Courtside
by Paul M. Smith, Bruce J. Ennis, and Donald B. Verrilli
Paul M. Smith, Bruce J. Ennis, and Donald B. Verrilli are partners with the firm of
Jenner & Block in Washington, D.C.
Supreme Court Rules Out "Ride-Alongs"
On May 24, 1999, in Wilson v. Layne, the Supreme Court unanimously ruled that it
was a violation of the Fourth Amendment for law enforcement officers to bring along a
reporter and a newspaper photographer when they entered a home to execute arrest warrants.
In an opinion written by the Chief Justice, the Court reasoned that even if a search is
constitutionally authorized, the Fourth Amendment requires that the scope of the search be
reasonably related to the objectives of the authorized intrusion. Noting that "the
presence of reporters inside the home was not related to the objectives of the authorized
intrusion," and that the reporters "did not assist the police in their
task," the Court concluded that the "reporters were not present for any reason
related to the justification for police entry into the home."1
The Court went on the reject arguments that the presence of the press served various
legitimate law enforcement purposes. In particular, it was not convinced by the claim that
allowing ride-alongs would promote publicity of the government’s efforts to combat
crime and facilitate accurate reporting on those efforts.2 Nor did the Court
accept the proposition that the presence of the press would serve to minimize police
abuses in the service of warrants. While the police might want to make a practice of
filming such activities themselves, the Court held that it is far different to invite
along private citizens making a record for their own private purposes.3
The Supreme Court nevertheless held that the claim against the respondent officers was
barred by qualified immunity. Given the paucity of the law on the issue at the time the
ride-along occurred, the Court was not convinced that there was "clearly
established" law in place of which an objectively reasonable law enforcement officers
would have been aware. Justice Stevens dissented on this last point.
In the companion case of Hanlon v. Berger, the Court reached the same result,
holding that the search violated the Fourth Amendment because of the presence of
reporters, but that the officer defendants were qualifiedly immune.
The Court’s Future Docket
When the Supreme Court returns from its summer recess, it will be facing at least five
cases raising issues relating to the freedom of speech. Los Angeles Police Dep’t
v. United Reporting Publishing Co. is a commercial speech case that was discussed in a
prior column. The other four raise a wide variety of important issues.
FDA v. Brown & Williamson Tobacco Corp.
This is the high-visibility case in which the Fourth Circuit invalidated new rules of
the Food & Drug Administration (FDA) proposing regulation of the advertising of
tobacco products. Because the court of appeals relied solely on a ruling that the
regulations exceed the scope of the FDA’s statutory authority, the question presented
by the FDA in its petition for certiorari does not include the constitutionality of the
regulations at issue. But the Court will not be unaware of the serious constitutional
questions raised by limitations on advertising of a legal product. Indeed, it granted
review in the case only the day before it heard arguments in Greater New Orleans
Broadcasting Ass’n v. United States, which involves the constitutionality of
restrictions on advertising of casino gambling.
The regulations at issue, among other things, would (1) limit the advertisements for
cigarettes and smokeless tobacco, to the extent children might be exposed to them, to a
black-and-white text-only format, (2) prohibit billboard advertising within 1000 feet of
schools or playgrounds, (3) prohibit the distribution of promotional nontobacco items
carrying brand names, and (4) prohibit sponsorship of sporting and other events using
brand names.4 The Fourth Circuit, reversing a district court decision, held
that the FDA has no jurisdiction to exercise any form of regulatory control over tobacco
products.5 It relied in part on the statutory definitions of "drug"
and "device"—read in the "context" of the entire regulatory
scheme, which it held is not well-suited to address the dangers of smoking. The court of
appeals then went on to rely on the fact that the FDA had long stated it had no power to
regulate cigarettes and Congress had never acted to create such jurisdiction, even as it
passed various tobacco-specific laws dealing with related issues of product labeling.
Nixon v. Shrink Missouri Government PAC
This case raises important issues about the constitutionality of campaign finance
regulation. The State of Missouri imposed a limit of $1,075 for campaign contributions for
statewide elective office. That limitation was challenged on First Amendment grounds. In Buckley
v. Valeo, the Supreme Court upheld campaign contribution limits of $1,000 in the
Federal Election Campaign Act of 1974. A divided Eighth Circuit panel nevertheless
invalidated Missouri’s contribution limit. The panel majority concluded that
subsequent to Buckley the Supreme Court had made clear that strict first amendment
scrutiny should apply to campaign contribution limitations. Applying that standard, the
panel held that Missouri had not presented a factual record documenting a significant risk
of corruption or of a public perception of corruption that diminished confidence in
government, and thus did not meet the requirements of strict scrutiny.
In this case, the Supreme Court is presented with an opportunity to decide whether the
part of Buckley v. Valeo that upheld campaign contribution limits as consistent
with the First Amendment remains good law. The Court will also face potentially difficult
questions about the First Amendment standard of review applicable to laws restricting
campaign contributions, and about the nature and amount of proof needed to satisfy the
applicable First Amendment standard. The case may be decided on narrow grounds, but it may
also be the occasion for an important clarification from the Court as to how the First
Amendment will apply to campaign finance laws.
Board of Regents v. Southworth
The Court has granted certiorari to address the question it has previously left open
(most recently in Rosenberger v. Rector and Visitors of the University of Virginia)
whether a student who pays a mandatory fee to a public university to fund student
activities has a First Amendment right to demand a pro rata return of the fee to the
extent the fee is expended for speech to which the student does not subscribe. The courts
of appeals are divided on this important question involving issues of compelled speech and
government subsidies.
In Southworth, the Seventh Circuit addressed a challenge to a University of
Wisconsin policy requiring students to contribute an activity fee which was then used to
fund private organizations that engage in political and ideological advocacy. The policy
was challenged by several students who objected to the funding of such organizations as
Amnesty International, an AIDS support network, and various other political and
ideological groups. The Court applied the law set forth by the Supreme Court in Abood
v. Detroit Board of Education and Keller v. State Bar of California, which hold
that unions and the state bar may constitutionally expend funds collected from members for
ideological activities germane to the organizations’ goals, even if individual
members of the organization disagree with the expenditure. The Court concluded that
funding the speech challenged by the students was not germane to the university’s
mission, and that the funding imposed a significant burden on the First Amendment rights
of the students, and invalidated the University’s policy on that basis.
City of Erie v. Pap’s A.M.
In this case, the Supreme Court of Pennsylvania invalidated a local law banning public
nudity, to the extent that law was applied to proscribe nude dancing. In so doing, the
court ruled that the U.S. Supreme Court’s decision in Barnes v. Glen Theatres,
Inc., upholding the constitutionality of a similar law, was not a binding precedent
because no single opinion in that fragmented ruling could be said to represent a legal
determination made by a majority of the Supreme Court. Proceeding to address the merits
independently, the Pennsylvania court ruled that the application of the law to nude
dancing was a content-based restriction, that strict First Amendment scrutiny accordingly
applies, and that the city could not satisfy that standard.
Endnotes
1. 1999 U.S. LEXIS 3633, at *16 (May 24, 1999).
2. Id. at *18-19.
3. Id. at *19-20.
4. 61 Fed. Reg. 44396 (August 28, 1996).
5. 153 F.3d 155 (4th Cir. 1998).