The Rights of Public School Teachers

In addition to the inquiry about a student praying before lunch, we also got an email recently from a public school teacher in California who was apparently told that he could not have crosses or other religious items on his desk or on the walls of his classroom.

A thoughtful discussion of issues like these can be found in the excellent "Teachers and Religion in Public Schools," written by the CLS Center's own Kimberlee Wood Colby and published by Christian Educators Association International.

MD School District Won't Charge CEF

Public school officials in Prince George's County, Maryland, were poised to charge Child Evangelism Fellowship a fee to use after-hours meeting space in public school buildings. Other community groups are not charged for such uses.

Center attorney Kim Colby communicated with school officials on CEF's behalf, explaining that such discrimination was unconstitutional. Today, school officials reversed course, informing us that no charge would be levied upon CEF.

In 2001, the Supreme Court held that the First Amendment required public schools to give CEF equal access to after-hours meeting space in public elementary schools. Although most school districts around the country comply with this decision, some of them have not applied its logic to other situations. School districts in Maryland and New Jersey refused to include CEF informational fliers in "backpack mail"; the CLS Center sued and won both cases. Other school districts, like Prince George's, have attempted to charge religious groups a fee while allowing secular groups to meet without charge.



It is certainly encouraging that these school officials eventually did the right thing, although one wonders why they went down the wrong path in the first place.

Basic Flow of Oral Argument in FEC/McCain v. Wisconsin Right to Life

Although the oral argument transcript will be available shortly, below is my reconstruction of the basic flow of this morning's oral argument in FEC/McCain v. Wisconsin Right to Life ("WRL"). (I posted a short synopsis earlier. I also must disclaim any expertise on McCain Feingold's provisions or this case in particular. These are purely my impressions from this morning's argument.)

Solicitor General Paul Clement gave his usual polished performance as counsel for the US government in arguing that McCain Feingold was constitutional in its application to the WRL ads. Chief Justice Roberts seemed concerned by the breadth of the government's argument and insisted that SG Clement spell out what kinds of ads would be protected by the First Amendment and not banned by McCain Feingold if WRL's ad could be banned as the government argued. SG Clement gave three examples: 1) a 501 (c)(3) organzation that did not have time to set up a separate PAC, noting that WRL had a separate PAC; 2) an ad run in a primary in which the candidate was running unopposed; and 3) an advertising series that had begun long before the blackout period but was continuing during the blackout period.

Justice Kennedy rebuffed the SG's argument that WRL's position was weakened by the fact that WRL did not run its filibustering ads until the 60 day blackout period was in effect, rather than running them earlier in the year when filibustering was also an issue. Justice Keenedy suggested that the public only pays attention near an election, so that it made sense to run ads during election periods even if the issue had arisen earlier. Justice Kennedy also raised the point that there might be political value in running ads regarding an unopposed (or "safe") candidate's positions in order to influence the conduct of the safe candidate after reelection.

Justice Scalia asked how the government could look at the subjective intent of the WRL in running the ad and eloquently reminded the government that in a First Amendment case citizens are not supposed to have the burden of proving that their speech is permissible. He spoke of the need for a clear line as to what ads enjoyed First Amendment protection from McCain Feingold regulation.

Former SG Waxman argued on behalf of Senator McCain. Chief Justice Roberts pressed him for what test he would use to determine whether an ad was protected by the First Amendment from regulation. He proposed that ads that were the "functional equivalent of express advocacy" would be subject to regulation. The Chief Justice further asked whether the burden of proof on a First Amendment challenge was on the government or the citizen.

Justice Alito also queried Waxman as to the test he was proposing and whether it was akin to "would a reasonable person see this ad as electioneering"? He also asked whether Waxman was troubled by the array of advocacy groups supporting WRL's position. Mr. Waxman responded with a lengthy discussion of why the ACLU was wrong to take a position in support of WRL's ads when the ACLU has a policy of not running political ads advocating any particular candidate. Justice Scalia interrupted to ask Mr. Waxman why he was picking on the ACLU.

Jim Bopp presented a very solid argument in favor of WRL's position. He began by directing the Court's attention to the fact that government experts in the trial court had said that WRL's ad was not a sham ad but was truly grass roots advocacy. In other words, even under McConnell's test, the ad should be protected. Otherwise, Bopp argued, the government would simply be relying upon the subjective intent of the speaker to determine whether or not speech was allowed, ie., if the speaker intended to be electioneering, the ad would be regulated, if the speaker had no such intent, the ad would be protected.

Justices Breyer and Souter ted the argument by insisting that context and intent (both of the speaker and of the listener) was all-important in determining whether an ad was protected speech or not. Justice Breyer insisted that WRL's goal was overturning McConnell, not simply protecting this particular ad. Mr. Bopp replied that basic First Amendment law does not allow the government to regulate protected speech simply in order to regulate unprotected speech.

