This update summarizes the free speech decisions of the U.S. Supreme Court for the 2006-2007 term, highlights two notable cases decided by the federal appellate courts, and describes developments in another longstanding federal case. The text of this update, links to the cases discussed, and links to landmark free speech decisions can be found on the book's web site: http://www.bc.edu/free_speech/

Chapter 5: Religio-Moral Heresy: From Blasphemy to Obscenity

• United States v. Williams (pandering provisions of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today [PROTECT] Act of 2003)

• Carey v. Musladin (buttons worn by members of victim's family during a murder trial)

• Tennessee Secondary School Athletic Association v. Brentwood Academy (restrictions on speech imposed by a voluntary association governing athletic competition between member schools)

• Morse v. Frederick (student speech at a school-sponsored event)

• Fox Television Stations v. Federal Communication Commission (revised FCC rule regulating broadcast of fleeting expletives)
• Federal Election Commission v. Wisconsin Right to Life/McCain v. Wisconsin Right to Life ("electioneering communications" ban in the Bipartisan Campaign Reform Act of 2002)
• Davenport v. Washington Education Association (state law regulating using agency fees for political purposes)

• ACLU v. Gonzales (Child Online Protection Act [COPA] of 1998)

The Supreme Court decided only a few cases, but the implications are significant because this was the first full term of the Roberts Court. The two new members of the court--Chief Justice John Roberts, Jr., and Justice Samuel Alito, Jr.--consistently sided with the conservative majority, but were more restrained than Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas on First Amendment questions. The moderate-liberal justices--Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens--spoke with a more unified voice, but were often unable to gain the decisive fifth vote required to form a majority.

Most commentators characterized the decision in Federal Election Commission v. Wisconsin Right to Life, which challenged the 2002 McCain-Feingold campaign finance law, as a victory for free speech. The Supreme Court was less sympathetic to First Amendment claims in Davenport v. Washington Education Association, Morse v. Frederick, and Tennessee Secondary School Athletic Association v. Brentwood Academy. Another case with potential free speech implications, Carey v. Musladin, was not decided on First Amendment grounds.

The lower federal courts also heard cases with free speech implications. The two most notable, Fox Television Stations v. Federal Communications Commission (2nd Circuit) and United States v. Williams (11th Circuit), are important decisions that raise issues that will likely be decided by the High Court. The Child Online Protection Act (COPA)--a 1998 law that has never been enforced--continued to wind its way through the courts and was the subject of another federal district court decision.

Chapter 5: Religio-Moral Heresy: From Blasphemy to Obscenity
Eleventh Circuit Court of Appeals
Case: United States v. Williams, (pdf) 444 F.3d 1286 (11th Cir. 2006)
Subject: The pandering provision of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 is overbroad and vague, and therefore unconstitutional.
Summary of decision: The 2002 Supreme Court decision in Ashcroft v. Free Speech Coalition held that the Child Pornography Prevention Act of 1996 was unconstitutional because some of its provisions were overbroad (text pp. 151-152). Congress responded by adopting a new law, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, intended to combat child abuse. Among its many provisions were the creation of a federal role in the Amber Alert system, the elimination of the waiting period before law enforcement agencies will investigate reports of missing persons aged 18-21, increased severity of federal penalties for specified crimes against children, and a new ban on computer-generated images of minors engaging in sexually explicit conduct.

The Eleventh Circuit Court of Appeals decision in United States v. Williams focused on another provision of the PROTECT Act, the so-called pandering clause, which imposed criminal liability on anyone who knowingly "advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct."

The problem with this pandering clause, according to the Eleventh Circuit, was that it did not account for whether the material was actually illegal. In the words of the court, "any promoter--be they a braggart, exaggerator, or outright liar--who claims to have illegal child pornography materials is a criminal punishable by up to twenty years in prison, even if what he or she actually has is a video of 'Our Gang,' a dirty handkerchief, or an empty pocket." Because the pandering clause of the PROTECT Act was not limited to child pornography, it could be invoked to reach beyond illegal content and target protected speech.

