First Amendment and Election Law Docket Report: April 9, 2002

Below is a list of currently pending cases and recent decisions in the areas of law covered by this practice group. If you know of a pending case that should be included on the list, please e-mail the information to Tom Caso (


United States Supreme Court

Reno v. Free Speech Coalition, No. 00-795. Petition for certiorari granted (argued 10/31/01). Constitutionality of law banning computer simulated or "virtual" child pornography.

Republican Party of Minnesota v. Kelly, No. 01-521. Petition for certiorari granted. (argued 3/26/02). Constitutionality of restrictions on statements by candidates for judicial office. James Bopp of the Madison Center for Free Speech filed the cert petition in the case (

Thomas v. Chicago Park District, No. 00-1249. 122 S.Ct 775 (2001). Permit ordinance for staging demonstrations in public park is constitutional because the scheme is a content neutral time, place and manner regulation.

Watchtower Bible and Tract Society of New York v. Village of Straton, No. 00-1737 (argued 2/26/02). Constitutionality of registration requirement for door-to-door canvassers.

DC Circuit Court of Appeals

Fox Television Stations, Inc. v. Federal Communications Commission, 2002 US App Lexis 2575 (2/19/02). FCC rules on national television station ownership ruled arbitrary and capricious and remanded to the agency. Rules on cross-ownership of cable and broadcast companies vacated. The court, however, rejected the First Amendment argument of the broadcasters, and specifically rejected the invitation to depart from the "scarcity" rationale for restricting station ownership.

Sinclair Brodcast Group, Inc. v. Federal Communications Commission, 2002 US App Lexis 5965 (4/2/02). Restrictions on ownership of more than one television station in the same local market do not violate the First Amendment.

Second Circuit Court of Appeals

Housing Works, Inc. v. Kerik, 2002 US App. Lexis 3709 (3/7/02). Decided. City ordinance prohibiting large demonstrations or demonstrations with amplified sound in front of city hall, except certain publicly sponsored events, does not violate the First Amendment.

Fourth Circuit Court of Appeals

Beaumont v. Federal Election Commission, 278 F.3d 261 (1/25/02). Decided. Statute and implementing regulations prohibiting corporate campaign contributions and expenditures is unconstitutional as applied to the North Carolina Right To Life charitable corporation, however court declined request to hold statute facially unconstitutional. Jim Bopp was counsel for the plaintiffs.

Fifth Circuit Court of Appeals

Henderson v. Stadler, 2002 US App Lexis 5298 (3/29/02). Decided. Challenge to Louisiana's "Choose Life" specialty license plates is rejected because plaintiffs lack standing

Sixth Circuit Court of Appeals

Lac Vieux Band of Lake Superior Chippewa Indians v. The Michigan Gaming Control Board, 276 F3d 876 (6th Cir. 2002). Ordinance that grants a preference for a gaming license to companies that helped win electoral approval of off-reservation gambling held unconstitutional.

Eighth Circuit Court of Appeals

International Association of Firefighters of St. Louis v. City of Ferguson, 2002 US App Lexis 4750 (3/25/02). Decided. City charter provisions prohibiting employees from becoming candidates for city office or sponsoring those candidates is constitutional.

Ninth Circuit Court of Appeals

Gardner v. State Bar of Nevada, 2002 US App Lexis 4517 (3/21/02). Decided. Public relations campaign by mandatory bar association did not violate members' First Amendment rights.

Lavine v. Blaine School District, 279 F.3d 719 (1/29/02). Dissent from denial of en banc review. This is the dissenting opinion of Judge Kleinfeld (joined by Judges Kozinski and Reinhardt) from the denial of a rehearing en banc in the case of a high school student who was expelled for writing a poem describing the feelings of a student who had killed his classmates. Footnoted references include Dostoevksy's Crime and Punishment, the script from Taxi Driver, and the lyrics from The Kingston Trio's "Tom Dooley." The final footnote assured readers that typographical errors in the reproduced version of the student's poem were, in fact, those of the student.

McCoy v. Stewart, 2002 US App Lexis 2900 (2/26/02). Decided. Advice on how to improve operation of gang is not protected by the First Amendment.

Federal District Courts:

Eastern District of California
Cummings v. Connel, 177 F. Supp. 1060 (5/2/01). Agency fee procedure was inadequate to protect nonmembers First Amendment rights.

