THE EVERGREEN SUPREME COURT
2006 WINTER TERM
On January 10, 2006, the Evergreen Supreme Court granted a writ of certiorari in the following ten cases:
Supreme Court of Texas
TEXAS DEPARTMENT OF TRANSPORTATION
v.
Pat BARBER
In 1997, Barber, an attorney, installed an eight foot by sixteen foot billboard on nonresidential property he owned adjacent to Interstate 20, in Mitchell County, Texas. The billboard stated, "Just say NO to Searches," and displayed a telephone number. Callers to that number reached an answering machine that played a two-minute, pre-recorded message about a citizen's rights to refuse to have their vehicles searched by police.
Barber received a letter from TxDOT, the entity charged with enforcing the Texas Highway Beautification Act, stating that the billboard violated the Act and requesting that Barber remove it. The trial court subsequently granted summary judgment to TxDOT, holding that the Act was constitutional under the Texas and United States constitutions, both on its face and as applied to Barber. The state court of appeals reversed, holding that the Texas Highway Beautification Act, as applied to Barber, violated the First Amendment to the United States Constitution. On further appeal, the Texas Supreme Court ruled that the Texas Highway Beautification Act, as applied to Barber's billboard, does not impermissibly infringe upon his free speech rights under the United States Constitution. The state supreme court accordingly reversed the court of appeals' judgment and rendered judgment for TxDOT. TxDOT then petitioned the Evergreen Supreme Court for a writ of certiorari.
United States Court of Appeals for the Third Circuit
Ronald BANKS
v.
Jeffrey BEARD, Secretary of the Pennsylvania
Department of Corrections
The Long Term Segregation Unit ("LTSU") of the State Correctional Institution at Pittsburgh was established at SCI Pittsburgh in April 2000 as a place to confine a small population of inmates who are viewed as too disruptive, violent or problematic to house elsewhere. Inmates are classified at "Level 2" when admitted to the Unit, must remain there a minimum of 90 days, and may remain at Level 2 indefinitely. The length of time a prisoner may spend in the LTSU is open-ended and subject to the discretion of prison personnel.
Department policy prohibits Level 2 prisoners from receiving newspapers or magazines directly from the publisher, from the prison library, or from any other source for the duration of their confinement at Level 2 status unless the publication is religious or legal in nature. Individual articles clipped from publications are prohibited, unless they relate to the inmate or his family. Also prohibited is the possession or receipt of photographs of spouses, other family members, or friends.
Ronald Banks, on behalf of himself and all other Level 2 prisoners confined in the LTSU, challenged this policy, arguing it violates the prisoners' free speech rights under the First Amendment. The District Court granted summary judgment to the defendant and upheld the policy as reasonably related to legitimate penological interests. The United States Court of Appeals disagreed and reversed the District Court’s decision. Beard then petitioned the Evergreen Supreme Court for a writ of certiorari.
No. W2006-03
Supreme Court of Ohio
BELLECOURT et al.
v.
CITY OF CLEVELAND,, et al.
On April 10, 1998, following animated yet peaceful speeches and marches on opening day for the Cleveland Indians baseball team, protestors entered a cordoned area near Jacobs Field. Perceiving the team's moniker and Chief Wahoo logo as disparaging to Native American culture, the protestors doused a newspaper-stuffed effigy of Chief Wahoo with lighter fluid and set it afire. The Chief Wahoo logo is a red-faced, hooked-nosed, grinning caricature of a Native American. Cleveland police extinguished what remained of the fire and arrested protestors Bellecourt, Tchiquka, and Reyna. Shortly thereafter, Watson and Teters ignited an accelerant-soaked effigy of Little Black Sambo-- apparently as an emblematic condemnation of the use of racially offensive symbols. Police then arrested Watson and Teters. Though appellant, the city of Cleveland, booked appellees on charges of aggravated arson and detained appellees overnight, the city did not prosecute appellees for violating any law.
Claiming violation of their free speech rights, the demonstrators sued the city, police chief, arresting officers, and commanding officer. The Court of Common Pleas of Cuyahoga County granted summary judgment to the arresting officers and the commanding officer, and after presentation of evidence at jury trial, directed verdict for the city and the police chief. Plaintiffs appealed. The Court of Appeals affirmed the judgment as to the police chief but reversed the judgment as to the city. On appeal, the State Supreme Court reversed the judgment of the state appellate court. The Ohio Supreme Court ruled that the city had a governmental interest, based on public safety, in arresting the demonstrators. The demonstrators then petitioned the Evergreen Supreme Court for a writ of certiorari.
