The Supreme Court and Freedom of Expression, 2008-2009

Paul Siegel University of Hartford

The 2008-2009 Term was not brimming with cases related to the Yearbook's subject matter. Indeed, the two most andcipated First Amendment cases resulted in a non-decision and a decision that purposely postponed the constitutional issues. In the first, couri watchers were a bit surprised when the jusdces requested a second round of briefs and arguments' in a case that asked if a 90-minute film highly critical of Hillary Clinton's campaign for the presidency (die film was produced at a dme when most pundits assumed she would win the Democratic nominadon) was just an unusually long political advertisement, thus subject to the panoply of federal election campaign laws goveming funding and public disclosure of donors. Whereas in the first round litigants addressed die matter of how the film should be treated under current law, the justices asked explicidy that both sides now address whether the case should be the vehicle for overiurning at least a couple of Supreme Court precedents. The case was re-argued in September, 2009, several weeks before the Court's traditional opening session. The second case, with which we will begin our more elaborate review momentarily, found the FCC defending itself against the charge that its sancdoning of FOX Television for on-air epithets uttered by Cher and Nicole Richie may have exceeded its authority. But the Court mied only on a narrower statutory question, leaving the First Amendment issues to another day. Rounding out the relevant cases from the 2008-2009 Term are two decisions involving associational interests related to government employees' payroll deductions going to labor unions' lidgadon (in Maine) and political (in an Iowa case) expenses, and an Establishment Clause case from Utah over the display on public land of a monument to the Ten Commandments. We begin with die Fox Television case. Broadcast Indecency FCC V. FOX Television Stations' The FCC di(d not act arbitrarily when it interpreted its rules so as to prohibit even "fleeting" and "isolated" incidents of indecent language. During the 2002 Billboard Music Awards, Cher offered a simple "f__k 'em" to critics who suggested she was "on my way out" for the past 40 years. And at the 2003 ceremony, Nicole Richie, making reference to her appearance with Paris Hilton on die TV series, "The Simple Life," whimsically asked die audience, "Why do they even call it 'The Simple Life?' Have you ever tried to get cow s t out of a Prada purse? It's not so f king simple."' The Federal Communications Commission determined that these two incidents (and many others it investigated at about the same dme) constituted broadcast indecency. The Second Circuit Court of Appeals overturned die FCC. The court implied that die commissioners had mn afoul of die First Amendment, but focused instead on the requirements of the Administradve Procedure Act that federal agencies give those enddes they oversee adequate notice of their rules. The Act tells agencies their 139

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acfions must not be arbitrary or capricious, and that agencies must "examine the relevant data and articulate a safisfactory explanation" for their acfions. Especially when agencies change course or alter policies, they must give adequate notice, the appellate court held. Wrifing for the appellate panel. Judge Pooler found that the FCC had for many years at least implied that "fleeting" or "isolated" incidents of explefives would not result in sancfions against broadcast licensees." Such incidents are very different, the court suggested, from the kinds of repeated use of scores of various forms of explefives that characterized George Carlin's famous "Filthy Words" monologue that produced the landmark Pacifica decision.' Wrifing for a 5-4 majority (and for one section of his opinion, only a 4-judge plurality). Justice Scalia rejects the nofion that the FCC had given broadcast licensees inadequate nofice of or justificafion for its move in recent years (as in when it sancfioned NBC for Bono's joyful exclamafion upon receiving a Golden Globe Award that "this is f king brilliant!") toward counfing even isolated or fleeting explefives as violations of its broadcast indecency mies. At most, the overall pattern of FCC decisions in recent years would have broadcasters safe to assume that an explefive's being uttered only once would be one factor in the licensee's favor among many factors to be weighed by the Commission. Justice Thomas' concurring opinion suggests that if and when the case comes back to the Court on First Amendment rather than procedural grounds, he likely would vote to strike down the FCC's actions, in that he believes that broadcasters should not be treated differenfiy from print publishers. Justice Kennedy's separate concurrence emphasizes his belief that administrative agencies should, in general, give clear indications when and why they are changing direcfion (but then expresses agreement with the majority that the Commission had done so in this case). Justice Stevens' dissent argues that the Commission had not given adequate backing for its new stance forbidding even fleeting and isolated expletives, and that the Supreme Court's Pacifica decision had never held that such a policy would be consistent with the First Amendment. Justice Ginsburg's dissent emphasizes First Amendment principles, finding that when explefives are "spontaneous utterances used simply to convey an emofion or intensify a statement," they should be protected, even on broadcast TV and radio. Justice Breyer provides the main dissent, joined by Stevens, Souter and Ginsburg. In it he holds administrafive agencies to a high standard when they change their own rules of oversight: To explain a change requires more than setting forth reasons why the new policy is a good one. It also requires the agency to answer the question, "Why did you change?" And a rational answer to this question typically requires a more complete explanation than would prove satisfactory were change itself not at issue. An (imaginary) administrator explaining why he chose a policy that requires driving on the right-side, rather than the left-side, of the road might say, "Well, one side seemed as good as the other, so Ifiipped a coin." But even assuming the rationality of that explanation for an initial choice, that explanation is not at all rational if offered to explain why the administrator changed driving practice, from right-side to lefi-side, 25 years later.'' MAJORITY (Plurality): CONCURRING: DISSENTING: Scalia, Roberts, Thomas, Alito, Kennedy (in part) Thomas; Kennedy (in part) Stevens; Ginsburg; Breyer (with Stevens, Souter and Ginsburg)

