News 2000
December 6
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December 6, 2000

  • The FTC has decided not to file charges of engaging in deceptive or unfair advertising practices against the entertainment industry for allegedly marketing violent, adult-oriented entertainment to children. The FTC believed such legal action would be defeated on First Amendment grounds. This decision comes two months after the FTC released a report questioning whether the film, music, and video game industries market violent material to children. For more details,
  • John Eastman, a member of the Free Speech and Election Law practice group executive committee, testified before the Florida legislature about the constitutional authority the legislature has to choose electors.
  • Free Speech Pro Bono Opportunity
    If you are interested in participating in a challenge to the constitutionality of the regulations of the State Bar of California for electing members to their governing board, please contact Tom Caso of Pacific Legal Foundation ( Tom can give you more information on the case and can pass your name along to the individual who is seeking assistance.

November 21, 2000

  • In the first of its kind to reach the Supreme Court, IJ and micro-broadcaster Alan Fried filed a petition for certiorari on October 3 asking the Court to help vindicate Fried’s free speech rights against the US government. The petition raises the question: can a government seize a person’s property without an opportunity for the accused to raise constitutional rights? Fried is part of a growing, nationwide movement of individuals establishing “micro-radio” stations.  A vast majority of these stations do not interfere with existing stations, but the FCC still goes after them in court. The FCC points out that it is illegal to broadcast without a license from the agency, but since 1978 the FCC has refused to license micro-broadcaster-individuals who operate a small, low-powered radio station of less than 100 watts. The FCC recently issued rules allowing micro-broadcasters to apply for licensure, but flatly disallows any micro-broadcaster who previously engaged in unlicensed broadcasting, including Fried, from doing so. IJ argues in its petition that micro-broadcasters must have the right to defend themselves against FC lawsuits, especially when the FCC’s actions violate the right to free speech. If the government chooses to bring these cases, then it cannot deny micro-broadcasters their right to mount a defense in federal court.
  • Justice Department attorneys say a pending challenge to a new law requiring nonprofit political groups to disclose their officers and donors to the IRS should be thrown out.

November 3, 2000

  • Where the Justices Are Unpredictable


    LOS ANGELES -- The composition of the Supreme Court is a hot issue in the presidential campaign, with both parties warning of evil days if the other side gets to name the next several justices. But it's not so easy to predict the positions of Democratic or Republican court appointees -- and this is especially true of free-speech opinions.

    Stephen G. Breyer, for instance, a Clinton appointee, is the least likely of all nine justices to vote for a free- speech claim. The justice who takes the broadest view of free-speech rights is Anthony M. Kennedy, a Reagan appointee, followed by Clarence Thomas in a tie with fellow Bush appointee David H. Souter. Not what one might expect from reading the conventional political labels.

    To compile this free-speech scorecard, I studied 33 cases decided in the last six years  involving pornography, picketing, the media and commercial speech, for example. (I chose six years because that's how long the court's membership has been unchanged.) I assigned a point for each case where a justice voted for the free-speech claimant, adjusting up by a third of a point for a separate opinion taking a more speech-protective stance than the justice's colleagues did and adjusting down by that amount for one expressing a more government-friendly view.

    Rated this way, Justice Kennedy voted for free speech claimants an adjusted 74 percent of the time -- making him hardly an absolutist, but still a voice for broad speech protection. Justices Thomas and Souter were both at 63 percent, and Ruth Bader Ginsburg (a Clinton appointee) and John Paul Stevens (Ford) were virtually tied, at 58 percent and 57 percent. Antonin Scalia (Reagan) was next, at 52 percent, followed by Chief Justice William A. Rehnquist (Nixon) and Sandra Day O'Connor (Reagan) at 46 percent and 45 percent. Justice Breyer voted for the free-speech claimant only 40 percent of the time.

    To be sure, generalizing from numbers about where a justice stands on "free speech" can be misleading. Justices can have plausible (and sometimes politically predictable) reasons for voting against a free-speech claim.

    Justice Ginsburg, for instance, generally strongly supports free-speech claims, but thinks that private individuals' religious speech and costly election-campaign speech should be more restricted. Justice Scalia believes in strong protection for religious expression and campaign-related speech, but thinks that sexually explicit speech deserves less protection.

