GWEN IFILL: A busy day at the court. The Justices issued a ruling in a key free speech case, and they heard arguments from Massachusetts that could set new boundaries on the practice of U.S. foreign policy. For more on today's debates and decisions, we're joined by NewsHour regular Jan Crawford Greenburg, legal affairs correspondent for the Chicago Tribune. Jan, on the first case, the court basically ruled against Christian conservative students who said that their student fee money should not be paid to support liberal groups on campus. Was that a surprise?
JAN CRAWFORD GREENBURG: I don't know if I would call it a surprise because the University of Wisconsin and the civil liberties groups that had opposed the students were very worried about a ruling going the other way. They said the stakes were very high in this case; that if they allowed these conservative students to opt out of funding groups that they opposed, that it would have a devastating effect on minority groups, on student campuses, that minority groups, groups like gays and lesbians and Amnesty International and the Pro-Life League, for example, would not perhaps be able to get their voices out.
GWEN IFILL: But this time we're talking about a 9-zip ruling. We've gotten so used to, even with the tobacco ruling yesterday, 5-4, 5-4. Why was this so unanimous?
JAN CRAWFORD GREENBURG: Well, the court was unanimous on the result that it reached today, and like you said, we typically think of this court, on controversial issues, coming down with the five more conservative Justices in the majority. And it's bizarre. I mean in a way it is bizarre. I mean we had the court today siding with the ACLU, with gay and lesbian organizations. But what I think that it shows and what some people said is that this court is united on core First Amendment values that popular speech has to be protected and they're putting their ideological beliefs aside.
GWEN IFILL: What was interesting about this case and we talked about it the last time you were on this program-- both sides were arguing First Amendment rights. They were both saying this was a matter of free speech.
JAN CRAWFORD GREENBURG: Right. I mean there are two kind of different takes on the First Amendment at stake here. The students have said that forcing them to fund these groups that they disagree with violates their First Amendment rights, and that the First Amendment, as you know, guarantees your right to speak freely. But it also protects you from having to speak at all. That's why students don't have to say the Pledge of Allegiance, for example. So they maintain that their case should be analyzed along those lines. But the university said, "no. We are not hampering anyone's exercise of their First Amendment beliefs. We're fostering the First Amendment. We're encouraging more speech, an open exchange of ideas."
GWEN IFILL: Open exchange of ideas. If on a college campus the KKK wanted to set up a chapter, would African American students then be forced to support that group through their dues?
JAN CRAWFORD GREENBURG: That's a really interesting point, and that actually came up at the oral argument. I think Justice Scalia raised that, and the lawyer for the University of Wisconsin conceded that, yes, that's possible as long as the student group of the KKK was a registered student organization.
GWEN IFILL: One other distinction the court made and they didn't entirely agree on this today, was that the court... that the institution, the university, would have to make... could make these decisions, but they had to be neutral in viewpoint. What does that mean?
JAN CRAWFORD GREENBURG: Well, the majority reached its conclusion today in the opinion written by Justice Anthony Kennedy. And basically... It's kind of like thinking about when the government creates a space in a park where people can go and speak, they can't exclude people from speaking, and taxpayers can't complain about it either -- it's got to be -- you know, as long as the speech is neutral. And that's kind of the way the court -- though it didn't use that analogy -- got to its opinion today, that as long as a student fund... a student activity fund is created neutrally, and it doles out its money neutrally to all groups that are registered student organizations, then people like the students here really have no complaint.
GWEN IFILL: As long as the university is itself not speaking in some sort of political way?
JAN CRAWFORD GREENBURG: That's right.
GWEN IFILL: So what the reaction out on the courthouse steps afterwards to this decision today?
JAN CRAWFORD GREENBURG: Well, obviously, the civil liberties groups were hailing this as a critical, you know, victory under the First Amendment to protect First Amendment rights of college students across the country. On the other side, people said, this is obviously very disappointing to them because they felt so strongly that they should not have to subsidize these very core, political beliefs that they oppose.
GWEN IFILL: Was there a loophole of any kind left? Do we expect other cases? Or does this settle it for all time, this whole idea of how students' moneys - for instance - in labor unions, the court has come down the other way, which is that labor unions cannot force people to agree with their political point of view through their dues. This is different.