The court offered several practical examples. Imagine, for instance, "the government intercepts an email claiming that the attached photographs depict 'little Janie in the bath--hubba, hubba.'" Under the PROTECT Act, this message could be criminal, even if the attachment contained only "innocent baby-in-the-bubbles snapshots or candid stills of the family Rottweiler in a No. 10 washtub." Although the Act was not intended to reach such innocent expression, the Eleventh Circuit concluded that the language of the pandering provision was "substantially overbroad and vague, and therefore facially unconstitutional."

The Department of Justice appealed the decision. In March 2007 the Supreme Court agreed to hear the case, but it was not scheduled for oral argument during the 2006-2007 term. The Court will likely hear the case in Fall 2008, although it may allow the matter to lapse.

Chapter 9: Special Problems of a Free Press
U.S. Supreme Court
Case: Carey v. Musladin, (Legal Information Institute (html) or Slip Opinion (pdf)) 2006 U.S. LEXIS 9587 (December 11, 2006)
Subject: The Ninth Circuit Court of Appeals erred in overturning a murder conviction on the grounds that, during the trial, members of the victim's family wore buttons depicting the deceased.
Summary of decision: Matthew Musladin claimed he acted in self-defense when he shot and killed his estranged wife's fiance, Tom Studer, on May 13, 1994. During portions of the fourteen-day trial, some members of the victim's family sat in the front row of the spectator's gallery wearing buttons emblazoned with pictures of Studer. Claiming the buttons were prejudicial to the defendant, Musladin's attorney asked the judge to order them removed. The judge declined. Musladin was found guilty and sentenced to serve thirty-two years to life in prison.

Musladin appealed his conviction. The Ninth Circuit Court of Appeals ordered him released from prison on the grounds that he had been wrongfully convicted. Under the terms of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, a federal court can only grant such relief if the state court decision was "contrary to, or involved an unreasonable application of clearly established Federal Law, as determined by the Supreme Court of the United States." In this instance, the Ninth Circuit concluded that relief was warranted because the buttons "conveyed the message that the defendant was guilty."

A unanimous Supreme Court reversed the Ninth Circuit on the grounds that the judge's decision not to ban the buttons did not violate a clearly established precedent. The Ninth Circuit had cited a Supreme Court decision holding that it was prejudicial for defendants to appear in prison garb during their trials. In reversing that decision, the Supreme Court ruled that that precedent did not apply to spectators' apparel. Writing for the majority, Justice Clarence Thomas observed that "the effect on a defendant's fair-trial rights of the spectator comments to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial." Because there no "clearly established" precedent, the Court held the Ninth Circuit had "improperly concluded" that Musladin was entitled to judicial relief.

While the buttons were clearly expressive, the majority opinion did not mention freedom of speech. In his concurring opinion, Justice David Souter noted there was insufficient argument to "decide whether protection of speech could require acceptance of some risk raised by spectators' buttons." Justice John Paul Stevens was even less sympathetic to free speech in his concurring opinion, noting that "there is no merit whatsoever to the suggestion that the First Amendment may provide some measure of protection to spectators in a courtroom who engage in actual or symbolic speech to express any point of view about an ongoing proceeding."

Chapter 10: Constraints of Time, Place, and Manner
U.S. Supreme Court
Case: Tennessee Secondary School Athletic Association v. Brentwood Academy, (Legal Information Institute (html) or Slip Opinion (pdf)) 2007 U.S. LEXIS 8271 (June 21, 2007)
Subject: The First Amendment does not prevent a voluntary association, created to govern athletic competition between member schools, from imposing restrictions on speech.
Summary of decision: In 1997, Carlton Flatt, the football coach at Brentwood Academy in Nashville, Tennessee, sent letters to twelve eighth-grade boys, inviting them to attend spring practice with his high school football team. Although the boys and their parents had already signed enrollment contracts to attend Brentwood and had paid tuition deposits, the Tennessee Secondary School Athletic Association (TSSAA) determined that the letters violated a rule against using "undue influence" in recruiting prospective players. The TSSAA fined Brentwood $3,000, barred certain Brentwood teams from the playoffs, and placed Brentwood on probation for four years.

