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1993

Section 3: Free Speech and PressInstitute of Bill of Rights Law at the William & Mary Law School

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Repository CitationInstitute of Bill of Rights Law at the William & Mary Law School, "Section 3: Free Speech and Press" (1993). Supreme Court Preview.51.https://scholarship.law.wm.edu/preview/51

A GROWING MARKETPLACE OF IDEAS

BY FLOYD ABRAMSCopyright 1993 American Lawyer Newspapers Group Inc.

Legal TimesJuly 26, 1993

The past year has been a remarkably positive onefor First Amendment commercial-speech interestsbefore the Supreme Court. Many followers of thefate of commercial speech had feared the worst afterthe Court granted a writ of certiorari from astrikingly First Amendment-sensitive ruling of theU.S. Court of Appeals for the 6th Circuit. But in itsruling in that case, Cincinnati v. Discovery NetworkInc., 113 S. Ct. 1505 (1993), and in another,Edenfield v. Fane, 113 S. Ct. 1792 (1993), the Courtnot only reaffirmed the value of commercial speech,but also strengthened the protections afforded it inprevious decisions. This remained truenotwithstanding the Court's far less positive treatmentof a third commercial-speech case, United States v.Edge Broadcasting, 61 U.S.L.W. 4759 (1993).

The disparity among the three cases should comeas no surprise. In the commercial-speech area, asmuch as in any other in recent years, Supreme Courtopinions often fail to relate to one another at all. Itis as if there are two Supreme Courts incommercial-speech cases: one pro and one con.Unfortunately, this split has left both sides of thedebate with their own well of precedent from whichto draw, thus leaving the area one of continuingunpredictability. This term has been no exception.Justice Byron White's majority opinion in Edge-thelast of the three decisions handed down - simplydoes not cite Discovery Network at all and refers toEdenfield only once in passing.

Despite this lack of intertextual reference, each ofthe Court's commercial-speech cases this term, as inyears past, involves an application of the samefour-part test first set forth in Central Hudson Gas &Electric Corp. v. Public Service Commission, 447U.S. 557 (1980). Regarding truthful andnon-deceptive commercial speech, that test requiresan assessment of the seriousness of the government'sinterest in regulating commercial speech and adetermination that the statute in question both directlyadvances that interest and is no more extensive thannecessary to serve the interest. The final factor ofthis test was refined in Board of Trustees v. Fox, 492U.S. 469 (1989), where the Court stated that itsdecisions do not require the legislature to choose theleast restrictive means available to regulate

commercial speech, but look instead to whether thereis a "reasonable fit" between the legislature's endsand the regulatory means chosen to accomplish thoseends.

As a practical matter, it is commonplace inapplying this test for the first two elements to bedisposed of relatively quickly. Only rarely has theCourt been faced with speech it found to be whollyuntruthful or inherently misleading and, therefore,outside the scope of First Amendment protection; andthere always seems to be some substantialgovernment interest or other behind a statute at issue.Almost without exception, the Court'scommercial-speech cases -- including those decidedthis term - thus turn on the third and fourth elementsof the Central Hudson analysis.

In terms of clarifying the nature and scope of theprotection of commercial speech. DiscoveryNetwork is of enormous import. Practically everyline - indeed, every footnote - of Justice John PaulStevens' majority opinion brings to light some aspectof commercial-speech law that is protective of speechyet had been only half-visible under previousdecisions.

Several aspects of the Discovery Network opinionmerit particular attention. First, with respect to thelevel of judicial scrutiny to which commercial-speechregulations ought to be subject, the Court flatly"rejected mere rational basis review, * explicitlyaffirming the application of an intermediate level ofscrutiny.

Borrowing extensively from those parts of Fax thatoffered some promise of future First Amendmentprotection, the Court also made clear that the burdenof proof rests squarely on the state to justify itsregulation and that it must "affirmatively establish thereasonable fit" required in the fourth prong of thecommercial-speech test. The Court then clarified thenature of this burden by expanding upon what ismeant by a "reasonable fit." The Court concludedthat, although a given regulation need not be the leastrestrictive means in order to pass constitutionalmuster, "if there are numerous and obviousless-burdensome alternatives to the restriction on

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commercial speech, that is certainly a relevantconsideration in determining whether the 'fit' betweenends and means is reasonable." This is the first timesince Fox set forth the reasonable-fit standard that theCourt has provided clear and significant guidance onhow to evaluate - or at least go about disproving -such a fit.

