Media Law Advisory

July 31, 2007

What Would Jesus Do? U.S. Supreme Court Limits Students’ Free Speech Rights

The Court giveth and the Court taketh away. On the same day that the U.S. Supreme Court expanded the free speech rights of corporations and unions seeking to engage in political speech, it took away free speech rights of students.

In 2002, the Olympic Torch Relay went through Juneau, Alaska. The Relay route passed by a high school. The high school principal allowed students and staff to go outside and watch the Relay. Joseph Frederick, a senior at the high school, did not attend school the morning of the Relay, but did attend the Relay. He stood across the street from the high school. As the Relay passed by the high school, Frederick unfurled a banner that read: “BONG HiTS 4 JESUS.” This act resulted in his suspension.

The principal suspended him, in large part, because she believed his message could be interpreted to advocate use of illegal drugs and that this message violated a school policy that prohibited “any assembly or public expression that…advocates the use of substances that are illegal to minors…” Frederick sued the school board and principal for violating his First Amendment free speech rights.

A 5-4 majority of the United States Supreme Court held that Frederick’s free speech rights were not violated. Specifically, the majority held that “a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.”

Even though the majority described Frederick’s message as “cryptic,” it was able to decipher the message and found that “[a]t least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs.” Specifically, the majority found that the message could reasonably be interpreted to mean either an imperative: “[Take] bongs hits”; or could be viewed to celebrate drug use: “bong hits [are a good thing]” or “[we take] bong hits…”

Frederick stated that his intent was neither to advocate for or against using marijuana, but that he simply made up a “meaningless and funny” message because he “just wanted to get on television.” Although the majority admitted that “[g]ibberish is surely a possible interpretation,” it is not the only one. The majority also dismissed the relevance of Frederick’s desire to simply get on television because his motive for displaying the banner is not the same as the interpretation of the message. Finally, the majority rejected the notion that this could be considered political speech about the criminalization of drug use or possession.

In short, the majority created a new school speech test. Schools may prohibit speech at school events that can reasonably be viewed as promoting illegal drug use. This does not mean, however, that schools must prohibit such speech.

The dissenting Justices took issue with a number of points. First, they found that this new test—banning speech that can be reasonably interpreted to advocate illegal drug use—is unnecessary in light of the current school speech tests. Second, they found that this new test is harmful to free speech rights because it is a form of viewpoint discrimination, which is one the most suspect type of restrictions on free speech rights.

Third, the dissent cited the other free speech decision issued on the same day to show the contradiction between the two opinions. In Federal Election Commission v. Wisconsin Right to Life, Inc.(June 25, 2007), the same majority in the Frederick case stated that when the “First Amendment is implicated, the tie goes to the speaker.” Because Frederick’s message was ambiguous, open to interpretation and according the majority “cryptic,” the First Amendment should protect Frederick’s speech, just as it protected Wisconsin Right to Life’s judicial filibuster ad, which was capable of a reasonable interpretation other than one of being the “functional equivalent of express advocacy.”

Fourth, the dissent noted that the majority completely “ignores the fact that the legalization of marijuana is an issue of considerable public concern in Alaska,” and thus ignores the reasonable interpretation that the banner constitutes political speech, albeit in a silly and nonsensical manner. “Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately–that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.”

In sum, the United States Supreme Court issued two 5-4 opinions on the same day involving free speech rights. One opinion expanded the protection of free speech rights. This one limited the scope of free speech rights. Interestingly, the majority and dissenting Justices were the same in both cases.

Major Food Companies Self-Regulate Junk Food Advertising to Children

On July 18, 2007, eleven members of the Children’s Food and Beverage Advertising Initiative announced their pledge to stop advertising products failing to meet certain nutritional standards to children under age 12. FCC Commissioner Deborah Taylor recognized the effort, calling it “an admirable step in the right direction.”

The standards are company-specific, but are loosely based on the 2005 United States Dietary Guidelines developed by the Department of Agriculture and the Department of Health and Human Services. The growing fear of regulatory intervention and lawsuits, similar to what occurred in the tobacco industry, led food companies to take a proactive step in withdrawing their advertising geared toward children.

