Communication Currents

Hobby Lobby, Campaign Spending, and Figuring Out When Silence is Golden: The Supreme Court’s 2013–2014 Term and the First Amendment

October 1, 2014
Freedom of Expression

Establishment Clause of the First Amendment 

It turns out that 1) a corporation is a person, and 2) a corporation has religious beliefs. Who knew? Seriously, this was a great year for corporate practice of religion and legislative prayer. Let’s start with the case addressing corporate religious freedom.

Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014)

Norman and Elizabeth Hahn and their three children own Conestoga Wood Specialties, and David and Barbara Green and their three children own Hobby Lobby Stores. Arguing that it violated their religious beliefs, the Hahns and the Greens objected to paying for certain types of contraceptives such as Plan B and intrauterine devices (IUDs) as part of their employees’ health coverage as mandated by the Affordable Care Act (ACA). They filed suit against Sylvia Burwell, secretary of the Department of Health and Human Services (HHS), to challenge the contraceptive mandate under the Religious Freedom Restoration Act (RFRA) and the Free Exercise of Religion Clause of the First Amendment. Justice Samuel Alito wrote for the 5-4 majority in holding that closely held corporations are in fact “persons” under RFRA and can thus exercise religion under the act. Alito defined closely held corporations as those that are family-owned and not publicly traded.

Town of Greece v. Galloway134 S.Ct. 1811 (2014)

Although it did not get as much press as the Hobby Lobby case, in Town of Greece, the High Court upheld the practice of opening town meetings with a “legislative prayer.” There are 94,000 people in the upstate New York town of Greece. Susan Galloway and Linda Stephens filed suit, arguing that the town board’s practice of beginning its meetings with exclusively Christian prayers from 1999 to 2007 was unfair to citizens who were not Christian. Galloway and Stephens requested that clergy from more diverse faiths than solely Christian would be asked to open town meetings with “‘inclusive and ecumenical’ prayers that referred only to a ‘generic God’ and would not associate the government with any one faith or belief.” In a 5-4 decision, however, the court held that “legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause.” The court further noted that Congress has participated in legislative prayer since the Founding Fathers framed the Constitution. Thus, the Establishment Clause did not bar Greece’s town board from opening its meetings with a prayer.

The First Amendment and Money: Does Money Equal Speech?   

McCutcheon v. Federal Election Commission, 134 S.Ct. 1434 (2014)

Shaun McCutcheon, an Alabama billionaire who wanted to give money to many different Republican candidates, was unhappy because the Federal Election Campaign Act (FECA) placed a limit of $48,600 on the amount one could give to an aggregate number of candidates in addition to the Republican National Committee during a two-year election cycle. He sued the Federal Election Commission, arguing that the FECA violated his First Amendment rights. In a 5-4 decision, Chief Justice John Roberts wrote that donating money to a candidate “is an exercise of an individual’s right to participate in the electoral process through both political expression and political association.” Roberts explained that contributing to the campaigns of the candidates one prefers involves both freedom of speech and freedom of assembly. In other words, FECA’s limit on the number of candidates to which an individual could contribute comprised a direct infringement on freedom of speech and assembly. The court left the base limit of $2,600 intact, meaning an individual may not contribute more than $2,600 to an individual candidate; however, a person now may contribute to any number of political candidates, with no aggregate limitation. Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, said the opinion, combined with the 2010 Citizens United opinion, would have the effect of “eviscerating” campaign-finance laws. A simple translation of Justice John Roberts’ opinion is “money equals speech.”

Harris v. Quinn, 134 S.Ct. 2618 (2014)

Although this case is about union membership rather than campaign contributions, once again the Supreme Court has in effect ruled that “money equals speech.” Pamela Harris was a doctor-approved “personal assistant” (PA) who provided in-home care to disabled patients as part of the Illinois Home Services Program. The Illinois legislature had designated the Service Employees International Union Healthcare Illinois & Indiana (SEIU-HII) for the Illinois Home Services Program PAs to join; SEIU-HII required all PAs to pay union dues. Several PAs, including Pamela Harris, did not join the union, yet were required to pay a fee to cover certain services that SEIU-HII provided. The PAs then brought suit against Illinois Gov. Pat Quinn and SEIU-HII, asserting their First Amendment right of association had been violated because they should not be forced to pay union dues to a union they did not want to join. The High Court held that requiring Pamela Harris and the other PAs to pay union dues was a violation of their First Amendment right of association. This case is perhaps more subtle than McCutcheon; whereas McCutcheon bellows that money equals speech, Harris whispers that money, including the right to withhold it, equals the right of free speech and free association.

Lower Profile First Amendment Cases  

There were several other lower profile Supreme Court cases involving First Amendment questions. Two of these dealt with employer-employee relationships. In Lane v. Franks (134 S.Ct. 2369, 2014), the High Court held that a public employee could testify against his subordinate in court; in other words, public employees do not automatically surrender their First Amendment rights simply by virtue of being paid by the taxpayers. In Air Wisconsin Airlines Corporation v. Hoeper (134 S.Ct. 2369, 2014), pilot William Hoeper sued his employer Air Wisconsin for defamation, but the court held that only a jury (not the U.S. Supreme Court), could determine whether or not the employer’s statements about the pilot were “materially false.”