    Still, a vote for or against a free- speech claim reaches beyond these distinctions. After all, Supreme Court decisions that curb one kind of speech tend to lead to restrictions on other kinds. The so-called slippery slope is a real concern in a legal system founded on precedents and analogies. So voters who support broad free-speech rights should feel more comfortable with the views of a Justice Kennedy, Thomas or Souter (all Republican picks) than with those of Justice Breyer -- even if they disagree with the first three on specific cases.

    It's just not sound to assume that the left generally sides with speakers and the right with government officials who want to curb them.

    Eugene Volokh is a law professor at the University of California at Los Angeles.


October 24, 2000

  • Association of New Jersey Rifle & Pistol Clubs et al. v. Montclair, N.J. Board of Ed. 
    Defendant School Board permitted an anti-gun organization, the Million Moms, to post flyers at public schools and to send the flyers home with school children urging parents to support passage of anti-gun legislation.  Defendant School Board refused a similar request by plaintiffs, however.  The suit challenges the refusal on first amendment and equal protection grounds, and seeks an injunction directing defendant to distribute plaintiffs' flyers or, alternatively, prohibiting defendant from distributing political flyers by other organizations.
  • So Much For Protecting Privacy: Critics Blast Cybercrime Bill
    A U.S. Senate bill would encourage companies to share sensitive information with the government about cyber-security breaches, but civil libertarians say the measure would weaken an important public disclosure law.  The Cyber Security Enhancement Act is intended to make the private sector more cooperative with federal agents investigating cybercrime.
  • Optional Censorship: Officials May Soften Web Filter Law
    The White House is pressing Congress to soften a law that would require schools and libraries to use filtering software to keep children from seeing objectionable Internet sites.  It suggests that such decisions be left to local authorities.
  • Association of New Jersey Rifle & Pistol Clubs et al. v. Montclair, N.J. Board of Ed. 
    Defendant School Board permitted an anti-gun organization, the Million Moms, to post flyers at public schools and to send the flyers home with school children urging parents to support passage of anti-gun legislation.  Defendant School Board refused a similar request by plaintiffs, however.  The suit challenges the refusal on first amendment and equal protection grounds, and seeks an injunction directing defendant to distribute plaintiffs' flyers or, alternatively, prohibiting defendant from distributing political flyers by other organizations.

October 4, 2000

  • Gov. Gray Davis signed legislation Thursday allowing California's independent voters to participate in primary elections. The ``blanket'' system approved by voters in 1996, which allowed voters to choose any candidate, regardless of party affiliation, was overturned in June. The new law permits independent voters to participate in primaries, but limits them to voting only for one party's candidates.
  • The Supreme Court will decide whether some prison inmates have a constitutional right to give legal advice to fellow inmates. The justices said they will use a Montana case to decide whether prison officials ever violate inmates' free-speech rights when they censor such communications. A federal appeals court ruled that Montana authorities wrongly disciplined an inmate over a letter in which he offered legal advice to another inmate. Other federal appeals courts, however, have ruled that no such free-speech right exists.  


September 27, 2000

  • Days after the FTC released a report claiming that movie, music, and video game industries for market violent material to children, the video game industry announced it will challenge an Indiana law that seeks to prevent underage children from playing violent and sexually provocative arcade games. See:

September 19, 2000

  • FTC ADDS AMMO TO LAWSUITS FOR DEATHS by: Frank J. Murray THE WASHINGTON TIMES Lawyers for the parents of three girls murdered in Paducah, Ky., are considering a national class-action lawsuit using a Federal Trade Commission finding that Hollywood targets children in marketing violent movies and videos.
  • The General Accounting Office released a report on September 8 on “Public Education: Commercial Activities in Schools.” GAO/HEHS-00-156,  September 8. To read the report, visit:
  • A New York Times article, 'New Report Examines Commercialism in U.S. Schools' further details the report:
    The Federalist Society held a conference on Commercial Free Speech issues last spring in New York. One panel entitled, “The Next Battleground: "Commercialization" and the Education Establishment” focused on this subject.
  • Federalist Society member Allison Hayward comments on conservative-offered proposals to limit or ban soft money campaign contributions. She offers, “What a soft-money ban will do is increase the scope of federal regulation in state and local politics, reduce the efficacy of political parties, and increase the relative strength of nonparty interest groups.” To read the full article, visit: 

