prison objectives." The plurality opinion holds out the possibility, however, that inmates might prevail in future cases if they could introduce evidence proving the policy served no rehabilitative or security purpose.

Justice Clarence Thomas filed a concurring opinion, joined by Justice Antonin Scalia. Justice Thomas agreed with the holding, but cautioned that "judicial scrutiny of prison regulations is an endeavor fraught with peril." Rather than relying on the old Turner framework, Justice Thomas concluded that "states are free to define and redefine all types of punishment, including imprisonment, to encompass various deprivations--provided only that those deprivations are consistent with the Eighth Amendment," which bans cruel and unusual punishment.

Justices John Paul Stevens and Ruth Bader Ginsburg dissented because "the rule at issue in this case strikes at the core of the First Amendment rights to receive, to read, and to think." Based on the evidence submitted by the Pennsylvania Department of Corrections, the dissenting justices were not convinced the state had established the "reasonable relationship" between the rule and the penological interests required by the Turner decision. Justice Samuel Alito did not participate in the Supreme Court decision, as he had previously voted to uphold the regulations while sitting on the Third Circuit Court of Appeals.

U.S. Supreme Court
Case: Garcetti v. Ceballos, (Legal Information Institute (html) or Slip Opinion (pdf)) 2006 U.S. LEXIS 4341 (May 30, 2006)
Subject: The First Amendment does not protect public employees who speak as part of their official responsibilities.
Summary of decision: In February 2000, a criminal defense attorney alerted Richard Ceballos, a Los Angeles County deputy district attorney, to inaccuracies in an affidavit that a deputy sheriff had used to obtain a search warrant in an auto parts theft case. A judge had issued a warrant based on the affidavit; the warrant had been used to execute a search; and the search had produced crucial evidence that the district attorney's office was using to prosecute the defendant. Because he had some supervisory responsibility over the other lawyers in the Pomona branch, Ceballos investigated the allegations and determined that the deputy sheriff had made serious misrepresentations in the affidavit used to obtain the warrant. Ceballos drafted a memo for his supervisors arguing, on the basis of his findings, that the criminal charges should be dismissed. Despite the memo, the prosecutor's office decided to use the contested evidence and prosecuted the case. Unhappy with this outcome, Ceballos shared the results of his investigation with defense counsel and was subpoenaed by the defense.

The challenge to the search warrant was unsuccessful. After he testified, Ceballos was demoted from his position as calendar deputy, transferred to a remote courthouse, and denied a promotion. He responded by filing a civil rights suit against Los Angeles County District Attorney Gil Garcetti, alleging he was being punished for speaking out on a matter of public concern, in this case the misconduct of the deputy sheriff. Garcetti argued that the case should be dismissed, on the grounds that Ceballos was not entitled to First Amendment protection for speech that was part of his job.

A federal district court dismissed the lawsuit, but the United States Court of Appeals for the Ninth Circuit reversed the decision and reinstated the case. According to the Ninth Circuit, the Supreme Court's decisions in cases such as Pickering v. Board of Education and Connick v. Myers (text, pp. 317-319) require determining whether the speech at issue deals with a matter of public concern. If so, the 1968 Pickering test requires the court to balance "the interests of the teacher as a citizen, in commenting upon matters of public concern" against "the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees." The Ninth Circuit struck the balance in favor of Ceballos, "because public employees, by virtue of their access to information and experience regarding the operations, conduct, and policies of government agencies and officials, are positioned uniquely to contribute to the debate on matters of public concern."

By a vote of 5 to 4, the Supreme Court reversed the Ninth Circuit decision on the grounds that the First Amendment does not protect "every statement a public employee makes in the course of doing his or her job." Writing for the majority, Justice Anthony Kennedy distinguished between public employees speaking as citizens and public employees speaking as part of their official responsibilities. "The controlling factor in Ceballos' case," according to Justice Kennedy, "is that his expressions were made pursuant to his duties as a calendar deputy. That consideration--the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case--distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline."

The four dissenting justices produced three different opinions. Justice John Paul Stevens (joined by Justices Souter and Breyer) dissented on the grounds that "public employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong." Rather than denying First Amendment protection to an entire class of speech--statements made by government employees in the course of their official duties--the dissenters argued for applying the Pickering balancing test. Justice David Souter (joined by Justices Stevens and Ginsburg) argued "the qualified speech protection embodied in Pickering balancing resolves the tension between individual and public interests in the speech, on the one hand, and the government's interest in operating efficiently without distraction or embarrassment by talkative or headline-grabbing employees."

