The FEPP Supreme Court Page

Free-Expression Cases in the 2003-2004 Supreme Court Term

The FEPP Supreme Court Page explains what's at stake in cases before the Court that raise significant free-expression issues. We've tried to extract the most important public policy issues; many legal details are omitted. This page will grow as the Court accepts more cases for review.

For more on these cases, go to the Supreme Court Web site: www.supremecourtus.gov, and Findlaw: supreme.lp.findlaw.com/supreme_court/resources.html. For FEPP's 2002-2003 Supreme Court page, with cases on cross-burning, campaign finance, copyright, telemarketing, sex toys, and Internet filters,
click here.

Government Funding of Religious Education: Locke, Governor of Washington v. Davey - Decided February 25, 2004

Access to Government Information: National Archives and Records Administration v. Favish - Decided March 30, 2004

Campaign Finance: McConnell v. Federal Elections Commission, and related cases - Decided December 10, 2003

Free Expression in Cyberspace: Ashcroft v. ACLU - Decided June 29, 2004

"Under God": Elk Grove Unified School District v. Newdow - Decided June 14, 2004

Government Secrecy and National Energy Policy: In Re Richard B. Cheney - Decided June 24, 2004

"Adult" Businesses: City of Littleton v. ZJ Gifts - Decided June 7, 2004

Government Funding of Religious Education: Locke, Governor of Washington v. Davey

The Promise Scholarship is available to Washington State college students at accredited institutions. In accordance with a provision of the Washington Constitution that broadly forbids any government subsidy of religious instruction, the scholarship cannot be awarded to students pursuing a degree in theology, which is defined as the study of one particular religion in furtherance of that religion - as opposed to an academic course in comparative religion.

Joshua Davey applied for the Promise Scholarship, but was rejected because he intended to pursue a theology degree, a step toward fulfilling his goal of becoming a Christian minister. Davey filed suit, claiming that the prohibition on funding religious education is "blatant anti-religious, viewpoint-based discrimination" in violation of both the free exercise and free speech clauses of the First Amendment.

Davey won at the Ninth Circuit Court of Appeals, which ruled in July 2002 that Washington State had unconstitutionally burdened his right to free exercise of religion. Although the Ninth Circuit did not rule on the free speech claim, it relied heavily on the First Amendment doctrine of "viewpoint discrimination," which prohibits the government from disfavoring certain ideas, even in subsidy programs. The question before the Supreme Court is whether Washington is bound by the U. S. Constitution to provide funding for students pursuing a religious education when it provides funding for students pursuing a secular education.

Washington argues just because an individual has a constitutional right does not mean the government must fund the exercise of that right. On the other hand, in certain types of funding programs - especially those involving free expression - the First Amendment bars the government from distributing funds in a way that "aims at the suppression of dangerous ideas."1 In a case brought by Karen Finley and three other artists challenging restrictions on government funding for "indecent" art, for example, the Supreme Court upheld the restriction because it found it to be only advisory, not mandatory, but added that if the funding agency "leveraged its power to award subsidies … into a penalty on disfavored viewpoints," there would certainly be a First Amendment problem.2

This does not mean, however, that a policy denying state scholarships for clergy training amounts to a "penalty" on a "disfavored viewpoint." Prohibiting taxpayer funding for religious worship, proselytizing, and education is not a "penalty," but a sound policy that benefits both believers and nonbelievers, because entangling government with religion leads to bitter, divisive political turmoil, inevitable state interference in religious matters, and competition among sects for government favors. In this case, for example, upholding the Ninth Circuit's decision would result in unequal funding of religious belief because the Promise Scholarship is limited to students attending accredited institutions, and only a few denominations train at accredited schools in Washington. There would be no state funding for training Buddhist monks or Jewish rabbis, to name just two.3

These are among the concerns that underlie the strong rule found in the Constitution of Washington and 36 other states against funding religious instruction. Similar concerns underlie the vaguer Establishment Clause of the First Amendment. But in a 1986 decision, also involving the State of Washington, the U.S. Supreme Court said that it would not violate the Establishment Clause for a state to give financial aid - in the form of vocational rehabilitation funds - to a student studying for the clergy.4 The question in this case is whether a state is required to give such funds by the other "religion" clause in the First Amendment - the Free Exercise Clause.5