United States Court of Appeals for the Second Circuit
Church of the American Knights of the Ku Klux Klan
v.
Bernard Kerik
The American Knights claims to be an “unincorporated political membership association that advocates on behalf of the white race and the Christian faith.” The organization identifies in part with the Ku Klux Klan, particularly as to a belief in racial separation and in the importance of the Ten Commandments and the virtues of religious belief. It also opposes integration, affirmative action, racial intermarriage, immigration and abortion. Members wear “the hood and robe,” the garb traditionally associated with the Ku Klux Klan.
The American Knights applied for a parade permit and a sound device permit for an event on the steps of the county courthouse. The New York Police Department denied the permits because the American Knights planned to wear masks in violation of a state law that provides that a person is guilty of loitering when he:
Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment . . . .
The American Knights succeeded in obtaining an injunction from the federal District Court to force the police department to allow its members to demonstrate while wearing masks. Eventually, the District Court granted the American Knights motion for summary judgment, holding that the American Knights’ mask wearing was protected by the right to anonymous speech as well as its value as expressive conduct or symbolic speech. The District Court also found the anti-mask statute facially invalid because it is founded on the content of speech, allowing masks for entertainment but not other purposes. Finally, the District Court found that the City’s selective application of the law to the American Knights but not to similarly situated groups amounted to viewpoint discrimination.
Acknowledging the aim of the New York law to deter violence and to facilitate the apprehension of wrongdoers, the U.S. Court of Appeals found the New York law valid under the First Amendment and reversed the District Court. On March 28, 2005, the American Knights then petitioned the Evergreen Supreme Court for a writ of certiorari
United States Court of Appeals for the Sixth Circuit
CITY OF FAIRFIELD, OHIO, et al.
v.
Lynn D. TUCKER, Jr., et al.
Tucker and several of his fellow members of the International Association of Machinists and Aerospace Workers picketed Fairfield Ford, a car dealership in Fairfield, Ohio, on three occasions in 2003 for alleged unfair labor practices. The protests all took place in the public right-of-way between Fairfield Ford and Dixie Highway, with each involving somewhere between twenty-five and forty protesters and generally lasting between one and two hours. Tucker and his colleagues held signs and displayed an inflatable rat balloon measuring approximately twelve feet high and eight feet in diameter. The rat has long been used as a symbol of efforts to protest unfair labor practices. The rat balloon can be inflated or deflated within five to ten minutes, and is temporarily secured to the ground with stakes to ensure that it does not tip over.
The conflict in this case arises out of the application of the City's ordinance prohibiting structures in the public right-of-way to the Union's use of the rat balloon. Section 905.03(c) of the municipal code provides that "[n]o person, firm or corporation shall construct or place or cause the construction or placement of any ... structure or improvement ... on any street, alley, public right-of-way, easement or public grounds without the written permission of the Public Works Director." A zoning inspector for the City warned the protestors that they would have to remove the balloon or be subject to arrest. Police officers gave Tucker was a citation for violating the city ordinance.
Tucker and his Union filed a Complaint, Motion for a Temporary Restraining Order, and Motion for a Preliminary Injunction in the District Court for the Southern District of Ohio, claiming that the application of the City's ordinance to the use of the balloon violated the First Amendment. The court ultimately granted Tucker's motion for a preliminary injunction, finding, among other things, that the City's efforts to prevent the Union from using the balloon during its demonstrations violated the First Amendment. The United States Court of Appeals affirmed the judgment of the District Court. The City then petitioned the Evergreen Supreme Court for a writ of certiorari.
United States Court of Appeals for the Eighth Circuit
Eugene FRYE, et al.
v.
KANSAS CITY MISSOURI POLICE DEPARTMENT
On Saturday, June 23, 2001, Plaintiffs and others assembled at the intersection of Vivion Road and North Antioch, two major roads in the north part of Kansas City, Missouri to protest against, and provide information to the public about, abortion. The group held signs, some of which were small enough to be held in one hand and others of which measured as large as three feet by five feet. The larger signs were rather heavy, and were placed on the ground with one or more people supporting them so they could be seen by oncoming traffic.
