Issue 101, Spring 2006

The First Amendment, In Congress and the Courts

In Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), the Supreme Court upheld the 1996 Solomon Amendment, which requires universities receiving federal funding to allow military recruitment on campus. FAIR claimed that the military’s “don’t ask, don’t tell” policy on sexual orientation, which conflicts with the American Association of Law Schools’ policy against discrimination, constituted compelled speech. Writing for the court, Chief Justice John G. Roberts Jr. rejected the claim, since “students and faculty are free to voice disapproval of the military’s message.”

Ending a 20 year legal battle, the Court in Scheidler v. NOW rejected the argument that federal anti-racketeering and extortion laws apply to anti-abortion protests. Concerns about the potential impact on other kinds of protest activities caused some pro-choice and labor activists to oppose application of racketeering laws in this situation. In its 8 – 0 decision, the Court noted that, although the racketeering law did not apply, the plaintiffs could seek remedies for unlawful conduct under the 1994 Freedom of Access to Clinic Entrances Act.

In Garcetti v. Ceballos, the Court is considering the limits on government employees’ free speech rights. Ceballos, an assistant district attorney in Los Angeles, claims he was demoted for revealing police misconduct to a defendant’s lawyer, after the DA’s office declined to act on his complaint. The Court must decide whether this was an internal personnel matter or protected speech.

The Supreme Court recently heard arguments in Randall v. Sorrell, a case claiming that Vermont’s campaign finance law, one of the most restrictive in the nation, violates candidates’ free speech rights. Thirty years ago, in Buckley v. Valeo, the Court held that limits on individual contributions are permissible, but not limits on candidates’ expenditures, a distinction that has been the subject of controversy ever since. In 2003, the Court upheld additional restrictions on campaign contributions. Randall offers an opportunity for the Court to reconsider whether the First Amendment bars more aggressive regulations, including limits on candidates’ spending.

Another discussion of campaign finance with implications for free speech took place this March. House Resolution 1606 would have amended the Federal Election Campaign Act to exclude certain online activities from the official definition of “public communication.” The bill stalled, but the FEC adopted rules to regulate paid advertising online, while putting in place broad exemptions for bloggers engaging in political commentary.

In recent hearings, members of Congress excoriated U.S. companies complicit in Chinese internet censorship, including Cisco,?Microsoft, Yahoo, and Google. Meanwhile, the House is considering an industry-supported telecommunications bill that some say would threaten the principle of network neutrality (also known as "the internet’s First Amendment"). An opposition campaign, aiming to preserve free speech online, is just gaining momentum: for details and a call to action, visit