Hein v. Freedom from Religion Foundation, Inc. (06-157), Federal Election Comm'n [FEC] v. Wisconsin Right to Life, Inc. [WRTL] (06-969), Morse v. Frederick (06-278)

June 28, 2007 Supreme Court Update

Greetings, Court Fans!
We're back with more summaries. Today's group includes three cases from Monday involving the First Amendment that all came out essentially 5-4, with the conservatives taking the majorities – though, as you'll see, the cases were all quite different and the majorities were hardly unified.
First up is Hein v. Freedom from Religion Foundation, Inc. (06-157), in which the Court held that status as a federal taxpayer, by itself, is not enough to confer standing to mount an Establishment Clause challenge to Bush Administration conferences supporting the Faith-Based and Community Initiatives program. The case was a referendum on the Court's 1968 decision in Flast v. Cohen. Taxpayer status generally does not confer standing to challenge federal expenditures (no expenditure causes a single taxpayer any measurable harm), but Flast created a single exception for Establishment Clause challenges to laws authorizing the use of federal funds. The Seventh Circuit held that Flast conferred standing on a group of taxpayers who challenged the conferences because the President and Secretary of Education gave speeches using religious imagery and praising faith-based programs.
The Court reversed, with Justice Alito writing for a plurality that included the Chief and Justice Kennedy. For the plurality, the key was that Flast concerned the exercise of Congress's powers to tax and spend, and thus applied to specific congressional appropriations that allegedly violated the Establishment Clause. The conferences, however, were paid for out of general executive branch funds used for day-to-day activities. The plurality refused to extend Flast to discretionary executive expenditures, even though they ultimately are funded by Congress, because to do so would render every federal action amenable to suit and turn courts into "continuing monitors" of executive actions. Justice Kennedy wrote a concurring opinion focusing on these separation-of-powers concerns but also noting that, even where parties have no standing to sue, members of the political branches still must obey the Constitution.
Justice Scalia concurred in the judgment (along with Justice Thomas), but it was clear that he thought the plurality opinion was absurd, creating "utterly meaningless distinctions" that "in any sane world" could not explain how the case was different from Flast. (That's not all – noting that Alito purported to take a "minimalist" approach by not overruling Flast, he wrote that minimalism should not come "at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason.") If the Court "is to decide cases by the rule of law rather than show of hands," it had to either accept Flast's logic in its entirety, applying it to all federal expenditures, or overrule the decision. He would opt for the latter, as there simply was no logical underpinning for holding that the Establishment Clause, alone among our laws, gives rise to some sort of redressable psychic injury to confer taxpayer standing. (In response, Alito wrote only that Scalia's position was not "insane," just "wrong" – the Court needed only to decide a case about discretionary executive expenditures, and there was no reason to go further and overrule Flast.)
Justice Souter dissented along with Justices Stevens, Ginsburg and Breyer. They shared Scalia's hope for consistency but simply went the other way on Flast: They would confer taxpayer standing on Establishment Clause challenges regardless of whether the expenditure came from specific congressional appropriations or out of discretionary executive branch funds.
Next, in Federal Election Comm'n [FEC] v. Wisconsin Right to Life, Inc. [WRTL] (06-969), an equally fragmented Court concluded that section 203 of the Bipartisan Campaign Reform Act (BCRA, i.e., McCain-Feingold) barring corporate "electioneering" ads could not constitutionally be applied to certain pre-election ads WRTL sought to run in Wisconsin. Section 203 prohibits unions and corporations from running ads referring to candidates in the period before a primary or election; in McConnell v. FEC (2003), the Court held that the law was not facially overbroad, at least in the case of express campaign speech or its "functional equivalent," and assumed that the law might not apply to genuine "issue ads" divorced from electioneering. In the run-up to the 2004 elections, WRTL filed suit against the FEC seeking an order allowing it to run a series of ads encouraging voters to contact Wisconsin's senators (Feingold and Kohl) and tell them not to support a filibuster of the Bush Administration's judicial nominees. The district court denied the injunction on the ground that McConnell did not allow for an as-applied challenge, but the Court reversed that ruling on appeal; on remand, and after the election had already occurred without WRTL running the ads, the lower court held for WRTL.