The High Court also decided three different cases involving where protesters may stand in areas that would be traditional public forums. In McCullen v. Coakley (134 S.Ct. 2518, 2014), a unanimous court upheld freedom of speech in a traditional public forum (the sidewalk). The court struck down a Massachusetts law that had banned speech within 35 feet of any entrance to abortion clinics, holding that this law violated the First Amendment. In United States v. Apel (134 S.Ct. 1144, 2014), the court held that officials at Vandenberg Air Force Base in California could permanently bar John Apel from a designated protest area where a public road ran through the base on the grounds that Apel had repeatedly ignored the rules and guidelines set out for protesters. Wood v. Moss (134 S.Ct. 2056, 2014) began when former President George W. Bush was speaking in Jacksonville, OR, in 2004. Before he spoke, the Secret Service allowed all the pro-Bush supporters to remain where they stood, but Secret Service agents forced the anti-Bush protesters to move to another location. The protesters claimed that the Secret Service had engaged in viewpoint discrimination by forcing only the anti-Bush group to end their demonstration and brought suit against two Secret Service agents. They claimed the agents had violated their First Amendment right to petition. The High Court ruled against the protesters, however, on the grounds that the Secret Service agents had “qualified immunity” from suit.

What the Supreme Court Did Not Say  

The Supreme Court did not decide any cases on freedom of the press during its 2013–2014 term, but it denied certiorari in two major cases involving the reporter’s privilege. New York Timesreporter James Risen had interviewed confidential sources for his book, State of War: The Secret History of the CIA and the Bush Administration. When the Department of Justice subpoenaed Risen to testify in its prosecution of former CIA officer Jeffrey Sterling, Risen filed a motion to quash. The U.S. Court of Appeals for the Fourth Circuit ruled that Risen had to comply with the subpoena, however, and the Supreme Court declined to hear his case, meaning that Risen could be jailed for contempt of court (United States v. Sterling724 F.3d 482, 4th Cir. 2013, cert. denied, Risen v. United States82 U.S.L.W. 3695, 2014). The Supreme Court thus indicated it will not reconsider its 1972 decision in Branzburg v. Hayes (408 U.S. 665, 1972), which held that journalists must testify about their confidential sources if compelled by a subpoena in a federal court.

Whereas James Risen could face time in jail because there is no federal shield law to protect him, the New York state shield law did prove effective in protecting a Fox News reporter. Public defenders for James Holmes, who massacred 12 people in a movie theatre in Aurora, CO, in 2012, issued a subpoena to reporter Jana Winter to learn the identity of two confidential sources after Winter published an article detailing the contents of Holmes’ notebook. Although a Colorado judge had threatened to hold Winter in contempt and sentence her to six months in prison, her attorneys successfully moved her case to New York, the headquarters of

In December 2013 the New York Court of Appeals held that New York’s shield law protects New York reporters no matter where they go to gather news. Although Holmes’ public defenders appealed, the U.S. Supreme Court declined to hear the case. This means that if a state’s shield laws protect its journalists from being compelled to testify, this protection extends to subpoenas brought in other states as well. Thus, in Matter of James Holmes v. Winter (22 N.Y.3d 300, N.Y.Ct.App. 2013), the High Court greatly expanded the reporter’s privilege as granted by the laws of the reporter’s home state, simply by denying certiorari. It is difficult to predict how the High Court would have decided James Risen’s case if it had granted certiorari, but for Jana Winter, their silence was golden.

Providing an Expansive Interpretation of the First Amendment   

If you like keeping score and if you give the Supreme Court points for giving the First Amendment an expansive rather than a narrow interpretation, you can chalk up some “wins” for the 2013–2014 term. The Hobby Lobby decision expanded the Establishment Clause to cover the religious beliefs of corporations [persons], and Town of Greece was an Establishment Clause “draw” in the sense that the court maintained the status quo, allowing “legislative prayers” at the beginning of town board meetings to continue unchanged.

McCutcheon expanded free (or “bought-and-paid-for”) speech for those who want to support many candidates at once, and Harrisenhanced the right of association with its holding that employees could not be compelled to pay union dues.

Lane expanded the First Amendment rights of public employees, and Air Wisconsin was a draw in the sense that it involved the intricacies of defamation law and the need for a jury to determine what is true and what is “materially false.”

McCullen expanded the First Amendment rights of anti-abortion protesters, and United States v. Apel was a draw in the sense that it applied only to one protester who had a propensity for breaking Air Force rules about where he could demonstrate. In contrast to McCullen, however, Wood v. Moss was a disturbing loss for the First Amendment because the court ignored the need for the Secret Service to stay content-neutral in its treatment of protesters when George W. Bush was speaking. The Secret Service allowed Bush’s supporters to remain close to him while they moved the anti-Bush protesters many blocks away, where the Oregon police attacked them with batons and pepper spray. This comprised blatant viewpoint discrimination, but the High Court ducked the First Amendment issue with its holding that the Secret Service agents had immunity from suit. Both Republicans and Democrats have been guilty of forcing protesters into free speech zones; my objection to them is non-partisan. But it’s quite an oxymoron when police force protesters to stand inside a chain-link fence like prisoners and then call it a “free speech” zone.

With regard to the two reporters’ privilege cases that the court declined to hear, we would score Risen as a loss for the First Amendment, but would score Winter as a win in the sense that the court’s “silence” has tacitly protected reporters in states with effective shield laws from being jailed for contempt in other states. When reporters can keep their sources’ identities confidential, this enhances the free flow of information to the public, so it is a win for all of us.

About the author (s)

Juliet Dee

University of Delaware

Associate Professor