The Ninth Circuit's affirmative answer has sweeping implications for all manner of government programs, as several justices were quick to observe at oral argument in Locke v. Davey. Justice Stephen Breyer pointed out to Solicitor General Ted Olson, who was arguing in support of Davey, that "'if your side wins, every program, not just educational programs but nursing programs, hospital programs, social welfare programs, contracting programs throughout the government' would all be subject to the argument 'that they cannot be purely secular, that they must fund all religions that want to do the same thing.'" Justice Sandra Day O'Connor expressed similar concerns. But Justice Anthony Kennedy seemed to be searching for a way to uphold the Ninth Circuit by narrowly focusing on this scholarship program, and the way in which "'forc[es] students to choose secular majors if they want the scholarship money.'"6

On February 24, 2004, in an opinion by Chief Justice Rehnquist, the Supreme Court upheld Washington's "anti-aid" provision. The Court said the case involved the "play in the joints" between the First Amendment's Free Exercise and Establishment Clauses. Although Washington could choose to fund religious education, it was not required to do so. Rehnquist noted that many states choose to avoid religious conflict by prohibiting tax funds to support the ministry. "The State's interest in not funding the pursuit of devotional degrees is substantial," the Court said, "and the exclusion of such funding places a relatively minor burden" on students of theology.6a

Decided: February 25, 2004

For more on this case and its implications, see "The Crumbling Wall of Church-State Separation."

Access to Government Information: National Archives and Records Administration v. Favish

Former deputy White House counsel Vincent Foster was found dead from a gunshot wound at Fort Marcy Park, Virginia on July 20, 1993. A friend and former law partner of President Clinton, Foster was investigating the Whitewater scandal at the time of his death. The death was ruled a suicide by Independent Counsels Kenneth Starr and Robert Fiske, as well as the Virginia Park Police, but California lawyer Allan Favish was not convinced. As part of his inquiry into the federal government's investigation of Foster's death, Favish filed a Freedom of Information Act (FOIA) request for eleven government photographs taken at the death scene.

The government resisted, and Favish filed suit in California federal court. Eventually, the Ninth Circuit Court of Appeals ruled that the government must provide Favish with all but one photo. The government, joined by Foster's widow and sister, appealed to the Supreme Court.

Enacted by Congress in 1966, the FOIA was intended to give the public access to government files because "the public - not the government itself - is in the best position to engage in the full and searching scrutiny of agency conduct that is critical to the success of a representative government."7 Under the FOIA, the federal government must turn over records to any requesting party, unless the request falls under one of nine exemptions. The exemption at issue in this case was 7(c), which protects records whose disclosure would "constitute an unwarranted invasion of personal privacy."8

The first question the Court had to answer was whether Foster family members have a "personal privacy" interest in the death scene photographs, despite the fact that they contain no personal information about the family.9 The privacy interest they claimed, instead, is preserving the memory of their loved one. They said that release of the gruesome photographs would be akin to "putting the body itself on public display," and that the photos would soon turn up "'on the front pages of grocery store tabloids or on ghoulish Web sites.'"10

The second question was whether, assuming that the family does have a "personal privacy" interest in the photos, that interest outweighs the public's interest in open information about government. As the friend-of-the-court brief filed by the Reporters Committee for Freedom of the Press and other media groups noted, the Foster family's privacy interest was eradicated by the already extensive press coverage of his death.11 This coverage included the publication in Time magazine of a death scene photograph denied to Favish. The possibility that additional media coverage would negatively impact Foster's family carried minimal weight, according to these press groups, when balanced against the public interest in learning whether the government's investigation was "on the level."

Despite these strong arguments for public access to information, especially about government operations, the Court ruled unanimously on March 30, 2004 that the Foster family has a privacy interest which outweighs the public interest in disclosure. Citing the Greek tragedy Antigone for civilization's "universal acceptance" of family members' right to honor the dead bodies of their relatives, Justice Anthony Kennedy wrote for the Court:

We think it proper to conclude from Congress' use of the term "personal privacy" that it intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions. ... Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.11a

The Court went on to hold that Favish had not made a sufficient showing of government malfeasance to overcome the family's privacy interest in the confidentiality of the photos.

Decided: March 30, 2004

Campaign Finance: McConnell v. Federal Elections Commission, and related cases

In 2002, Congress passed a massive revision of the law that regulates national political campaigns. The Bipartisan Campaign Reform Act (BCRA) – or, as it is more commonly known, the McCain-Feingold law – was an attempt to end abuses that allow large corporations, labor unions, well-funded interest groups, and wealthy individuals to circumvent legal limits on the size of campaign contributions by pouring hundreds of millions of dollars of "soft money" into federal election campaigns.

Within days of BCRA's passage, eleven lawsuits were brought to challenge the constitutionality of almost all provisions of the law. The 84 plaintiffs (later reduced to 77) range from the Republican National Committee, the U.S. Chamber of Commerce, and the National Rifle Association, to the ACLU, the AFL-CIO, and the California Democratic Party. The lead plaintiff is Senator Mitch McConnell.