Brentwood sued the TSSAA, arguing that the punishments violated both its First Amendment and due process rights. The first round of litigation considered whether the TSSAA, a private association of 290 Tennessee public schools and 55 private schools, was bound by the Constitution. In 2001, in a 5-4 decision, the Supreme Court held that "the association's regulatory activity may and should be treated as state action owing to the pervasive entwinement of state school officials in the structure of the association." That is, the Court ruled that that the association acted like the state. It then remanded the case to the lower courts to assess Brentwood's constitutional claims.

A federal district court held that TSSAA rules violated Brentwood's free speech rights. The Sixth Circuit Court of Appeals upheld the decision. The Supreme Court unanimously reversed the decision, however, and ruled in favor of the TSSAA. Writing for the majority, Justice John Paul Stevens reasoned that "Enforcing a rule that prohibits high school coaches from recruiting middle school athletes does not violate the First Amendment. Brentwood made a voluntary decision to join TSSAA and to abide by its antirecruiting rule. An athletic league's interest in enforcing its rules may warrant curtailing the speech of its voluntary participants."

This decision does not grant sweeping power to the TSSAA and similar associations to regulate the expression of member schools. In a brief concurring opinion, Justice Anthony Kennedy (joined by Chief Justice John Roberts, Jr., and Justices Antonin Scalia and Samuel Alito, Jr.) cautioned against the "freestanding regulation of speech by coaches." In a separate concurring opinion, Justice Clarence Thomas agreed with Justice Kennedy on this point.

These opinions reveal an important split within the Supreme Court. All nine justices agreed that the TSSAA's antirecruiting rule did not violate the First Amendment, but the five conservative justices also wanted it noted that they were unwilling to establish a broad precedent that might justify more government restrictions on speech.

Chapter 11: Institutional Constraints: Freedom of Speech in the Schools, the Military, and Prisons
U.S. Supreme Court
Case: Morse v. Frederick, (Legal Information Institute (html) or Slip Opinion (pdf)) 2007 U.S. LEXIS 8514 (June 25, 2007)
Subject: The First Amendment does not prevent schools from restricting messages promoting illegal drug use at school-sponsored events.
Summary of decision: Students in Juneau, Alaska, were released from classes on the morning of January 24, 2002, to watch the "Olympic Torch Relay" pass through the streets on its way to the Winter Olympics in Salt Lake City, Utah. As the torch passed by Juneau-Douglas High School, eighteen-year-old senior Joseph Frederick watched from a sidewalk across the street. In an effort to gain the attention of the broadcast media, Frederick unfurled a fourteen-foot-long banner with the words "Bong Hits 4 Jesus" when the torch passed the school. School principal Deborah Morse rushed across the street and demanded that Frederick take the banner down because it violated the school's rules against speech promoting illegal drug use. When Frederick asserted his free speech rights, Morse crumpled the banner and subsequently suspended Frederick for ten days.

Frederick unsuccessfully appealed to the school superintendent and the school board, then brought suit against Morse, seeking declaratory and injunctive relief, compensatory damages, and punitive damages for violation of his constitutional right to free speech. A federal district judge granted Morse's request for summary judgment and dismissed the lawsuit on the grounds that the Supreme Court decision in Bethel School District v. Fraser (text, pp. 304-305) allows school officials to punish student speech that "would undermine the school's basic educational mission."

The Ninth Circuit Court of Appeals reversed the lower court's decision on the grounds that Tinker v. Des Moines Independent Community School District (text, pp. 303-304), not Bethel v. Fraser, should be the controlling precedent. In Tinker v. Des Moines, the Supreme Court had ruled that students could wear armbands as a political protest against the Vietnam War unless the action "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." This precedent was preferable, the Ninth Circuit argued, because the speech at issue in Bethel, a sexually suggestive nominating speech on behalf of a candidate for student council, was "plainly offensive . . . to any mature person" and not akin to Frederick's banner. The court held the school could not "punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school."