Developments Related to Hosty v. Carter (html or pdf)
The 2005 Annual Update summarized Hosty v. Carter, an Illinois case involving a lawsuit brought by three student journalists at Governors State University against Dean of Students Patricia Carter. In granting the motion for summary judgment and dismissing the lawsuit, the Seventh Circuit Court of Appeals held "there is no sharp difference between high school and college newspapers." Reasoning that the same considerations that justify editorial control over high school publications might extend to colleges, the Seventh Circuit suggested that "Hazelwood's (1988; text pp. 305-310) framework applies to subsidized student newspapers at college as well as elementary and secondary schools."

The Hosty decision is significant because the Supreme Court had carefully avoided the college question when deciding Hazelwood v. Kuhlmeier. In a much-scrutinized footnote the majority had said, "We need not now decide whether the same degree of deference [to school censorship] is appropriate with respect to school-sponsored expressive activities at the college and university level." Until the Seventh Circuit's decision in Hosty, however, federal courts had consistently refused to extend Hazelwood to reach college media. In describing Kincaid v. Gibson, for example, the text (p. 310) states, "We can assume for the present that Hazelwood does not apply to institutions of higher learning."

The Seventh Circuit's decision in Hosty challenges this limiting construction of Hazelwood. The student journalists appealed the case to the Supreme Court, but on February 21, 2006, the justices declined to hear the case. The Supreme Court never explains why it denies certiorari and the refusal to hear the case does not mean the Supreme Court necessarily agreed with the lower court. For the moment, therefore, the question of whether Hazelwood extends to college remains unanswered. The students have exhausted their appeals and the Seventh Circuit decision is the law in three states: Illinois, Indiana, and Wisconsin. The Hosty decision is not binding beyond the Seventh Circuit, however, and it is in conflict with decisions in state courts and other federal districts.

U.S. Supreme Court
Case: Rumsfeld v. Forum for Academic and Institutional Rights, (Legal Information Institute (html) or Slip Opinion (pdf)) 2006 U.S. LEXIS 2025 (March 6, 2006)
Subject: The Solomon Amendment does not violate law schools' and law faculties' free speech rights.
Summary of decision: The Association of American Law Schools requires member schools to adopt a policy that bars employers who discriminate in hiring on the basis of race, gender, religion, or sexual orientation from campus recruiting. Following this policy, some law schools barred military recruiters from their campuses after Congress codified the military's "Don't Ask, Don't Tell" policy in 1993. This law prohibits anyone who has had sexual contact with a person of the same sex from serving in the armed forces and prohibits any homosexual or bisexual from disclosing his or her sexual orientation while serving in the armed forces. So long as homosexual or bisexual men and women do not disclose their sexual orientation, however, military officials are not allowed to investigate their sexuality.

Law schools are the major source of recruits for the judge advocate general's corps and Congress responded by passing a 1994 amendment named after Congressman Gerald Solomon, a decorated Marine veteran. Under the Solomon Amendment, an institution of higher education with a law school that denies access to military recruiters can lose grants from eight federal agencies, including the Departments of Health and Human Services, Education, and Defense. With millions of dollars at risk, most universities complied, allowing military recruiters to conduct campus interviews--often on undergraduate campuses--while denying military recruiters access to career placement offices at the law schools. This compromise satisfied the Clinton administration, but after the events of September 11, 2001, the Bush administration notified all law schools that their parent institutions would lose federal funding unless they provided military recruiters with the same access to career placement offices and campus facilities that preferred private recruiters receive.

The Forum for Academic and Institutional Rights (FAIR), an association of more than thirty law schools, sued the Department of Defense on the grounds that the Solomon Amendment infringed their First Amendment rights. A federal district dismissed the suit, but the United States Court of Appeals for the Third Circuit reversed the decision and granted an injunction barring enforcement of the law. Two of the three appellate judges were convinced the Solomon Amendment imposed an unconstitutional condition on the law schools by requiring them to communicate the government's anti-gay message or lose their federal funding.

By an 8 to 0 decision (Justice Samuel Alito did not participate), the Court held that the Solomon Amendment was constitutional. Because Congress "has broad authority to legislate on matters relating to military recruiting," Chief Justice John Roberts said legislators could "choose to secure campus access for military recruiters indirectly, through its spending power." The Chief Justice then dismissed the First Amendment arguments: "As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do--afford equal access to military recruiters--not what they may or may not say." Because this finding was at odds with the Third Circuit decision, Chief Justice Roberts reviewed each of the First Amendment claims in turn. "In this case," the Chief Justice lamented, "FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect." The Chief Justice systematically dismissed each of FAIR's free speech claims and supporting precedents. His conclusion was pointed: "To the extent that the Solomon Amendment incidentally affects expression, the law schools' effort to cast themselves as just like the schoolchildren in Barnette [text, pp. 284-285] the parade organizers in Hurley [text, p. 284] and the Boy Scouts in Dale [a freedom-to-associate case not covered in the text] plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents."

