American Bar Association
Forum on Communications Law


Paul M. Smith, Nory Miller, and Donald B. Verrilli

The Supreme Court has granted review in five other First Amendment cases not previously discussed in this column. All will be argued this Term.

Procedural Safeguards

City News and Novelty Inc. v. Waukesha, No. 99-1680, presents the Court with an opportunity to revisit questions concerning the procedural safeguards required by the First Amendment when administrative officials are empowered to license First Amendment activities. The Court's earlier decision in FW/PBS, Inc. v. City of Dallas, 493 U.S. 224 (1990), in which the Court fractured into multiple opinions, may have raised as many questions as it answered. The specific questions presented by the petition focus on which side bears the burden of persuasion; whether such licensing schemes must expressly limit administrative discretion and whether prompt judicial review means only prompt access to judicial process or requires a time limit to ensure a prompt decision.

Legal Advice Among Prisoners

Shaw v. Murphy, No. 99-1613, involves a state prisoner who was disciplined for writing a letter to a fellow inmate who was isolated in maximum security. The author of the letter was a trained "law clerk" who regularly advised fellow inmates on their legal rights, and the recipient had asked for help with an assault charge. The recipient also was represented by counsel. The letter pointed out that the prison guard involved in the assault incident had a history of abusive conduct, and it advised a defense of self-defense. Its author was disciplined for "insolence" and "interference with due process hearings."

The author filed suit in federal court against prison authorities claiming a violation of his First Amendment rights. The district court granted summary judgment for the defendants, but the Ninth Circuit reversed. Applying its long-standing rule that prisoner-to-prisoner legal advice is protected by the First Amendment, the court of appeals held that the defendants' interests in maintaining order in the prison were only weakly implicated by the letter and that such interests could have been served by having a policy that guards discussed in such correspondence be shielded from seeing it. Finding no relevant dispute of facts, the court directed that summary judgment be granted in favor of the plaintiff.

There is a circuit conflict over the question whether and how the First Amendment applies to protect inmate legal advice. The question presented is whether the First Amendment grants an inmate an independent and free-standing right to assist another state prison inmate with a pending court case, even if the state has supplied other forms of legal assistance.

Limiting Campaign Expenditures

In Federal Election Commission v. Colorado Republican Federal Campaign Committee, No. 00-191, the Court will review a Tenth Circuit decision that invalidated a provision in the Federal Election Campaign Act under the First Amendment. The provision at issue limits campaign expenditures by political parties that are "coordinated" with the campaigns of federal candidates. The Tenth Circuit reviewed various theories as to why limiting such expenditures, which are funded out of "hard money" contributions by individuals who are themselves capped under the Act, serves to prevent corruption or the appearance of corruption. It found each theory to be unconvincing and concluded that there is no significant governmental interest in limiting the amount of money the political parties can raise and spend in coordination with their candidates.

Use of Public School Facilities

In Good News Club v. Milford Central School, No. 99-2036, the Court will review a ruling by the Second Circuit that the First Amendment does not bar a public school from allowing off-hours use of school facilities by community organizations like scout troops while excluding religious activities. The plaintiff in the case is a Christian youth organization that wanted to conduct meetings at which children recite Bible verses, receive instruction in Bible stories and the moral lessons to be drawn from them, play games with the same themes, and pray. The school had a policy of allowing public use but excluding religious activities on school grounds. It determined that the Good News Club was not merely discussing secular issues from a religious perspective but instead engaging in religious instruction and observance. The club asserted that drawing this line violates the First Amendment.

The Second Circuit held that the school could constitutionally be maintained as a "limited purpose public forum" with religious activities excluded from access. It rejected the argument that the permitted groups, such as scout troops, also teach reverence for God-stating that such teaching is relatively incidental to the activities and goals of those organizations while the plaintiff club intended to engage in direct religious instruction and worship.

Son of Wileman Brothers

The Court has granted certiorari in another challenge to a federal law mandating contributions by producers for general product advertising, United States v. United Foods Inc., No. 00-276, only three years after rejecting a similar claim in Glickman v. Wileman Bros., 521 U.S. 457 (1997).

In the new case, a mushroom producer argued successfully to the Sixth Circuit that Wileman Bros. applies only to advertising programs in highly regulated industries and therefore does not govern here because the production of mushrooms is virtually unregulated. The U.S. District Court for the Western District of Tennessee rejected the challenge, but was reversed on appeal. The Sixth Circuit viewed Wileman Bros. as based in the government's interest in preventing free riders from taking advantage of the monopoly power resulting from an industry in which prices and supply are regulated. The court of appeals held that when prices and supply are not regulated, Wileman Bros. does not govern. The opinion is unclear about whether the Sixth Circuit was holding that no other government interest is sufficient to justify a mandated joint advertising program.

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

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