Under the U.S. Supreme Court: First Amendment, Kennedy triumph

By MICHAEL KIRKLAND  |  July 3, 2011 at 3:30 AM
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WASHINGTON, July 3 (UPI) -- The U.S. Supreme Court term that ended last week will go down in the history books as a triumph for the First Amendment, sometimes at the cost of genuine pain for grieving families, and the ongoing emergence of Justice Anthony Kennedy as one of the most powerful people in U.S. government.

The 2010 Term began last October and ended last Monday.

If there was any doubt of the high court's allegiance to the First Amendment, it was removed with the March 8-1 ruling protecting the right of fundamentalist anti-gay protesters to disrupt the burial of U.S. service members and last week's 7-2 ruling -- written by Justice Antonin Scalia, normally a conservative paladin in the culture wars -- striking down California's law against the sale of violent video games to minors.

As for Kennedy, who personally hates being called a "key swing vote" although he is one, he moved through the term like a hot knife through butter, rarely in the minority and often deciding a case by joining either the court's four-member conservative bloc or its four-member liberal bloc.

Statistics compiled by SCOTUSBLOG.com show Kennedy was in the majority in 80 of the 82 merit cases decided during the term, or 94 percent.

In 10 of the 16 cases decided this term on a 5-4 vote, Kennedy formed a majority with the four conservatives Roberts, Scalia and Justices Clarence Thomas and Samuel Alito. In four of the 16 cases he formed a majority with the four liberals, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

One of the court's six Catholics -- Ginsburg, Breyer and Kagan are Jewish -- Kennedy has served on the court since 1988, longer than any other justice except for Scalia, who burst on the scene in 1986.

In the funeral protest case, Snyder vs. Phelps, Roberts' majority opinion said the protests were protected by the free speech guarantee of the First Amendment.

Since 2005, the Rev. Fred Phelps Sr. and members of his Westboro Baptist Church of Topeka, Kan., have shown up at the funerals of service members to protest what they consider the military's toleration of homosexuality, and the toleration of homosexuality in the United States. They warn of the anger of a just God and say dead soldiers are the evidence of that anger.

In 2006, Phelps and others picketed the Maryland funeral of Matthew Snyder, a 20-year-old U.S. Marine killed in the line of duty in Iraq. The protesters carried signs saying, among other things, "Thank God for dead soldiers," "God hates fags," "Fag troops," "Pope in hell" and "You're going to hell." They also posted an "epic" on their Web site titled, "The Burden of Marine Lance Cpl. Matthew A. Snyder."

Snyder's shocked family sued and won a jury verdict. A federal judge upheld the verdict and $5 million in damages for emotional distress, but a federal appeals court reversed, saying the protesters were using "rhetorical hyperbole" absolutely protected by the First Amendment.

The U.S. Supreme Court affirmed the appellate ruling. Roberts cited high court precedence, saying "speech on public issues occupies the 'highest rung of the hierarchy of First Amendment values' and is entitled to special protection."

The "content" of Westboro's signs plainly relates to public, rather than private, matters," the opinion said.

Alito, the lone dissenter, had another take.

"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said. The fallen soldier's father "Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Cpl. Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right."

In last Monday's Brown vs. Entertainment Merchant Association, Scalia also cited the First Amendment in his 7-2 opinion, with the majority striking down California's ban on the sale, or rental, of violent video games to minors on free speech grounds.

The state law, with its fine of as much as $1,000 for each violation, was challenged by groups representing the video-game and software industries. A federal judge said the law violated the First Amendment, and issued an injunction against its implementation. A federal appeals court agreed.

A majority of the U.S. Supreme Court agreed with the lower courts. Scalia said: "Video games qualify for First Amendment protection. Like protected books, plays and movies, they communicate ideas through familiar literary devices and features distinctive to the medium."

Citing Supreme Court precedent, the opinion said "the basic principles of freedom of speech ... do not vary" with a new and different communication medium."

Unlike sex, there is no "tradition" of protecting minors from violence, Scalia said.

