News 2002

    FIRE (Foundation for Individual Rights in Education) is seeking attorneys to work pro bono on free speech cases involving colleges and universities.

    1. The first case concerns Dartmouth. Last year, a fraternity was kicked off campus for "publishing" a supposedly sexist flier. The most interesting thing about this case is that the flier was found in the fraternity's garbage by a student and had to be pieced back together in order to make the charges. We have local counsel in New Hampshire willing to do the actual filing, but we need an attorney or a law firm to handle the litigation. Both the fraternity alumni association and fraternity members have agreed to participate if we can find them pro bono counsel. Dartmouth may have violated its own free speech policies by kicking these students off campus.

    2. FIRE is also putting together a project to challenge speech codes on college campuses. FIRE is investigating campus speech codes and would like to be ready to file challenges on behalf of interested students as violations are identified. To pursue this strategy, FIRE is looking for attorneys to indicate their interest in handling such a case on a pro bono basis, preferably in the Third Circuit. Although a number of campuses of done away with formal speech codes, they continue to censor unpopular speech with "harassment codes" which forbade things like "offensive values," "gestures," "innuendos," or "insensitive remarks," "opinions," or "attitudes." These kinds of codes are lethal to speech on campus and FIRE plans to mount a facial constitutional challenge against a public college in the Third Circuit that has a particularly bad harassment code. FIRE has chosen the Third Circuit because there is an favorable precedent in that Circuit. If you are interested in serving as pro bono in either the Dartmouth case or on the speech code project, contact Greg Lukianoff, FIRE's Director of Legal and Public Advocacy (Greg Lukianoff [])

April 26, 2002

  • The issue of military recruitment on college campuses has surfaced once again. Click HERE to read three letters that address this issue as it pertains to Yale Law School.

March 28, 2002

  • Senator Mitch McConnell filed suit on Monday challenging the constitutionality of the Bipartisan
    Campaign Reform Act of 2002 (BCRA). In his fourteen-count complaint, Sen. McConnell alleges that
    various provisions of the BCRA, including a provision barring or severely limiting issue advocacy close to an election and a provision barring so-called "soft money," violate the First Amendment rights of free speech and free association, the equal protection component of the Due Process Clause of the Fifth Amendment, and the Tenth Amendment and constitutional principles of federalism, which protect state and local election processes from federal intrusion. Senator
    McConnell's legal team is led by former Solicitor General Kenneth W. Starr and noted First Amendment lawyer Floyd Abrams. To read the complaint, click here.

March 22, 2002

  • Updated First Amendment and Election Law Docket Report
  • On March 20, 2002, James Bopp Jr., General Counsel for the James Madison Center for Free Speech, will testify before the Federal Election Commission regarding its proposed regulations concerning Internet campaign activity. The proposed regulations would limit the First Amendment rights of individuals and corporations to express their political views on the Internet.

    The regulations, 11 C.F.R. 117.1 - 117.3, attempt to clarify the application of the Federal Election Campaign Act to a variety of Internet campaign activities. Specifically, the Commission explains that a majority of individual Internet campaign activity is free from regulation. Likewise, the proposed regulations would add provisions detailing how corporations and labor organizations may use hyperlinks and Internet endorsements of candidates without the communication being regulated as a contribution, expenditure, or being prohibited entirely.