Police officers were dispatched to the scene to respond to complaints from members of the public who said that they were shocked and startled by the size and graphic nature of some of the group's signs and that this affected their driving by, for example, causing them to brake suddenly. The officers told the group that the poster size photos were creating a hazard to public safety and asked them to move further away from the road or to cease displaying the distracting signs. Five individuals refused and were arrested. They were issued citations charging that they "[d]id unlawfully loiter, stand or remain idle in concert with others in a public place as to obstruct a public street by hindering or impeding the free and uninterrupted passage of traffic, by displaying graphic matter causing a traffic hazard by causing drivers to become emotionally distraught and causing them to swerve and slam on their brakes."
The protestors asserted claims for various torts as well as violations of their First and Fourteenth Amendment rights. The police officers moved for summary judgment on the ground of qualified immunity. The United States District Court for the Western District of Missouri granted the motion. The United States Court of Appeals affirmed the judgment. The protestors then petitioned the Evergreen Supreme Court for a writ of certiorari.
Supreme Court of Missouri,
John DOE, a/k/a Tony Twist, Appellant,
v.
TCI CABLEVISION, et al., Respondents.
Appellant Anthony Twist, also known as Tony Twist, is a former professional hockey player in the National Hockey League. He began his NHL career in 1988 playing for the St. Louis Blues, later to be transferred to the Quebec Nordiques, only to return to St. Louis where he finished his career in 1999, due to injuries suffered in a motorcycle accident. During his hockey career, Twist became the League's preeminent "enforcer," a player whose chief responsibility was to protect goal scorers from physical assaults by opponents. In that role, Twist was notorious for his violent tactics on the ice. Describing Twist, a Sports Illustrated writer said: "It takes a special talent to stand on skates and beat someone senseless, and no one does it better than the St. Louis Blues left winger."
After learning of the existence of a comic book, titled Spawn, that contained a villainous character sharing his name, Twist brought misappropriation of name and defamation claims against respondents, the creators, publishers and marketers of Spawn and related promotional products. Respondents defended on First Amendment grounds. The circuit court dismissed the defamation count, but allowed the misappropriation of name count to go to trial, which resulted in a jury verdict in favor of Twist in the amount of $24,500,000. The circuit court, however, granted respondents' motion for judgment notwithstanding the verdict and, in the alternative, ordered a new trial in the event that its judgment notwithstanding the verdict was overturned on appeal. A request for injunctive relief was also denied.
The Missouri Supreme Court reversed the circuit court's judgment notwithstanding the verdict, affirmed judgment granting a new trial, and affirmed judgment denying injunctive relief. McFarlane then petitioned the Evergreen Supreme Court for a writ of certiorari.
United States Court of Appeals for the First Circuit
Mary Anne McGUIRE et al.
v.
Thomas F. REILLY, Attorney General of the Commonwealth of Massachusetts et al.
The Massachusetts legislature, concerned about a history of violence outside abortion clinics and the harassment and intimidation of women attempting to use such facilities, enacted in 2000 the Massachusetts Reproductive Health Care Facilities Act. The Act creates a fixed buffer zone within an 18-foot radius around the facilities (Reproductive Health Care Facilities or "RHCFs"). The Act creates a floating six-foot buffer zone around any person in that 18-foot area. Within that six-foot floating buffer zone, it is impermissible for a person to "knowingly approach another person ..." without consent "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling."
Mary McGuire, Ruth Schiavone, and Jean Zarella, anti-abortion protestors, brought suit in U.S. District Court after the Act became effective to preliminarily enjoin enforcement of the statute as unconstitutional, both facially and as-applied, under the First Amendment. The United States District Court for the District of Massachusetts, granted the protesters' motion for preliminary injunction. Officers appealed. The Court of Appeals reversed and remanded. The District Court then granted summary judgment for the officers on the facial challenge to the statute, and, subsequently, granted summary judgment for the officers on the as-applied challenge to the statute. The protesters appealed. The United States Court of Appeals, affirming the District Court opinion, ruled that the statute was a facially valid time, place or manner regulation and was not unconstitutional, as applied, on grounds of viewpoint discriminatory enforcement. The protestors then petitioned the Evergreen Supreme Court for a writ of certiorari.
