Supreme Court Review

Charles F. Williams and Catherine Hawke

f the three branches of government, the Supreme Court usually receives the The topics before the Court were least national attention. Not so this year. In addition to another changing of engaging and varied. From McDonald Othe guard with the retirement of Justice Stevens and the nomination of Elena v. Chicago (successfully challenging a Kagan, the 2009-2010 term generated a great deal of controversy. And in a number of Chicago gun ban) to the reargument and instances, the public’s keen interest in significant cases before the Court was further decision in Citizens United v. Federal piqued in less anticipated cases by decisions that will have wide-reaching impact on Election Commission (which became a average citizens. hotter-than-hot-button issue when the president scolded the justices during his State of the Union Address), the Court occupied center stage in our national discussions and debates.1 While many suspected Justice Sotomayor would bring a more conser- vative vote to criminal justice matters than Justice Stevens had, Dean Erwin Chemerensky of the University of California, Irvine, School of Law, has noted that she turned out to be a generally consistent liberal vote in this area as well.2 And while the Court generally maintained its traditional 5-4 conserva- tive alignment, a number of defendants also prevailed in their cases. In addition to Citizens United, three other important cases were decided under the First Amendment’s framework: Doe v. Reed, Christian Legal Society v. Martinez, and United States v. Stevens.3 And in a year wracked by recession and a miserable job market, labor and employ- ment cases loomed larger than usual.

Gun Control Redux One case that earned great attention from the very start because it dealt with Margie M. Phelps, left, her husband Pastor Fred Phelps and daughter Margie J. Phelps, of the politically charged issues was this term’s Westboro Baptist Church in Kansas, are pictured here demonstrating in Baltimore, in 2007. A jury gun control case, McDonald v. City of was deliberating in a suit brought against them by Albert Snyder, the father of Lance CPL Matthew 4 A. Snyder, for picketing his son’s funeral in 2006. The first amendment case goes before the Chicago. In this case, a gun-shop owner Supreme Court in the 2010-2011 term. and some Chicago residents challenged a local ordinance that forbade most of (AP Photo/Baltimore Sun, Jed Kirschbaum/Baltimore Examiner and Washington Examiner Out) the city’s residents from possessing a handgun.

October 2010 243 McDonald was the follow-up to a case for a juvenile as he or she would generally eral laws prohibiting or limiting corpo- two years ago, District of Columbia v. serve more years and a greater percentage rations and unions from spending on Heller, in which the Supreme Court held of his or her life in prison than an adult political campaigns in the weeks leading that a Washington, D.C., ordinance that offender given the same sentence. Thus, a up to an election. As we described last forbade most residents from keeping a 16-year-old and a 75-year-old each sen- issue, the Court eventually reasoned handgun in their homes for self-defense tenced to life without parole receive the that such prohibitions amounted to an violated the Second Amendment right to same punishment in name only. And, as unconstitutional ban on speech.8 bear arms.5 Because Washington, D.C., in Roper, the Court noted the differences Although the Citizens United deci- is not a state, it remained to be seen between adults and juveniles regarding sion garnered much initial criticism, whether the Court would apply the same the possibility of rehabilitation. The including from President Obama, it’s reasoning to the gun control laws in all Court also observed that many other likely that the full impact won’t be seen 50 states. countries would not permit a sentence for years to come. In the near term, how- The Court’s answer in McDonald was of life without parole for a crime com- ever, the biggest test of the new campaign “yes, it would.” According to the majority, mitted before adulthood. rules will be how much money flows the Fourteenth Amendment makes the Chief Justice Roberts agreed that the this fall from corporations and unions, Second Amendment right to keep and life without parole sentence was unconsti- particularly those affected by recent bear arms fully applicable to the states tutional in this case, although he was not federal reforms such as health care and and local governments, because it is a prepared to say that such sentences are financial regulations. fundamental right that is deeply rooted always unconstitutional. Only Justices Meanwhile, another First Amendment in our nation’s history and tradition and Thomas, Scalia, and Alito dissented. case, Christian Legal Society v. Martinez, because it is necessary to the nation’s sys- asked whether a public law school could tem of liberty. First Amendment refuse to give official recognition to a So what does this mean for your state State laws in Washington can be over- religious student organization on the and community? While the Court’s rul- turned by referendum, but to seek a grounds that the student group required ing is still being assessed, it is likely that referendum, a petition must first be its officers and voting members to share to survive constitutional scrutiny, any signed by at least 4 percent of state vot- its religious commitments. The school, state or local gun regulation will need ers. These signers and their addresses the Hastings College of the Law in San to be tightly written and be “tailored” can then be disclosed and published Francisco, had a written policy that to meet specific goals other than just under another law. It was this disclosure required all student groups seeking the broad goal of limiting the number law that was challenged in Doe v. Reed the status of being an officially recog- of handguns within city limits. The city on the grounds that it violates petition nized student organization to refrain of Chicago has already enacted a new signers’ First Amendment speech, asso- from discriminating in accepting voting law to replace the one rejected by the ciation and privacy rights. members and choosing officers “on the Court. Whether this one will pass the The Supreme Court determined that basis of [among other things] religion expected constitutional challenge is a such disclosures do not, as a general [and] sexual orientation.” battle for another day. manner, violate the First Amendment if The Christian Legal Society (CLS) the government has a particularly strong challenged this policy on the grounds Juvenile Justice interest to justify them. In this case, the that it had a First Amendment right to Five years ago, in Roper v. Simmons, the Court held that the state’s interest in receive official recognition and support Court held that it was cruel and unusual ensuring the integrity of the referendum despite excluding non-Christians and punishment to impose the death penalty process by combating fraud and catching practicing gays. The Supreme Court for a crime committed by a juvenile.6 But simple mistakes justified the disclosure ruled against them 5–4, with Justice what about a life sentence without pos- rules. So what does this mean in your Kennedy joining the more “liberal” wing sibility of parole? This term, in Graham community? Depending on your state, of the Court. Justice Ginsburg’s majority v. Florida, the Court held that this too, is if you sign a political petition or other opinion accepted the school’s descrip- cruel and unusual punishment barred by similar political document, there is a tion of its policy as simply requiring the Eighth Amendment when imposed chance that your support of that politi- officially recognized student groups for a non-homicide crime.7 Swing voter cal view could be made public, and in to accept “all comers” and “allow any Justice Kennedy joined the liberal wing some cases, published in the media. student to participate, become a mem- (which included Justice Sotomayor) and Citizens United v. Federal Elections ber, or seek leadership positions in the wrote the majority opinion. Commission had two distinct litigation organization, regardless of status or The majority reasoned that life without phases before the Court, but at its heart beliefs.” 9 parole is an especially harsh punishment lay a First Amendment challenge to fed-