A divided Supreme Court reversed the Ninth Circuit decision and held that the First Amendment did not protect Frederick's banner. The majority opinion, by Chief Justice John Roberts, Jr. (joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, Jr.), held that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use." Conceding that the banner was "cryptic," the majority nonetheless held it might reasonably be interpreted as promoting illegal drug use. As such, Chief Justice Roberts concluded, "school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick."

In a pointed dissent, Justice John Paul Stevens (joined by Justices Ruth Bader Ginsburg and David Souter) denounced the majority decision. While unwilling to hold Morse financially liable for pulling down Frederick's banner, Justice Stevens was willing to extend a full measure of First Amendment protection to "student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students." According to Justice Stevens, "This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding--indeed, lauding--a school's decision to punish Frederick for expressing a view with which it disagreed."

Justice Stephen Breyer's opinion concurred in part and dissented in part. (Consequently, Morse v. Frederick was reported both as a 6-3 decision and as a 5-4 decision in various media reports.) In dissenting, Justice Breyer thought the matter easily resolved because the "qualified immunity" doctrine prevents citizens (Frederick) from suing a government employee (Morse) unless the employee's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." If the majority had simply invoked this doctrine, Justice Breyer suggested, it would have been possible to decide the case while avoiding a "difficult and unusually portentous" First Amendment conflict.

Since the decision, legal commentators have focused on the concurring opinions by Justice Samuel Alito, Jr. (joined by Justice Anthony Kennedy), and Justice Clarence Thomas. While he joined the majority in holding public schools could "restrict speech that a reasonable observer would interpret as advocating illegal drug use," Justice Alito's opinion made it clear that he regarded "such regulations as standing at the far reaches of what the First Amendment permits." Although the majority had little sympathy for Frederick's pro-drug banner, there may be five justices (Justices Alito and Kennedy plus the three dissenters) who are strongly committed to protecting student speech rights.

Justice Clarence Thomas's concurring opinion is notable for an entirely different reason. While the other eight justices debated the appropriate limits on student speech, Justice Thomas was critical of the very idea of student speech rights. "In the name of the First Amendment," he protested, "Tinker has undermined the traditional authority of teachers to maintain order in public schools." To help restore that order, Justice Thomas announced his willingness to "dispense with Tinker altogether."

Chapter 13: Broadcasting, Cable, and Access Theory
Second Circuit Court of Appeals
Case: Fox Television Stations v. Federal Communication Commission, (pdf) 2007 U.S. App. LEXIS 12868 (June 4, 2007)
Subject: A revised FCC policy on the use of "fleeting expletives" violates broadcasters' First Amendment rights.
Summary of decision: Federal Communication Commission rules prevent broadcasters from airing indecent or profane speech at times of the day when there is a reasonable risk that children might be in the audience (text, pp. 375-379). When the Supreme Court upheld these rules in Federal Communications Commission v. Pacifica Foundation in 1978, it also noted that its decision did "not speak to cases involving the isolated use of a potentially offensive word." The FCC then created an exception for "isolated, non-literal, fleeting expletives," especially if the utterance occurred during a live broadcast.

The FCC began to change this policy after the singer Bono used the phrase "fucking brilliant" while accepting an award during NBC's live broadcast of the Golden Globe Awards in January 2003. In response to complaints from outraged viewers, the FCC's Enforcement Bureau ruled in 2005 that this utterance qualified as "a fleeting expletive," as it did not describe sexual activity or excretory organs. The full Commission reversed the Bureau's decision in March 2006, ruling that Bono's use of the word "fuck" was indecent and profane. According to the Commissioners, "The 'F-word' is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language."

