Editor’s note: On Sept. 27, the Supreme Court agreed to hear Wisconsin
Right to Life v. FEC, 04-1581, and the consolidated cases of Randall
v. Sorrell, 04-1528, Vermont
Republican State Committee v. Sorrell, 04-1530, and Sorrell
v. Randall, 04-1697, bringing the number of First Amendment cases on the
Court’s docket thus far to six.
WASHINGTON — If confirmed as chief justice this week, John Roberts Jr. will
be able to ease into developing his First Amendment jurisprudence. Among the 41
cases already docketed for argument this fall, only four can be counted as First
Amendment cases — and only one of those is a religion-clause case.
Still, several cases pose complexities that will challenge Roberts and the
rest of the Court on issues that have vexed the justices before: compelled
speech and government funding of speech, as well as the Religious Freedom
Restoration Act. And the Court will continue to add cases to its docket through
The case that has probably drawn the most attention is Rumsfeld
v. FAIR, a test of the so-called Solomon Amendment, most recently
amended in 2004. That law requires colleges and universities, as a condition for
receiving federal funds, to offer equal access to their campuses to military
recruiters. Law schools, especially, had barred military recruiters or given
them disfavored status because the armed forces prohibit acknowledged
homosexuals from serving in the military. Over time, universities have complied
with the law to varying degrees, but a group of law school professors called
Forum for Academic and Institutional Rights (FAIR) challenged the law as a
violation of the First Amendment rights of law schools.
The 3rd U.S. Circuit Court of Appeals ruled in favor of FAIR, applying the
highest “strict scrutiny” standard against the law as a First Amendment
violation. The appeals court found that the law unconstitutionally forces law
schools to subsidize and send a message that they accept discrimination.
Solicitor General Paul Clement, in asking the high court to reverse the 3rd
Circuit, says the Solomon Amendment is a proper condition on federal funding
that does not force universities to convey an unwanted message. “Students and
the public readily understand that when recruiters visit campus, they speak for
their employers, not for the educational institution.”
Strings attached to federal funding are generally viewed as constitutional,
Clement argues, except when “Congress aims at the suppression of dangerous
ideas.” That is not the case in the Solomon Amendment, Clement says, because the
law “is aimed solely at an institution’s conduct in denying equal access.”
Clement also denies that the law compels speech in an unconstitutional way.
“If they do not want to furnish military recruiters with equal access to their
students, they may decline federal assistance.”
But that is not a realistic choice, says FAIR, since federal funds going to
the entire university could be shut off. “In some schools hundreds of millions
of dollars are at stake, for projects as diverse (and unrelated to military
recruiting) as cancer research, particle accelerators, and investigations into
the promise of school voucher programs,” wrote New York lawyer E. Joshua
Rosenkranz, who represents FAIR.
Rosenkranz also argues that the government is not seeking equal treatment but
special treatment — “a demand to be the only discriminatory employer that a law
school will assist.”
The Association of American Law Schools also argues to the Court that law
schools are entitled to convey values to their students and to the community —
values that are inconsistent with discrimination, and with offering assistance
to military recruiters.
A brief by a group of Harvard Law School professors offers a novel and
potentially important argument, namely that neither Harvard nor most other law
schools are in fact discriminating against military recruiters.
Instead, argues the brief written by former acting solicitor general Walter
Dellinger, these schools are treating military recruiters exactly the same as
any others, excluding them only when they do not sign the same
anti-discrimination pledge that all recruiters must sign to gain access to
campus. “When other recruiters have failed to abide by these tenets” of not
discriminating against homosexuals, Dellinger wrote, “they have been excluded.
When military recruiters have agreed to follow them, they have been welcomed.”
He notes that in years past, military recruiters who signed non-discrimination
pledges were allowed access to the University of Washington and New York
Nonetheless, says Dellinger’s successor, Seth Waxman, “The smart money is
that the Court granted the case to reverse the Third Circuit.” He spoke at a
recent briefing on the Court term sponsored by the National Legal Center for the
Public Interest. In fact, at a moot court at William & Mary Law School on
Sept. 23 televised by C-SPAN, eight mock “justices,” including
constitutional-law experts and journalists who cover the Supreme Court, voted
unanimously to reverse the 3rd Circuit — though their votes did not necessarily
reflect their own views. Oral arguments are scheduled for Dec. 6.
The outcome of this term’s religion case may be less easy to predict. In the
v. O Centro Espirita Benificiente Uniao Do Vegetal, the Court will
assess whether, under the Religious Freedom Restoration Act, the government must
permit followers of a Brazilian religious sect to use hoasca, a hallucinogenic
tea, in spite of the Controlled Substances Act, which bans such substances.
The Bush administration claims it has a compelling interest in banning the
product in spite of its religious use, because of international treaty
obligations that prohibit its import and because it is a “dangerous,
mind-altering hallucinogen.” The case will be argued Nov. 1.