Kraft was the first company to begin advertising self-regulation in 2005, followed shortly by others. Last month Kellogg agreed to stop marketing foods that contain more than 12 grams of sugar. After several public interest groups demonstrated praise for their efforts, other food companies, such as General Mills, choose to use Kellogg as a model in developing their own advertising standards. Cadbury Adams, Coca-Cola, Hershey, Mars, Unilever, PepsiCo, McDonald’s, and Campbell Soup are the other participating companies.

While some public interest groups praise the food industry, others fear that these efforts are far from enough. Indeed, some argue that the new standards miss the mark. Although a television show categorized as a “children’s show” will not feature junk food advertising, those classified as a “family show” will continue to see favorites broadcast to their children. According to Nielsen Media research, many “family” shows have more than triple the number of children viewers under 12 than those shows classified specifically as “children.”

While advertisers spend an estimated $900 million annually on advertising to children, many of the affected companies have little fear of lost sales to the affected products. For many companies, the items that fall below nutritional standards are favorites that are currently rarely advertised. In fact, PepsiCo estimates only 1 percent of its overall ad budget is dedicated to children.

Squelching the Police Blotter? Tennessee Federal Court Considers Enforcement Order Preventing Dissemination of Information in Criminal Cases

In a case concerning privacy rights of arrested individuals in Tennessee, the United States District Court for the Middle District of Tennessee has been presented with a complaint that applicable law enforcement bodies should not be allowed to make available identification information for individuals who have been arrested, but not yet convicted of crimes. Doe v. Briley, et al., United States District Ct. M. D. Tenn., No. 6971. The district judge hearing the matter has given the parties until mid-August to file additional arguments with regard to the issue, prior to the judge rendering her decision.

BackgroundOn August 3, 2006, on behalf of an unnamed class of plaintiff arrestees, a Vanderbilt University of Law professor filed a Motion for Further Relief to Assure Compliance with a Consent Order that had previously been entered by the court on March 22, 1974. That Consent Order held that the applicable law enforcement parties were prohibited from dissemination of records of persons in Metropolitan Davidson County who had been arrested but not convicted of criminal activity.

Under the terms of the Consent Order, neither the Metropolitan Government of Nashville and Davidson County (“Metro Government”) nor the State of Tennessee may disseminate or otherwise provide access to certain arrest records “except to …law enforcement agencies for official law enforcement purposes.” The arrest records covered by the limitation are “persons arrested by [Metro Government] but who are not convicted of the charges upon which arrest was predicated.”

The petitioner class asserts that in 2006, Metro Government, through its police department, posted on a website the names and photographs of persons arrested in a priority enforcement against prostitution. The website at issue actually provides photographs of each individual arrested and their address, as well as how much the individual agreed to pay for what sex act. However, these are not the only offenses searchable on the internet. The State of Tennessee’s website offers a similar page for registered sex offenders. Metro Government also allows searches for pending and closed criminal cases.

In short, the petitioner class contends that such a posting violates the over thirty (30) year old Consent Decree. The petitioner class has asked the court to order the dismantling of the website, as well as prohibit the dissemination of arrest records without conviction through all other available means.

ArgumentThe Metro Government and Tennessee Bureau of Investigation responded with a multi-pronged argument. First, the defendants state that the original decree has not been violated, as the Consent Decree applies only “to those cases in which the disposition is something other than conviction.” The defendants assert that the Consent Decree does not extend so far as to prohibit identification of arrested persons who “have not (yet) been convicted.” Thus, the defendants argue that its website only identifies individuals in keeping with the Consent Decree's dictates, namely, those individuals who have “not been convicted.” The defendants further contend that they expunge records from the database where the person has been acquitted, the matter dismissed, and where the attorney general has declined to prosecute, thus limiting any harm to not guilty arrestees.

The defendants also assert that the decree should be dissolved, because the law has evolved, rendering the decree no longer necessary. The defendants point out that the Tennessee expungement law, Tenn. Code Ann. § 40-32-101, has been found to have the purpose of “prevent[ing] a citizen from bearing the stigma of having been charged with a criminal offense, where he was acquitted of the charge or prosecution…was abandoned.” State v. Doe, 588 S.W.2d 549, 552 (Tenn. 1979).

More forcefully, the defendants point out that the United States Supreme Court has since held that persons in the position of the petitioner class do not have a substantive privacy right in his or her arrest record. Paul v. Davis, 424 U.S. 693, 695-96 (1976).