McConnell v. FEC was assigned to a three-judge court in the District of Columbia. After a massive amount of information relevant to the financing of election campaigns was assembled, the court heard nine hours of oral argument by 23 separate attorneys. On May 1, 2003, it issued a voluminous set of opinions upholding most sections of the BCRA, narrowing some, striking down a few, and finding that others were not yet "ripe" for a legal challenge.12 The case was immediately appealed to the Supreme Court, which heard an unusual four hours of oral argument on September 8, 2003.

The two main issues in the case concern: the BCRA's restrictions on "soft money" contributions to political parties; and "sham issue" campaign ads that are televised in the months just before federal elections. The three-judge court found that massive amounts of soft money have hopelessly corrupted the electoral process and rendered meaningless the law's limits on campaign contributions. It also found that huge expenditures on sham issue ads have allowed large corporations, unions, and wealthy individuals to circumvent regulations and disclosure requirements for what are essentially "electioneering communications."13

But despite the compelling need for campaign finance reform, some of the BCRA's provisons are very broad, and raise troubling First Amendment questions. For example, the law applies to all corporations, including nonprofit advocacy groups that have a strong interest in making their views on candidates known without having to go through the burdensome process of creating a separate "PAC" for expenditures relating to elections.

On December 10, in a 298-page opinion, a majority of the justices upheld all the major provisions of BCRA. Relying on the lower court's extensive fact-findings, they found that both the soft-money restrictions and the expanded definition of "electioneering communication" are justified by the voters' need for information about the source of campaign ads and the public interest in reducing big-money influence on our representatives in Congress. (See Recognizing the Problems of Political Corruption and Influence-Peddling, Supreme Court Upholds the Campaign Finance Law for more on the decision.)

Decided: Dec. 10, 2003

For more on this case, go to FEPP's Campaign Finance Page

Free Expression in Cyberspace: Ashcroft v. ACLU

Congress passed the Child Online Protection Act ("COPA") in 1998 to replace the 1996 Communications Decency Act (the "CDA"), which the Supreme Court had struck down the previous year.14 The CDA, in sweeping terms, had criminalized any "indecent" or "patently offensive" communication online, if it was "available" to minors. Since a vast amount of material on the Internet is available to anyone with access to a computer, the CDA essentially criminalized "indecent" online speech for adults, in clear violation of the First Amendment.

COPA is a narrower law: it criminalizes only communications made "for commercial purposes," only on the Web, instead of the entire Internet, and only if the communications meet the legal definition of "harmful to minors" material. That definition, which is basically a variation on the "obscenity" test for expression that can be banned even for adults, is whether:

- "the average person, applying contemporary community standards," would find that the material, taken as a whole, "and with respect to minors," is designed to appeal to "the prurient interest";

- the material depicts or describes, "in a manner patently offensive with respect to minors," nudity or specific sexual acts; and

- "taken as a whole," the material "lacks serious literary, artistic, political, or scientific value for minors."15

This standard is narrower than "indecency," but it still turns on the shifting conceptual sands of "contemporary community standards," "prurient interest," "serious value," and "patent offensiveness." Like the CDA before it, COPA contains "affirmative defenses" that allow defendants to show that they made good faith efforts to keep minors away from their Web sites.

The stated purpose of COPA, as of the earlier CDA, was to protect "the physical and psychological well-being of minors by shielding them from materials that are harmful."16 In several cases, most recently its CDA decision, the Supreme Court has assumed, without requiring proof, that restricting minors' access to "patently offensive" sexual material serves a compelling governmental interest.

COPA was the second of three laws passed in quick succession by Congress to address widespread concerns about adolescents' and children's ability to access pornography online - or to come upon it accidentally. (The third law, the 2000 "Children's Internet Protection Act," is not a criminal ban but requires that schools and libraries install Internet filters on all their computers as a condition of receiving federal funds. It was upheld by the Supreme Court in June 2003.17) All three laws have one defect in common, though: in cyberspace, minors and adults cannot easily separated, so that any attempt to censor minors will censor adults as well.

