Stuart Taylor’s Eye on the Courts
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ELIZABETH FARNSWORTH: It was a busy day at the court. We get more on today’s rulings from NewsHour regular Stuart Taylor, correspondent with the “American Lawyer” and “Legal Times.” Welcome, Stuart.
STUART TAYLOR, The American Lawyer: Nice to be here.
ELIZABETH FARNSWORTH: We have four cases to deal with in three broad areas. Let’s start with cable TV and indecency. What did the court rule?
MR. TAYLOR: The court struck down two provisions of the three it was reviewing from a 1992 law. The purpose of all three provisions was to protect children from so-called indecent programming, which is generally offensive, sexually explicit material that may be for adults but not for children.
The court splintered six ways and in about a hundred thirty pages of opinions, with no single majority, but when the dust cleared and you counted the votes, they voted to strike down a provision that requires so-called–requires cable operators to block what are called lease access channels if they contain so-called indecent programming. That means they stop them from being sent to your house unless the law says you send them a letter saying you want it.
Then they have to unblock it, but they still have to put it on a special channel. The court ruled that that was a violation of the First Amendment, it was unconstitutional, because it was an overly broad way of pursuing what the court called a very legitimate objective protecting children.
The court also struck down a provision that would allow–not require–but allow cable system operators to censor all so-called indecent programming on what are called public access channels, public, governmental, and educational channels. They said that was also a violation of the First Amendment, because, in part, they said there really isn’t much of a risk that public access channels are going to be full of this stuff anyway, and then there are important First Amendment stakes the other way.
The court, however, upheld a third provision that was identical to the one they struck down on public access channels, but the third provision would allow cable operators to censor so-called indecent speech on what are called leased access channels. Those are commercially leased channels that independent, private people run, and some of them in New York City, for example, run a lot of very racy pornographic material.
ELIZABETH FARNSWORTH: Who was rejoicing over this decision, free speech advocates? Is this considered a great victory for free speech?
MR. TAYLOR: Some free speech advocates are rejoicing over this decision, and some are a little bit worried about it, and the people who are most unhappy about it are the people who want to protect children from indecent programming, who favored this law, because two of the three provisions have been struck down.
But the big question lurking in the decision is what does this mean for the Internet, where Congress passed a law earlier this year it would bar putting so-called indecent material on the Internet, because children might be cruising around in their computers and find it there? And the people who are trying to strike down that law and who succeeded in the lower court earlier this month in a federal appeals court, by and large, are celebrating this decision because they think that it will make–it will strengthen their hand at holding the so-called regulation of Internet indecency unconstitutional, at least the kind that Congress has done.
On the other hand, Harvard Law Professor Laurence Tribe, who’s a First Amendment advocate, is worried about this decision because some of the Justices seem to suggest, he said, at least four of them, that cable television and perhaps other so-called pervasive and intrusive media, maybe the Internet too, that children can see, may be regulated the way broadcast is regulated, which is to say have less First Amendment protection than newspapers do.
ELIZABETH FARNSWORTH: Moving on to the second case today, the Death Row appeals, what was that case and what was the decision?
MR. TAYLOR: A defendant from Georgia named Ellis Felker had been sentenced to death, and his appeal happened long to the court just as it was–just after Congress passed a new law this year designed to speed up death penalty appeals by limiting federal judicial review of death penalty cases. That’s called habeas corpus review. The words mean you have the body. And basically prisoners, Death Row prisoners, before–when they are facing execution, go to federal court and say, please, I was convicted or sentenced unconstitutionally.
Congress is trying to limit that. They limited it in complicated ways in this new law. The Supreme Court reviewed one of the less important of those limitations, and in today’s decision, a very large controversy that had started in this case sort of fizzled. The court found a narrow way to uphold a provision of the law and defer judgment on most of the most controversial provisions of the law.
ELIZABETH FARNSWORTH: And Mr. Felker, they, they did not–
MR. TAYLOR: Mr. Felker lost along the way in about one sentence after it dealt with all the technical legal issues, the court said, Mr. Felker has not brought any serious reasons to our attention why he shouldn’t be executed, and so he loses.