The Supreme Court and Freedom of Expression, 2008-2009 Freedom of Association Locke V. Karass'

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A portion of a "service fee" charged to non-union members to employees who benefit from the local union's activities may be paid as affiliate dues to the union's national organization in support of litigation that is itself consistent with the tangible benefits (e,g,, collective bargaining issues, but not explicitly political issues) accruing to non-member employees. State employees in Maine who choose not to affiliate with their local union may nonetheless be charged a "service fee" (approximately half of the union members' fee) designed to reimburse the union for collective bargaining expenses that benefit all employees. Several U.S. Supreme Court decisions in the past thirty-plus years have established the general consfitutionality of such a practice, despite arguments sometimes raised by non-members that they are thus being forced to "associate" with the union (or even forced to "speak" through the union's activities). Writing for a unanimous Couri, Justice Breyer admits that some of those precedents have been equivocal in their attempt to fine-tune the general principle to apply to each case's unique facts. There thus has been a confiict among lower courts on the narrow question posed in the dispute from Mainewhat rules should govern the constitutionality of factual situations in which a portion of non-member local union "service fees" will flow to the national union to aid in litigation conducted at the national level (or whereby the national union reimburses other local union affiliates for their extraordinary litigation expenses). A proper reading of the Court's relevant precedents, Breyer concludes, makes clear that the local union cannot charge the nonmember for certain activities, such as political or ideological activities (with which the nonmembers may disagree). But. . . the local can charge nonmembers for activities more directly related to collective bargaining. In such instances . . . the First Amendment burdens accompanying the payment requirement are justified by the government's interest in preventing freeriding by nonmembers who benefit from the union's collectivebargaining activities and in maintaining peaceful labor relations.^ Justice Alito, joined by Chief Justice Roberts and Justice Scalia, wrote a short concurring opinion. In it he points to the fact that the litigants here all agreed that the national union at issue in this case did indeed provide true "reciprocity;" that is, just as this particular local union was being assessed dues to support litigation activities of other unions, so too would the litigants' home union here be eligible to receive funds from other locals, funneled through the national, in support of its own litigation expenses. Thus, Justice Alito and the others remind us, the Court has not yet had to set forth what would happen in a grayer dispute, in which litigants could not agree as to whether the national union's dues sharing scheme was truly reciprocal. MAJORITY: CONCURRING: Breyer (unanimous) Alioto (with Roberts and Scalia) Ysura v. Pocatello Education Association"" The First Amendment does not require that a state law permitting state employees to have union dues deducted directly from their pay checks must also permit employees to have such deductions sent to a union's Political Action Committee. Idaho has had a "Right to Work" law on the books since the 1980s. In 2003, however, the legislature amended the law (which had permitted state employees who opted to have union dues deducted from their paychecks to earmark those deductions either for the union's general fund or for its more explicitly political activities) so as to preclude the deducted wages from going to unions' or other recipients'