The Discovery Network decision is no lesssignificant for its sensitivity to First Amendmentconcerns than for its systematic fine-tuning of theanalytic framework applicable to commercial speech.In essence, the Court held in Discovery Network thatcommercial speech may not be treated differentlyfrom non-commercial speech when the distinctionbetween the two "bears no relationship whatsoever tothe particular interests" asserted by the state.

Specifically, the Court found that Cincinnati's banon newsracks containing commercial handbills -- butnot those containing newspapers - was animpermissible response to the city's "admittedlylegitimate interests" in aesthetics. Citing the fact that"[each] newsrack, whether containing[non-commercial] 'newspapers' or 'commercialhandbills,' is equally unattractive," the Court foundthat the only reason the city's regulation failed toreach non-commercial speech was the city'smisperception that since commercial speech was oflesser value than non-commercial speech, it could beseparately regulated on grounds unrelated to thecommercial aspects of its message. In response, theCourt made clear that it was "unwilling to recognizeCincinnati's bare assertion that the 'low value' ofcommercial speech is a sufficient justification for itsselective and categorical ban on newsracks dispensing'commercial handbills.'"

Preliminary to its consideration of the particularcommercial/non-commercial dichotomy inCincinnati's newsrack ordinance, the Court alsoaddressed the troubling question of how commercialspeech should be defined, concluding that "[this] verycase illustrates the difficulty of drawing bright linesthat will clearly cabin commercial speech in a distinctcategory." Significantly, the Court revisited itsprevious attempts to define commercial speech andmade clear that its much-debated decision in Bolgerv. Youngs Drug Products Corp., 463 U.S. 60 (1983)- which concluded that certain informationalpamphlets discussing the virtues of prophylacticswere properly viewed as commercial speech becausethey were "conceded to be advertisements," "madereference to a specific product," and weredisseminated for profit -- did not establish any easily

applied three-part test to determine if speech shouldbe deemed commercial. Instead, the Court inDiscovery Network found "noteworthy" the fact that,in Bolger, it "did not simply apply" its then-currentdefinition of commercial speech in a mechanisticfashion, but rather conducted a careful examination ofthe speech at issue "to ensure that speech deservingof greater constitutional protection [was] notinadvertently suppressed."

Finally, Discovery Network is as noteworthy forits celebratory tone as it is for the substance of itsanalysis. Any decision that quotes from historianDaniel Boorstein's The Americans: The ColonialExperience to demonstrate that commercial speech isa historically important means of "[enlarging] and[enlightening] the public mind" can only be describedas a paean to commercial speech. DiscoveryNetwork may well be the single most importantdecision in this area of First Amendment law sincethe landmark Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council Inc., 425 U.S.748 (1976), first expressly recognized the need forconstitutional protection of even purely commercialspeech.

The second of the three commercial-speech casesthis term, Edenfield v. Fane, involved a constitutionalchallenge to a Florida statute banning in-person,uninvited solicitation by certified public accounts.The decision continued the supportive tone set byDiscovery Network and, along with Edge,Mfurnished new insight into what is meant by CentralHudson's third requirement that a regulation mustdirectly advance the state's interest.

Again the Court hailed the virtues of commercialspeech and, significantly, found the free flowingmarketplace of ideas at home in the marketplace ofcommerce. As Justice Anthony Kennedy wrote forthe 8-1 majority, "[the] commercial marketplace, likeother spheres of our social and cultural life, providesa forum where ideas and information flourish."Moreover, he added, even though that marketplacecontains ideas "of slight worth" in addition to thosethat are "vital," "the general rule is that the speakerand the audience, not the government, assess thevalue of the information presented."

Consistent with this approach, Justice Kennedyfocused more pointedly on the state's burden inEdenfield than the Court has ever done before.Specifically, the Court provided bite for the notionthat "[the] party seeking to uphold a restriction oncommercial speech carries the burden of justifying it"

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by making clear that "[this] burden is not satisfied bymere speculation or conjecture" on by the conclusorystatements of government officials. "[Rather],"Kennedy wrote, "a governmental body seeking tosustain a restriction on commercial speech mustdemonstrate that the harms it recites are real and thatits restriction will in fact alleviate them to a materialdegree."

Applying this standard, the Edenfield majoritystruck down Florida's statute, citing the state's failureto demonstrate that the law directly advanced itsinterests in preventing fraud and overreaching and inmaintaining "the fact and appearance of CPAindependence."

