First Amendment

Appealed from: United States Court of Appeals for the Ninth Circuit

Oral argument: March 19, 2007

Oral argument: Mar. 21, 2012

Appealed from: United States Court of Appeals for the Tenth Circuit (Mar. 14, 2011)

Respondent Steven Howards criticized and touched Vice President Cheney while the Vice President was on a meet-and-greet at a local shopping center. Petitioners Virgil Reichle and Dan Doyle, two Secret Service Agents, confronted Howards, and subsequently arrested him for assault. However, the state prosecutor dropped the charges against Howards, who then brought a First Amendment retaliatory arrest claim against the Agents. The district court denied the Agents’ motion for summary judgment, ruling that the Agents could not benefit from qualified immunity under the circumstances. The Tenth Circuit affirmed. The Supreme Court must now resolve whether one may raise a First Amendment retaliatory arrest claim when there was probable cause for one’s arrest. A decision for Howards may deter law enforcement officers from making arrests for fear of retaliatory arrest claims, while a decision for the Agents may enable officers to more easily target and punish speech which they oppose.

Oral argument: Feb. 22, 2012

Appealed from: United States Court of Appeals for the Ninth Circuit (Aug. 17, 2010)

Respondent Xavier Alvarez, an elected member of the Three Valleys Water District, lied about receiving a Congressional Medal of Honor during a board meeting. His lie violated the Stolen Valor Act, which Congress enacted to preserve the value of military awards, and he was criminally convicted and sentenced to probation. Alvarez challenged the facial constitutionality of the Act under the First Amendment, and prevailed on appeal. The United States argues that a “breathing space” test should apply because the Act only limits knowingly false factual statements, and that under this test the Act does not violate the First Amendment. Alvarez counters that strict scrutiny should apply because the Act imposes a content-based restriction, and under strict scrutiny, the Act is an unconstitutional restriction of free speech. The ruling in this case may affect the value of military awards, as well as the legal treatment of other false representations.

Oral argument: Jan. 10, 2012

Appealed from: United States Court of Appeals for the Ninth Circuit (June 27, 2011)

California nonunion state employees sued their collective bargaining agent, alleging that the imposition of an additional agency fee assessment used to fund political actions without notice or an opportunity to object violated their First, Fifth, and Fourteenth Amendment rights. The district court granted summary judgment in favor of the nonunion employees. On appeal, the Ninth Circuit reversed. The nonunion employees now appeal. The Supreme Court will determine what disclosures unions must provide when imposing additional agency fees on nonmembers, and the extent to which unions can use nonmembers’ wages to fund expenditures without first obtaining consent.

Oral argument: Jan. 10, 2012

Appealed from: United States Court of Appeals for the Second Circuit (July 13, 2010)

In 2002 and 2003, the Federal Communications Commission reprimanded Fox Television for fleeting profanities that appeared during Fox’s broadcast of the Billboard Music Awards. In 2003, the FCC also censured ABC, Inc. for a scripted television scene featuring brief nudity. Fox appealed, and the Second Circuit vacated the FCC’s decision, ruling that the FCC’s indecency policy was arbitrary and capricious. After the Supreme Court reversed the holding and remanded the case for reconsideration, the Second Circuit again rejected the FCC’s policy, this time for impermissible vagueness. The Second Circuit also opined that the FCC’s policy raised significant First Amendment concerns. Following another round of appeals, the case now returns to the Supreme Court, which must determine the scope of the FCC’s authority to regulate passing instances of nudity and expletive use. This decision may affect the content that broadcasters will be able to air during daytime and primetime programming.