The Court affirmed, in a judgment announced by the Chief. The only majority opinion concerned whether the Court had jurisdiction over the case. The FEC had argued that the case was moot because the election was over and the filibuster issue was resolved. The Court concluded that the case easily fit into the exception to mootness where a dispute was "capable of repetition, yet evading review." WRTL planned to run similar ads on other issues in the future, and there was no reason to think the FEC would refrain from prosecuting BCRA violations. Requiring a complete equivalence on every fact of the case was not necessary: "History repeats itself, but not at the level of specificity demanded by the FEC."
With that, the majority dissolved, as only Justice Alito joined the remainder of the Chief's opinion. Because section 203 burdens what is clearly political speech, they would subject it to strict scrutiny, requiring it to be narrowly tailored to achieving some compelling interest. McConnell held that section 203 survived strict scrutiny for express campaign advocacy or its equivalent, but the WRTL ads did not fit in that box. The issue was not whether WRTL intended to affect the election – that would send almost every case to trial on the nebulous issue of intent and impermissibly chill speech – but whether the ads could only be reasonably interpreted as an appeal to vote for against a candidate. The WRTL ads were not such an appeal, as they did not even mention the election; rather, they were true issue ads concerning the filibuster. While the filibuster might be pertinent to the election, "[w]here the First Amendment is implicated, the tie goes to the speaker, not the censor." So the ads fell outside McConnell, and Roberts found no compelling interest to justify regulating issue ads – in particular, he rejected the notion that corruption concerns animating contribution limits had any application to issue ads. In a curious concurrence, Alito chimed in to say that if Roberts' "no other reasonable interpretation" standard proved unworkable, presumably the Court would be asked one day to reconsider McConnell's holding that section 203 was facially constitutional.
Justice Scalia again provided the fireworks by concurring in the judgment, along with Justices Kennedy and Thomas. They rejected Roberts' functional equivalence test and would simply overrule McConnell and hold that section 203 is unconstitutional on its face. Scalia's opinion is a worthy read, as it marches through the Court's precedents since Buckley v. Valeo (1976), but the upshot is that, in his view, no test to distinguish between permissible "issue-speech" and impermissible "election-speech" or its "functional equivalent" can possibly be clear enough to avoid chilling political speech at the core of the First Amendment. Speakers cannot be compelled to risk felony prosecution simply because someone else might view their speech as supporting or opposing a candidate for office: "The fact that the line between electoral advocacy and issue advocacy dissolves in practice is an indictment of the statute, not a justification of it." Since McConnell has proved unworkable, it is not worthy of stare decisis respect – if there must be a line at all, it should be purely a Buckley -style "magic words" express advocacy line.
Justice Souter once again led the same group of dissenters as in Hein. The dissent began with a lengthy history of campaign reform, but the crux is that the context of WRTL's overall ad campaign demonstrated that these ads were attempts at electoral advocacy, as its entire 2004 program was geared at voting out Feingold. (Roberts pointedly rejected "contextual" evidence like this, noting that a group does not forfeit the right to run issue ads simply because it also has views on the election.) Souter then argued that the principal opinion effectively overruled McConnell without saying so, by enacting a new test that turned McConnell on its head, despite the fact that McConnell enacted a bright-line rule that, in his view, had not been unworkable in practice.
Lastly, in Morse v. Frederick (06-278), the Court held that an Alaska principal did not violate the First Amendment when she punished Joseph Frederick for unfurling a "BONG HiTS 4 JESUS" banner across from his high school during an Olympic torch relay. The Ninth Circuit had held that while Frederick had acted during a school-sponsored activity (during the school day, students were allowed to leave class to watch the torch relay from either side of the street), the school had punished him without showing that his speech would cause "substantial disruption," a standard the Court adopted in Tinker v. Des Moines Independent Community School District , which concerned students protesting the Vietnam War. The Court granted cert on two questions: whether Frederick had a First Amendment right to wield the banner and, if so, whether that right was so clearly established that the principal could be liable for damages.