If commercial speech was afforded broadprotection in Discovery Network and Edenfield, itwas dealt a blow in Edge. In that case, a slim 5-4majority led by retiring Justice White upheld afederal statute forbidding radio and television stationsfrom airing lottery advertisements in states wherelotteries are illegal.

Edge represents a setback for First Amendmentinterests in at least three respects. First, the Court'sanalysis of the requirement that the regulation"directly advance" the state's interests leaves much tobe desired - particularly after Edenfield, which wasdecided only two months earlier. In fact, there is nomention of the state's burden and no citation toEdenfield in the third-prong analysis. Far fromrequiring hard evidence, the Court struck adeferential pose, contenting itself with stating that ithad "no doubt that the [challenged] statutes directlyadvanced the governmental interest."

Second, Edge seems rooted in the very sort ofinformational protectionism that is contrary to deeplyrooted First Amendment values. As Justice Stevens(who wrote for the majority in Discovery Network)points out in his dissent, the holding of Edge bringsinto question the principle established in Bigelow v.Virginia, 421 U.S. 809 (1975) -- where the Courtstruck down a Virginia law prohibiting ads forabortion-related services in New York City -- that astate may not, under the guise of protecting itscitizens' welfare outside its borders, suppress truthfulinformation within its borders regarding a legalactivity in another state.

Gambling Ties

Third among the setbacks in Edge is JusticeWhite's attempt to breathe life into Posadas de Puerto

Rico Associates v. Tourism Company of Puerto Rico,478 U.S. 328 (1986), the much-criticizedcommercial-speech decision in which the Court'smajority put forth the view that "the [state's] greaterpower to completely ban [certain conduct] necessarilyincludes the lesser power to ban advertising" relatedto such conduct. That view - turning on its headstandard First Amendment jurisprudence, whichviews limitations on speech as far more dangerousthan limitations on commercial conduct - wasrepeated in Edge. Although the Court's dictum inEdge makes only a few loose references to similardictum in Posadas without sustaining any meaningfulanalysis, its citation of the case (in lieu, for example,of Discovery Network) is troubling.

Fortunately, the Court was also quick to point outthat Posadas, like Edge, involved advertisementsconcerning gambling - an activity that, in the Court'sview, "falls into a category of 'vice' activity thatcould be, and frequently has been, bannedaltogether." Paired in this fashion, the coupling ofEdge and Posadas may have more to do with theirrelationship to a common "vice" that continues to stirhistorically paternalistic impulses than with theCourt's desire to signal a broad retreat from existingcommercial-speech protections.

In terms of advancing commercial-speechjurisprudence. Edge offers a single importantclarification concerning the proper focus of the lasttwo steps of commercial-speech analysis. The Courtexplained that in conducting an inquiry into whethera given regulation directly advances the state'sinterests, "the question cannot be answered bylimiting the inquiry to whether the governmentalinterest is directly advanced as applied to a singleperson or entity." Instead, the inquiry must focus onwhether a general application of the statute willadvance the asserted interests. The Court concludedby stating that, although a statute's application toindividual litigants is not irrelevant, it should be dealtwith under the fourth factor of the Central Hudsontest.

Finally, the tone of Edge is markedly differentfrom that of both Discovery Network and Edenfield.In Edge, there are no celebratory refrains lauding thevalue of commercial speech. There is instead thecrabbed tone all too typical of the Court when itdisdains commercial speech. Indeed, if Edge werethe only commercial-speech opinion one read, onewould be struck by nothing so much as the ease withwhich the state can trump even a presumptiveconstitutional right.

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And yet, Discovery Network and Edenfieldoutweigh Edge in importance. Significantcommercial-speech protection is here to stay; so, itseems, is a continuing battle within the Court thatadds little to its jurisprudential luster.

Floyd Abrams is a partner at New York's CahillGordon & Reindel, where he specializes in FirstAmendment matters, and a member of the NationalBoard of Contributors of American Lawyer Media,L.P.

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AD LIMITS GET HARDER TO ENACT

BY CLAUDIA MACLACHLAN, National Law Journal Staff ReporterCopyright 1993 The New York Law Publishing Company

The National Law JournalJuly 26, 1993

STATE AND federal attempts to restrictadvertising of such so-called vices as tobacco, alcoholand gambling are not likely to get any easier in thewake of three inconsistent rulings by the U.S.Supreme Court on commercial speech, experts say.

