October 3, 2005

First Monday ...

Each day in my e-mail I receive a "word of the day." When I opened my e-mail this morning--this being the First Monday in October, and the inaugural session of the Roberts Court-- I saw that one of the words waiting for me from the folks at Merriam -Webster was tabula rasa. How apt, fresh on the heels of President Bush's announcement this morning that he is nominating Harriet Miers (current White House Counsel, and until late last year Deputy Chief of Staff under Karl Rove) as an Associate Justice of the Supreme Court

If Ms. Miers in confirmed by the Senate, we will have her completely blank slate close aside the relatively blank slate of Chief Justice Roberts. While it will be interesting to see what Chief Justice Roberts and Ms. Miers will scribe generally upon those slates in the terms to come, the new term itself will be a source of interest to those who follow developments in media and First Amendment law.

The Court's docket this term includes Rumsfeld v. FAIR, in which the government seeks to overturn the Third Circuit ruling holding the Solomon Amendment (requiring equal access to campuses for military recruiters as a condition of receiving federal funds) in violation of the First Amendment.

In Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal the government challenges the 10th Circuit ruling that upheld the right of a religious group to use a hallucinogenic substance.

In Garcetti v. Ceballos, the government seeks to overturn the ruling by the 9th Circuit that upheld the First Amendment right of a public employee to speak out on matters of public concern.

In Hosty v. Carter, the Court is asked by the (former) student press plaintiffs to consider their challenge to the 7th Circuit ruling dismissing the case against the sole remaining defendant, Dean Carter. The district court, which was upheld by a three-judge panel, had reasoned that Hazelwood v. Kuhlmeier is limited to high school newspapers where students are working on the paper as part of their course-work. As such, the district court held, university officials had no right to cut off funding to a student newspaper based upon content (after the student editors rebuffed the university's demand to impose viewpoint-related prior restraint).

In reversing the three-judge panel after rehearing en banc, the 7th Circuit ultimately concluded, in a 7-4 decision (yes ... Judge Posner was with the majority), that the lone remaining defendant, Dean Carter, had qualified immunity from liability, because "[d]isputes about both law and fact make it inappropriate to say that any reasonable person in Dean Carter's position in November 2000 had to know that the demand for review before the University would pay the [paper's] printing bills violated the first amendment."

Chief Justice Roberts's confirmation hearing admission that he has "not dealt with a lot of First Amendment access cases" and that "this is not an area that I feel completely up to speed on the precedents" may soon be the subject of change.

He did refer to "sunlight being the best disinfectant," so let's hope Chief Justice Roberts keeps Justice Brandeis in mind in the coming months.

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