September 15, 2000

  • On September 11, the Federal Trade Commission released its report titled "Marketing Violent Entertainment to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries." The Report was conducted in response to a request from President Clinton on June 1, 1999, as well as
    similar requests from Members of Congress in the wake of the school shooting at Columbine High School in Littleton, Colorado. The full report can be found on the FTC's Web site at The FTC report's conclusion that "members of the motion picture, music recording, and electronic game industries target children under the age of 17 as the audience for movies, music, and games that they themselves acknowledge are inappropriate for children or warrant parental caution due to their level of violent content" seemingly confirmed suspicions that "the teenagers' exposure to images of violence in entertainment media" was a cause of the Columbine tragedy. This conclusion was lent credence by the flurry of news reports and presidential campaign proclamations released this week and the Senate Commerce Committee's hearing on Wednesday. The following article by Cato Institute Visiting Senior Fellow in Constitutional Studies Ronald D. Rotunda and these excerpts from the FTC report shed further light on the ideas offered in the report and beg further questions to the true reasons behind youth violence and the impact of advertising. FTC EXCERPTS

August 31, 2000

  • On August 15, a federal judge struck down a law requiring political parties running candidates in Florida to post bonds with the state to ensure against the mishandling of campaign money.
    On June 22, 2000, the United States Court of Appeals for the Third Circuit released the first appellate decision addressing the constitutionality of the Child Online Protection Act ("COPA"). The decision affirmed the District Court’s preliminary injunction on enforcement of the Act, which criminalizes commercial speech on the Web that is "harmful to minors." The Third Circuit panel unanimously concluded that the Plaintiffs (the ACLU and a number of Internet content providers) were likely to succeed at trial in demonstrating that COPA impermissibly burdens constitutionally protected adult speech in violation of the First Amendment. For more details, click here.

August 8, 2000

August 1, 2000

  • The 9th Circuit just denied rehearing en banc in Free Speech Coalition v. Reno, a case in which the panel struck down a federal statute that outlawed visual depictions that "appear to be" or "convey the impression" of child pornography. The 9th Cir's decision put it in conflict with U.S. v. Hilton, 167 F.3d 61 (1st Cir. 1999); the Supreme Court may find the case cert-worthy, since it involves both a split and a federal statute being held unconstitutional. Judge Wardlaw, joined by Judges O'Scannlain and T.G. Nelson, dissented from the denial of rehearing en banc; her opinion is at, and the panel opinion is at

July 18, 2000

July 5, 2000

  • California Open Primaries Case
By: Tom Gede, who argued the case for the State of California and is on the board of the Sacramento Lawyers chapter.
On June 26, 2000, the U.S. Supreme Court, in a 7-2 decision, invalidated Proposition 198 -- California's blanket primary system -- as an unconstitutional violation of the political parties' First Amendment right of association. The initiative measure allowed primary election voters to select among all candidates, regardless of political party. It had been challenged by four political parties, including the state Republican, Libertarian, and Democratic parties, and upheld in the federal district court and the Ninth Circuit Court of Appeals. In an opinion authored by Justice Antonin Scalia, the Supreme Court held that a political party has the right to identify those who constitute the association and to limit the association to those people, and that that right to exclude is at its most important in its candidate-selection process, the "crucial juncture" where the party defines its message and acts accordingly. The Court held California's blanket primary violates these principles by forcing the parties to adulterate their candidate-selection process by opening it up to persons "wholly unaffiliated" with the party. The Court found that none of the state's proffered seven interests, including increased voter participation, voter choice and greater representativeness of elected officials, is a compelling interest justifying California's intrusion into the parties' associational rights. The Court did not reach the constitutionality of other "open" primaries, where voters may select one party's ballot on election day. However, the opinion suggests that some act of affiliation like that (as opposed to the "wholly unaffiliated" voting in a blanket primary) would withstand constitutional scrutiny. Justice Kennedy filed a concurring opinion, and Justice Stevens filed a dissenting opinion, joined by Justice Ginsburg. California Democratic Party v. Jones (No. 99-401)See for the full text of the decision. 

June 30, 2000

  • Supreme Court Upholds Los Angeles Panhandling Law

    In a March 2 decision, the California Supreme Court effectively rejected the claim that a Los Angeles ordinance to curb aggressive panhandling violates the state Constitution. The case of Los Angeles Alliance for Survival v. Los Angeles involves an ACLU lawsuit on behalf of two advocacy groups to prevent enforcement of a Los Angeles to curb aggressive panhandling. The ordinance was adopted by the Los Angeles City Council in 1997 to prohibit panhandling at bus stops, public parking lots, building entrances, on street medians, freeway off ramps, and within fifteen feet of banks and automated teller machines. It also prohibits repeated requests for money, close contact, foul language, and window washing.

