Issue 109, Winter 2008/2009

The Supreme Court has a full docket of First Amendment cases. Some of them are confusing even to the Justices.

In Ysura v. Pocotatello Education Association the union challenges Idaho’s prohibition on payroll deduction for voluntary political activity. The lower court held that the law is an unconstitutional “content-based” rule because it targets political speech and refused to apply the deferential standard used in “public forum” cases. In oral argument, Justice Breyer stated that he “never understood” the concept of “content-based” speech restrictions, and Chief Justice Roberts, also in “a confessional mode,” announced that he had “never understood forum analysis.” Amidst the confusion there is an important question: if the state creates a mechanism to facilitate employees’ voluntary contributions for various activities, can it exclude political activities?

In Pleasant Grove City v. Summum a small religious sect argues that it has a free speech right to erect a monument declaring its precepts in a public park because the park already has a monument containing the Ten Commandments. Like the Idaho case, this case raises questions as to what constitutes a “public forum” and whether religious speech restrictions are “content-based.”

FCC v. Fox Television Stations involves a challenge to the FCC’s 2004 “fleeting expletive” rule which imposed huge fines for unscripted, spontaneous, and isolated profanity on broadcast television. There has not been a direct free speech challenge to the FCC’s “decency standard” since it was upheld in 1978. (See CN #103 and #105 for more on this case.) Waiting in the wings is another challenge to the “decency” rule, this one involving Janet Jackson’s famous “wardrobe malfunction.”

In Wyeth v. Levine the free speech issues are buried in the legal technicalities of federal pre-emption law. Diana Levine went into the hospital with a migraine and ended up losing her arm because a risky method was used to inject a drug made by Wyeth. Wyeth was aware of the risk but didn’t disclose it on the warning label. Because the FDA had approved the label, Wyeth claims Levine’s state law case should be barred (pre-empted). Such lawsuits often provide a critical source of information about drug-related risks. In an amicus brief, NCAC argues that pre-emption does not apply, because Wyeth had a First Amendment right to issue truthful warnings about drug risks beyond those required by the FDA. Thus Wyeth could comply with both FDA labeling requirements and state personal injury law.

The Court recently agreed to hear Citizens United v. FEC which concerns preelection restrictions on broadcast advertisements addressing political issues. The case involves ads for “Hillary: The Movie.” The question: are these ads “electioneering communications” subject to regulation under campaign finance laws, or are the ads political speech that is fully protected from government regulation?

The dominance of technical legal questions in the cases before the Court reflects the complexity of the law in this area and the finely drawn distinctions on which free speech cases often rise or fall. We’ll do our best to elucidate in future issues.