Northern District of Illinois
King v. State Board of Elections, 2002 US Dist Lexis 3649 (3/6/02). Attorney fees awarded to defendant-intervenors in a challenge to court-created majority Hispanic district.

Eastern District of Kentucky
Anderson v. Spear, 2002 US Dist Lexis 5215 (3/21/02). Decided. Kentucky election and campaign finance restrictions survive First Amendment scrutiny, including provisions prohibiting campaigning within 500 feet of the polls, and prohibitions on campaign contributions 28 days before an election and anytime after the election.

District of Massachusetts
Demarest v. Athol/Orange Community Television, 2002 US Dist Lexis 3651 (2/28/02). Public access cable station created as part of a licensing agreement between town and private cable TV provider is a state actor for purposes of the First Amendment.

Southern District of Ohio
Neinast v. Board of Trustees of the Columbus Metropolitan Library, 2002 US Dist Lexis 5105 (3/26/02). There is no First Amendment right to use the public library without shoes.



Ex parte Walter, 2002 Ala. Lexis 87 (3/8/02). Ordinance prohibiting towed commercial signs on local waterways is constitutional.


DVD Copy Control Association v. Bunner, 93 Cal. App. 4th 648. Review granted. Court of appeal had ruled that a preliminary injunction under the Uniform Trade Secrets Act prohibiting Bunner from posting software code on the internet for decrypting DVD disks was an unlawful prior restraint of pure speech.

Gerawan Farming v. Veneman, 24 Cal. 4th 468 (2000). Decided. California Constitution grants a higher level of protection in instances of compelled commercial speech than that of United States Constitution as outlined in Glickman v. Wileman Brothers, 117 S.Ct. 2130 (1997). On March 20, 2002, the Court granted a subsequent petition for review and will reconsider its holding of two years ago. Justice Moreno, who replaced the author of the previous opinion, Justice Mosk, joined those who voted to grant review.

Kasky v. Nike, 79 Cal. App. 4th165 (2000) - Review granted by California Supreme Court. At issue is whether the First Amendment precludes a cause of action under California's unfair competition statute for statements and press releases by Nike refuting reports about conditions in overseas factories manufacturing Nike shoes.

Keenan v. Superior Court, 27 Cal. 4th 14 (2/21/02). Decided. California's "Son of Sam" law held facially unconstitutional. The law appropriated profits due to a prisoner's expressive materials that included the story of the crime.

Young v. Raleys, Inc., 2001 Cal. App. LEXIS 393 (May 7, 2001). Review granted. Court of appeal held that there is no constitutional right to collect signatures on petitions on the property of a stand-alone grocery store.

California Courts of Appeal

Costco Companies, Inc. v. Gallant, 2002 Cal. App. Lexis 2203 (2/27/02). No constitutional right to conduct expressive activity on grounds of stand-alone store (distinguishing decision in Robbins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979).

Kathaleen R. v. City of Livermore, No. A086349 (March 6, 2001). Decided. State law claims against public library for allowing minor to use Internet to access pornographic material are preempted by federal law.

Schroeder v. City Council of City of Irvine, 2002 Cal App Lexis 2493 (3/6/02). Decided. Suit against city for attempting to influence a local election was dismissed under state's "anti-SLAPP" statute. Harold Johnson of Pacific Legal Foundation authored an amicus brief in opposition to the ruling (


CF&I Steel, L.P. v. United Steel Workers of America, 2001 Colo. LEXIS 440 (May 29, 2001). Decided. State law prohibiting picketing outside of private residences is unconstitutional (union had set up pickets outside the homes of workers crossing the picket lines).


Commonwealth v. Milo M., 2001 Mass. LEXIS 2 (January 5, 2001). Decided. Massachusetts Supreme Court held that a drawing by a twelve year old showing the student pointing a gun at a teacher constituted a sufficient threat to uphold a finding of delinquency.


J.S. v. Bethlehem Area School District, 2000 Pa. Commw. LEXIS 402, (July 14, 2000). Decided. Court upheld student's expulsion for posting a web page on the Internet from his private computer that contained derogatory comments about school teachers and administrators.


Port Arthur Independent School District v. Klein & Associates Political Relations, 2002 Tex. App. Lexis 1203 (2/14/02). Decided. Public school district may not sue for defamation.


2003 The Federalist Society