    "Ordinances like this are an important step in enabling cities to revitalize their downtown areas," said Criminal Justice Legal Foundation Legal Director Kent Scheidegger. "This decision makes it clear that this ordinance does not violate California’s free speech protection and provides a strong indication that it would be upheld by the United States Supreme Court as well," he added. Scheidegger filed a "friend of the court" brief supporting the ordinance which was utilized in the Court’s decision.

    The Foundation’s arguments stressed that, with regard to the freedom of speech, 1) the Los Angeles panhandling ordinance does not violate anyone’s speech, but rather sets constitutionally acceptable limits on the time, place, and manner of requests for money, and 2) there is no difference between the protection guaranteed under the California constitution and the United States Constitution regarding such limits.

    The case reached the Court after a federal district judge blocked enforcement of the ordinance, concluding that it violated the protection of free speech in the state Constitution. In its appeal of the ruling to the Federal Ninth Circuit Court of Appeals, the City of Los Angeles asked that the California Supreme Court be allowed to decide the standard for such claims under the California Constitution. Late last year, the Ninth Circuit agreed to do so. It was the first time the federal appeals court had referred a state constitutional question to the California Supreme Court. Now that the state question is decided, the Ninth Circuit will decide if the ordinance violates the federal Constitution.

June 22, 2000

  • Michigan AFL v. Miller, No. 98-2025, 2000 WL 712539 (6th Cir.(Mich.) ( May 23, 2000.)(unpublished): In this decision the Sixth Circuit affirmed its previous ruling in this case from 1997, holding constitutional a "paycheck protection" law in Michigan that required prior annual consent before union members dues could be used for political purposes.

    "We are not persuaded that any extraordinary circumstances exist that should direct us to revisit our prior determinations that the statute is content-neutral, is reviewed under First Amendment intermediate scrutiny, and withstands that scrutiny because the government set out an important or substantial interest unrelated to the suppression of speech that does not burden substantially more speech than necessary," Judge Alan Norris wrote in the six-page ruling. The Plaintiff union had argued that the district court should have considered evidence of legislative motive. The appeals court, citing United States v. O'Brien, 391 U .S. 367 (1968), declined to inquire into legislative motives.

May 17, 2000

  • 10th Circuit strikes down contribution limits for political parties.
    10th Circuit strikes down contribution limits for political parties. FEC v. Colorado Republican Federal Campaign Committee, No. 99-1211 (10th Cir. May 5, 2000). In the second round of appeals in this case, the Tenth Circuit has held that the Federal Election Campaign Act’s coordinated expenditure limit applicable to political parties is unconstitutional. This law currently limits coordinated party spending to $33,780 per House candidate, except for single-district states where the limit is $67,560. Based upon "an extensive record," the appeals court affirmed as insufficient the FEC's several theories offered to establish that this regulation served the government's interest in thwarting corruption.. Acknowledging the intervening Supreme Court's decision in Nixon v. Shrink Missouri Government PAC, 120 S. Ct. 897 (2000), the Tenth Circuit interpreted the decision in Nixon as a restatement of the Buckley standard of scrutiny in campaign finance cases -- that is, limits on contribution receive a less exacting standard than limits on expenditures. Nevertheless, the court noted that the limits on coordinated expenditures on behalf of party candidates significantly interfere with party's First Amendment rights, and that parties are in a different position than the private contributor -- one not considered in Buckley. "To encompass political parties within the Buckley language on corruption would require a real extension of this precedent. Such an extension is not warranted by the Court's post-Buckley FECA jurisprudence and would betray the historic importance of political parties." Judge Tacha authored the decision, which was jointed by Judge Kelly. Chief Judge Seymour dissented.
  • Update on Boston Bars
    Tom English's Cottage, the Boston bar that earlier this year was accused of violating state anti-discrimination laws by displaying a tropical jungle theme -- complete with stuffed animal monkeys -- during February, coincidentally also black history month, has reached a settlement in the case. The Massachusetts Commission Against Discrimination had filed charges and threatened to seek to have the bar's liquor license revoked. Mr. English's settlement with the MCAD required that he fire the bartender who allegedly said the jungle display celebrated Black History Month and that the gorilla symbolized Martin Luther King, Jr. English also agreed, among other things, to sponsor a public event addressing the history and contributions of African-American and Irish-American communities of the City of Boston and to contribute $4000 to the event. No word yet on whether the bartender -- who denied making the alleged remarks -- will bring his own suit against the MCAD for violations of his First Amendment rights or for interference with his employment contract at the Cottage.
  • All expressive associations are equal -- except religious associations.
    The Christian Fellowship at Tufts University was defunded, barred from meeting on campus (except in dorm rooms), and barred from referring to themselves as the Tufts Christian Fellowship, all as a result of an emergency night-time meeting of the student judiciary committee (the decision was reached after midnight), at which the committee found that the Christian Fellowship had violated the University's non-discrimination policy by refusing to appoint a lesbian as the group's leader. As reported in the Washington Times on April 20, other student groups, such as Men Against Violence, the gay rights group, the sororities, and the Arab Student Association continue to be funded despite membership policies based on one or more of the University's protected classifications. The issue about whether private membership organizations can define their membership based on religion, or gender, or sexual orientation in ways that would violate public accommodations laws if the organization was a commercial enterprise, is currently pending before the United States Supreme Court in Boy Scouts v. Dale, with a decision expected by the end of June.