COPA was challenged by a coalition of Web publishers who feared their content could be deemed "harmful to minors" under some "contemporary community standards." The plaintiffs included the ACLU, the Electronic Privacy Information Center, Androgyny Books, Artnet Worldwide, Condomania, the Electronic Frontier Foundation, Free Speech Media, OBGYN.net, Philadelphia Gay News, PlanetOut Corporation, Powell's Bookstore, RiotGrrl, Salon, and ImageState North America, a stock photo company. These plaintiffs publish material on a range of sexual topics, including "visual art and poetry; information about obstetrics, gynecology, and sexual health; books and photographs; online magazines; and resources designed for gays and lesbians."18

The lower courts invalidated COPA, and issued a preliminary injunction that has so far prevented its enforcement. The Third Circuit Court of Appeals ruled that the "community standards" test is too broad because it will essentially allow the most puritanical localities, those that choose to bring prosecutions under COPA, to set the national standard for all Web content, at the expense of others who do not share their views on child-rearing. But in 2002, the Supreme Court reversed that decision, and sent the case back to the Third Circuit for consideration of other constitutional issues.19

In March 2003, the Third Circuit again invalidated COPA. This time, the court ruled that the law's definitions of "harmful to minors" and "for commercial purposes" were too broad and vague to withstand strict scrutiny under the First Amendment - especially when combined with the "community standards" test that it had originally found so problematic. The court was especially critical of the government's attempt to limit the broad censorious effect of the law on adults by claiming that "minor," under COPA, means not a vulnerable child (the most common rhetorical object of concern), but a "normal, older adolescent." Interestingly, in light of the Supreme Court's approval of Internet filters barely three months later, the Third Circuit found that filters - despite their many inaccuracies - are a "less restrictive means" of protecting youth than a draconian criminal law.20

On June 29, 2004, the Supreme Court affirmed. Writing for a five-justice majority, Anthony Kennedy agreed with the Third Circuit that parents' voluntary use of Internet filters is a "less restrictive alternative" to COPA's criminal ban on "harmful to minors" material. Indeed, Kennedy said that filters "may well be more effective than COPA." Since the Court was technically only affirming the entry of a preliminary injunction, it said that on remand, the government might yet meet its burden of proving that COPA is "the least restrictive available alternative to accomplish Congress' goal."20a

In a concurring opinion, two justices - John Paul Stevens and Ruth Bader Ginsberg - asserted that the definitions in COPA are too vague to sustain a criminal law. "Criminal prosecutions," Stevens wrote, "are in my view an inappropriate means to regulate the universe of materials classified as 'obscene,' since the 'line between communications which 'offend' and those which do not is too blurred to identify criminal conduct." And the "harmful to minors" definition only makes matters worse.20b Justices Scalia, Breyer, Rehnquist, and O'Connor dissented.

The result is clearly correct, but the irony, as Lawrence Lessig pointed out several years ago, is that Internet filters, with their mechanistic, heavy-handed use of key words and phrases to block presumably troublesome material, censor far more speech than do criminal obscenity or harmful-to-minors laws.21

Decided: June 29, 2004.

"Under God": Elk Grove Unified School District v. Newdow

Francis Bellamy, a Baptist minister and cousin of the author and utopian Socialist Edward Bellamy, wrote the Pledge of Allegiance in 1892 and published it in The Youth's Companion, "the leading family magazine and the Reader's Digest of its day."22 The goal was to create a patriotic ceremony for public schools. The original text read: "I pledge allegiance to my Flag and the Republic for which it stands, one nation indivisible, with liberty and justice for all." According to the historian John Baer, Bellamy "considered placing the word, 'equality,' in his Pledge, but knew that the state superintendents of education on his committee were against equality for women and African Americans."23

The pledge has been widely recited in U.S. public schools since 1892, and was officially endorsed by Congress in 1948.24 Prodded by the Knights of Columbus, Congress added the words "under God" in 1954, at the height of the Cold War, in order to differentiate the U.S. from "Godless Communism." At a ceremony commemorating the signing of the amendment, President Eisenhower stated: "From this day forward, the millions of our school children will daily proclaim … the dedication of our Nation and our people to the Almighty."25 As Baer writes: "The Pledge was now both a patriotic oath and a public prayer."26

Michael Newdow, an atheist, challenged the constitutionality of the phrase "under God" in a suit brought on behalf of his daughter, who was exposed to a daily recitation of the pledge in her Elk Grove, California classroom, under a state law mandating "appropriate patriotic exercises" in the public schools every day.27 Newdow argued that "under God" amounts to government endorsement of a monotheistic religion, in violation of the First Amendment's Establishment Clause, and pointed to recent Supreme Court decisions holding that invocations to a monotheistic god in public school settings are unconstitutional.28

The district court dismissed Newdow's claim, but the Ninth Circuit Court of Appeals reversed. The court ruled that including "under God" in the pledge "is highly likely to convey an impermissible message of endorsement to some and disapproval to others of their belief in a monotheistic God."29 That seemingly obvious conclusion became the occasion for political uproar and expressions of outrage when the Ninth Circuit decision was announced in 2002.