NBC petitioned the FCC to reconsider the Bono decision. While the reconsideration request was pending, the FCC issued orders resolving indecency complaints involving live broadcasts featuring several other celebrities. The singer Cher had accepted her award at the 2002 Billboard Awards by declaring "People have been telling me I'm on the way out every year, right? So fuck 'em." At the 2003 Billboard Awards, in an exchange with Paris Hilton, her co-star in the television show "A Simple Life," actress Nicole Richie asked, "Why do they even call it 'The Simple Life'? Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Following the Golden Globe precedent, the FCC held that the speech in the Cher and Ritchie cases was indecent and profane, and that repeated use of the objectionable words was not necessary to trigger punishment under the indecency policy. Because these broadcasts aired before the FCC changed its policy on "fleeting expletives," the FCC did not impose fines in the Bono, Cher, or Ritchie cases. The FCC did state that such "fleeting expletives" would no longer be exempted and broadcasters would be held responsible for indecent speech that was unintentionally broadcast during live coverage of newsworthy events. Given the increase in indecency fines that Congress had recently approved, broadcasters would be in significant financial peril if such incidents did occur.

Fox and the other major networks challenged the FCC's new policy on First Amendment grounds. In a 2-1 decision in June 2007, the Second Circuit Court of Appeals agreed with the networks. Working from the premise that "all speech covered by the FCC's indecency policy is fully protected by the First Amendment," the majority of the Second Circuit concluded that it was "sympathetic to the networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent and consequently, unconstitutionally vague." Even if the new standards were revised, the majority was "skeptical that the commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster."

FCC Chairman Kevin Martin issued a public statement denouncing the decision. "If we can't restrict the use of the words 'fuck' and 'shit' during prime time," Martin warned, "Hollywood will be able to say anything they want, whenever they want." Echoing this sentiment, several prominent Congressmen and advocacy groups have urged the FCC to ask for a rehearing by the entire Second Circuit (following usual practice in federal appellate courts, only three judges had been assigned to hear the case the first time) or appeal the decision to the Supreme Court. Students of free speech are advised to watch for developments in this case.

U.S. Supreme Court
Case: Federal Election Commission v. Wisconsin Right to Life, (Legal Information Institute (html) or Slip Opinion (pdf)) 2007 U.S. LEXIS 8515 (June 25, 2007). (Decided together with McCain v. Wisconsin Right to Life.)
Subject: The Bipartisan Campaign Reform Act's ban on using corporate treasury funds for "electioneering communications" prior to a federal primary or general election is unconstitutional.
Summary of decision: Congress adopted the Bipartisan Campaign Reform Act (BCRA) of 2002 (text, pp. 382-383) to address the explosion of issue ads and the abuse of soft money in political campaigns. One provision of the law prohibits third parties from using general treasury funds to pay for "electioneering communications"--defined as any broadcast, cable, or satellite communication that refers to a candidate for federal office--within thirty days of a federal primary election or sixty days of a federal general election. The law thus prohibited corporations and labor unions from circumventing limits on campaign contributions with thinly veiled issue ads that support or oppose candidates. In 2003, the Supreme Court upheld the restrictions on "electioneering communications" by a 5-4 vote in McConnell v. Federal Elections Commission (text, pp. 383-384).

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

Shortly before the August blackout would have begun, WRTL 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 electioneering communication ban. The Supreme Court disagreed in a brief per curiam opinion issued in January 2006, noting that it although had it had ruled in McConnell that the BCRA was constitutional in the abstract, it might still be unconstitutional "as applied" to WRTL (or other cases). The Supreme Court then remanded the case to the lower courts for a decision on its merits.

A special federal court panel heard the case and, in a 2 to 1 decision issued in December 2006, ruled in favor of WRTL. According to the majority, the language of the ads "does not mention an election, a candidacy, or a political party, nor do they comment on a candidate's character, actions, or fitness for office." Instead of focusing on a particular candidate or contest, the ads "describe an issue that had been, and, was likely to be, an ongoing issue of legislative concern in the Senate." This distinction was decisive because, as the court noted, the McConnell decision only covered "express advocacy and its functional equivalent." Because the government has no interest in regulating issue ads during the 30- and 60-day periods before federal elections, application of the BCRA to WRTL's antifilibustering message is unconstitutional.