May 9, 2000

  • Francis Menton, Bar Activities Vice Chairman of the Free Speech Practice Group, is soliciting nominations for his annual top ten list of Federal Government efforts to suppress free speech. Many nominations have already been received, including:
  • Justice Department efforts to silence tobacco companies by bringing lawsuits under novel theories using RICO and the Social Security Act.
  • FCC "guidance" instructing that religious "proselytizing" would not be helpful in getting approval for a broadcast license.
  • CFTC rule requiring internet operators who provide futures trading information to register with the Commission (struck down in Taucher v. Born, DCDC, 6/25/99)
  • Mushroom Promotion, Research, and Consumer Information Act, seeking to compel mushroom growers to pay for generic advertising (struck down in United Foods v. US, 6th Cir, 11/23/99).

Anyone with a good nomination should send it by e-mail to

May 2000

March 2000

  • Trade Secrets and the First Amendment. In January, a California Superior Court Judge issued a preliminary injunction barring Internet disclosure of a proprietary encryption system for protecting DVD’s despite the court's admission that 1) it could not bar overseas sites from continuing to publish the alleged trade secret and 2) the trade secret had already been on the Internet and widely read for some time. DVD Copy Control Association, Inc. v. Andrew Thomas McLaughlin, et al., CV 786804 (Superior Ct. Santa Clara County, Cal. Jan. 21, 2000) (available on line at The Federalist Society’s Free Speech and Intellectual Property practice groups are currently organizing a conference addressing the conflicts between intellectual property protections and the First Amendment. Watch here for more details.
  • Compelling Union Association (and dues!). Three California State University professors on Thursday, Feb. 24, filed suit against the state and the union that represents them, claiming there are constitutional problems with a new California law that forces them to pay about $600 each in annual dues. The professors are represented by the Virginia-based National Right to Work Legal Defense Foundation, which has filed dozens of lawsuits across the country challenging compulsory collection of union dues, with limited success. The suit was filed in San Francisco Superior Court and names the California Faculty Assn. as well as the state. On March 16, the court granted plaintiffs’ motion for class certification, so the lawsuit now proceeds with the named plaintiffs representing more than 10,000 state university professors.
  • Gays Can Be Accused of Hate Speech, too. The Michigan chapter of the American Family Association filed a complaint earlier this month with Ferndale police alleging a violation of a hate-crimes law by a city councilor. The group said Councilman Craig Covey, a self-proclaimed homosexual, used hate speech to demonize Christian citizens and threatened to "drive another dagger into that vampire." The police complaint alleged Covey violated the state's Ethnic Intimidation Act which declares it a felony to "maliciously, and with specific intent to intimidate or harass a person because of that person's ... religion, ... to threaten, by word ... to cause physical contact with another person ... or ... damage, destroy, or deface any real or personal property of another person." The controversy stemmed from a controversial human rights ordinance that some residents said was an attempt to enshrine gay rights into law. The ordinance had received the support of Detroit Auxiliary Bishop Thomas Gumbleton, but voters rejected the proposal.
