American Bar Association
Forum on Communications Law


Paul M. Smith and Nory Miller

This issue contains reports on the four of the five First Amendment cases that the U.S. Supreme Court has already chosen to hear during the 2000 Term. Three are scheduled for argument during October and November.

First Amendment Challenge to Restrictions on Legal Services

At issue in United States v. Velazquez, No. 99-960, and Legal Services Corp. v. Velazquez, No. 99-603, is the constitutionality of various use restrictions imposed on those who receive government grants to provide legal services to indigents. Such grants have always been subject to some restrictions, but these were greatly expanded in 1996. In addition, Congress enacted a provision expressly reaching grantees' use of nonfederal funds. Congress's distribution arm, the Legal Services Corporation (LSC), has interpreted that provision in issuing regulations governing when such use restrictions apply to affiliates of grantees. Velazquez, therefore, presents the Court with the opportunity to address a number of open questions with respect to the limits imposed by the First Amendment on how a government may confer subsidies.

The action is a facial challenge to the 1996 Act and the LSC's regulations, brought on First Amendment and other grounds. The district court denied the challengers' request for a preliminary injunction, after the LSC altered the rules in response to the court's concern that the earlier rules were more restrictive than the scheme upheld in Rust v. Sullivan, 500 U.S. 173 (1991). The Second Circuit affirmed in most part, although relying less on Rust than other precedents, because it found Rust controlling only when a prohibited use threatened to undermine the government's purpose in conferring the grant in the first place. The appellate court, however, reversed the district court's denial of injunctive relief with respect to one statutory provision. That provision permits grantees to represent clients in seeking benefits from a welfare agency, but only if they do not challenge the validity of any existing rule. The court ruled that the restriction discriminated on the basis of viewpoint; was calculated to drive certain ideas from the most relevant marketplace, courts; was therefore subject to strict scrutiny; and failed to satisfy it. In determining the scope of injunctive relief appropriate to cure the invalidity, the court decided that it was appropriate to enjoin only the proviso preventing attorneys from challenging welfare law in a benefits case, rather than to enjoin the entire exception permitting representation of clients seeking benefits.

Both sides petitioned for certiorari. The Court granted and consolidated the petitions filed by the United States and by the LSC, and argument is scheduled for October 4, 2000. The petition filed by Velazquez appears to have been held, pending decision.

State Action

Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, No. 99-901, scheduled for argument October 11, 2000, presents the Court with an opportunity to revisit the gray area between government and private action. The Tennessee Secondary School Athletic Association (TSSAA) is a private organization that establishes and enforces rules governing both private and public high schools in Tennessee. Brentwood Academy is a private school that was banned from TSSAA tournaments in football and basketball for two years, and subjected to other punishments, for violating the organization's rule against exerting undue influence in recruiting efforts. Brentwood sought to enjoin enforcement of the rule, asserting, inter alia , that its First Amendment rights had been violated by the recruiting rule's restrictions on contacting prospective students, and the district court granted summary judgment for Brentwood on that ground. The Sixth Circuit reversed on the ground that TSSAA was not a state actor, without addressing the merits of the First Amendment claim.

The question requires the Court to consider the circumstances under which the relationship between such an organization and the state is sufficiently symbiotic to render the TSSAA's actions under color of state law. Apparently, before the Sixth Circuit reversed, TSSAA had consistently been regarded by the state's district courts as a state actor. The U.S. Supreme Court broached the general question in NCAA v. Tarkanian, 488 U.S. 179, 193 n.13 (1988), noting that an athletic organization with members solely from one state, and including many public schools, might be a state actor, but saying that this also might vary depending on whether the interaction at issue was with a public school or a private one.

First Amendment Challenge to Term Limits Ballot Initiative

Cook v. Gralike, No. 99-929, scheduled for argument November 6, 2000, presents an unusual compelled speech question as well as questions under the Speech and Debate Clause, the Qualifications Clauses, and Article V of the Constitution. During the heyday of enthusiasm for term limits, voters in Missouri passed a ballot initiative amending the Missouri Constitution. The amendment requires Missouri members of the U.S. Senate and House of Representatives to use their positions to attempt to amend the U.S. Constitution to impose term limits. If they are judged by the Missouri Secretary of State as not having done so, the label "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" will be printed next to their names in the next election.

Nonincumbent candidates are required to make a pledge to the same effect. Failure to do so results in the label "DECLINE TO PLEDGE TO SUPPORT TERM LIMITS" being printed next to their names on the ballot.

