SUPREME COURT OF THE UNITED STATES
Washington State Grange v. Washington State Republican Party &
Washington v. Washington State Republican Party (Supreme Court of the United States): The Supreme Court of the United States opened its 2007 term on Monday, October 1, 2007, with consolidated oral arguments in Washington State Grange v. Washington State Republican Party (No. 06-713) & Washington v. Washington State Republican Party (No. 06-730). These two cases involve the constitutionality of ballot rules governing the disclosure of a candidate's party affiliation. Currently, Washington state law permits candidates to declare their party "preference" instead of their official party affiliation. Concerns over this system are compounded by the fact that all candidates appear on open primary ballots. The two candidates garnering the most votes during the open primary are then placed on the general election ballot. In 2000, the Court struck down a similar election system in the state of California. Justices Stevens and Ginsburg dissented, however, claiming that the First Amendment does not "encompass a right to exclude non-members from voting in a state-required, state-financed primary election."
New York Board of Elections v. Torres (Supreme Court of the United States): On Wednesday, October 3, 2007, the High Court heard oral arguments in New York Board of Elections v. Torres (No. 06-766), a case challenging the constitutionality of New York's system of appointing trial court judges. This case comes to the Supreme Court from the U.S. Court of Appeals for the Second Circuit, which upheld a federal district court's finding that the appointment system violates the First Amendment freedom of association rights of both voters and judicial candidates.
Harwood v. Tennessee (Supreme Court of the United States): On Monday, October 15, 2007, the Supreme Court denied a petition for certiorari in Harwood v. Tennessee (No. 06-1652), a case leveling a First Amendment challenge against a Tennessee statute that prohibits the possession of child pornography. The challenged statute specifically permits the "trier of fact [to] infer that a participant [in sexually explicit material] is a minor if the material through its title, text visual representation or otherwise represents or depicts the participant as a minor." Tenn. Code Ann. § 39-17-1003(b) (2007). The petitioner asserted that the Tennessee statute actually abridges constitutionally-protected free speech by encompassing "images where no child exploitation was actually involved, such as computer-simulated or virtual images."
Brandt v. Chicago Board of Education (Supreme Court of the United States): The High Court has chosen not to hear a case challenging a Seventh Circuit finding that the First Amendment does not protect students' right to wear unauthorized message-bearing T-shirts, even those worn in protest. The case, Brandt v. Chicago Board of Education (No. 07-289), arose out of a dispute over a simple contest to choose a class t-shirt. In short, school officials named a design other than the one actually garnering the most votes as the winner of the contest. Students protested this decision by wearing the t-shirt that numerically should have won the contest rather than the t-shirt that was the "official" winner. Considering the protest both disrespectful and a risk to an orderly school environment, the principal punished these students by restricting them to their homeroom classrooms during certain class periods. Subsequently, a class action suit was filed on behalf of 24 eighth graders, but the Seventh Circuit upheld the school officials' broad discretion in regulating student conduct for the purposes of maintaining a school environment that is orderly and conducive to learning.
U.S. v. Williams (Supreme Court of the United States): High Court hears oral arguments in case involving child porn law. Justices peppered both sides with vigorous questions during the October 30, 2007, oral arguments in United States v. Williams, a Supreme Court case regarding the constitutionality of the federal PROTECT Act. A lower federal court has held that the federal ban on pandering (offering or presenting) child pornography actually violates the First Amendment.
Solicitor General Paul Clement, representing the United States, defended the statute in the face of a barrage of questions about hypothetical applications of the law. Would the statute ban news coverage that graphically depicted war-zone rapes? Would it cover teenage boys showing dirty pictures to their friends? Would it cover a man who receives unsolicited kiddie porn in the mail who then, outraged, shows it to his next-door neighbor? What if the children portrayed were 17 years old? Clement repeatedly emphasized that these questions were no different with respect to the ban on possession, not pandering, of child pornography. He emphasized that such hypothetical cases should be left for challenge on a case-by-case, “as applied” basis, rather than used to strike down the entire statute.
Coral Gables attorney Richard J. Diaz, representing the criminal defendant Michael Williams, also faced a steady barrage of questions from the Justices. Couldn’t the law be interpreted not to apply to the proposed hypothetical situations? Doesn’t the law have to be substantially overbroad, not just arguably overbroad in some imaginary cases, in order to be struck down? Should the Court reconsider the overbreadth doctrine itself in these kinds of cases? Diaz insisted that the statute was overbroad and would chill free speech.
With most of the Justices asking hard questions to both sides, predicting the outcome of this case is especially challenging.
University of Notre Dame v. Laskowski (Supreme Court of the United States): Separationists challenged the constitutionality, under the Establishment Clause, of a federal teacher training program that Notre Dame ran. The district court in Indiana dismissed the case as moot after the contract expired. A divided Seventh Circuit reversed, holding that the case was not moot because the separationists can still seek a restitution order compelling Notre Dame to repay the federal Department of Education. Notre Dame filed a petition for a writ of certiorari, contending that the separationists lack Article III standing to seek restitution. The ACLJ plans to draft an amicus brief in support of certiorari focusing on the separationists' lack of legal standing to bring the lawsuit.