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polidcal acdvities. Polidcal activides were defined in the amendment to include "electoral activides, independent expenditures, or expenditures made to any candidate, polidcal pariy, polidcal acdon committee or political issues committee or in suppori of or against any ballot measure."'" When the amendments were challenged by (among others) a teachers' union, a federal district court upheld them as applied to employees at the state level, but struck them down as applied to private employees and public employees working at the local level. The state's interest, the couri found, was to avoid compelling the state to spend its own resources to facilitate any specific kind of payroll deducdon system for its own employees. The state appealed only that pordon of the lower court ruling affecting government employees at the local level. The appellate court affirmed the lower court ruling. Wridng for a 5 (and, in part, 6) justice majority. Chief Jusdce Roberts reversed the appellate opinion, finding the ban consdtudonal as applied to public employees both at the state and local levels. The majority begins with the principle that, although the First Amendment sometimes requires government to "accommodate" speech, it does not generally require the state "to assist others in the funding" of expression. As applied to the case before it, Roberts added, "Idaho is under no obligation to aid the unions in their political activides. And the State's decision not to do so is not an abridgment of the unions' speech; diey are free to engage in such speech as they see fit. They simply are barred from enlisting the State in support of that endeavor." The state has a clear interest in "avoiding the reality or appearance of government favoritism or entanglement with partisan politics," wrote Roberts. While that might be sufficient to uphold the ban on earmarked deductions for state-level employees, the union argued, the issues are different as applied to public employees at the local level. With respect to them, the argument went, "the State is no longer declining to facilitate speech through its own payroll system, but is obstrucdng speech in the local governments' payroll systems." Chief Justice Roberts found the argument unpersuasive: Political subdivisions of Statescounties, cities, or whatevernever were and never have been considered as sovereign entities. . . They are instead subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions... The State's legislative action is of course subject to First Amendment and other constitutional scrutiny whether that action is applicable at the state level, the local level, both, or some subpart of either. But we are aware of no case suggesting that a different analysis applies under the First Amendment depending on the level of govemment affected, and the unions have cited none. The ban on political payroll deductions furthers Idaho's interest in separating the operation of government from partisan politics. That interest extends to all public employers at whatever level of government." Justice Ginsburg offers a short, partial concurrence, mosdy offering allegiance to the view that state and local government employees need not be treated differently under the First Amendment. Justice Breyer's more extended opinion, concurring in part and dissendng in part, suggests that the legisladve amendments at issue here can plausibly be seen as an abridgment of speech. It would be different had a union demanded a payroll deducdon system be created in the first place. Then it would be inarguable that the request would be for the government to facilitate the union's polidcal speech. But here Idaho already had such a system in place, and its amendments to the Right to Work Law did, compared to the status quo, seem to "abridge" polidcal speech. Breyer concludes the case should be remanded to the lower court, in part because he feels a heightened level of scrutiny should have been applied to the law, but also because he wished to see further fact-finding as to the law's scope. Would it apply to payroll deducdons for any political purpose, or only to union-related political purposes? Justice Stevens' dissent indicates he felt he already had enough of a factual record before him to conclude that Idaho's amendments to its Right to Work Act were unconstitutionally targeted exclusively at union-related polidcal speech. Finally, Justice Souter expressed concern that the union

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had not clearly suggested the state law was a form of "viewpoint" discriminafion (aimed at hampering only union speech). For him, remanding the case to the lower couri would not enable the Supreme Couri to adequately address this imporiant matter. He thus reluctantly concludes that the Court should have dismissed the writ of cerfiorari in this case as having been improvidently granted (that is, to change its mind about taking up the case at all). MAJORITY: CONCURRING: DISSENTING: Roberts, Scalia, Thomas, Alito, Kennedy (and Ginsburg, in pari) Ginsburg; Breyer (in part) Stevens; Souter; Breyer (in part) Government Speech Pleasant Grove City, Utah v. Summum '^ Where a government has selectively accepted from private entities monuments intended for permanent display on public property, the proper First Amendment analysis to be applied is that related to government-sponsored speech, not the public forum doctrine. Pleasant Grove City is a municipality some thirty miles or so southeast of Salt Lake City. Within the city is the 2.5 acre Pioneer Park, which boasts 15 permanent displays, the majority of which were donated by private entities. Included among these is a display of the Ten Commandments. When Summum, a Salt Lake City-based religious group that embraces features of Gnostic Chrisfianity, sought to donate to Pioneer Park for permanent display a stone monument depicfing the "Seven Aphorisms of Summum" (in their theology, these Aphorisms were presented by Moses to a select few before he brought the Ten Commandments to the Israelites), the city rejected its olfer. A lawsuit ensued in which Summum claimed that its rights under the Free Speech Clause of the First Amendment had been violated. Writing for a unanimous Court,'' Justice Alito found the city's ruling perfectly defensible under relevant First Amendment precedents (thus overturning a ruling to the contrary by the Tenth Circuit Couri of Appeals).'" Alito admits at the outset that, viewed narrowly, this is a case of first impression, in that the Court had never considered what line of First Amendment jurisprudence should govern situations in which governments accept from private entities monuments to be displayed permanently on public lands. Were public forum analysis to be applied. Summum would likely prevail, in that the city would be seen as having created a forum open to religious messages. But Alito determines for the Court that the situation before it is more appropriately controlled by a very different body of precedents. "Permanent monuments displayed on public property typically represent government speech," he concludes: Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.'^ But what of situafions in which the government does not create the monument, instead accepfing it as a donafion from a private group? From whence the monument comes is immaterial, Alito argues; the issue is whether government intends to "speak" through its display of that monument: We think it is fair to say that throughout our Nation's history, the general government practice with respect to donated monuments has been one of selective

