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Constitutional Law

: First Amendment Center

Free-speech cases top Supreme Court's agenda

By By The Associated Press

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WASHINGTON ? First Amendment cases top the Supreme Court's docket as it begins a new term today with a new justice and three women on the bench for the first time.

On a busy opening day, the justices turned away today a number of First Amendment-related appeals in which parties sought to have their cases heard before the nation's highest court:

The Court won't make the super-secret National Security Agency divulge whether it has records of the warrantless wiretapping it did of lawyers representing Guantanamo Bay inmates. The justices refused to hear an appeal from detainee lawyer Thomas B. Wilner in Wilner v. National Security Agency, 09-1192. Wilner and other detainee lawyers filed a Freedom of Information Act request with the NSA asking whether it had warrantless wiretapping records about them. But the NSA won't say whether it does or does not, insisting that revealing this information would endanger national security. Federal courts have agreed with the NSA, saying that FOIA does not require disclosure of sensitive national-security information.

The justices refused to reconsider whether a New Jersey school district can constitutionally ban celebratory religious music. The Court refused to hear an appeal from Michael Stratechuk. He sued in 2004, saying the South Orange-Maplewood school district's ban violated the First Amendment's religious-freedom provision. The 3rd U.S. Circuit Court of Appeals in Philadelphia upheld the ban, however. The 3rd Circuit said public school administrators can determine which songs are appropriate according to constitutional guidelines to create a secular "inclusive environment." The case is Stratechuk v. Board of Education, 09-1184.

The Court rejected an appeal from an online cigarette marketer who claimed his company was immune from Idaho laws regulating tobacco sales. The justices let stand an Idaho Supreme Court ruling against Scott B. Maybee, who sold millions of cigarettes to Idaho smokers through Smartsmoker.com and Ordersmokesdirect.com. The state claimed in a lawsuit that Maybee, a Native American from New York, was violating state laws requiring cigarette peddlers to register with the state and pay a fee to the state. The laws were passed in the wake of the national tobacco settlement in 1998. Maybee claimed Idaho laws didn't apply because he was protected by federal interstate and Indian-commerce laws. The case is Maybee v. Idaho, 09-1471.

The Supreme Court won't decide who really owns the initials "SC" when it comes to college sports: the University of Southern California or the University of South Carolina. The high court refused to hear an appeal from South Carolina, which wanted to trademark a baseball cap logo with the initials "SC." The USC Trojans already have a trademark on a version of "SC" and say the Gamecocks' symbol looks too much like theirs. The California school says it has sold tens of millions of dollars worth of apparel with "SC" on it, while South Carolina did not seek to start using those initials on baseball caps until 1997. Courts have rejected South Carolina's trademark. The case is University of South Carolina v. University of Southern California, 09-1270.

During this term, the Court will look at such First Amendment cases as provocative anti-gay protests at military funerals (Snyder v. Phelps) and a California law banning the sale of violent video games to children (Schwarzenegger v. Entertainment Merchants Association). These cases worry free-speech advocates, who fear the court could limit First Amendment freedoms.

The funeral-protest lawsuit, involving signs praising American war deaths, "is one of those cases that tests our commitment to the First Amendment," said Steven Shapiro, legal director of the American Civil Liberties Union.

Another case, Arizona Christian School Tuition Organization v. Winn, involves a different aspect of the First Amendment, the government's relationship to religion. The justices will decide whether Arizona's income-tax-credit scholarship program, in essence, directs state money to religious schools in violation of the constitutional separation of church and state.

Under Chief Justice John Roberts, marking his fifth anniversary on the Court, and since the replacement of Justice Sandra Day O'Connor by Justice Samuel Alito, the Court has been more sympathetic to arguments that blur the line between government and religion, as long as one religion is not favored over another.

Justice Elena Kagan, confirmed in August, is the one new face on the Court. John Paul Stevens has retired.

Getting a read on Kagan in her first year may be even harder because her former job as President Barack Obama's solicitor general already has forced her to take herself out of 24 of the 51 cases the Court has so far agreed to hear. The solicitor general is the top lawyer who argues the government's cases before the high court.

The first case from which she is withdrawing will be argued today, and Kagan will slip out of the courtroom before Roberts invites the lawyers to begin their argument.

Kagan's absences create the potential for the eight remaining justices to split 4-4 in some cases. That outcome leaves in place the decision reached by the most recent court to have the case, but leaves unsettled the issue the high court was set to resolve.

Full post as published by First Amendment Center on October 03, 2010 (boomark / email).