Social Education 244 Compliance with Hastings’s all- of the statute, the government argued policy indicating that use of city-owned comers policy, we conclude, is that depictions of illegal acts of animal technology for personal business was a reasonable, viewpoint-neutral cruelty that are made for commercial gain prohibited, but that incidental or occa- condition on access to the student- necessarily “lack expressive value,” and sional personal use was permitted. This organization forum. In requiring may accordingly “be regulated as unpro- policy did not explicitly refer to pagers, CLS—in common with all other tected speech.”14 but some officers were told that the pagers student organizations—to choose The Supreme Court agreed, holding were covered by the policy. between welcoming all students that its previous decisions: After a couple of months during which and forgoing the benefits of official Quon and some other officers exceeded recognition, we hold, Hastings did cannot be taken as establishing a their monthly allowance of pager min- not transgress constitutional limita- freewheeling authority to declare utes, the city undertook a review of the tions. CLS, it bears emphasis, seeks new categories of speech outside accounts to determine whether police not parity with other organiza- the scope of the First Amendment. work required a greater monthly allow- tions, but a preferential exemption Maybe there are some categories of ance. During the review, the city learned from Hastings’s policy. The First speech that have been historically that the majority of the messages sent and Amendment shields CLS against unprotected, but have not yet been received by Quon were not work-related, state prohibition of the organiza- specifically identified or discussed and that a number were sexually explicit. tion’s expressive activity, however as such in our case law. But if so, Quon and those with whom he exchanged exclusionary that activity may be. there is no evidence that “depic- messages sued on the basis that the review But CLS enjoys no constitutional tions of animal cruelty” is among violated their privacy rights. right to state subvention of its selec- them.15 According to the Court, such a search tivity.10 was reasonable given that it was moti- Writing for the majority, Chief Justice vated by a legitimate work-related pur- Dog Fighting Roberts then applied traditional First pose and not excessive in scope. However, In the swath of other high-profile cases, Amendment analysis, striking the statute the Court refused to spell out specifically the Court voted 8–1 in United States v. on the grounds that it was “substantially whether, and to what degree, employees Stevens to overturn, on First Amendment overbroad.” That is, the majority found should have a reasonable expectation grounds, a federal law that criminalized that a substantial number of the law’s of privacy when using work-provided the commercial creation, sale, or pos- possible applications in other situations, technologies. This means that if you use session of certain depictions of animal including those that involve, for example, company email, or a company phone or cruelty, including dog fighting.11 The hunting videos, would be unconstitu- other gadget, you should think twice statute, 18 U.S.C. § 48, applied to any tional. before sending a message you wouldn’t visual or auditory depiction “in which Justice Alito filed the lone dissent, want your boss to see. a living animal is intentionally maimed, writing, “The Court strikes down mutilated, tortured, wounded, or killed,” in its entirety a valuable statue, that The 2010–2011 Term if that underlying conduct violated fed- was enacted not to suppress speech, The new term that just opened October 4 eral or state law where “the creation, sale, but to prevent horrific acts of animal looks to be as busy, and possibly as contro- or possession takes place.”12 Another cruelty.” 16 versial, as last year’s. The opening session clause exempts depictions with “seri- included 12 cases set for argument, with ous religious, political, scientific, educa- Workplace Privacy a full list of others cases yet to be sched- tional, journalistic, historical, or artistic Another case received less media atten- uled for the November and December value.”13 Thus, this particular law did not tion, but likely has more implications for sessions. Among the cases to watch are address the actual acts that harmed ani- your day-to-day life. In City of Ontario Chamber of Commerce v. Candelaria17 mals (many of those are rendered illegal v. Quon, the Court held that government (challenging a state statute imposing by other laws), but only the portrayals— employees do not have a reasonable punishments on employers for hiring videos, for example—of such conduct. expectation of privacy when using a work- illegal immigrants), Schwarzenegger v. The defendant in this case, Robert J. issued pager. But its opinion grappled Entertainment Merchants Association18 Stevens, ran a business through which with larger questions involving technol- (looking at whether the First Amendment he sold videos of pit bulls engaging in ogy, privacy, and workplace relations. bars a state from restricting the sale of dogfights and attacking other animals. Here, the city of Ontario, California’s violent video games to minors), and When he was indicted under § 48, he police force issued pagers to members Brueswitz v. Wyeth19 (evaluating the right argued that the law was unconstitutional of its SWAT team, including Jeff Quon. to sue under the National Childhood under the First Amendment. In defense The city had in place a written technology Vaccine Injury Act for claims that a vac-