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receptivity, A great many of the monuments that adorn the Nation's public parks were financed with private funds or donated by private parties. Sites managed by the National Park Service contain thousands of privately designed or funded commemorative objects, including the Statue of Liberty, the Marine Corps War Memorial (the Iwo Jima monument), and the Vietnam Veterans Memorial,'^ Alito also suggests that monuments, even those that are text-driven, can carry any number of potendal meanings, certainly not limited to die one perhaps inidally intended by the private endty choosing to donate it to the govemment. In Central Park there is a Greco-Roman monument to John Lennon, with text limited to "Imagine." Would that text invite visitors to imagine what further musical heights might have been reached by Mr. Lennon, had he not been gunned down? Or would the word encourage passers-by to call to mind all the lyrics of Lennon's song of the same name, which in turn implores us to imagine a world with no religions, no countries, no possessions? Moreover, the meaning of monuments often changes over dme. The Statue of Liberty originally symbolized the friendship between France and the United States. Only much later did it acquire its significance as the welcoming beacon for immigrants. Nothing in the Couri's ruling would preclude a hypothedcal future controversy involving the same small-town park from being decided using tradidonal public fomm analysis, especially if such lidgants' intendons were to march or deliver speeches, the typical stuff of such disputes. But monuments require a different analysis. "Speakers, no matter how long-winded, eventually come to the end of dieir remarks; persons distribudng leaflets and carrying signs at some point tire and go home; monuments, however, endure." By contrast, "it is hard to imagine how a public park could be opened up for the installadon of permanent monuments by every person or group wishing to engage in diat form of expression."" MAJORITY: CONCURRING: Alito (unanimous) Stevens (with Ginsburg); Scalia (with Thomas); Breyer; Souter Notes
1. Citizens United v. Federal Election Cotnmission, 129 S. Ct. 2893 (2009). 2. 129S.Ct. 1800(2009). 3. Videos of the two instances are readily available on the Intemet; they can be viewed at my own website- go to http;//paulsiegelcommlaw.com/view_vid.php?id=46 4. 489 F. 3d 444 (2' Cir. 2007). 5. FCC V Pacifica Foundation, 438 U.S. 726 (1978). 6. 129S.Ct. at 1830-1831. 7. 129 S. Ct. 798 (2009). 8. 129S. Ct. at803. 9. 129S.Ct. 1093(2009). 10. 129S. Ct. at 1096. 11. 129S. Ct. at 1100. 12. 129 S.Ct. 1125(2009). 13. There were a number of concurring opinions. Justice Stevens, joined by Justice Ginsburg, wrote a short opinion suggesting that the Court's opinion may have been more broad than was needed. The same conclusion could have been reached even without characterizing the plaintiff's offered monument as govemment speech. Plaintiff's claim could instead have been viewed as an insistence that the city endorse the donor's message. Justice Scalia, joined by Justice Thomas, pointed to the Establishment Clause overtones of the dispute at hand, since one religion's view of Moses the Lawgiver would continue to be displayed, but not a distinctly minority view. These two justices remind the others that their precedents have at least suggested that the Ten Commandments, in the right context, carry a secular historical meaning, not merely a religious one. Justice Breyer's concurrence allows that he can accept the Court's reliance on the "govemment speech" rationale in this case, even though he worries that it can be used to circumvent traditional public forum analysis; his bottom line seems to be that we should we wary of "a jurisprudence of labels." Finally, Justiee Souter, who makes a point of labeling his contribution as concurring only in the "judgment" (i.e., the outcome) of the current case, calls for caution in trying to articulate the outer limits of the govemment speech doctrine. 14. Summum v. Ogden, 483 F. 3d 1044 (lO* Cir. 2007). 15. 129 S.Ct at 1132-1133. 16. Id. at 1134.

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