The government argued that the pledge is secular and should be read in its entirety as "… a daily patriotic exercise where a teacher recites the Pledge of Allegiance to the flag, not allegiance to God." The inclusion of "under God," it said, is analogous to the national motto "In God We Trust" and, therefore, the reference to religion is a "constitutionally acceptable form[] of 'ceremonial deism.'" In its filings before the Supreme Court, the government added that the phrase is a "permissible official acknowledgement of the role in religion in the Nation's culture and history." Similarly, in its petition to the Court, the Elk Grove Unified School District argued that "under God" serves the "secular purpose" of affirming "the concept that the United States was founded on a fundamental belief in God."30

The Supreme Court only accepted the Elk Grove School District's appeal, not the U.S. government's, thus limiting the scope of the legal questions it would decide. The primary question presented was whether maintaining a "policy that requires teachers to lead willing students in reciting the Pledge of Allegiance" is constitutional.31 Phrasing the question this way highlighted its free-speech as well as its church-state implications, for the Court ruled in 1943 that students cannot, in violation their conscience, be forced to recite the pledge.32 Arguably, teachers are entitled to the same protection.

An unexpected turn in the case came when Justice Antonin Scalia, in response to Newdow's request, recused himself from participating in the Supreme Court's deliberations. At a "Religious Freedom Day" event in January 2003, Scalia had pointed to the Ninth Circuit's decision "as an example of how courts were misinterpreting the Constitution to 'exclude God from the public forums and from political life.'"33 This outspoken criticism of the decision indicated that Scalia's impartiality "might reasonably be questioned," which is grounds for disqualification under the Federal Code of Judicial Conduct and a law that incorporates it.34

When the case was heard on March 24, the justices seemed to be looking for ways to uphold the phrase "under God." Justice David Souter asked Newdow whether in practice the religious affirmation is "so tepid, so diluted ... that in fact, it should be beneath the constitutional radar." Newdow disagreed, explaining: "when I see the flag and I think of pledging allegiance, it's like I'm getting slapped in the face every time, bam, you know, 'this is a nation under God, your religious belief system is wrong.'"34a

The anticlimax came on June 14, when five justices voted to reverse the Ninth Circuit - not on the merits, but on the ground that Newdow, a noncustodial parent, does not have standing to sue on behalf of his daughter. (The girl's mother had filed a brief supporting the use of "under God" in the Pledge.) Three justices - Rehnquist, O'Connor, and Thomas - would have reached the merits and upheld the use of "under God" - though for different reasons. Justice O'Connor called it a permissible example of "ceremonial deism."34b

Decided: June 14, 2004.

Government Secrecy and National Energy Policy: In Re Richard B. Cheney

In January 2001, President Bush established a task force to make recommendations for national policy relating to the oil industry and other energy issues. The so-called National Energy Policy Development Group, or "NEPDG," was officially made up of only government officers, but in reality - at least according to several public interest groups - industry executives and lobbyists who had contributed heavily to the Bush campaign were "de facto" members.

Two of these groups - Judicial Watch and the Sierra Club - filed suit against Vice President Cheney and other officials for violation of the Federal Advisory Committee Act, which requires that committees which include private citizens and which advise the government on policy issues conduct their activities in public.35 They alleged that among the de facto members of the NEPDG who influenced energy policy were Kenneth Lay of Enron Corporation, Marc Racicot, a former lobbyist for Enron, Haley Barbour, a lobbyist for electric utilities, and members of the "Clean Power Group," an industry lobby.36

Cheney moved to dismiss the case, arguing that the NEPDG's only members were government officials, and that any judicial inquiry into their deliberations would violate the constitutionally mandated separation of powers between the executive branch of government and the courts. When the federal court refused to dismiss the case and ordered that Cheney comply with the plaintiffs' requests for discovery (i.e., information necessary to decide the legal issues in the case), Cheney appealed. When the U.S. Court of Appeals also refused to dismiss the suit - relying in large part on a previous case involving Hillary Clinton's health care task force37 - Cheney appealed to the Supreme Court. On December 15, 2003, the Supreme Court accepted the case.

Cheney argued that interpreting the Federal Advisory Committee Act to allow discovery, rather than simply relying on the assertions of executive branch officers that the NEPDG only included government officials, would violate the principle of separation of powers. In essence, as the appeals court found, Cheney refused to abide by the discovery process, where he could "invoke executive or any other privilege" in opposition to specific information requests; instead, he demanded "virtual immunity from suit." But as the Supreme Court said 30 years ago, in a case involving Richard Nixon,

neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.38

In January 2004, the issues in the case became even more complicated when it was revealed that Supreme Court Justice Antonin Scalia had joined Vice President Cheney on a duck-hunting trip, and accepted free rides from Cheney on Air Force Two for himself and his daughter. Scalia refused to recuse himself, insisting that these favors and social bonding would not affect his impartiality in deciding the case.