The amendment was challenged by a candidate for Congress, and invalidated on summary judgment by a federal district court. That court found the amendment an impermissible attempt to compel candidates to express a point of view on term limits, rather than to permit them to remain silent if they chose. The court found strict scrutiny applicable because the amendment impermissibly compelled core political speech and, independently, because the focus on term limits is content-based and the requirement that candidates support term limits is viewpoint-specific. Construing the government's interest as voter education, the court ruled that the amendment was not narrowly tailored to achieve that goal, being both too narrow in scope, providing education on no issue other than term limits, and more restrictive than necessary, because providing voter information guides would have achieved the same goal without restricting candidates' speech rights.

The Eighth Circuit affirmed and also held the amendment invalid as to incumbents, an issue that the district court had not addressed, on the ground that it permits a state officer to judge and punish members of Congress for their legislative actions in violation of the Speech and Debate Clause, which provides that members of Congress shall not be questioned in any other place for their speech in Congress. The court also held the amendment invalid as an impermissible indirect attempt by a state to modify congressional qualifications and as an impermissible attempt to alter the process for amending the U.S. Constitution that is set forth in article V.

Petitioners incorporated each of these multiple grounds for invalidating the amendment's provisions into their Questions Presented and all are therefore before the Court.

Lingering Questions from the Pentagon Papers Case

Consolidated petitions, Bartnicki v. Vopper, No. 99-1687, and United States v. Vopper, No. 99-1728, present the Court with an opportunity to address a question that it has approached but expressly reserved in previous cases: whether an innocent acquirer of information reasonably known to have been illegally obtained by another may be punished for distributing or publishing it. See, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971) (commonly known as the Pentagon Papers case) (deciding only that prior restraint is not justified under such circumstances); Florida Star v. B.J.F., 491 U.S. 524, 535 n.8 (1989) (noting that the question has been expressly reserved by the Court).

The Third Circuit ruled that state and federal wiretapping statutes may not constitutionally impose liability for publishing or disclosing illegally intercepted information on those who neither participated in nor encouraged the interception. The Bartnicki controversy arose in the middle of heated negotiations over a teachers' contract for a Pennsylvania high school. A telephone conversation between an employee of the teachers' union (Bartnicki, using a cellular telephone) and a teacher at the high school (Kane) was intercepted and recorded by an unknown party. The recording was left anonymously in the mailbox of the president of the local taxpayers' association (Yocum), who provided a copy to a radio talk show host (Vopper), who played it on the air a few months later. The conversation included a statement by Kane that if the requested raise was not accepted, "we're gonna have to go to their homes . . . to blow off their front porches, we'll have to do some work on some of those guys," which was interpreted by Yocum as a bomb threat.

Bartnicki and Kane sued Vopper, Yocum, and the radio station under both federal and Pennsylvania wiretapping statutes, which provide private rights of action for damages against anyone who discloses information with reason to know that it was obtained by intercepting a wire, electronic, or oral communication. The district court denied the defendants' motion for summary judgment. The Third Circuit reversed on First Amendment grounds, ruling that the statutes could not be applied to punish those who did not encourage or participate in the interception.

In determining whether liability may be imposed under such circumstances, the U.S. Supreme Court is asked to address the proper standard of review for the wiretap statutes, and in determining that, whether restrictions on disclosure and/or publication of such information should be reviewed as restrictions on speech or restrictions on conduct; whether the statutes are content-neutral time, manner, or place restrictions or restrictions focused on the speech's primary effects; and whether media and nonmedia are governed by the same or different standards. Even if the Court recognizes intermediate scrutiny as the appropriate standard, as did the Third Circuit, the application of the standard presents vigorously contested issues, including whether subjecting innocent acquirers of taped conversations to damages would appreciably advance the government's purpose of preventing the interception itself.

Another petition, asking for review of the D.C. Circuit's decision in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), which upheld the wiretap statute under arguably similar circumstances, has apparently been held pending the decision in Bart-nicki. The controversy in Boehner involves an illegally intercepted conversation among then-House Speaker Newt Gingrich, Rep. Boehner, and other Republican leaders. The interceptors personally delivered the tape to Rep. McDermott and its contents were published in several newspapers shortly thereafter. The Solicitor General filed a brief in Boehner urging the Court to grant certiorari in Bartnicki instead, and to hold Boehner. The government argued that Bartnicki provides a broader vehicle for deciding this important question because it challenges the proscription against other uses as well as against distribution of illegally intercepted communications and therefore expressly raises the media's right to publish such information, when they have no involvement in the interception. In addition, there is a question in the Boehner case whether Rep. McDermott promised to help obtain immunity for the interceptors, which would place him in a different position than the defendants in the Bartnicki case.


Paul M. Smith ( and Nory Miller ( are partners in the Washington, D.C., office of Jenner & Block.

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