"This country has no tradition of specially restricting children's access to depictions of violence. And California's claim that 'interactive' video games present special problems, in that the player participates in the violent action on screen and determines its outcome, is unpersuasive."

Scalia said, "Because the act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny -- that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest."

He added later, "California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors. Rather ... the state claims that it need not produce such proof because the Legislature can make a predictive judgment that such a link exists, based on competing psychological studies."

In contrast to Scalia's confident certitude, Justice Stephen Breyer, one of the two dissenters, sounded almost wistful.

"This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children -- by their parents, by their teachers and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here -- a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children."

The First Amendment also was the driving force behind last Monday's 5-4 ruling in Arizona Free Enterprise Club's Freedom Club PAC vs. Sec. Bennett -- yet another signal that a narrow Supreme Court majority will not tolerate most forms of public financing for political candidates.

The ruling struck down Arizona's system of public financing for state office candidates who eschew private financing.

Under the Arizona Citizens Clean Elections Act, the public financing system funds the primary and general election campaigns of state candidates. Those who opt to participate are given an initial injection of public funds to conduct their campaigns.

They also get additional matching funds if a privately financed candidate's expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate or in opposition to a publicly financed candidate, exceed the publicly financed candidate's initial state allotment.

But past and future Arizona candidates, and two independent expenditure groups that spend money to support and oppose Arizona candidates, challenged the constitutionality of the matching funds provision, arguing it unconstitutionally penalizes their speech and burdens their ability to fully exercise their First Amendment rights.

A federal judge issued a permanent injunction against the enforcement of the matching funds provision. A federal appeals court reversed, finding that the provision imposed only a minimal burden and that the burden was justified by Arizona's interest in reducing quid pro quo political corruption -- favors for money.

The narrow Supreme Court majority reversed the appeals court, holding that Arizona's "matching funds scheme substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny."

The court split along its ideological faulty line: four conservatives and Kennedy versus the four liberals. The majority opinion written by Roberts said the "matching funds provision imposes a substantial burden on the speech of privately financed candidates and independent expenditure groups."

Citing 1964's New York Times Co. vs. Sullivan -- one of the landmark First Amendment cases -- Roberts said there is a "'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' ... True when we said it and true today. Laws like Arizona's matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand."

Roberts compared the Arizona law to the federal 2002 Bipartisan Campaign Reform Act -- commonly called the McCain-Feingold Act -- which was also largely struck down by the Supreme Court.

Justice Elena Kagan, writing for the liberal dissenters, said: "The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the 'opportunity for free political discussion to the end that government may be responsive to the will of the people.'"

The term's legacy also includes a severe blow to large class action lawsuits.

On June 20, the high court unanimously agreed the massive class action sexual discrimination suit against retail giant Walmart cannot stand.

But the court's four-member liberal bloc, in partial dissent, said the 1.5 million putative women in the class should have been given a chance to show there was enough "commonality" in their situations to qualify as a class.

The case started in San Francisco in 2001 when six women filed suit claiming Walmart discrimination, in part because they were passed over for promotion in favor of men.

"This nationwide class includes every woman employed for any period of time over the past decade, in any of Walmart's approximately 3,400 separately managed stores, 41 regions and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications," the company's petition to the Supreme Court said. "The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Walmart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company's express anti-discrimination policy."

A federal appeals court panel and the full 9th U.S. Circuit Court of Appeals, both divided, approved the certification of the class.

But the majority Supreme Court opinion written by Thomas said when plaintiffs seek individual relief such as back pay or reinstatement, the company has "the right to raise any individual affirmative defenses it may have, and to 'demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.'"

The appeals court tried to replace this procedure with a "Trial by Formula," the opinion said, using a "sample set," with the result applied to the huge class. "We disapprove that novel project."

In a statement in Washington after the ruling, Robin Conrad, executive vice president of the U.S. Chamber of Commerce's National Chamber Litigation Center, said, "This is without a doubt the most important class action case in more than a decade."

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