On June 24, in an opinion by Justice Kennedy, the Court ruled that Cheney had a substantial claim to secrecy based on the doctrine of separation of powers between the executive and judicial branches of government. While the President is not above the law, Kennedy wrote, the judiciary must "'afford Presidential confidentiality the greatest protection consistent with the fair administration of justice,' ... and give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties."38a

The case was sent back to the Court of Appeals to adjudicate Cheney's objections to the discovery order under the Court's more lenient separation-of-powers standard. Justices Ginsberg and Souter dissented, pointing out that Cheney had never asked that the discovery order be narrowed but only that the case be dismissed entirely, without any opportunity for discovery.38b

Although the judicial decisions and briefs in Cheney did not mention the First Amendment, the case is an important one for democracy, and for access to the information needed to make it work. As Judicial Watch pointed out in its brief opposing Supreme Court review,

the proposals developed by the NEPDG currently are moving through Congress, while critical information regarding how those proposals were developed remains secret from the public. This transparent strategy of "running out the clock" should not be tolerated.39

Contrary to Cheney's claims for absolute secrecy, openness is essential to informed debate about government policy, especially where there is reason to fear that the public's interest in clean energy and environmental protection have been subordinated to the corporate interests of the Vice President's friends. As The New York Times editorialized, the case raised "substantial issues about the degree to which a vice president can claim to be above the law."39a Hopefully, the lower courts will keep this in mind as they adjudicate the discovery issue under the Supreme Court's new standard.

Decided: June 24, 2004.

"Adult" Businesses: City of Littleton v. ZJ Gifts

Littleton, Colorado has an ordinance that both requires "adult" businesses to be licensed and restricts the parts of town where they can locate. ZJ Gifts, a book and novelty store, challenged the ordinance on numerous grounds, but only one question was before the Supreme Court: whether a licensing scheme like Littleton's is unconstitutional because it does not guarantee a prompt judicial decision in the event a license is denied. The U.S. Court of Appeals for the Tenth Circuit said that the First Amendment does require this much before a municipality can impose a "prior restraint" - that is, ban constitutionally protected sexual expression by denying a license.

The Court of Appeals decision focused on two Supreme Court cases: Freedman v. Maryland, which invalidated a prior restraint licensing system for movies because it did not provide the kind of "procedural safeguards" that the First Amendment requires; and FW/PBS v. City of Dallas, which modified the procedural requirements of Freedman for purposes of evaluating a licensing scheme for adult entertainment.40 There was no majority opinion in FW/PBS, but Justice Sandra Day O'Connor, writing for three members of the Court, said that even though requiring licenses for adult businesses does not present the kind of censorship dangers that film licensing did in its heyday,41 the First Amendment still mandates that "expeditious judicial review" be available whenever a license is denied.42

The question in ZJ Gifts seemed to boil down to whether "expeditious judicial review" means a judicial decision or simply an opportunity to get to court. The federal courts of appeal have been split on the question. But as the Tenth Circuit pointed out, merely being able to file a lawsuit does not do a bookseller or other adult business any good if the courts have no obligation to hear the suit and make a decision.43

Littleton argued that the Supreme Court has viewed regulation of adult businesses as "content-neutral" because it is, ostensibly, motivated by municipalities' concern with perceived "adverse secondary effects" rather than hostility to the type of expression involved. Accordingly, said Littleton, its ordinance poses no danger of censorship based on distaste for sexual speech.44 The Tenth Circuit responded to this argument as follows:

Although adult-business licensing ordinances are technically considered "content-neutral," ... they are distinguishable from other content-neutral time, place, and manner restrictions insofar as they target "businesses purveying sexually explicit speech." ... A licensing official may have little or no discretion in reviewing an application, but he or she may be tempted nonetheless to overstep the bounds of the ordinance. Adult businesses are controversial, and the possibility exists that licensing officials might allow their personal views on the morality of sexually explicit entertainment to sway a decision on an application. ... The danger that an ordinance like Littleton's may be improperly used as a subterfuge for censorship is too great to overlook the necessity for a prompt judicial determination.45

The Supreme Court, however, did not agree. In a ruling that continued its pattern of lenient scrutiny when "adult zoning" is challenged, the justices held that the First Amendment does require a prompt judicial decision, but that the state's ordinary court procedures are sufficient to protect the store owner's First Amendment rights.46

Decided: June 7, 2004.