Justice Kennedy asked Mr. Bopp to explain how the WRL ads were grass roots ads like hypotheticals that had been discussed approvingly in McConnell.

Justice Souter insisted that context was all important and that speech's meaning is determined solely by the listener. Mr. Bopp insisted that a subjective test was too vague if it depended on the listeners' intent and not the meaning of the actual words. Justice Souter insisted that context has always been considered in determining whether speech was protected. He also characterized Bopp's argument as saying that the voters are dumb, so their understanding of an ad's intent should not determine whether it is protected.

As a bright line, Justice Scalia and Mr. Bopp suggested that the government can regulate corporations writing checks to candidates but not the independent speech of the corporations.

Justice Stevens skeptically asked whether the real intent of the WRL ad could have been to get Senator Feingold to change his vote on filibustering judicial nominees. Mr. Bopp defended the plausibility of such an ad by claiming that Wisconsin's other Senator (Senator Kohl) had changed his position on the filibuster earlier. At this point either CJ Roberts or Justice Scalia interjected, "Is that called democracy?"

CJ Roberts ended questioning of Bopp by asking him to outline his argument for winning without overturning McConnell.

Justice Scalia Warns Liberals Not to Pick on the ACLU

During the Supreme Court oral argument this morning in FEC/McCain v. Wisconsin Right to Life, Justice Scalia asked former Clinton Solicitor General Seth Waxman to explain why he was "picking on the ACLU." Justice Scalia's truly unexpected question engendered laughter in the courtroom.

In response to Justice Alito's question pointing to the number of advocacy groups filing amicus briefs in support of Wisconsin Right to Life's ("WRL") freedom of speech, former General Waxman spent a great deal of time focusing on the ACLU's filing against application of McCain Feingold in this case, criticizing the ACLU for its position because the ACLU has a policy of not running ads in favor or against political candidates.

The relevancy of the ACLU's policy to its amicus arguments was not clear, and Justice Scalia finally cut off this particular argument by asking Mr. Waxman, "Why are you picking on the ACLU?"

Who would ever have expected to see Justice Scalia defending the ACLU from the criticism of a Clinton Administration official?

Supreme Court Hears Oral Argument in Free Speech Case Today

I just returned from listening to the Supreme Court oral argument in FEC/McCain v. Wisconsin Right to Life. The issue is whether application of the McCain Feingold Act to television ads by Wisconsin Right to Life ("WRL") violated the Free Speech Clause of the First Amendment. McCain Feingold's restriction on political ads for or against a political candidate by corporations or labor unions 60 days before a general election was held facially constitutional a few terms ago in McConnell.

WRL challenged its application to a television ad that WRL ran during the 60 days before a general election that stated that a group of senators,including Senator Feingold of Wisconsin, were threatening to filibuster President Bush's judicial nominees and urged viewers to visit WRL's website for further information.

Chief Justice Roberts and Justice Scalia fired most of the questions indicating they thought the law's application was unconstitutional. Justices Breyer and Souter consumed most of WRL's time with questions that clearly indicated their deep concern that the McConnell decision is in danger of being overruled. I have rarely heard either of those two sound so emotional in their questioning of counsel. They seemed truly upset by the possibility that McConnell might be abandoned as well as adamant that the ad in question should be banned under McCain Feingold.

Justices Ginsburg and Stevens seemed inclined to hold valid the law's application to the ad. Justice Thomas did not raise any questions. Justice Alito questioned Seth Waxman about the fact that so many advocacy groups from across the spectrum found application of the ad in this case troubling. Justice Kennedy asked several questions of both sides.

Toward the end of the argument, Chief Justice Roberts asked James Bopp, counsel for WRL, to spell out how the Court could rule that McCain Feingold had been applied unconstitutionally in this case without overturning McConnell. I would predict that is how the case will go: a win for WRL and a severe narrowing of McCain Feingold's applicability without overturning McConnell.

We'll know in 2 months.

I will outline the argument in more detail below for those interested in the flow of the argument.

Was Roe anti-Catholic from its conception?

Interestingly Roe v. Wade was decided in 1973--two years after Lemon v Kurtzman in which the Supreme Court struck down various forms of assistance to religious schools, which at the time were almost exclusively Roman Catholic. In 1973 the Court struck down other aid to religious schools in the Nyquist decision. Is it possible that a majority of the Court had a bias, conscious or unconscious, against the Roman Catholic faith that manifested itself in two separate lines of cases holding unconstitutional government action perceived to be sympathetic to the Catholic Church (i.e.,restrictions on abortions and funding assistance to Catholic schools)?