The High Court continues to take a keen interest in cases that raise speech- and information-related concerns The U.S. Supreme Court: A Preview of the October Term, 2002

On the first Monday in October, the marshal will call the Supreme Court of the United States into session to formally begin the Court’s October Term, 2002. The Court’s work for the upcoming term started back in January when the Court began the ongoing process of filling its docket by granting petitions for certiorari in the cases to be heard this fall, winter, and spring.

Thus far, the Court has agreed to review forty-seven cases. Over the past few terms the Court has generally heard between eighty and ninety cases each term. This means that the Court has yet to fill about half of its upcoming docket from the thousands of petitions for review that were filed during the summer and that continue to arrive at the Court daily.

Among the cases already on the Court’s calendar, about a dozen or so present issues directly related to constitutionally protected individual rights and freedoms.

Speech and Information

The High Court continues to take a keen interest in cases that raise speech- and information-related concerns. Six of the forty-seven cases already on the Court’s docket this term raise issues affecting speech or information.

In Virginia v. Black, No. 01-1107, the Court will consider whether a state law prohibiting cross-burning with the intent to intimidate violates the First Amendment. Below, the Virginia Supreme Court struck down the statute as violating the First Amendment’s protections against content- and viewpoint-based discrimination. Specifically, the lower court explained that Virginia’s cross-burning prohibition was "indistinguishable" from the cross-burning ban struck down by the U.S. Supreme Court in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Virginia is arguing before the U.S. Supreme Court that its ban is a constitutionally permissible content-neutral restriction since it makes illegal all cross-burning done with the intent to intimidate. The individuals convicted under the statute argue that, by singling out cross-burning, the statute discriminates on the basis of content on its face. The case once again puts the Court in the position of deciding the fate of a politically popular law designed to eradicate unpopular speech.

The consolidated cases of Scheidler v. National Organization for Women, Inc., No. 01-1118, and Operation Rescue v. National Organization for Women, Inc., No. 01-1119, bring the tension between anti-abortion protesters and abortion clinics and proponents back before the Court.

Specifically, the Court is asked whether engaging in sit-ins and demonstrations obstructing the entrance and exit from an abortion clinic constitutes the crime of extortion under the Hobbs Act. Additionally, these cases present the question of whether a private party may sue for injunctive relief under the Racketeer Influenced and Corrupt Organizations (RICO) Act. In answering these questions, the Court will have to balance the First Amendment rights of the abortion protesters to speak when and where their speech is most effective against the right of other citizens to engage in lawful activities without harassment and intimidation. This case has broad implications for political protest.

Continuing the theme of the intersection between criminal law and free speech and information concerns are two cases presenting challenges to so-called Megan’s laws: Connecticut Department of Public Safety v. Doe, No. 01-1231, and Godfrey v. Doe, No. 01-729. Both cases—which will be argued separately on the same day—raise questions as to whether a state may publish and disseminate truthful information about a convicted felon’s status as a sex offender.

Specifically, in the Connecticut Department of Public Safety case, the Court will consider whether a sex offender has a protected liberty interest in his own good reputation such that a state should not be allowed to inform the public about his status as a convicted sex offender. In other words, the sex offender is contending that he has a protected liberty interest in keeping the public ignorant of his conviction. The felon is arguing that the state’s dissemination of even such truthful information without additional procedural safeguards, such as a hearing to evaluate the sex offender’s current dangerousness, violates due process.

The Godfrey case raises the concern that retroactive application of a Megan’s law, by exposing previous sex offenders to the public, increases the punishment for a past crime and, thus, violates the Ex Post Facto Clause. In both cases, the Court must decide whether adverse secondary consequences can justify restricting government dissemination of truthful public record information about the criminal justice system.

The Court will also tackle the issue of whether Congress may retroactively extend copyright protections without violating the First Amendment or the Copyright Clause. Eldred v. Ashcroft, No. 01-618, is a challenge to the Sonny Bono Copyright Term Extension Act of 1998, which extended the length of copyright protections for both future and already-created works by twenty years.

The challenge raises two important questions. First, did Congress exceed its enumerated power under the Copyright Clause by retroactively extending copyright protection for works already created? The Copyright Clause grants Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their respective Writings …." Thus, the question presented to the Supreme Court is whether Congress exceeded the "limited Times" restriction by continually extending longer copyright protection retroactively. Second, the case raises the question of whether extensions of the copyright term are "immune" from challenges under the First Amendment. The challengers argue that extensions of the copyright term should be subject to intermediate scrutiny under the First Amendment as a content-neutral regulation since such extensions burden other speech and allow works to avoid entering the public domain.

Criminal and Quasi-Criminal Law

The High Court also continues to take on a significant number of cases involving limitations on criminal and quasi-criminal processes. Four of these cases present intriguing questions that Court watchers should follow.

Both Lockyer v. Andrade, No. 01-1127, and Ewing v. California, No. 01-6978, present the Court with challenges to so-called "Three Strikes" sentence enhancement provisions. In both cases, the Court will consider whether the imposition of lengthy prison terms for relatively minor third-strike convictions violates the Eighth Amendment’s prohibition against cruel and unusual punishments.

In Lockyer, the Court is asked whether a twenty-five-year-to-life prison term for a third-strike petty theft conviction is cruel and usual punishment, while in Ewing, the Court will consider whether a sentence of life without the possibility of parole for twenty-five years violates the Eighth Amendment when such a sentence is imposed for a third-strike conviction for shoplifting.

