High court narrowly avoids clean sweep against free speech
By Paul K. McMasters, Ombudsman, First Amendment Center, July 4, 2004

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On the last day of the current term, June 29, the nine Supreme Court justices marched right up to the worst record on free-speech cases in half a century before five of them summoned the constitutional good sense to back away from the brink.

If that bare majority had failed to block enforcement of a federal law restricting speech on the Internet, as most First Amendment experts had feared, it would have been the first time in 50 years that the Supreme Court had denied every free-speech claim before it in a single term – except, that is, for the previous term.

Until June 29, the Court had issued 10 consecutive rejections of freedom of expression claims spanning the 2002-03 and the 2003-04 terms. Among these decisions were cases having significant impact on commercial speech, campaign finance, symbolic expression, prisoners' rights, commercial solicitation, copyright, adult businesses, and Internet filters in public libraries.

The term just completed was notable also for the fact that the Court accepted for review only three free-expression cases. Usually, that number is five to eight. Only in the 1997-98 and 1961-62 terms did the high court take up so few such cases, according to research by First Amendment scholar Ronald K.L. Collins.

As it turns out, the Supreme Court's ruling on the last day of this term didn't settle the First Amendment concerns at issue. Its Ashcroft v. ACLU II decision merely affirmed a preliminary injunction against the Child Online Protection Act and sent the case back down the line for a full trial on whether it violates the First Amendment.

COPA was passed by Congress in 1998. It targeted commercial Web sites offering material of a sexual nature and threatened a $50,000 fine and up to six months in jail if their owners did not establish an age-verification process to prevent children 17 and under from gaining access to their sites.

While few would disagree with the stated intent of the law, those challenging COPA said that it placed an unconstitutional burden on speech for Web-site owners, forced adults to violate their own privacy, promoted self-censorship, created a new category of criminal speech, and exposed even those who complied with the law to possible prosecution.

Justice Anthony Kennedy, writing for the majority, reminded everyone that content-based restrictions on speech, such as COPA, usually are presumed invalid unless the government can prove that there is no less-restrictive way to achieve its objectives. Kennedy also pointed out that lifting the injunction could result in greater potential harm than leaving it in place because the threat of prosecution would chill many forms of protected speech. Further, he wrote, the case involves substantial factual disputes, and the record in the lower court ruling doesn't reflect changes that have occurred in the technological and legislative landscape in the four years since the challenge to the law was first filed.

Kennedy's forceful language will make it difficult for the trial court to find COPA constitutional. Even so, the ruling was much narrower than it could have been. The dissenting justices were quite willing to put the speech in question beyond the First Amendment's protection, even for adults. And the majority made it clear that the ruling did not say Congress can't pass any law in this area, nor does it foreclose the district court from concluding that COPA is constitutional.

The genius of the First Amendment is that it works in all seasons. In creating those five fundamental freedoms, especially freedom of expression, its authors recognized certain facts about a democratic society: that popularly elected lawmakers were unlikely to propose laws that expand speech rather than limit it, that government regulators would always punish rather than encourage speech on the fringe, and that prosecutors prefer to go after speakers their constituents don't like.

Even though the authors of the First Amendment could not envision all the forms of communications that Americans might invent – or even the extremes that some expression might reach – they put in place a constitutional guarantee that the power of government, the will of the majority or the whim of the moment all would be subject to the final word of the Supreme Court.

So there is good reason for a First Amendment.

There also is good reason for concern when the highest court in the land rejects the First Amendment claim in 10 out of the last 11 free-speech cases before it. When the Court practices this sort of brinkmanship, it is not the Court but the free speech of all Americans perched on the precipice.


pmcmasters@fac.org