JAN CRAWFORD GREENBURG: Yes, it is, and the students pointed to the labor union case and another one involving Bar Association dues to argue that they, too, shouldn't have to fund expression that they found objectionable. But Justice Kennedy, in his opinion today, said, "that's unworkable to impose that framework in a university setting, that the mission of the university is so different, that it's to foster this open exchange of ideas." And how are courts to decide, you know, what ideas are central to the mission of a university?
GWEN IFILL: The court decided to take up another interesting and important case today, and that case would bar Massachusetts, and states and localities like Massachusetts, from deciding that it can unilaterally not do business with companies that do business, in this case, with Myanmar, which is the name for Burma. Massachusetts has that rule on the books and it's being challenged and the court's decided to take it up.
JAN CRAWFORD GREENBURG: Right, and the companies on the other side say this is a critical foreign policy issue, that states, if the court doesn't rule against Massachusetts, states would be able to... and municipalities, for that matter, would essentially be able to dictate foreign policy. Massachusetts of course took it quite differently. They say they're not regulating foreign commerce, or deciding foreign policy. They're just deciding how they're going to spend their money, like anybody else, and they're entitled to do that. If they to not do business with companies that do business with Burma, that's to them. Their bottom line is: Look, if you want to do business with them, that's fine, and if you want to do business in Burma, that's your decision, but we don't have to do business with you.
GWEN IFILL: So what did the Justices say to these kinds of questions today? Did they just watch mutely, or were they engaged?
JAN CRAWFORD GREENBURG: It was a pretty lively argument. They seemed relatively skeptical of Massachusetts' arguments. But a couple of the Justices seemed a little more persuaded. Justice Scalia, for example, said that he wasn't buying the arguments by the companies that this was going to have this parade of horrible states dictating foreign policy, because he pointed out that Congress could just come in and pass its own law and say, "states, look, you can't do this." And Justice Stevens seemed a bit more sympathetic, too.
GWEN IFILL: Now, that's unusual to see the two of them on the same side of an argument?
JAN CRAWFORD GREENBURG: That's right, because Justice Scalia is typically considered one of the most conservative members on the court, Justice Stevens the most liberal, and here they were side by side, at least with their questions in this case -- perhaps because Justice Scalia is typically thought of as someone who very much wants to protect states' rights and states' autonomy. Justice Stevens, a more liberal justice, wanting to protect human rights, and of course Massachusetts said it acted here because of the human rights abuses that were going on in Burma, and it wanted to express its moral outrage.
GWEN IFILL: Yeah, we should mention that Burma has its democratically elected leader under house arrest and has been accused of child slave labor and other kinds of violations. The United States has its own policies toward Burma, which basically is not so different from Massachusetts is saying. Congress has spoken on this. Where is the White House?
JAN CRAWFORD GREENBURG: Well, there are more limited sanctions in the federal law that prohibit new investments in Burma, and the Clinton administration today sided with the companies, the Trade Council, and said that Congress had spoken here, it had passed its law imposing these limited sanctions on Burma, and that states essentially were engaging in foreign commerce concerns by getting involved. So they were siding with the company in this argument, the companies in this argument.
GWEN IFILL: But we're talking bout cities like New York City and Los Angeles, as well as Berkeley, California, and Amherst, Maryland.
JAN CRAWFORD GREENBURG: Yes.
GWEN IFILL: All of whom have taken it upon themselves to decide what policies they will and will not accept. Does this have far-reaching effects on all of those localities - not to be able to do anything that doesn't reach out - that reaches outside their borders?
JAN CRAWFORD GREENBURG: Yes, absolutely, and this is really the first time that the court has taken up this direct issue. You probably - I mean, everyone, I'm sure, remembers in the 80's it was a very big controversy when a number of states - as Justice O'Connor said today - it was a widespread practice for states and municipalities to divest themselves from companies - stock in companies or pension funds that do business in South Africa. That case never made it to the Supreme Court, and since then, now Burma seems to be the favorite target of a lot of these states and municipalities.
GWEN IFILL: Perhaps South Africa was too hot a button. Who knows?
JAN CRAWFORD GREENBURG: Yeah.
GWEN IFILL: Jan Crawford Greenburg, thank you very much.
JAN CRAWFORD GREENBURG: Thanks.
May 17, 2013