Finally, the defendants asserted the public has a clear interest in obtaining information regarding individuals who have been arrested prior to the actual disposition of the case. See, e.g., Caldarola v. County of Westchester, 343 F.3d 570, 572-77 (2d Cir. 2003) (holding that the government may publicize arrests in order to serve serious public service of “serious purpose” of educating the public about efforts of law enforcement and it “may deter others from attempting similar crimes.”)

AnalysisAlthough a bit unique with regard to the already entered Consent Order, this matter touches on privacy issues that are ever-present in America’s post-September 11th society. However, considering that the United States Supreme Court has held that the public has a constitutional right to attend criminal trials, because, as the Court stated “without the freedom to attend such trials…important aspects of freedom of speech and ‘of the press could be eviscerated,’” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980), this appears to be an uphill battle for the plaintiff class. Moreover, with today’s well-developed forms of interlacing media, and the ease with which that information is disseminated through that media, protecting a person’s arrest records appears nearly impossible.

U.S. Supreme Court Loosens Campaign Finance Laws

Erring in favor of protecting political speech, a 5-4 majority of the United States Supreme Court held that § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) was unconstitutional as applied to ads run by Wisconsin Right to Life. The ads urged viewers to contact Senators Feingold and Kohl to tell them that they oppose judicial filibusters. Federal Election Commission v. Wisconsin Right to Life, (June 25, 2007), available at: http://www.supremecourtus.gov/opinions/06pdf/06-969.pdf.

This decision is the latest in a century-long process of judicial and legislative action trying to balance the free speech rights of corporations and unions on the one hand, with concerns about the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” (Justice Souter’s Dissenting Opinion, quoting Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990)).

In 1986, the United States Supreme Court held that corporate and union treasury funds could not be used for the “express advocacy” to support or oppose a candidate for federal office. Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). But, this restriction was easily circumvented by avoiding “magic words” in ads, such as “vote for,” “support,” “vote against,” etc. Without these types of “magic words,” an ad did not constitute “express advocacy” and therefore was permitted under the law.

In 2002, in an effort to close the wide gap left by the “express advocacy” test, Congress passed the BCRA with bipartisan support. Section 203 of the BCRA restricts corporations and unions from funding “electioneering communications.” Generally speaking, “electioneering communications” are limited to broadcast, cable, or satellite and communications and: (1) refer to a clearly identifiable candidate for federal office; (2) are made within either (a) 60 days before a general election, or (b) 30 days before a primary election; and (3) the communication is targeted to the relevant electorate. Thus, § 203 restricted “express advocacy” as well as the “functional equivalent” of express advocacy.

In 2003, the Court affirmed the constitutionality of § 203 to the extent that it covered “express advocacy” as well as the “functional equivalent” of “express advocacy.” McConnell v. Federal Election Commission, 540 U.S. 93 (2003). In other words, the Court upheld § 203 on its face. Even though McConnell found § 203 constitutional on its face, a party could still challenge § 203 as applied to a particular ad. Wisconsin Right to Life did just that.

In 2007, the Court ruled on the Wisconsin Right to Life’s as-applied challenge in relation to their judicial filibuster ads that urged citizens to contact Senators Feingold and Kohl. The Court held that § 203 was unconstitutional as applied to these ads. Although the Court did not reject the “functional equivalent” test, it substantially changed the analysis for determining whether an “issue ad” is the “functional equivalent” of “express advocacy.”

Specifically, the Court stated that “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” In other words, even if one reasonable interpretation of an ad is that it is the “functional equivalent” of “express advocacy,” that ad is still protected free speech so long as at least one other reasonable interpretation is that the ad is something other than the “functional equivalent” of “express advocacy.” Thus, the majority greatly expanded the scope of protected political speech of corporations and unions and limited the scope of § 203 of the BCRA.

In his dissenting opinion, Justice Souter stated that the majority “effectively reinstates the same toothless ‘magic words’ criterion of regulable electioneering that led Congress to enact BCRA in the first place.”

A likely result of this decision will be increased “issue ads” as the 2007 and 2008 elections near, because under the Wisconsin Right to Life test, so long as the ad is capable of at least one reasonable interpretation other than being considered the “functional equivalent” of “express advocacy,” then that ad should not be subject to the prohibitions of § 203 of the BCRA.