Chapter 13: Broadcasting, Cable, and Access Theory
U.S. Supreme Court
Case: Randall v. Sorrell, (Legal Information Institute (html) or Slip Opinion (pdf)) 2006 U.S. LEXIS 5161 (June 26, 2006) (Three challenges to Vermont's campaign finance law were consolidated by the Supreme Court and decided under the name of Randall v. Sorrell. Neil Randall was elected to the Vermont House of Representatives in 1998, becoming the first Libertarian state legislator in Vermont history. William Sorrell was appointed Vermont Attorney General to fill an unexpired term in 1997 and has been regularly re-elected at two-year intervals.)
Subject: Act 64, a Vermont law that regulated campaign spending and strictly limited campaign contributions, violates the First Amendment.
Summary of decision: In response to a call for action from Governor Howard Dean, in 1997 the Vermont General Assembly adopted Act 64, a statute that strictly regulated campaign contributions and limited total campaign expenditures. Limits were related to the office sought: Candidates for state representative in the smallest districts were limited to $2,000, gubernatorial candidates to $300,000. Act 64 also limited an individual's contributions for any one state House campaign to $200, to any state Senate campaign to $300, and for any statewide office campaign to $4000.

Politicians from both parties and concerned groups, ranging from the American Civil Liberties Union to the Vermont Republican Party, challenged Act 64. Although the plaintiffs had different political interests, each lawsuit asserted it was impossible to reconcile Act 64 with Buckley v. Valeo (text, pp. 381-381), the Supreme Court's 1976 landmark campaign finance decision. In Buckley, the Supreme Court upheld "reasonable limits" on contributions to candidates for federal office, but refused to limit how much money campaigns could spend or how much individuals could spend to express their own political opinions. Act 64 seemed to run afoul of both halves of the Buckley decision, as it limited campaign spending and imposed contribution limits substantially lower than those validated in Buckley.

In a complicated decision, the Supreme Court struck down the limits on campaign spending and on campaign contributions. Although the final outcome of Randall v. Sorrell is consistent with Buckley v. Valeo, close reading suggests the Court is deeply divided on the constitutionality of campaign finance legislation. Six of the nine justices wrote opinions in Randall v. Sorrell and no single opinion garnered more than three votes. Justice John Paul Stevens, one of the three dissenters, elegantly described the ruling as "today's cacophony."

By a vote of 6 to 3, the Court struck down Vermont's spending limits. Justice Stephen Breyer, joined by Chief Justice John Roberts and partially joined by Justice Samuel Alito, opined that "Well-established precedent makes clear that the expenditure limits violate the First Amendment." In the thirty years since Buckley v. Valeo has been decided, Justice Breyer continued, "this Court has repeatedly adhered to Buckley's constraints, including those on expenditure limits." Based on the record, Justice Breyer concluded there was "no special justification that would require us to overrule Buckley. . . . The respondents have not shown, for example, any increase in corruption or its appearance in Vermont; nor have they shown that expenditure limits are the only way to attack the problem."

Justice Clarence Thomas, in an opinion joined by Justice Antonin Scalia, agreed that spending limits are unconstitutional but strongly disagreed with the rationale contained in plurality opinion. He stated that "Buckley provides insufficient protection to political speech, the core of the First Amendment." Rather than relying on Buckley as precedent to strike down the spending limits, Justice Thomas would have overruled Buckley and replaced it with a standard "faithful to the First Amendment."

Justice Anthony Kennedy, in his concurring opinion, cited Buckley to prove the First Amendment cannot "tolerate" spending limits. While he was deferential to Buckley, Justice Kennedy voiced his reservations about the "universe of campaign finance regulation." As a result of his "skepticism regarding that system and its operation," he concurred in the judgment, but not with the plurality's rationale.

The three dissenting justices produced two opinions on spending limits. Justice John Paul Stevens would have upheld the limits because he was "convinced that Buckley's holding on expenditure limits is wrong, and that the time has come to overrule it." The other dissenters, however, were not willing to go quite so far. Justice David Souter, in an opinion joined by Justice Ruth Bader Ginsberg, claimed it was "premature" to conclude that Act 64 contravened the Buckley decision. Rather than ruling on spending limits, Justice Souter would have remanded the case for additional arguments on Vermont's claim that the statute would "alleviate the drain on candidates' and officials' time caused by the endless fund raising necessary to aggregate many small contributions to meet the opportunities for ever more expensive campaigning."

On another 6 to 3 vote, the Court also struck down Vermont's contribution limits. The Supreme Court had previously upheld a $1000 limit in Buckley and a $1075 limit in Nixon v. Shrink Missouri Government PAC (text, p. 381), but a majority of the justices found Act 64's contribution limits were too restrictive. Justice Breyer's plurality opinion argued that "the contribution limits are unconstitutional because in their specific details (involving low maximum levels and other restrictions) they fail to satisfy the First Amendment's requirement of careful tailoring." To support the conclusion that Vermont's limits were too low, Justice Breyer identified five considerations: (1) the contribution limits would severely restrict the amount of funding available for challengers; (2) the same contribution limits apply both to individuals and to political parties; (3) the Act would count certain expenses incurred by volunteers against the volunteer's contribution limit; (4) there is no provision to adjust the contribution limits for inflation; and (5) there is no special justification for the low and restrictive contribution limits.