Oral argument: Oct. 5, 2011

Appealed from: United States Court of Appeals for the Tenth Circuit (June 21, 2010)

Congress enacted Section 514 of the Uruguay Round Agreements Act in order to comply with the international copyright standards of the Berne Convention for the Protection of Literary and Artistic Works. Section 514 restores copyright protection to foreign works currently found in the public domain. Lawrence Golan and other performers, educators, and motion picture distributors brought this suit challenging Section 514, arguing that Congress’s removal of works from the public domain exceeded its Copyright Clause powers. Golan also argues that Section 514 violates the First Amendment because the law does not serve any important government interests. Attorney General Holder counters that the Copyright Clause does not restrict Congress’s authority to remove works from the public domain. He further argues that Section 514 does not violate the First Amendment because the government has a substantial interest in complying with the Berne Convention and protecting American works abroad. The Supreme Court’s decision will affect millions of foreign works currently in the public domain, existing and future works based on those foreign works, and the copyright protection of American works in foreign countries.

Oral argument: Mar. 22, 2011

Appealed from: United States Court of Appeals for the Third Circuit (Feb. 4, 2010)

FIRST AMENDMENT, PETITION CLAUSE, RETALIATION, PUBLIC EMPLOYEES

In 2003, the Borough of Duryea, Pennsylvania fired its police chief, Charles J. Guarnieri, Jr. Guarnieri filed a grievance leading to arbitration and his reinstatement. When Guarnieri returned to his position, Duryea issued him a number of directives limiting the tasks he could and could not do on the job. Guarnieri filed a second grievance, leading to modification of the directives. Subsequently, Guarnieri sued Duryea in District Court alleging that Duryea issued the directives in retaliation for his filing of the 2003 grievance, violating his First Amendment right to petition. After a jury found for Guarnieri in District Court, Duryea appealed to the Third Circuit. The Third Circuit held that the First Amendment protects public employees in filing grievances concerning any matter, even those of a personal nature. The Supreme Court granted certiorari to determine whether public employees may sue their employers for retaliation, when the alleged retaliation is for the filing of grievances based on private matters rather than issues of public concern.

Oral argument: Nov. 2, 2010

Appealed from: United States Courts of Appeals for the Ninth Circuit (Feb. 20, 2009)

FIRST AMENDMENT, MINORS, VIDEO GAMES

California enacted California Civil Code §§ 1746–1746.5, which imposed restrictions on the sale of violent video games to minors. The Entertainment Merchants Association and the Entertainment Software Association sought declaratory relief in federal court, alleging that the law was an impermissible restriction of speech in violation of the First Amendment. The district court and the Ninth Circuit ruled in favor of Entertainment Merchants. California appealed, asserting that the First Amendment does not protect the sale of violent video games to minors and that California need not show a direct causal link between violent video games and physical or psychological harm in minors before restricting such sales. The Supreme Court's decision will affect minors' constitutional rights, the power of states to control which materials children are exposed to, and the expression in media with violent content.

Oral argument: Oct. 6, 2010

Appealed from: United States Court of Appeals for the Fourth Circuit (Sept. 24, 2009)

FIRST AMENDMENT, FREEDOM OF SPEECH, PRIVACY, STATE TORT REMEDIES

Respondents Fred W. Phelps, Shirley L. Phelps-Roper, and Rebekah A. Phelps-Davis (“the Phelpses”) protested at the military funeral of Petitioner Albert Snyder’s son, holding signs saying "God Hates the USA," "Thank God for 9/11," and other phrases. Snyder successfully sued the Phelpses for intentional infliction of emotional distress, invasion of privacy by intrusion upon seclusion, and conspiracy, and the jury awarded Snyder $2.9 million in compensatory damages and $8 million in punitive damages. On appeal, the Fourth Circuit Court of Appeals overturned the jury verdict, holding that the Phelpses’ statements were protected under the First Amendment and thus could not be subject to a civil lawsuit. The Fourth Circuit reasoned that the statements should be protected because they are rhetorical hyperbole, as opposed to verifiable fact, and because the statements address matters of public concern. The Supreme Court’s decision in this case will implicate individuals’ free speech and privacy interests and the states’ interest in protecting their citizens through tort law.