October 2010 245 cine is defective even if the side effects their privacy and intentionally inflected 2. Erwin Chemerinsky, “The Criminal Docket in were unavoidable). emotional distress. Phelps and his sup- October Term 2009,” 37 Preview 339 (August 13, 2010). A case of particular interest for porters responded that their speech was 3. Doe v. Reed, No. 09–559 (June 24, 2010); Christian First Amendment watchers is Snyder v. protected under the First Amendment. Legal Society v. Martinez, No. 08–1371 (June 28, 20 2010); United States v. Stevens, No. 08–769 (April Phelps. Snyder involves the extraor- One way of looking at the case is to say 20, 2010). dinarily controversial act of picketing the Supreme Court is now being asked 4. McDonald v. Chicago, No. 08–1521 (June 28, funerals of U.S. soldiers. The Westboro to determine whether Phelps’s First 2010) 5. District of Columbia v. Heller, No. 07–290 (June 26, Baptist Church in Topeka, Kansas, under Amendment’s freedom of speech trumps 2008) the leadership of Fred W. Phelps, travels the Snyder family’s First Amendment 6. Roper v. Simmons, 542 U.S. 551 (2005) around the country to conduct protests freedoms of religion and peaceful assem- 7. Graham v. Florida, 130 S.Ct. 2011 (2010) during the funerals of U.S. soldiers. bly. Of course, the case is unlikely to be 8. Charles F. Williams, “The New World of Campaign Finance,” Social Education 74, no. 4 (2010): 171– According to Phelps and his followers, resolved by such a cut and dry ruling. 175 . the soldiers’ deaths are God’s response And, as always, this term will have a 9. Christian Legal Society v. Martinez, Ibid., 4. to the nation’s tolerance of homosexu- number of seemingly smaller cases that 10. Ibid., 2. ality. The church protested outside the may end up having unexpected impli- 11. United States v. Stevens, No. 08–769 (April 20, 2010). funeral of Albert Snyder’s son, Marine cations for all of us. The new Supreme 12. 18 § 48(c)(1) Lance Cpl. Matthew Snyder, who was Court term is still unwritten and the 13. 18 § 48(b) killed while serving in Iraq. Signs dis- justices may, and probably will, sur- 14. Brief for United States at page 10, available online at www.abanet.org/publiced/preview/briefs/pdfs/07- played during Matthew Snyder’s funeral prise us. 08/08-769_Petitioner.pdf. included “Thank God for Dead Soldiers” 15. United States v. Stevens, Ibid., 9. and “You’re Going to Hell.” Notes 16. United States v. Stevens, Ibid., Alito dissent page 1. Snyder and his family attempted to sue 1. McDonald v. Chicago, No. 08–1521 (June 28, 2010); 17. Chamber of Commerce v. Candelaria, No. 09-115 Citizens United v. Federal Election Commission, No. 18. Schwarzenegger v. Entertainment Merchants Phelps and the church after the funeral, 08–205 (Decided January 21, 2010). Association, No. 08-1448. claiming that the protests had invaded 19. Brueswitz v. Wyeth, No. 09-152. 20. Snyder v. Phelp, No. 09-751.

Charles F. Williams is associate director of the ABA Division for Public Education. Catherine Hawke is editor of Preview of United States Supreme Court Cases, a publication of the Divi- sion for Public Education.

www.abanet.org/publiced For more resources on teaching with trials, please see the “Teachers and Students” portion of our website.

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