As with the spending limits, Justices Thomas and Scalia agreed with the holding, but not with the rationale. Justice Thomas' concurring opinion denounced the plurality's "newly minted, multifactor test," a standard that places the "Court in the position of addressing the propriety of regulations of political speech based upon little more than its impression of the appropriate limits." Rather than engaging in such an exercise, Justices Thomas and Scalia argued that "contribution limits infringe as directly and as seriously upon freedom of political expression and association as do expenditure limits."

In his concurring opinion, Justice Kennedy seemed to agree with the concerns about the multifactor test: "On a routine, operational level the present system requires us to explain why $200 is too restrictive a limit while $1,500 is not." According to Justice Kennedy, "Our own experience gives us little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance." He was not willing to go as far as Justices Thomas and Scalia, however, and declare that any limits on campaign contributions would necessarily violate the First Amendment.

The three dissenting justices agreed on the contribution limits. "Low though they are," Justice Souter wrote for the dissenters, "one cannot say that 'the contribution limitation[s are] so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless.'" Striking down the contribution limits would not only violate precedent, but also violate the Court's "self-admonition against second-guessing legislative judgments about the risk of corruption to which contributions have to be fitted."

U.S. Supreme Court
Case: Wisconsin Right to Life v. Federal Election Commission, (Legal Information Institute (html) or Slip Opinion (pdf)) 2006 U.S. LEXIS 1070 (January 23, 2006)
Subject: The Supreme Court orders a district court to consider the merits of an "as-applied" challenge to the Bipartisan Campaign Reform Act of 2002.
Summary of decision: The Bipartisan Campaign Reform Act (BCRA) of 2002 (text, pp. 382-383) prohibits corporations from using general treasury funds to pay for "electioneering communications" within thirty days of a federal primary election or sixty days of a federal general election. Under the BCRA, "electioneering communication" is defined as any broadcast, cable, or satellite communication that refers to a candidate for federal office. The Supreme Court upheld the restrictions on "electioneering communications" by a 5 to 4 vote in McConnell v. Federal Elections Commission (text, pp. 383-384), a case decided in 2003.

In Summer 2004, Wisconsin Right to Life launched an advertising campaign--one thirty-second television ad and two sixty-second radio ads--encouraging Wisconsin residents to contact Democratic Senators Russell Feingold (a co-sponsor of the BCRA) and Herbert Kohl and urge them to oppose the filibuster being threatened against President Bush's nominees to the federal courts. Although the ads only asked people to contact their Senators, Wisconsin Right to Life's campaign triggered the BCRA because Senator Feingold was seeking re-election and the Democratic primary was scheduled for September 14. Under the terms of the BCRA, the blackout period for campaign ads would begin on August 15; if Senator Feingold won the primary, it would extend until the November 2 election. The blackout would prevent the ads from being aired at the very time the Senate was discussing the nominees and the possible filibuster.

Shortly before the blackout date, Wisconsin Right to Life sued the Federal Elections Commission (FEC), on the grounds that the BCRA was unconstitutional "as applied" in this case, and asked the court to issue an injunction barring the FEC from enforcing the BCRA against the ads. A federal district court dismissed the case on the grounds that the McConnell decision barred all such challenges to the ban on electioneering communication.

In a unanimous decision, the Supreme Court vacated the lower court's opinion and ordered it to consider the First Amendment claims. In a brief per curiam opinion, the Court explained the McConnell decision only held that the electioneering communication provision was constitutional at face value. "In upholding Section 230 against a facial challenge," the opinion continued, "we did not purport to resolve future as-applied challenges." In other words, while the BCRA was constitutional in the abstract, it might be unconstitutional "as applied" to Wisconsin Right to Life.

Wisconsin Right to Life v. Federal Election Commission now goes back to the lower court for a decision on the merits of the case. Students of the First Amendment will want to pay particular attention to the outcome, as the composition of the Supreme Court has changed since the McConnell decision. Most notably, Justice Samuel Alito sits in the seat once occupied by Justice Sandra Day O'Connor, the co-author of the majority opinion in McConnell. If the lower court's decision is appealed to the Supreme Court, the justices might reconsider the constitutionality of the BCRA or even revisit the landmark Buckley v. Valeo decision.

Home	Thomas L. Tedford and Dale A. Herbeck Freedom of Speech in the United States, 5th ed. State College, PA: Strata Publishing, Inc., 2005 www.bc.edu/free_speech