ELIZABETH FARNSWORTH: Does this mean we’re likely to see more executions in the future? There’s been a sort of short moratorium, with two exceptions, over the past couple of years.
MR. TAYLOR: Since Congress passed the law in actually in April, things had been held up until the Supreme Court interpreted these two provisions because they involved the last ditch appeal to the Supreme Court. This will put an end to that rather short moratorium, but I don’t think this particular decision will make any big difference in the long run, since the court deferred judgment on those controversial and difficult provisions of the new law.
ELIZABETH FARNSWORTH: Some say that this will mean the Supreme Court will now get many more habeas corpus petitions, many more–have to make these decisions where before the lower federal courts were making them.
MR. TAYLOR: Well, every–I don’t think it would make much difference in that regard. Every Death Row prisoner comes to the Supreme Court as often as he can after going through the lower courts. And that will continue to happen. What the court held today is that although Congress tried to block one route, the so-called successive habeas corpus petitioners had to go to the Supreme Court, it blocked them from going up through the lower courts to the Supreme Court. The court held today that Congress didn’t block them from going straight to the Supreme Court without an appeal. Now in practice, people will probably still go to the lower courts first and that they will just take this end run route of getting one last shot at the Supreme Court, rather than the traditional appellate route.
ELIZABETH FARNSWORTH: Finally, there were two patronage cases. Tell us about those, the Kansas case first.
MR. TAYLOR: The issue in both cases was whether government contractors have a First Amendment right, First Amendment free speech right, against being terminated for criticizing the local government in one case, or for failing to be a political ally of the people who run the–
ELIZABETH FARNSWORTH: Let’s get specific. In one case, in Alma, Kansas, it was a trash hauler. In Illinois, the case was a tow truck operator.
MR. TAYLOR: Yes. The trash hauler in Kansas was named key Umber, and he was a vociferous critic of the same Board of County Commissioners on whom he depended to get his business. He did the solid waste hauling for the county. And in 1990, they terminated his contract. He filed a lawsuit and claimed that the reason they terminated his contract was they were retaliating against him for criticizing them. Lower courts all over the country have been divided on whether a government contractor has any right to complain about being fired for any reason, and the Supreme Court ruled in this case that yes, he did have a First Amendment right not to be fired, terminated for exercising his free speech rights. And in that regard, they extended some precedents they’d used to protect government employees.
ELIZABETH FARNSWORTH: Now this has very wide implications, does it not? It does not apply to somebody who’s trying to get a government contract, bidding, but it does apply to all the people that are under government contract.
MR. TAYLOR: It certainly does, state, local, and federal, and in the other case, which was from Illinois, there was a tow truck operator whose right to get county business or city business had been blocked he claimed because he refused to make a political contribution to the mayor and supported the mayor’s opponent. And in that case, the court said traditional patronage practices cannot justify violating First Amendment rights. Now in both cases, the allegations were denied, but the broad principle the court has established is that federal, state, and local contractors all have a free speech right in general not to be terminated solely because of their political affiliations or because they criticize the local government.
ELIZABETH FARNSWORTH: It’s a blow to political patronage, isn’t it? This is something the court’s been doing with government employees, and now they’ve extended it to contractors.
MR. TAYLOR: Yes. It’s a line of cases that began 20 years ago in 1976, a case called Elrod Vs. Burns, and they first did it in firing of, of government employees, non-political appointees. And they said you can’t do that if you’re firing them for their political affiliation or free speech. And then they extended it to hiring of government employees, and they said you can’t consider political affiliation in hiring them, unless it’s a high level policy-making appointee. Now they’ve extended it to contractor, termination of contractors, and the dissenters in the case today, Justices Scalia and Thomas, said–who hate all this–said the next thing you know they’re going to do is they’re going to say you can’t give a contract to somebody in the first place just because he’s a buddy of the people in power.
ELIZABETH FARNSWORTH: Stuart, thank you very much.
MR. TAYLOR: Thank you.