Supreme Court Decides Some Controversial First Amendment Issues
Before I became a lawyer, in the summer between high school and college, I had the opportunity to attend a summer program in social studies and political science at a Virginia college. We completed the program with an individual paper on a topic of our choice. My dorm mate, Rosemary, wisely chose “The Involvement of the French in the American Civil War.” Apparently there was not much French involvement in the Civil War and Rosemary peacefully slept the night before the project was due while I struggled the entire night with my subject, “Freedom of Speech in the 20th Century.” Rosemary was rewarded with an “A” and I think I received an embarrassing “C” or “B-“. This was the last time I tackled such an ambitiously broad project in this way and it probably affected my writing style for life. Anyway, it did give me an appreciation for freedom of speech issues.
At least three free speech cases decided in 2010 and 2011 by the U.S. Supreme Court reawakened my interest and are likely to affect us in different ways as citizens for a long time. The first is Snyder v. Phelps, the 2010 case that held that the Westboro Baptist Church was shielded from tort liability for picketing the funeral of an American soldier. The second was Citizens United v. Federal Election Commission (2010) which concluded that corporations, unions and others could not be restricted regarding the amount of their political contributions since it inhibits their right to free speech. Finally, and recently, Brown v. Entertainment Merchant Association, where a 2005 California law that fined the sale of violent video games to minors was stricken as a violation of free speech. Taken together, the cases definitely move the Court toward an “anything goes” mentality toward speech and expression activities such as picketing. Surprisingly, these all come from a Court generally regarded as conservative.
On first glance, it might seem that these three have little similarities but there are some. A Philadelphia columnist and radio personality, Michael Smerconish, noted before the decision in Phelps, in “Free and Hateful Speech v. the Right to Gather” that it depends on whose rights are being considered. They need to be balanced. For those not familiar, Phelps and the Westboro group picket funerals, especially funerals for our soldiers killed in combat with signs such as “God hates fags” and “Thank God for dead soldiers.” The soldier was not gay and, in any event, the actions are intentionally offensive. The same group threatened recently to picket the West Chester area funeral for Bam member, Ryan Dunn. Was the Supreme Court, as Smerconish suggested, elevating the right of Phelps and Westboro over the rights to privacy of the Snyder family? It might appear so.
In Citizens United, it seems at least as of this writing, that huge financial contributors to campaigns do not just have the right to advance funds without limit but, at least in some cases, can do it without disclosure of the real funding source. Under this scenario, you could be watching endless television commercials assailing a point of view without knowing the interest of the funding source. Should viewers who are voters also have the right to know?
Finally, in Brown, we might question are we really protecting the rights of ten year olds to free speech by refusing to allow states to restrict sales to minors or isn’t it actually the $18 billion video game industry? Sixteen year olds did not break open their bank accounts to pay for this law suit. Also minors were not being prevented from viewing games bought by adults such as their parents. The industry was being penalized for selling to minors. In some disturbing discussion, violence was differentiated from sex in that justices pointed out that our children are accustomed to violent text from a very young age. My argument would be that the killing of Bambi’s mother and the witch in Handzel and Gretel are worlds apart from games like “Mortal Kombat” and “Grand Theft Auto” where the participant is not intended to empathize in any way with the victim but to be the assailant. Soon these games will be even more graphic and reality based. Should five year olds, if they have the money, be able to buy them on their own? I tend to think no.
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About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.