United States Court of Appeals District of Columbia Circuit
In re: GRAND JURY SUBPOENA, JUDITH MILLER
The controversy giving rise to this litigation began with a political and news media controversy over a sixteen-word sentence in the State of the Union Address of President George W. Bush on January 28, 2003. In that address, President Bush stated: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." The ensuing public controversy focused not on the British source of the alleged information, but rather on the accuracy of the proposition that Saddam Hussein had sought uranium, a key ingredient in the development of nuclear weaponry, from Africa. Many publications on the subject followed. On July 6, 2003, the New York Times published an op-ed piece by former Ambassador Joseph Wilson, in which he claimed to have been sent to Niger in 2002 by the Central Intelligence Agency ("CIA") in response to inquiries from Vice President Cheney to investigate whether Iraq had been seeking to purchase uranium from Niger. Wilson claimed that he had conducted the requested investigation and reported on his return that there was no credible evidence that any such effort had been made.
On July 14, 2003, columnist Robert Novak published a column in the Chicago Sun-Times in which he asserted that the decision to send Wilson to Niger had been made "routinely without Director George Tenet's knowledge," and, most significant to the present litigation, that "two senior administration officials" told him that Wilson's selection was at the suggestion of Wilson's wife, Valerie Plame, whom Novak described as a CIA "operative on weapons of mass destruction."
The Department of Justice undertook an investigation into whether government employees had violated federal law by the unauthorized disclosure of the identity of a CIA agent. As part of the investigation, grand jury subpoenas were issued to journalists, including New York Times reporter Judith Miller. The subpoenas sought documents and testimony related to conversations with a specified government official concerning Valerie Plame Wilson or concerning Iraqi efforts to obtain uranium. Miller refused to comply with the subpoenas and moved to quash them. One of her claims was that the First Amendment affords journalists a constitutional right to conceal their confidential sources.
The District Court denied Miller's motion to quash. Thereafter, the court found that Miller had refused to comply without just cause and held her in civil contempt of court. She appealed. The United States Court of Appeals affirmed the District Court’s ruling. Miller then petitioned the Evergreen Supreme Court for a writ of certiorari.
United States Court of Appeals for the Third Circuit
Donald H. RUMSFELD, et al.
v.
FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS (FAIR)
In the late 1970’s, at the instigation of activist students, the Harvard Law School became the first U.S. law school to adopt a policy of nondiscrimination based on sexual orientation. Shortly thereafter, the students succeeded in persuading the Law School to enforce its policy by withholding career placement services from employers who excluded employees and applicants based on sexual orientation, just as the Law School had long done for exclusions based on race, gender and religion. The students’ primary target was the United States military, which had an explicit policy of excluding service members based on evidence of homosexual conduct and/or orientation.
Through the 1980’s many other law schools followed Harvard Law School’s lead. Then, in 1990, the American Association of Law Schools voted unanimously to include sexual orientation as a protected category. As a result, virtually every law school in the nation has a policy that excludes from its career services facilities any employer who discriminates on the grounds of race, color, religion, national origin, sex, handicap or disability, age, or sexual orientation.
Exclusion of the military in particular rankled members of Congress. In 1994, Rep. Gerald Solomon, R-NY, sponsored an amendment to the annual defense appropriation bill that authorized the withholding of Department of Defense funds from any educational institution with a policy of denying or effectively preventing the military from obtaining entry to campuses for recruiting purposes. The “Solomon Amendment” was amended in 1997 and 1999 to include the withdrawal of all federal funds. After September 2001, the Department of Defense began to enforce the Amendment vigorously. Hundreds of millions of dollars were at stake, and by the 2003 recruiting season, every law school that was receiving federal funds had suspended its nondiscrimination policy as applied to military recruiters.
In September 2003, FAIR, an association of law schools and law faculty, filed suit, seeking to enjoin enforcement of the Solomon Amendment. The law schools claimed that they are “expressive associations” whose First Amendment right to disseminate their chosen message is impaired by the inclusion of military recruiters on campus and that they are insulated by free speech protections from being compelled to assist military recruiters in the expressive act of recruiting. The District Court denied FAIR’s motion. However, the United States Court of Appeals reversed, holding that FAIR was entitled to preliminary injunctive relief. The defendant federal agencies petitioned the Evergreen Supreme Court for a writ of certiorari.