The First Amendment also made an important appearance... as the Bush administration filed its petition asking the High Court to review and reverse the decision... declaring the words "under God" in the Pledge of Allegiance unconstitutional. First Amendment Issues Surround Term's Last Day of Arguments

The First Amendment dominated at the U.S. Supreme Court Wednesday as the justices heard the last scheduled arguments of the current term.

In the courtroom, the justices heard the case of Virginia v. Hicks, No. 02-371, which raises the issue whether a policy of Richmond, Virginia, making the streets and sidewalks around a crime-ridden public housing project off-limits to non-residents infringes upon the First Amendment rights of those who may wish to use such a traditionally public space for speech, demonstrations, and leafleting.

The trespass policy, put into effect in 1997, was designed to eliminate the drug trade and violent crime plaguing the low-income neighborhood and has since been copied by other cities. But since the policy subjects non-residents to arrest and prosecution for simply being on the premises without a "legitimate purpose" or the prior permission of the police or housing authority officials, it violates an individual's First Amendment right to use the "streets and sidewalks every day to walk, jog, visit neighbors, solicit business, canvass, protest, march, and assemble for various reasons," according to Steven Benjamin, the attorney for the man challenging the law.

At arguments, the justices seemed skeptical of whether this particular First Amendment challenge was proper because the man prosecuted under the law, Kevin Hicks, had not shown any interest in exercising his constitutionally protected rights to speak or petition when he transgressed the boundaries of the no-trespass zone. Instead, Mr. Hicks told police that he was delivering diapers to his child, who lives in the project. As a result, the Court may choose not to strike down the trespass policy on free speech grounds and instead return the case to the Virginia courts to consider other problems with the law, including whether it is unconstitutionally vague or infringes upon non-residents' freedom of movement.

The First Amendment also made an important appearance in the Clerk's Office on Wednesday as the Bush administration filed its petition asking the High Court to review and reverse the decision of the U.S. Court of Appeals for the 9th Circuit declaring the words "under God" in the Pledge of Allegiance unconstitutional. The request, filed by Solicitor General Theodore Olson, urges the justices to take up the controversial case, stating that "[w]hatever else the [Constitution's Establishment Clause] may prohibit, this Court's precedents make clear that it does not forbid the government from officially acknowledging the religious heritage, foundation and character of this Nation."

In fact, the Solicitor General's filing explains that the 9th Circuit's "error is so manifestly contrary to precedent" that the High Court may simply decide to overturn the decision summarily, without full briefing and oral arguments. According to the brief, the Court has already ruled that the Pledge is constitutional on two other occasions and numerous justices have assumed as much in other opinions and writings.

If the justices take up the case, United States v. Newdow, No. 02-1574, for full review with briefing and oral arguments, it will be heard during the Court's next term which begins on the first Monday of October.

Also on the minds of the justices and Court-watchers is the question of when the Court will consider the ongoing First Amendment and federalism challenge to the Bipartisan Campaign Finance Reform Act, also known as McCain-Feingold. Despite the fact that Wednesday marked the last day of scheduled oral arguments for the Court's current term, the Court may yet hear arguments this term in that behemoth constitutional challenge. The Center for Individual Freedom is a named plaintiff fighting these unprecedented restrictions.

It's been nearly five months since the three-judge panel of the U.S. District Court for the District of Columbia heard the oral arguments in the consolidated cases captioned McConnell v. Federal Election Commission, Civil Action No. 02-582 (D.D.C.), and there are now signs that a decision may be coming soon. That would leave the current Supreme Court with the option of taking up the campaign finance reform challenge this term at a special session sometime this summer or it could choose to add the landmark cases to the docket for its next term. Regardless of the decision issued by the three-judge panel, the cases will be appealed to the High Court. Thus, the only real question for the justices is when they will hear the case --as part of this term or next.


May 1, 2003
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