Media Law

Update: Significant Supreme Court Cases Since 2008

Garcetti v. Ceballos

BACKGROUND: Los Angeles County Deputy District Attorney Richard Ceballos was concerned that a sheriff's deputy had lied in a search warrant affidavit. When his supervisors told him to keep quiet, he said he was legally obliged to tell the other side, and he testified for them in court. Consequently, he was demoted. He sued, arguing that his employer, the government, unfairly retaliated against him and violated his free speech rights.

Legal Issue

• The Supreme Court examined whether a public employee's purely job-related speech, expressed strictly pursuant to the duties of employment, be protected by the First Amendment simply because it touched on a matter of public concern, or must the speech also be engaged in "as a citizen?"

Outcome

• In a 5-to-4 decision authored by Justice Anthony Kennedy, the Supreme Court held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official's public duties. Ceballos's employers were justified in taking action against him based on his testimony and cooperation with the defense, therefore, because it happened as part of his official duties. "The fact that his duties sometimes required him to speak or write," Justice Kennedy wrote, "does not mean his supervisors were prohibited from evaluating his performance."

What does this mean?

• Basically, the Supreme Court said the nation's 21 million public employees do not have the protection of the First Amendment when they raise concerns about wrongdoing as part of their job duties. Critics, including civil libertarians and attorneys for whistle-blowers, said the impact of the ruling could be sweeping, silencing conscientious public employees and endangering public health and safety.

Federal Election Commission v. Wisconsin Right to Life

&

McCain, et al. v. Wisconsin Right to Life (consolidated)

Background

• Wisconsin Right to Life, a nonprofit political advocacy group, ran advertisements encouraging viewers to contact two U.S. Senators and tell them to oppose filibusters of judicial nominees. WRTL intended to keep running the ads through the 2004 election, but the Bipartisan Campaign Reform Act of 2002 prohibits corporate funds from being used for certain political advertisements in the 60-day period prior to an election. WRTL sued the Federal Election Commission, claiming that the BCRA was unconstitutional as applied to the advertisements.

FYI

• Just a couple years prior to this case, the Supreme Court had upheld the constitutionality of the entire BRCA, when it was challenged. So, who do you think won this case?

Outcome

• Surprise! By a 5-4 vote the Court ruled that BCRA's limitations on political advertising were unconstitutional as they applied to issue ads like WRTL's. The Court developed a new test to determine whether ads are genuine issue ads or express political advocacy. If it’s the former type of ad, it’s OK to run it during through election.

• http://www.youtube.com/watch?v=MI3wvYriHMc

More recently:Citizens United v.

Federal Election Commission• In 2010, the Supreme Court completely

reversed course on the BRCA, declaring it unconstitutional. By a 5-4 vote, the Court ruled that the government may not ban political spending by corporations in candidate elections. Dissenting justices (and President Obama) warned that allowing corporate money to flood the political marketplace would corrupt democracy.

Tenn. Secondary School Athletic Assoc. v. Brentwood Academy

• BACKGROUND: Interesting case for sports fans... Brentwood Academy, a private school, was a voluntary member of the Tennessee Secondary School Athletic Association. After Brentwood's football coach violated the association’s recruiting rules by contacting some prospective players at other schools, the association imposed various penalties on Brentwood. Brentwood sued the association, claiming that its First Amendment and Due Process rights were being violated.

• The Supreme Court had ruled previously in a 2001 case that because the TSSAA was composed primarily of public schools, it was a state actor subject to the limitations of the Constitution. Accordingly, the District Court faulted the TSSAA for violations of Brentwood's constitutional rights and threw out the TSSAA's penalties.

Case History

• On appeal, the TSSAA argued that it had not exercised the "police power" of the State, but merely enforced a voluntary contractual agreement with Brentwood. The U.S. Court of Appeals for the Sixth circuit rejected this argument, characterizing the TSSAA's actions as those of a "government regulator." The Sixth Circuit held that the state interest in regulating athletic competition was not substantial enough to counter-balance Brentwood's First Amendment rights, and it affirmed the lower court's ruling for Brentwood.

Outcome

• In a unanimous opinion written by Justice John Paul Stevens, the Court ruled that "[t]he anti-recruiting rule strikes nowhere near the heart of the First Amendment." Brentwood's speech rights do not extend to potentially coercive one-on-one communications between a coach and potential students, especially after the school voluntarily agreed to the anti-recruiting rule. Also, Justice Thomas recommended that the Court revisit and overrule its previous holding that TSSAA is a state actor.