These cases bring into clear focus the question of proportionality in sentencing because the defendants were convicted of relatively minor offenses—stealing $153 worth of videotapes and three golf clubs, respectively—but were sentenced to indeterminate life prison terms—life without the possibility of parole for fifty years and life without the possibility of parole for twenty-five years, respectively—because of their prior criminal histories.

The Court will once again add to its death penalty jurisprudence in Sattazahn v. Pennsylvania, No. 01-7574, which involves a defendant who was reconvicted after his first conviction was set aside on appeal. The case raises the question of whether the Double Jeopardy Clause prohibits the imposition of the death penalty on retrial when the original capital sentencing jury could not unanimously agree on imposing the death sentence.

Sattazahn contends it is double jeopardy for the prosecutor to seek a capital sentence a second time on retrial after the original jury could not agree to impose death. The case also opens up the larger question of whether the government should be allowed to threaten defendants with the possibility of harsher sentences on retrial as a means of deterring appeals that could lead to reversed convictions and the necessity of retrials.

The pending case of Demore v. Kim, No. 01-1491, may give some indication of whether recent concerns with security and immigration have had any effect on the Court’s commitment to due process. Under a federal statute, aliens who are deportable for having committed certain felonies can be and are detained without bail pending a final deportation determination.

The case currently before the Court raises the question of whether the Due Process Clause of the Fifth Amendment requires a hearing regarding the application of the law to each detainee, the presence of danger, and the risk of flight prior to detention. The Ninth Circuit struck down the law as applied to otherwise lawful permanent resident aliens. There is little question that the Constitution would require an individualized hearing prior to civil detention in nearly all other contexts, and, as a result, this case could give a good read on the Court’s position on due process for all persons—even those who are deportable—in these post-September 11 times.

Property Interests

The High Court will consider at least two interesting property rights cases this term. In Washington Legal Foundation v. Legal Foundation of Washington, No. 01-1325, the Court will tackle the issue of whether Interest on Lawyers’ Trust Accounts (IOLTA) programs violate the Takings Clause of the Fifth Amendment. Under state IOLTA programs, client funds held by attorneys for short periods of time in trust are required to be deposited into specially designated IOLTA accounts. While the client funds are returned to the clients, the interest accrued in these accounts is funneled through judicially created legal foundations to "public interest" legal projects. Thus, the question faced by the Supreme Court is whether the application of the accrued interest is a taking from the clients by the state. Although it would seem that this case presents a straightforward property rights question, the outcome is unpredictable given the Court’s complex Takings Clause jurisprudence and its tendency to regard non-real property takings as merely regulatory.

Cook County v. United States, No. 01-1572, presents the Court with a question involving real property and whether the federal government can assert regulatory jurisdiction over small intrastate privately-owned waters under the Clean Water Act and the Commerce Clause. The case arose from the U.S. Army Corps of Engineers’ determination that isolated, intrastate ponds and water-filled trenches, even when entirely contained on private property, are "waters of the United States" and subject to regulation because they are used as habitat for migratory birds. Thus, this case will examine the bounds of federal regulatory authority in the context of both privately-owned land and the Commerce Clause.

Civil Damages

Not only will the Court consider proportionality in the criminal context, it will also consider it as applied to civil punitive damages. In State Farm Mutual Automobile Insurance Co. v. Campbell, No. 01-1289, the question is whether a punitive damages award of 145 times the compensatory damages violates due process as being too excessive when the punitive award is based on conduct outside the jurisdiction and unrelated to the plaintiff. If the High Court reverses the punitive award or reduces it, such a result may signal that the Court disapproves of the headline grabbing verdicts of recent years.

Other Possible Cases This Term

The Court will continue to grant review of cases this term as its calendar fills, and there are several likely candidates to appear on the Court’s docket for decision by next July.

It is almost a sure bet that the Court will consider at least one campaign finance reform case this term, if not several. McConnell v. Federal Elections Commission, No. 02-0582 (D.D.C.), is the primary constitutional challenge to the federal McCain-Feingold campaign finance reform legislation, enacted as the Bipartisan Campaign Reform Act. While this case is currently before a three-judge federal district court in the District of Columbia, it is due to be submitted for a decision late this year, and any appeal will be taken directly to the U.S. Supreme Court. The issues are weighty and involve the fundamental principles of free speech and republican government. Thus, the question is not whether the Court will hear the case, but when. Given the case’s importance and notoriety, many suspect that the district court will issue a decision early next year and the Supreme Court will expedite the appeal to decide the case this term. In addition, there are other campaign finance cases recently decided by at least three different federal appellate courts. Any one or more of these cases could make the Court’s docket this term.

It is also likely the Court will once again grant review in a commercial speech case. In May, the California Supreme Court held that a corporation’s speech is commercial in nature and only entitled to intermediate scrutiny under the First Amendment even when the corporation is speaking on a matter of public concern by responding to public attacks on its overseas labor practices. The case, Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002), presents the issue of whether all corporate speech is intrinsicly commercial in nature and, therefore, entitled only to reduced First Amendment protection. The case seems ripe for Supreme Court review, given the Court’s unwillingness in the past to clearly define commercial speech for the lower courts. The case also raises another opportunity for the Court to collapse the commercial/noncommercial speech dichotomy that has been criticized within and outside the Court.

Finally, the pending petition for certiorari of Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), would allow the Court to consider whether affirmative action is permissible in college admissions. While there are clear splits of federal appellate authority on this question, some commentators have questioned whether the Court will agree to hear the case because the Court itself is so split on the issue that neither side is sure of a win.

The term begins Monday, October 7, 2002.

September 20, 2002
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