The Supreme Court decision in this case is notable in its own right, but also because it reveals the volatility of the Court on this issue. Justice Sandra Day O'Connor provided the decisive fifth vote upholding the BCRA in the 2003 McConnell decision. Her successor, Justice Samuel Alito, Jr., revealed himself to be considerably less sympathetic to regulating campaign finance. This change tipped the balance in the Court and suggests there may be further changes in this area, if and when the Court considers other provisions in the BCRA--such as the restrictions on soft money.

In a fractured 5 to 4 ruling, the Supreme Court agreed with the lower court. Writing for the majority, Chief Justice John Roberts, Jr. (joined in parts by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, Jr.), noted that the Court had already ruled that the "BCRA survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent." To help distinguish between political ads which support a candidate and issues ads, the Chief Justice established a new rule: "A court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." In this instance, WRTL's ads "are plainly not the equivalent of express advocacy" because (1) "their content is consistent with that of a genuine issue ad and (2) "their content lacks indicia of express advocacy."

Three of the five justices, however, believed that the Chief Justice's opinion did not go far enough. In a separate concurring opinion, Justice Antonin Scalia (joined by Justices Anthony Kennedy and Clarence Thomas) claimed the Chief Justice's test was "impermissibly vague." Rather than trying to distinguish between different forms of advocacy, Justice Scalia would have declared the entire provision unconstitutional. Justice Samuel Alito, Jr., also issued a separate concurring opinion, in which he suggested he would agree with these three justices if the proposed test proved unworkable.

The Court's decision elicited a pointed dissent from the moderate-liberal justices, who lamented the majority's willingness to break with past rulings. Justice David Souter (joined by Justice John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer) complained "The Court (and, I think, the country) loses when an important precedent is overruled without good reason, and there is no justification for departure from our usual rule of stare decisis here." Such a departure was dangerous in this instance, Justice Souter said, because the decision undermines a "century of legislation restricting the electoral leverage of concentrations of money in corporate and union treasuries." "After today," Justice Souter concluded, "the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear. The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running 'issue ads' without express advocacy, or by funneling the money through an independent corporation like WRTL."

The decision in Federal Election Commission v. Wisconsin Right to Life also raises questions about the continued viability of the Supreme Court's 2003 decision in McConnell v. Federal Election Commission. Chief Justice Roberts was clearly unwilling to overrule the McConnell precedent, but his opinion made only passing references to McConnell. Justice Scalia's concurring opinion accused Chief Justice Roberts of "faux judicial restraint," asserting Roberts's opinion "effectively overrules McConnell without saying so." The four dissenting justices concurred in this assessment. Taken together, the concurring and dissenting opinions suggest seven of the nine justices may have serious doubts about whether McConnell remains good law.

For the moment, however, the WRTL decision simply distinguishes issues ads from express advocacy of election candidates. To accommodate the Chief Justice's new definition of express advocacy, the Federal Election Commission announced on July 19, 2007, that it would revise the rules governing electioneering communication. If the past is any guide, those changes will likely be the basis of another challenge to the federal government's efforts to regulate campaign finance.

U.S. Supreme Court
Case: Davenport v. Washington Education Association, (Legal Information Institute (html) or Slip Opinion (pdf)) 2007 U.S. LEXIS 7722 (June 14, 2007).
Subject: A Washington State law does not violate the First Amendment in requiring labor unions to obtain non-members "affirmative authorization" before spending their agency fees for political purposes.
Summary of decision: Labor unions are allowed to collect an agency fee from anyone they represent, including non-members who benefit from the unions' collective bargaining efforts with their employers on behalf of union members. This practice prevents non-members from sharing in the benefits obtained by the union's collective bargaining efforts without helping to pay for those efforts.

In 1992, Washington State voters approved a referendum that limited the use of agency fees collected from non-members on activities unrelated to collective bargaining. Under the new law, non-members had to "opt-in"--that is, specifically give their consent--before any portion of their fees could be used to support the union's political activities.