The Court reached only the first question, finding that Frederick had no First Amendment right to utter, at a school function, speech that reasonably is viewed as promoting illegal drug use. In the Chief's majority opinion, the Court noted the difference between this case and Tinker, which concerned the wearing of armbands in a silent act of political speech "at the core of what the First Amendment is designed to protect." Here, by contrast, Frederick's banner was "cryptic" at best, but reasonably interpreted as encouraging illegal drug use and not attempting political discourse. The majority also noted that more recent school speech cases had made clear that students' First Amendment rights were not the same as adults', at least not in the public school setting, and also made clear that Tinker's "substantial disruption" test was not absolute. Given the importance of the state's interest in deterring drug use by schoolchildren, and the special setting of the school environment, the First Amendment did not require the principal to tolerate a banner that she reasonably viewed as advocating drug use.
There were two concurrences. In what is probably the most important of all the opinions for purposes of future cases, Justice Alito (joined by Justice Kennedy) wrote that he joined the majority opinion on the understanding that it held only that a public school may restrict speech reasonably viewed as advocating illegal drug use. But he viewed that regulation as "standing at the far edge of what the First Amendment permits," and he noted that the Court's ruling did not support "any restriction on speech that can plausibly be interpreted as commenting on any political or social issue" – such as the wisdom of the war on drugs or of legalizing marijuana. He reaffirmed Tinker's recognition that students do not lose their First Amendment rights at school, which is, after all, an organ of the state. In a separate concurrence, Justice Thomas went in precisely the opposite direction. He joined the majority because he agreed that public schools could ban speech advocating drug use; however, echoing Scalia's themes from Hein, he feared that watering down Tinker without overruling it created an incoherent system – students have First Amendment rights, except when they don't. So his solution would be to overrule Tinker and say students have no First Amendment rights at all, based on the history of public education in the 1800s when the Amendment was applied to the states. (The opinion is classic Thomas – heavily historical, willing to dispense with precedent, and bold. And you get the distinct impression he thinks our public schools have deteriorated because Tinker allowed the inmates to run the asylum.)
Justice Breyer concurred in the judgment in part, but his opinion was really a dissent. Breyer would not have reached the First Amendment question at all, but instead would have held that Frederick's right to wield his banner was not clearly established and so the principal should have qualified immunity from damages. He thought the First Amendment question was too hard and "portentous" – how was Frederick's banner different from one that said "Legalize BONG HiTS," which the majority apparently would say was protected? – and thus should be avoided if possible. (In response, the Chief noted that qualified immunity dealt only with damages claims, while Frederick also sought injunctive and declaratory relief. Breyer replied that he thought Frederick' suspension could have been upheld on non-speech grounds – disobeying a principal, etc. – and would remand for lower courts to have a look at that issue.)
Justice Stevens wrote for the full dissenters, which included Justices Souter and Ginsburg. For them, the First Amendment protected student speech that neither violated a permissible rule nor advocated illegal or harmful conduct, and Frederick's "nonsense" banner did neither. (They viewed the banner as aimed solely at getting Frederick on TV – Frederick said as much – not as speech aimed at persuading anyone to do anything.) And in any event, deferring to the "reasonable judgments" of principals was an abdication of judicial responsibility – the beliefs of third parties have never defined what is and is not protected speech. Invoking the Chief's language from the FEC case, Stevens noted that in First Amendment cases "the tie goes to the speaker," and he would give the nod to Frederick. (Notably, the dissent still would have given the principal qualified immunity – which, as Breyer pointed out, meant the Court could have decided the case 9-0 on that question had the majority been so inclined. Oh well.)
That's the First Amendment seminar for the day. We'll be back with more opinions tomorrow – thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400