A small group of adherents to the church lives in New Mexico. Their lawyer,
Nancy Hollander, asserts hoasca is used only in very small quantities, has an
“unpleasant, nauseating nature” and does not cause members to hallucinate. She
accuses the government of “alarmism” and of vastly exaggerating the harmful
effects of hoasca. The government already allows the religious use of peyote,
she notes, in spite of the Controlled Substances Act.
The 10th U.S. Circuit Court of Appeals in an en banc decision ruled against
the government, finding that the harm to the religious group outweighed the
government interests. In a concurrence, Judge Michael McConnell, often mentioned
as a possible nominee to the Supreme Court, also said the government had failed
to meet its burden of showing that banning hoasca was the least-restrictive
means of furthering its interests.
One subtext of the case is the viability of the religious-freedom law itself.
The law restricts the ability of government to impose burdensome regulations on
religion, even if they are universally applied, unless the government can show a
compelling need. In the 1997 case City
of Boerne v. Flores, the Court struck down the law as it applied to
state and local government action, but courts since then have found the law
viable as it applies to federal actions.
In one brief filed in the hoasca case, a leading church-state expert urges
the Court to use the case to overturn the law in all its applications. Marci
Hamilton of Cardozo Law School in New York wrote the brief, arguing that the law
usurps the Supreme Court’s power to interpret the meaning the First Amendment’s
establishment clause. She represents groups of victims who are suing Roman
Catholic archdioceses for sex abuse by priests. She said some church defendants
are invoking RFRA to prevent the federal bankruptcy laws from being applied to
them in ways that would require them to compensate victims.
scheduled for argument this fall:
v. Ceballos, another in a series of cases on the free-speech rights of
government employees. The case, to be argued Oct. 12, involves deputy Los
Angeles district attorney Richard Ceballos, who was punished for revealing a
flaw in a pending case to a defense attorney. The 9th U.S. Circuit Court of
Appeals ruled that Ceballos’ actions, like those of a whistleblower, should be
protected by the First Amendment. “The right of public employees to speak freely
on matters of public concern is important to the orderly functioning of the
democratic process,” wrote Judge Stephen Reinhardt.
But lawyers for then-district attorney Gil Garcetti say Reinhardt misapplied
high court precedents. Speech of public employees is protected when they are
acting as citizens commenting on matters of public concern, Garcetti’s brief
states, but not when the speech is made in connection with the performance of
the employee’s duties. “The Ninth Circuit has ignored the rationale of this
court’s precedents and left in its wake public employers who must now assume
that virtually all job-required speech is constitutionally protected,” wrote
Glendale, Calif., lawyer Cindy Lee. The National School Boards Association and
other government organizations, including the Bush Justice Department, filed
briefs on Garcetti’s side, expressing concern that Reinhardt’s approach would
turn every dispute between a government employee and his or her agency into
But Ceballos’ lawyer Bonnie Robin-Vergeer of the Public Citizen Litigation
Center told the Court in her brief that overturning the 9th Circuit would have
the effect of muzzling government employees who have information about abuse or
mismanagement. “The nation’s millions of public employees will be stripped of
constitutional protection from retaliation if they communicate that information
as part of their jobs,” she write.
The Government Accountability Project, which represents whistleblowers, also
argues: “Protection for job-required speech is a prerequisite for the government
to function effectively.”
The Thomas Jefferson Center for the Protection of Free Expression and the
American Association of University Professors joined in a brief to argue that
the case could threaten academic freedom as well. “Much potentially
controversial expression relates to the subject matter of the speaker’s academic
expertise, and could thus be deemed unprotected under a diminished and distorted
concept of ‘public concern,’” wrote the Jefferson Center’s J. Joshua
v. National Organization for Women and Operation
Rescue v. National Organization for Women. The cases represent the
remaining issues from a lawsuit first brought by NOW in 1986 against aggressive
anti-abortion protesters. NOW sought to apply the anti-racketeering law known as
RICO against their activities, claiming their actions amounted to extortion
aimed at shutting down clinics. The Supreme Court and lower courts have been
grappling ever since with the question of whether RICO applies.
The case will be argued Nov. 30 — its third time before the Court. The
remaining point of contention is the scope of the Hobbs Act, the federal
anti-extortion law that is a component of NOW’s RICO claim. The 7th U.S. Circuit
Court of Appeals interpreted the Hobbs Act to cover physical violence that is
not directly related to robbery or extortion.
That question may appear far removed from First Amendment concerns, but one
brief in the case, filed by the AFL-CIO, argues against that broad
interpretation, fearing that it could lead to the use of the Hobbs Act to stifle
labor union picketing.
Alan Untereiner, lawyer for anti-abortion activist Joseph Scheidler, also
said the circuit’s loose reading of the Hobbs Act “threatens to federalize vast
swaths of state criminal law (including almost all violent crime), and allows
RICO to be misused against political and labor protesters.”
Finally, a closely watched case that has not been granted certiorari yet is
v. Carter. If it grants review, the Court could clear up questions about
the extent to which the First Amendment protects the college and university
press. The case out of the 7th Circuit involves an order by Governors State
University in Illinois that the student newspaper not go to print without