By Tony Mauro
Three recurring First Amendment issues, presented in new and compelling ways, are on the docket of the U.S. Supreme Court as it returns to the bench today after its summer recess: campaign finance, offensive speech, and religious freedom.
The campaign finance case Williams-Yulee v. The Florida Bar comes in the special context of judicial elections, and was added to the docket on October 2. The offensive speech at issue in Elonis v. United States was posted on Facebook and echoes rap lyrics, making it a case that the justices may need help from their young law clerks to understand. In Holt v. Hobbs, a Muslim prison inmate wants to grow a beard, and in Reed v. Town of Gilbert, an Arizona church wants to advertise its services with street signs, both cases raising issues of religious discrimination.
Other cases may raise related issues, but here’s a quick look at the four cases before the high court in the coming term that directly involve the First Amendment:
Gregory Holt, a Muslim, is challenging an Arkansas Department of Corrections rule against facial hair, which makes exceptions for well-groomed mustaches and inmates with skin conditions. Holt wants to have a half-inch beard, which he says is a compromise because the Koran says beards should not be cut at all. He invoked the Religious Land Use and institutionalized Persons Act (RLUIPA,) a federal law passed in 2000 in part to protect the right of prison inmates to exercise their religious faith.
Arkansas defends its policy as necessary and tailored to meet compelling security needs, and argues that the court should defer to prison officials. Lower courts sided with Arkansas, even though beards are allowed in the prison systems of 44 states and the federal government.
The Holt case, which will be argued October 7, is garnering extra attention in the wake of the Supreme Court’s Hobby Lobby decision last term, in which the court protected the religious rights of closely-held corporations. Given the high hurdles of RLUIPA, “It’s an uphill climb” for the state, says court practitioner Pratik Shah. Notre Dame University law professor Richard Garnett agrees: “The justices have made it clear that the policy of religious accommodation set out in the act, and in the similar Religious Freedom Restoration Act, is one that they take seriously and are prepared to vindicate.”
After his wife left him, Pennsylvania resident Anthony Elonis posted angry writings on Facebook, often with violent imagery that mirrored rap music lyrics. The wording was sometimes coyly framed as legal analysis: “Did you know that it’s illegal to say I want to kill my wife?” was one comment. He was convicted under the federal law prohibiting transmitting “any threat to injure the person of another” across state lines.
Elonis’ appeal goes before the high court December 1, focusing on what the government should have to prove to win conviction. In his case, the government was only required to prove that his words could be viewed by a “reasonable person” as a true threat — regardless of whether Elonis actually intended them that way. Elonis’ lawyer John Elwood will argue that the law — and the First Amendment — requires the government to overcome a higher hurdle of proving the speaker’s intent to threaten, so that speech protected by the First Amendment won’t be chilled.
A brief in the case argues that the rap music Elonis uses as a model, while violent, is not meant to be taken literally. Elwood also points out that the Roberts Court has a strong record of protecting objectionable speech. If violent video games are protected by the First Amendment, Elwood said, giving the same protection to rap lyrics should be “a lighter lift.”
The Thomas Jefferson Center for the Protection of Free Expression argues in another brief that a “reasonable person” standard ignores the fact that speech that may seem violent to outsiders may be understood very differently within certain “homogenized communities.”
The Good News Church in Gilbert, Ariz., meets in different locations, so it depends on small temporary signs to attract attendees. But town ordinances regulate the size and duration of signs in ways that give preference to political signs, for example, while limiting church signs. The church asserts that the regulations amount to content-based discrimination that violate the First Amendment. The Obama Justice Department also argues the regulations are unconstitutional.
The U.S. Court of Appeals for the Ninth Circuit ruled that the regulation is not content-based, but the Supreme Court may view it differently, says Notre Dame’s Garnett. “A law that regulates speech because of its content — that is, because of what’s being said or what is being spoken about — is and should be highly suspect. This is exactly what the sign code at issue in the Town of Gilbert case does.”
Lanell Williams-Yulee was a candidate for a judgeship in Hillsborough County Florida when she signed a letter asking for campaign contributions in 2009. The Florida Bar recommended a reprimand and fine because the letter violated a regulation that bars candidates from personally soliciting contributions for a “judicial office that is filled by public election between competing candidates.”
Williams-Yulee denied that she did anything wrong because there was no other candidate, and she challenged the rule on First Amendment grounds. The Florida Supreme Court upheld the canon as advancing the state’s compelling interest in preserving an “impartial judiciary.”
Circuit courts are deeply divided on the constitutionality of judicial solicitation bans, which are on the books in 30 states, so the Supreme Court’s ruling will have significant impact. The Roberts Court has consistently struck down campaign limitations on First Amendment grounds, but still may view judicial elections differently from others.
“The theory is, if you are going to have judicial elections, especially with outside groups weighing in thanks to Citizens United, you cannot stop what judicial candidates say or do,” said election law expert Rick Hasen.
“The question is whether it might be possible to convince a justice or two … that judicial elections could be subject to special rules because of the key importance of the impartiality and dignity of the judiciary.”
For his part, Justice at Stake’s Bert Brandenburg hopes the canon will be upheld. “Americans don’t want their judges standing on the courthouse steps with their hands out to raise money from parties who appear before them … The Supreme Court has an important opportunity to help rebuild public trust in elected courts — and strike a blow at a growing perception of judges as politicians in robes.”
Tony Mauro has reported on the U.S. Supreme Court since 1979, most recently for American Lawyer Media, and is a regular contributor on legal issues and the Supreme Court to the Newseum Institute’s First Amendment Center.
The Newseum Institute’s Gene Policinski interviews First Amendment expert and author Ronald K.L. Collins on the court’s approach to current cases and in recent years.