March 4, 2002

  • CIR Moves to Dismiss Boys Town's Attempt to Silence DC Community Group

    CIR moved this month to dismiss a lawsuit intended to silence a Washington, DC neighborhood group's opposition to a local housing project for troubled youth. The group, Southeast Citizens for Smart Development (SCSD), opposes plans by Nebraska-based Boys Town to build the project in Washington's southeast sector. SCSD is concerned about putting troubled teenagers into a neighborhood with open-air drug markets and five fatal shootings in recent months. The group also questions the excessive cost to taxpayers of the project, which is financed by both the federal and District governments. After SCSD circulated petitions, publicly criticized the housing project, and lobbied local officials to oppose it, Boys Town responded with a lawsuit against SCSD and two of its leaders. District officials and the City itself were also named as defendants, but are not represented by CIR. The suit charges that the various defendants violated the federal "Fair Housing Act's prohibitions against discrimination on the basis of race and handicap," because many of the youths expected to live in the project will be minorities with mental or emotional disabilities. Never mind that Boys Town failed to cite any evidence that bias underlies opposition to the housing project. In fact, SCSD's leadership and membership includes minorities. In the motion to dismiss, CIR and its co-counsel, the local chapter of the ACLU, argue that SCSD's opposition to the Boys Town project is protected by the First Amendment's guarantee of free speech and the right to petition. Boys Town, apparently realizing that its lawsuit is at odds with the First Amendment, has amended its complaint to focus on a single accusation against SCSD, namely that the group violated the Fair Housing Act by bringing a "sham" appeal of the City's issuance of building permits for the project. CIR is confident that its First Amendment defense will succeed, given CIR's successful use of the First Amendment argument in two similar cases. For example, in White v. Lee, CIR represented three Berkeley, California residents in a suit against federal HUD officials who harassed the three for peacefully opposing a housing project. In a precedent-setting victory, the U.S. Court of Appeals for the Ninth Circuit ruled in White that a lawsuit which is not objectively baseless is fully protected by the First Amendment.

    CONTACT: Center for Individual Rights, 1233 20th Street, NW, Suite 300, Washington, D.C. 20036, 202/833-8400,

February 19, 2002

  • Judicial Speech Codes: Supreme Court Review of Republican Party of Minnesota v. Kelly
    The United States Supreme Court will hear oral arguments on March 26, 2002 on a constitutional challenge to a Minnesota Code of Judicial Conduct provision that prohibits judicial candidates from expressing "views on disputed legal or political issues." The Federalist Society will hold a panel discussion on this case on Monday, March 4. Click HERE for further details.

January 31, 2002

  • From the James Madison Center: In Beaumont v. FEC, the United States Court of Appeals for the Fourth Circuit held a federal ban on corporate contributions to candidates was unconstitutional as applied to not-for-profit ideological corporations, such as Plaintiff North Carolina Right to Life.

    In the 1986 case of FEC v. Massachusetts Citizens for Life ("MCFL"), the United States Supreme Court had held that not-for-profit ideological corporations like MCFL posed no threat of the corruption of the electoral system that justified limits on independent expenditures (i.e., expenditures advocating the election or defeat of a candidate made without coordination with the candidate) by business corporations, so they must be exempted from a federal corporate independent expenditure ban.

    In Beaumont, the Fourth Circuit applied that rationale to contributions to candidates. Because not-for-profit ideological corporations pose no corruption threat, then nothing justified prohibiting them from also making contributions. Requiring them to do so through political action committees "could effectively cripple small, nonprofit advocacy groups that may have few or no ties to the world inhabited by for-profit corporations." The Court concluded that any "congressional interest in minimizing corruption" was adequately addressed by the $1,000 limitation on contributions to a candidate. Contact the James Madison Center for more information.

January 22, 2002

  • The Supreme Court will hear a redistriciting case, Utah v. Evans. Utah claims that the 2000 census used an impermissible statistical method, the "hot-deck imputation," to estimate a portion of the population, resulting in North Carolina receiving an additional Congressional seat. Utah argues that this method violates the Constitutional requirement for "an actual enumeration" of each U.S. resident every 10 years. The Court is not expected to hear oral arguments in the case until next Fall, with the ruling not affected the November Congressional elections. For more details, click HERE.

January 17, 2002

  • School Dress Code Ruled Illegal
    A high school violated a student's constitutional rights last year when the principal ordered him not to wear a sweat shirt with the words "Straight Pride" on it, a judge ruled.

    U.S. District Judge Donovan Frank ruled that the school's dress code was unconstitutional when applied to the student, Elliott Chambers.

    Though Frank noted that there are circumstances when a school can prohibit student expression ordinarily protected by the U.S. Constitution, he said Woodbury High School officials failed to demonstrate that Chambers' shirt could disrupt school activities.

January 15, 2002

January 2, 2002

  • The 9th Circuit issued its ruling in Lincoln Club v. City of Irvine on December 20, holding that restrictions on contributions to independent expenditure committees are subject to strict scrutiny, reversing the grant of summary judgement for the City and remanding for further proceedings to consider whether the City's restrictions "achieved or furthered" any concern with avoiding the appearance of quid pro quo corruption. The opinion is available on-line HERE.
  • George Will discusses Republican Party of Minnesota, et al. v. Kelly et al., which will be argued before the Supreme Court in March, in his column. Find it at:



2002 The Federalist Society