Current U.S. Supreme Court update provided by Cooley profs

By Roberta M. Gubbins

Legal News

For more years than anyone in the faithful audience or the speakers will attest to, Phil Prygoski and Bill Weiner, Cooley professors, have presented the Phil and Bill Show to the members of the Ingham County Bar Association.

Wednesday, Nov. 3, was no exception. While their listeners ate, Phil and Bill brought the group an update of the 2009-2010 term of the United States Supreme Court.

Prygoski started the discussion with a review of three first amendment cases. Citizens United v. Federal Election Commission, which played out recently with the mid-term elections. Citizens United, a nonprofit corporation, released a film named "Hillary: the Movie." The court described the movie, released when Hillary Clinton was running for President in 2008, as "fairly pejorative in tone."

"A cable TV company offered to put the movie on TV for 1.2 million dollars. The problem was a federal law, which prohibited corporations from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of a candidate. The law was enforceable with the criminal law--it was a felony to do this. And, the corporation had to go to the election board to get permission," Prygoski said.

"The court looked at it and said, you know all this administration and regulation requirement stuff coupled with the felony punishment makes this a prior restraint on the speech of corporations. They held that corporations can spend the same amount as individual people. The court also found insufficient the government's arguments that the law was necessary to prevent corporate speech from causing corruption. Justice Kennedy wrote for the 5-4 decision of the court."

Prygoski next took up the case of Snyder v Phelps that was recently argued but has not been decided. This is the Westburo Baptist Church, founded in Kansas in 1955, which has 70 members and over 50 of them are Phelps family members. They go around the country picketing.

Among their beliefs is that God hates homosexuality and punishes America for its tolerance of homosexuality, particularly in the military. To understand the tenor of the group," Prygoski said "their website is"

"They go to the funeral of Marine Lance Corporal, Matthew Snyder, who had been killed in Iraq. They picket carrying signs that say, 'America is doomed. Thank God for 9/11. Pope in Hell. Thank God for dead soldiers,' etc.

"The church complied with all police requests and all ordinances at the funeral. A couple weeks after the funeral, they publish what they call an 'Epic,' which was directed at Matthew Snyder. It said that his parents 'taught Mathew to defy his creator, raised him for the devil, and taught him God was a liar.'

"Matthew's father sued the church for intentional inflection of emotional distress and intrusion upon seclusion. They won at the trial level. The case went up to the court of Appeals, which ruled the speech is protected. They said the signs at the funeral were not directed at Matthew Snyder or his father and so were political hyperbole and protected."

The appelate court also found that the Epic was rhetorical hyperbole not actual provable facts about the service member or his father and thus protected.

In Prygoski's opinion, after reading the transcript of the oral argument, "The court is struggling with this. It is seeming to look for some way to do something to this church. It looks like this may end up being a time, place, manner restriction at least in terms of the signs. That may be protected speech.

"The other one, the Epic, looked like a closer call. The issue was when will direct personal attacks rise to an intentional infliction of emotional distress cause of action."

Christian Legal Society v Marines involves Hastings College of Law, a public school in California that recognizes student groups, giving them access to the college facilities. The school had a non-discrimination rule "that essentially says if you want to be a student group, you have to accept all comers. The problem was that this was a Christian Legal Society, which required prospective members "to sign a statement of faith" and a statement stating "that sexual activities should not occur outside of marriage and only between a man and a woman."

The college banned the Christian Legal Society because they were violating school rules and also state law in denying membership to homosexuals and non-Christians. The league sued the school arguing that Hastings Law School violated their free speech and expressive association rights.

The court considered only the question of whether a public law school's conditioning access to a student-organization forum upon compliance with an all-comers policy violates the Constitution. The court, 5-4, ruled that all-comers policy is a reasonable, viewpoint-neutral condition on access to the forum and does not violate the First Amendment.

"The way the court got around it was that they were not forcing the League to accept homosexuals--they could reject those people; all Hastings College is doing is denying them a benefit--it is not a coercive environment," Prygoski concluded.

That said Prygoski was off to Ann Arbor to teach a class and Professor Bill Weiner took over, beginning with some statistics about the Court.

"The court had 72 opinions after oral arguments in the past year and 86 opinions over all. Seventy-two opinions by the court is one current example of this court being non-activist. As usual, most of the cases (15) came from the 9th Circuit and 60% of their cases were reversed. Our own 6th Circuit suffered the indignity of having all seven of their cases over-ruled. They went 0 for 7.

"There were substantially less 5-4 decisions. Of the 16 5-4, 11 of them split on our regular left right break. The right team is composed of Chief Justice Roberts, Justices Scalia, Thomas and Ilito and the left team is Justice Stevens, Breyer, Ginsberg and Sotomayor. Each team hopes that Justice Kennedy will join them. Justice Kennedy voted with the right group eightof the cases, and the left in three. On the major ideological issues, it is and remains Justice Kennedy's court--he is the tiebreaker.

"Over all, he (Kennedy) was tied for the lead in agreeing with the majority with Chief Justice Roberts. Justices Scalia and Thomas agreed 92% of the time while Justices Breyer, Ginsberg and Sotomayor agreed with each other 90% of the time. Justice Stevens led the court with 22 dissents last year.

"We have now had a session with Justice Sotomayor and we see that she votes in the same pattern as Justice Souter in the classic ideological cases. In the terms of the criminal docket, she was consistently liberal. There wasn't a noticeable difference in the way she was voting whether it was a criminal justice case or not. She handled her share of written opinions but she was the only one that didn't have to write majority opinion in a 5-4 split.

"Justice Elena Kagan's background is substantially different from all of the modern judges who came from appellate courts. She is the 112th Justice and the fourth female on the Supreme Court. She has never been a judge, never published much and none of her handful of Law Review articles deal with criminal law issues.

"She has recused herself in a majority of the criminal law cases since she was solicitor general prior to joining the court. The recusals should go away quickly since she recused as solicitor general early on in the nomination process.

"City of Ontario v Quon is a civil case but with Fourth Amendment overtones. Quon is an Officer in the California Police Department. The Department issues pagers and can send text messages. The officers were told they could use them for personal texts and if they went over in minutes, they would pay for them. They were also told no sex messages."

Quon had 456 messages in one month of which only 57 were work related. He is disciplined. He and some of his message partners (wife and mistress) all joined to challenge the policy on Amendment privacy issues.

"The court ruled for the city but ducked the hard stuff," Weiner concluded, "they assumed there was a right to privacy for these people and said the city's policy was reasonable. Some of us hoped for a good discussion of privacy rights in light of the advances in technology, but it didn't happen."

Published: Wed, Nov 17, 2010