The Washington Education Association (WEA) bargains for 70,000 teachers and other public school employees, of whom fewer than 4,000 are non-members. Twice each year, the WEA sent letters to non-members, notifying them that they had a legal right to "opt-out" of paying for the union's political activities. A portion of their agency fees would be rebated to non-members who notified the union that they objected. The actual rebate ($10 to $25 per non-member) would be based on the percentage of union expenditures for activities unrelated to collective bargaining.

After the 1992 referendum was passed, non-members sued the WEA, alleging that the union's "opt-out" scheme violated the new Washington law. Rather than allowing non-members to "opt-out," the lawsuit argued, WEA should not use non-members' fees for political uses unless they specifically "opt-in." The Washington Supreme Court, in a divided decision, held that the union's "opt-out" scheme did not satisfy the new law, but also that the new law violated the First Amendment because it imposed an "undue administrative burden" on the union's free speech rights.

The Supreme Court unanimously reversed the lower court decision. Speaking for the Court, Justice Antonin Scalia characterized the "opt-in" provision as a "modest limitation" and said the lower court's First Amendment analysis was "counterintuitive." He concluded that "it does not violate the First Amendment for a State to require that its public-sector unions receive affirmative authorization from a nonmember before spending that nonmember's agency fees for election-related purposes." The Washington Supreme Court decision was vacated and the case remanded for further proceedings.

The impact of the decision in Davenport v. Washington Education Association is limited. Rather than issuing a broad opinion about campaign finance laws, the Court narrowly framed the issue under consideration. Even before the case was decided, Washington State had amended the "opt-in" law. Under the revised law, a union's political spending is not presumed to come from agency fees so long as it has enough money in its general treasury to cover the expenditures. The Supreme Court decided the case anyway, because there was a chance that non-members could recover some portion of agency fees paid before the law was changed.

Chapter 14: The Internet
U.S. District Court for the Eastern District of Pennsylvania
Case: ACLU v. Gonzales, (pdf) 478 F. Supp. 2d 775 (March 22, 2007)
Subject: The language of the Child Online Protection Act of 1998 is vague and overbroad, and thus violates the First Amendment.
Summary of decision: Congress adopted the Child Online Protection Act (COPA) of 1998 in response to the Supreme Court's decision in Reno v. ACLU (text, pp. 401-404). Before the law could take effect, a coalition led by the ACLU, the Electronic Frontier Foundation, and the Electric Privacy Information Center challenged it in federal court. U.S. District Court Judge Lowell Reed, Jr., granted a restraining order preventing the government from enforcing the COPA while the case was being heard. That injunction has remained in effect for nine years, while the legal challenge to the COPA has produced five different decisions at the trial, appellate, and Supreme Court levels.

In the 2004 Ashcroft v. ACLU (II) decision, the Supreme Court held that a lower court had correctly blocked enforcement of COPA on First Amendment grounds (text, pp. 404-405), but also noted that the lower courts had not fully considered the efficacy of software filters in protecting minors from harmful Internet materials. The Court remanded the case to the lower court to determine whether filters are "less restrictive" than overt government regulation and might be "more effective" than COPA in policing the Internet.

When Attorney General John Ashcroft resigned in 2005, it fell upon his successor, Alberto Gonzales, to defend the law. After a four-week trial, U.S. District Court Judge Reed concluded that the "(1) COPA is not narrowly tailored to the compelling interest of Congress; (2) defendant [the Attorney General] has failed to meet his burden of showing that COPA is the least restrictive and most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad." He ruled the government could not enforce COPA.

The government's attorneys argued, unsuccessfully, that software filters were burdensome and ineffective. The argument struck some commentators as curious, because government attorneys had previously defended filters in United States v. American Library Association (text, pp. 405-406), a case that challenged the constitutionality of the Children's Internet Protection Act. In that case, the Supreme Court upheld a law requiring public libraries to install filters as a condition for participating in federal library programs.

It remains unclear whether there will be another chapter in the COPA saga. Since the law was passed in 1998, there have been dramatic changes in both the quality of software filters and Internet communication. With the growth of instant messaging, innovative video sites, and social networking, a law that is aimed at harmful web sites has become much less relevant. Before the end of 2007, the government will probably announce whether it plans to appeal.

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