Sidenote

• Notice how the Supreme Court sort-of reverses course both on this case and the campaign finance case, even though both issues had previously come up recently. It happens. Some of the justices on the Court changed since the initial rulings. That’s why the President’s decision on whom to appoint to a Supreme Court vacancy is so critical. When you have these 5-4 votes, changing just one justice can affect the outcome.

Davenport v. Washington Education Association

• BACKGROUND: In some states, public sector labor unions are allowed to collect fees from non-union members. The Supreme Court has ruled that unions may use these fees for political purposes, but only if the non-union member does not object. Washington state also has a "paycheck protection" law, which requires unions to obtain specific permission from non-members before using their fees for political activity. Davenport, a non-union teacher, sued the Washington Education Association teacher's union for violating the law.

Case History

• WEA appealed to the Washington Court of Appeals, arguing that Washington's requirement that unions get prior permission was an unconstitutional burden on the unions' First Amendment right to associate for political purposes. Davenport countered that his own First Amendment rights were being violated when his fees went to political causes he did not agree with. The state Court of Appeals ruled in favor of WEA.

On appeal, the Washington Supreme Court affirmed, ruling that the burden must lie on the nonmember to assert his rights and object to the political fees.

Legal Issue

• The Supreme Court examined whether a state law requiring labor unions to obtain permission from non-union members before using the non-members' fees for political purposes violate unions' First Amendment rights?

Outcome

• No. In a unanimous opinion written by Justice Scalia, the Court overturned the Washington state courts, ruling that the First Amendment allows a state to require public-sector unions collecting "agency-shop" fees from non-union employees to obtain permission from the employees before using the money for political purposes.

Morse v. Frederick

• One of the more colorful Supreme Court cases in recent history. That’s why it’s best to watch this video clip below for background info:

• http://www.youtube.com/watch?v=6x5hLOd-vUU

Case History

• Remember: Tinker v. Des Moines Independent Community School District, which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because the student in this case was punished for his message rather than for any disturbance, the Ninth Circuit Court ruled, the punishment was unconstitutional.

Outcome• The Supreme Court reversed the Ninth Circuit by a 5-4 vote,

ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The majority held that Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied.

• Arose when U2’s Bono appeared at the 2003 Golden Globe awards.  NBC broadcast the awards live and failed to hit the "bleep" button when Bono accepted his award and exclaimed "this is really, really, fucking brilliant. Really, really, great." 

• At issue: should fleeting expletives be exempt from the FCC's prohibition of indecency? 

FCC v. Fox Television Stations

Consider some examples:

• http://www.youtube.com/watch?v=ajcY_MJHLng

• http://www.youtube.com/watch?v=zlviPGoy__0

Outcome

• By a 5-4 vote, the Supreme Court ruled that the FCC could fine stations for fleeting expletives. So, even if an athlete drops the “F-bomb” during an interview, the station can be fined. Does this seem fair? Consider that stations have the technology to delay live broadcasts by a few seconds to ensure they can bleep out curse words. On the other hand, sometimes curses slip through the censors.

Most recently: U.S. v. Stevens

• In April 2010, the Supreme Court was forced to choose between protecting the First Amendment and preventing cruelty to animals.

• Congress passed a law a decade ago to halt the practice of selling videos that depicted tiny animals being crushed to death. It had been rarely used, however, and came under challenge when prosecutors used it against the dog-fighting industry.

Background

• For more info on the case, watch this news report:http://www.youtube.com/watch?v=belnNgDBSx0

Outcome

• In a 8-1 ruling, the Supreme Court overturned the conviction of a Virginia man who sold dog-fighting videos. Chief Justice John G. Roberts Jr., speaking for the court, said the First Amendment does not allow the government to criminalize whole categories of speech and expression that are deemed undesirable. Roberts also said the law was too broad and could allow prosecutions for selling photos of out-of-season hunting, for example.

Potential future case• Corporate Privacy: Imagine if the public didn’t know about

all the missteps and abuses relating to the British Petroleum oil spill and Goldman Sachs' role in the financial collapse. Under a new court ruling, such information may not be public. The Third Circuit Court of Appeals in May 2010 ruled that the Freedom of Information Act exemption for "personal privacy" applies to corporations. So now business behemoths can hide findings of wrongdoing -- pollution, hazardous workmanship, health and safety violations, etc. -- uncovered by government investigations simply because they're embarrassed. Open records advocates hope the Supreme Court agrees to hear this case and reverses it.

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