Recent Supreme Court Rulings in First Amendment Cases

Last week the Court declined to review the Third Circuit’s most recent opinion finding the Child Online Protection Act (COPA) unconstitutional.  The denial of review in  Mukasey v. American Civil Liberties Union, et al. effectively marks the demise of the statute which has made  its way up and down in the federal courts for years.  COPA’s provisions, which criminalized web transmissions that were "harmful to minors" and that were made for commercial purposes , were found unconstitutional  by the Third Circuit in July because they were not narrowly tailored to advance the government's compelling interest, failed to reflect available less speech restrictive mechanisms to protect children from the targeted web content, and were overbroad and vague. The Third Circuit opinion in American Civil Liberties Union v. Mukasey appears at 534 F.3d 181 (3d. Cir. 2008).      

Last week the Court also issued an opinion in Locke v. Karass.  The Court rejected the claim of a group of Maine state employees who were not members of the local union and who asserted that their First Amendment rights were violated when they were required, under the operative collective bargaining agreement, to pay the local a service fee that was applied in part to national litigation expenses, expenses which the non-member employees contended did not directly benefit employees represented by the local. The First Amendment Center provides a summary of the ruling and its relationship to the Court’s prior First Amendment rulings on the uses of fees collected from non-member employees. 

Tuesday the Court denied cert in Schubert v. Pleasant Glade Assembly of God which sought review  of whether the Free Exercise Clause would  bar imposing tort  damages for injuries alleged to have been caused by  an exorcism.  In December the Court had also declined to review Curry v. Hensinger in which the Sixth Circuit had rejected an elementary school student’s claim that hostility to his religious viewpoint prompted the  school principal’s refusal to allow the boy to attach religious message to candy canes ornaments to be sold as part of a “Classroom City” project.

Today the Court announced that it has set oral argument in Citizens United v. Federal Election Commission (08-205) for  March 24. In Citizens United, the makers of Hillary-The Movie present a First  Amendment challenge to the application of McCain-Feingold’s restrictions on campaign advertising to the movie’s broadcast when the makers assert it is a documentary film, albeit one with a clear anti-Clinton message.  The Scotusblog case wiki and the First Amendment Center provide more background on the case.

JFB