  • Spurned Lover Wannabe Convicted of Gender Hate Crime. The National Organization for Prevention of Hate Crimes reports that a San Diego District Attorney obtained the first gender-based hate crime conviction in the United States at the end of February. Calif. Penal Code 422.76—effective Jan. 1, 1999—authorizes misdemeanor battery to be charged as a felony hate crime, when directed at a protected class. The prosecutor successfully prosecuted on the basis that the statute treats gender as such a class. (Defense counsel argued that every confrontation between a man and a woman could thus be chargeable as a hate crime.) According to a newspaper account of this prosecution, one of the women which the Defendant mistreated was the San Diego police chief's daughter—whom he pushed, after being rebuffed at a popular nightclub--with the video camera attack being replayed at the trial. People v. McCall. Unclear yet whether every assault that arises out of a rebuff to romantic overtures made by a member of the opposite sex will qualify as a hate crime, or whether the protected class will be limited to children of police chiefs!
  • Monkeys in South Boston. Tom English owns a bar in South Boston. In April of every year, he decorates the bar in a frog motif—commentary on all the rain. During the summer, he hangs dozens of fish and netting. In September, he has a pirate theme. October is Halloween, December Christmas. Around elections: elephants and jackasses. In February, to provide some relief from the long New England winter, he decorates with a tropical jungle theme, complete with monkeys at the bar—white, purple, and brown—as well as a dozen parrots, several hippopotamuses, a giraffe, a lion face, and an alligator. Problem is, February also happens to be Black History Month, and some people in the community, according to the Boston Herald, think English’s display was a blatant mockery of Black History Month. Charles E. Walker Jr., chairman of the Massachusetts Commission Against Discrimination, launched an "expedited" investigation, saying, "This kind of conduct is deeply offensive to all decent Americans, as well as being illegal." The Boston Licensing Board now threatens to revoke English’s liquor license. City Councilor Charles C. Yancey, who is black, said he was "outraged by this display." One young woman called it an "atrocity." Suppose it was a mockery of black history month. Guess the frogs were a commentary on French immigration.
  • Election law update. Brad Smith’s nomination to the Federal Election Commission voted out of committee on March 8 and is likely to be considered by full Senate during the week of March 20. Some Democrats are opposing the nomination because Smith has opined that many of the more expansive campaign finance "reform" schemes are an unconstitutional infringement of the core right to political speech protected by the First Amendment.
  • · Publishing on the Web. The Institute for Justice is reporting that the Commodity Futures Trading Commission has published a rule exempting the publishers of newsletters on commodities trading and Internet web site operators who discuss commodities trading from CFTC's licensing requirements. The suit, Taucher v. Born alleged that the licensing requirements violated the publisher's First Amendment rights. More information is available at
  • First Amendment Docket

    United States Supreme Court

    Avis Rent-A-Car Systems v. Aguilar. Petition for certiorari filed; California Supreme Court decision, 21 Cal 4th 121 (1999), affirming an injunction against use of specified racial epithets and derogatory descriptions at the workplace.

    Board of Regents v. Southworth. Decision pending; constitutionality of the use of compelled student fees for political activities.

    DC Circuit Court of Appeals

    Washington Legal Foundation v. Henney. Pending decision; constitutionality of FDA labeling rules. Contact for more information.

    Taucher v. Born. Argument scheduled for April 11, 2000; constitutionality of Commodity Futures Trading Commission regulations requirement of licensure for publishers of newsletters. Contact John Kramer (202) 955-1300 for more information.

    Ninth Circuit Court of Appeals

    Hollingsworth v. Lane Community College. Pending rehearing; constitutionality of the use of compelled student fees for political activities. Contact Sharon Browne of Pacific Legal Foundation for more information (


    Gerawan Farming v. Veneman. Accepted for review by the California Supreme Court. Issue is whether the 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).