The FEPP Supreme Court Page is prepared by Blossom Lefcourt and Marjorie Heins.

ENDNOTES

1. Regan v. Taxation With Representation, 461 U.S. 540, 550 (1983).

2. Finley v. National Endowment for the Arts, 534 U.S. 569, 587 (1998).

3. See Brief of the American Civil Liberties Union et al. as Amicus Curiae, Locke v. Davey, S.Ct. No. 02-1315 (July 17, 2003), p. 18.

4. Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986).

5. After the U.S. Supreme Court decision in Witters, the Washington Supreme Court ruled that the financial aid would nevertheless violate the state constitution: "our state constitution prohibits the taxpayers from being put in the position of paying for the religious instruction of aspirants to the clergy with whose religious views they may disagree." Witters v. Washington Commission for the Blind, 112 Wn.3d 363, 365 (1989).

6. Linda Greenhouse, "Justices Resist Religious Study Using Subsidies," New York Times, Dec. 3, 2003, p. A1.

6a. Locke v. Davey, S.Ct. No. 02-1315 (Feb. 25, 2004), slip opinion at 12.

7. Brief of Amici Curiae Reporters Committee for Freedom of the Press et al.,
S. Ct. No. 02-954 (Aug. 22, 2003), p. 5. Other groups joining this brief in support of Favish are the American Society of Newspaper Editors, Radio-Television News Directors Association, Society of Professional Journalists, Association of Alternative Newsweeklies, National Press Club, Investigative Reporters and Editors, Inc., and National Freedom of Information Coalition. The Silha Center for the Study of Media Ethics and Law. the Association of American Physicians & Surgeons, and the Eagle Forum Education & Legal Defense Fund also filed briefs supporting Favish.

8. 5 U.S.C.§552(b)(7)(c).

9. In arguing that "personal privacy" under 7(c) extends to family members, the government relies heavily on United States Department of State v. Ray, 502 U.S. 164 (1991) in which an FOIA request for Haitian refugees' interview transcripts was denied because the transcripts contained personal information about family members.

10. Brief of Respondents Sheila Foster Anthony and Lisa Foster Moody, Office of Independent Counsel v. Favish, S. Ct. No. 02-954 (July 18, 2003), p. 27; James Hamilton, attorney for the family, at the Supreme Court argument, as quoted in Charles Lane, "Privacy Case Goes Before Justices," Washington Post, Dec. 4, 2003, p. A4.

11. Brief of Amici Curiae Reporters Committee for Freedom of the Press et al.,
p. 28.

11a. National Archives and Records Admin. v. Favish, No. 02-954, slip opinion at 9-10.

12. McConnell v. Federal Election Comm'n, 251 F. Supp.2d 176 (D.D.C. 2003).

13. See Commentary: The Campaign Finance Page: Background, for details on the three-judge court's findings.

14. Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997).

15. Child Online Protection Act, §1403, 47 U.S.Code §231.

16. Child Online Protection Act, §1402(2).

17. United States v. American Library Association, 123 S.Ct. 2297 (2003); see the FEPP commentary, Ignoring the Irrationality of Internet Filters, the Supreme Court Upholds CIPA.

18. Respondent's Brief in Opposition, Ashcroft v. American Civil Liberties Union, S. Ct. No. 03-218 (Sept. 29, 2003), p. 3. Available at http://www.aclu.org/court/court.cfm?ID=13794&c=261.

19. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002); see "Our Children’s Hearts, Minds, and Libidos" - What's at Stake in the COPA Case.

20. American Civil Liberties Union, et. al v. Ashcroft, 322 F.3d 240 (3d Cir. 2003).

20a. Ashcroft v. American Civil Liberties Union, S. Ct. No. 03-218, slip opinion at 9, 15 (June 29, 2004).

20b. Id., Justices Stevens and Ginsburg, concurring, slip opinion at 2-3 (quoting Smith v. United States, 431 U.S. 291, 316 (1977) (Stevens, J., concurring).

21. Lawrence Lessig, "What Things Regulate Speech," 38 Jurimetrics 629 (1998).

22. John Baer, "The Pledge of Allegiance: A Short History" (1992), http://history.vineyard.net//pledge.htm (condensed from John Baer, The Pledge of Allegiance, A Centennial History, 1892 - 1992 (Annapolis, MD: Free State Press, 1992)).

23. Ibid.

24. 36 U.S. Code §1972, now codified at 4 U.S. Code §4.

