July 2, 2003

Justices favoring government in free-speech cases

By Gina Holland, Associated Press Writer

WASHINGTON -- The Supreme Court is usually sympathetic to free-speech challenges, but not this year.

Justices sided with the government in every First Amendment case it ruled on during the nine-month term that ended last week, upholding laws and policies intended to protect the public from dishonest telemarketers, cross-burners, pornographers, and drug dealers in public housing.

Among those scoring victories was The Walt Disney Co., in a court ruling that upheld longer copyrights for cartoon characters like Mickey Mouse, as well as songs, books, and other creations worth billions of dollars.

Keeping people from using old ideas by enforcing long copyrights unconstitutionally limits people's access to free expression, critics said.

And what could have been a big free speech success at the high court fizzled. On their final day on the bench, justices dismissed an appeal from shoemaker Nike Inc., that had given the court a chance to give broader protection to commercial speech. The court refused to decide whether Nike's claim that its ads and statements defending overseas labor practices were constitutionally protected free speech -- not false advertising as a California activist alleged. The issue could return to the court.

"It's not a disastrous First Amendment year, but certainly one that gives no cheer to First Amendment advocates," said New York attorney Floyd Abrams, a free-speech expert.

Some of the cases were easy for the court, like the unanimous ruling that states can crack down on telemarketing fraud without stepping on the free speech rights of charities. That ruling allows states to pursue fund-raisers who misrepresent how donations will be used. Three times previously, the court had struck down regulations on charity fund-raisers.

The court also ruled 9-0 that the government may designate crime-ridden public housing neighborhoods as off limits to visitors and prosecute some trespassers. A lower court had ruled that the trespassing ordinance harmed people who had legitimate, free-speech reasons for visiting public housing.

Justices struggled more with a case involving prosecutions of cross-burners. Justices, divided in several factions, decided 6-3 that states can punish people who burn crosses as an act of intimidation.

Also by a 6-3 margin, justices rejected arguments from librarians that anti-porn computer filters are censorship that block legitimate science and health information. That ruling upheld Congress' third attempt to shield children from porn. The law requires public libraries to equip computers with porn-blocking technology if they want to receive federal money.

Christopher Eisgruber, a constitutional law professor at Princeton University, said the court has not lost its status as a protector of free speech.

"The court had pushed the boundary lines pretty far in the direction of protecting speech rights. Now it's working out details in the margins, and it's said it's not going to push further," Eisgruber said. "No matter how speech protective you are, you're going to reach your limits somewhere."

Last year, justices struck down limits on what state judicial candidates may tell voters, overturned a local law that required anyone going door to door to register with authorities, blocked government advertising rules for pharmacies that mix specialty medicines, and struck down key parts of a federal law banning virtual child pornography.

In the pharmacy case, Justice Sandra Day O'Connor said: "If the First Amendment means anything, it means that regulating speech must be a last -- not first -- resort."

Justice John Paul Stevens, in siding with Jehovah's Witnesses in the solicitation case, said "it is offensive, not only to the values protected by the First Amendment but to the very notion of a free society" that someone must get a permit to speak to neighbors.

The First Amendment says that government cannot diminish people's freedom to speak out. In the cases this term, the court clarified that government has leeway to limit speech that can hurt the public.

The justices heard one campaign finance case involving free-speech, and like the other five cases ruled for the government. The court said Congress can ban campaign contributions from advocacy groups.

The ruling was considered a prelude to the court's handling of the 2002 campaign finance law. Justices are returning early from their summer break to hear arguments in that case. Arguments are scheduled for September.

"Free speech advocates should not despair," said David Skover, a professor at Seattle University's School of Law. "There is no reason to believe future years will not see a revival of solid First Amendment victories."

Source: Editor & Publisher