    Brosterhous v. State Bar of California. (Pending in Sacramento County Superior Court; challenge to use of mandatory bar dues for political and ideological activity). Contact Deborah La Fetra of Pacific Legal Foundation for more information (

February 2000

  • Campaign Finance
    United States Supreme Court
    On January 24, 2000, the Supreme Court handed down its decision in Nixon v. Shrink Missouri Government PAC. Contrary to expectations (mine, at least), the Court not only reaffirmed the holding from Buckley v. Valeo that it is constitutionally permissible to place reasonable limits on direct contributions to candidates because of the state’s interest in avoiding quid pro quo corruption of candidates or the appearance of such corruption, but declined to adjust the $1,000 cap upheld in Buckley for inflation. The result is that the Court has now approved limitations on core political speech that are even less narrowly-tailored to further the state’s interest. A little good news, though: Justices Breyer and Ginsburg argued that “democratiz[ing] the influence that money itself may bring to bear upon the electoral process” was itself a sufficiently compelling state interest to uphold Missouri’s restrictions. The majority did not bite, though, leaving the avoidance of quid pro quo corruption as the only interest the Court has recognized as strong enough to trump First Amendment rights in this field.
  • The opinion leaves untouched currently pending trial-level challenges to city ordinances restricting contributions to independent expenditure committees (as distinguished from contributions directly to candidates). Currently pending in the Northern District of California is San Franciscans for Sensible Government v. Renne, No. 99-16995, in which supporters of Mayor Willie Brown challenged the city’s limits on donations to independent expenditure committees. The district court enjoined enforcement of the statute 2 months before last November’s election, and the 9th Circuit affirmed the injunction as within the discretion of the district court. Parallel litigation is pending in the Central District of California, The Lincoln Club of Orange County, et al. v. City of Irvine. [In the interest of full disclosure, your e-mail communications chairman represents the Lincoln Club in that litigation].
  • The Court also granted cert. in California Democratic Party v. Jones, to review the constitutionality of California's "blanket primary" law, which lets voters cross party lines in primaries. Not speech exactly, but certainly freedom of expressive association at its core.
  • Federalist Society member Tom Gede is arguing the Calfornia political parties case before the US Supreme Court on behalf of State of CA defending the referendum.
  • The Boy Scouts and Symbolic Speech
    United States Supreme Court
    • In another major development, the Supreme Court granted cert. in the Boy Scouts’ challenge to a New Jersey Supreme Court ruling compelling it to reinstate as an Assistant Scoutmaster James Dale, an avowed homosexual activist and president of the Rutgers Gay and Lesbian Alliance. The case raises both Freedom of Speech (a la Hurley, the South Boston Parade case from several terms ago), and Freedom of Association (whether the holdings in Roberts, Rotary Club, and New York Club Association are going to be extended to private, non-commercial membership clubs) issues. Merits brief in support of the Boy Scouts’ position are due Feb. 28th; oral argument will probably be April 23-25 ­ the last week of schedule arguments this term. Decision will therefore not be forthcoming until the very end of the Term in late June.
    • Currently pending in the Northern District of Illinois is Eugene Winkler et al. v. Chicago Public School Board, et al., No. 99-CV-2424, challenging the use by Boy Scout troops of school facilities. Can anyone say Equal Access Act? Earlier this month, the District Court granted co-defendant Scott Air Force Base’s motion to dismiss (without prejudice), but denied the school board’s motion. Expect many more of these challenges no matter how the Supreme Court comes down in the Dale case.
  • First Amendment Docket
    United States Supreme Court

    • Avis Rent-A-Car Systems v. Aguilar. Petition for certiorari filed; California Supreme Court decision, 21 Cal 4th 121 (1999), affirming an injunction against use of specified racial epithets and derogatory descriptions at the work place.
    • Board of Regents v. Southworth. Decision pending; constitutionality of the use of compelled student fees for political activities.

      Ninth Circuit Court of Appeals
  • Hollingsworth v. Lane Community College. Pending rehearing; constitutionality of the use of compelled student fees for political activities. Contact Sharon Browne of Pacific Legal Foundation for more information (


Washington (January 27) - Commerce Chairman Tom Bliley (R-VA) today demanded that FCC Chairman William Kennard and the Commission withdraw its recent "guidance" restricting religious speech. Bliley added that if the Commission does not act immediately, he will be forced to formally introduce a House Resolution urging the FCC to reverse it's decision. Earlier this month, the FCC had written in a broadcast license application approval that religious proselytizing would not help satisfy a station's educational programming requirement. There will be a lot more water under this bridge before this issue is finally resolved.


    Gerawan Farming v. Veneman. Accepted for review by the California Supreme Court. Issue is whether the 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).

    Brosterhous v. State Bar of California. (Pending in Sacramento County Superior Court; challenge to use of mandatory bar dues for political and ideological activity). Contact Deborah La Fetra of Pacific Legal Foundation for more information (


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