25. 100 Congressional Record 8618 (June 22, 1954); see Linda Greenhouse, "Atheist Presents Case for Taking God From Pledge," New York Times, Mar. 25, 2004), p. A22.

26. Baer, "The Pledge of Allegiance: A Short History" (1992), http://history.vineyard.net//pledge.htm.

27. California Education Code §52720.

28. Lee v Weisman, 505 U.S. 577 (1992) (religious invocations at a public school graduation ceremony); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) (prayer before high school football games).

29. Newdow v U.S. Congress, et al., 292 F.3d 597, 611 (9th Cir. 2002).

30. Brief of Defendant United States, Newdow v. U.S. Congress, et al., 292 F.3d 597 (9th Cir., 2002), pp. 11-12; Reply Brief for the United States, United States of America v. Newdow, S.Ct. No. 02-1574 (July 2003), p. 4; Petition for Writ of Certiorari by Elk Grove Unified School District and David Gordon, Elk Grove Unified School District v. Newdow, S.Ct. No. 02-1624 (May 1, 2003), p. 15.

31. Grant of Certiorari, Elk Grove Unified School District v. Newdow, S.Ct. No. 02-1624 (Oct. 14, 2003). The Court also agreed to decide whether Newdow has standing to represent his daughter's interests, since he is a noncustodial parent.

32. West Virginia State Board of Education vs. Barnette, 319 U.S. 624 (1943).

33. Linda Greenhouse, "Supreme Court to Hear Case on Pledge of Allegiance," New York Times, Oct. 15, 2003, p. A14.

34. 28 U.S. Code §455 (requiring judges to disqualify themselves from proceedings in which their "impartiality might reasonably be questioned").

34a. Excerpts From Arguments on the Meaning of 'Under God' in the Pledge of Allegiance, New York Times, Mar. 25, 1004, p. A22.

34b. Elk Grove United School District v. Newdow, No. 02-1624 (June 14, 2004); concurring opinion of Justice O'Connor, slip opinion, p. 5.

35. 5 U.S. Code App. 1.

36. Second Amended Complaint, Judicial Watch, Inc. v. National Energy Policy Development Group et al., Civil Action No. 01-1530 (EGS) (D.D.C. May 28, 2002).

37. In re: Cheney, 334 F.3d 1096 (D.C.Cir. 2003). The health care task force case was Association of Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C.Cir. 1993).

38. In re: Cheney, 334 F.3d at 1104-05, quoting United States v. Nixon, 418 U.S. 683, 707, 715 (1974). The trial judge, in a long opinion rejecting Cheney's arguments, sharply criticized the government's attorneys for trying to mislead the court by arguing for a constitutional standard on executive immunity "that did not reflect controlling law." The judge called the government's position "a problematic and unprecedented assertion, even in the face of contrary precedent, of Executive power." Judicial Watch, Inc. v. National Energy Policy Development Group, 219 F. Supp.2d 20, 26, 71-72 (D.D.C. 2002).

38a. Cheney v. U.S. District Court, No. 03-475, slip opinion, p. 17, quoting in part United States v. Nixon, 418 U.S. at 715.

38b. Id., dissenting opinion of Justices Ginsburg and Souter.

39. Brief in Opposition of Respondent Judicial Watch, In re Richard B. Cheney, S.Ct. No. 03-475 (Oct. 2003), p.5.

39a. "Mr. Cheney's Day in Court," New York Times, Apr. 27, 2004, p. A24.

40. Freedman v. Maryland, 380 U.S. 51 (1965); FW/PBS v. City of Dallas, 493 U.S. 215 (1990).

41. For background on the history of film licensing, see Marjorie Heins, The Miracle: Film Censorship and the Entanglement of Church and State, www.fepproject.org/commentaries/themiracle.html.

42. FW/PBS v. City of Dallas, 493 U.S. at 227-29.

43. ZJ Gifts D-4, LLC v. City of Littleton, 311 F.3d 1220, 1236 (10th Cir. 2002). Although Justice O'Connor's language in FW/PBS was ambiguous ("judicial review"), three other justices in the FW/PBS case specified that "a prompt judicial determination must be available." 493 U.S. at 239 (concurring opinion of Justice Brennan).

44. Brief of Petitioner, City of Littleton v. ZJ Gifts D-4, S.Ct. No. 02-1609 (2003). For more on the concept of "adverse secondary effects," see the Fact Sheet on Sex and Censorship, www.fepproject.org/factsheets/sexandcensorship.html.

45. ZJ Gifts v. City of Littleton, 311 F.3d at 1238.

46. City of Littleton v. ZJ Gifts, No. 02-1609 (June 7, 2004).