Since 1976, when the Supreme Court first put teethinto First Amendment protection of commercialspeech, there has been widespread dissension amongscholars, lawmakers and jurists concerning exactlywhat kinds of commercial speech deserve protectionand how much regulation, if any, is constitutional.

Not surprisingly, the deep-seated ambivalence thatseems to characterize this debate extends to theSupreme Court, which this term handed down threecommercial-speech decisions with two conflictingmessages. Two of the high court's rulings areregarded as strongly protective of commercial-speechrights. But the third generally is viewed as a setbackby advertisers and other proponents of unfetteredcommercial speech.

"It has been very difficult for 15 years to squareone Supreme Court commercial-speech opinion withanother," said noted First Amendment litigator FloydAbrams of New York's Cahill Gordon & Reindel.

Already in the fray are Congress, some of whosemembers are eager to regulate the advertising offood, tobacco and other products, and even billboardsin outer space; state legislatures, some of which areworried about the effects of alcohol and gambling on

- their citizens; and the Federal Trade Commission,whose official rechartering by Congress has beenblocked for more than a decade because ofcommercial-speech concerns.

"The great difficulty in commercial speech is, howsafe can you really make advertising," said Robert S.Peck, legislative counsel to the American CivilLiberties Union. First Amendment law, heexplained, rejects notions of safety in politicalspeech, the most protected of all speech. Thequestion is, he asks, "How much of that can weimport into commercial speech regulations?"

Short ShriftCommercial speech - speech proposing an

economic transaction - historically has been givenshort shrift under the First Amendment. For examplein 1942 the Supreme Court held that ads were notentitled to First Amendment protection.

But by 1976, the court had changed its mind,holding that consumers had an interest in commercialinformation that "may be as keen, if not keener byfar, than their interest in the day's most urgentpolitical debate." Virginia State Board of Pharmacyv. Virginia Citizens Consumer Council, 425 U.S.748.

Since that ruling, which one lawyer calledcommercial speech's "Magna Carta," lawyers saythey have seen a slight but steady erosion ofcommercial-speech rights. The low point, accordingto commercial-speech advocates, was reached in1986, when the court held that Puerto Rico could bansome types of gambling advertising, based on itsright to bar casino gambling entirely. Posadas dePuerto Rico v. Tourism Co., 478 U.S. 328.

Two for Three

Given the court's somewhat erratic history incommercial-speech cases, business lawyers, civilliberties groups and First Amendment scholars wereanxious to see what the court would do with the threecases it had this term. In the end, advocates ofcommercial speech rights went two for three.

* In City of Cincinnati v. Discovery Network,91-1200, the court held that Cincinnati officials couldnot force the publishers of advertising circulars toremove their newsracks from crowded city streetswhile allowing other publications to remain. "Thecity's selective and categorical ban on thedistribution, via newsrack, of 'commercial handbills'is not consistent with the dictates of the FirstAmendment," the court said.

* In Edenfield v. Fane, 91-1594, the court saidthat certified public accountants had a right to solicitclients. "In denying CPAs and their clients the

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considerable advantages of solicitation in thecommercial context, Florida's law threatens societalinterests in broad access to complete and accuratecommercial information that the First Amendment isdesigned to safeguard," the court held.

* In the most controversial case of the term - U.S.v. Edge Broadcasting Co., 92-486 - the court ruledthat a radio station licensed in North Carolina couldnot broadcast Virginia lottery advertisements becauseNorth Carolina prohibits lotteries and lotteryadvertising. The Edge station is a few miles fromthe Virginia-North Carolina border, and 92 percent ofits listeners are in Virginia.

On Edge

In a four-part opinion, the majority of it written bynow-retired Justice Byron R. White, the court heldthat commercial-speech rights sometimes had to giveway to "legislative judgments" - and that in thiscase, North Carolina's right to ban gamblingadvertising within its state was paramount.

But the language in Edge that really worriescommercial-speech advocates, and which theyenvision being used by those who want to ban alcoholand tobacco advertising, deals with advertising anddemand:

"If there is an immediate connection betweenadvertising and demand, and the federal regulationdecreases advertising, it stands to reason that thepolicy of decreasing demand for gambling iscorrespondingly advanced."

First Amendment lawyer P. Cameron DeVore,who represented Dow Jones & Co., Gannett Co. andthe American Civil Liberties Union in an amicusbrief supporting Edge, said the doctrinal dividebetween cases such as Discovery and cases such asEdge has produced two lines of arguments.

Mr. DeVore said Edge undoubtedly will be citedby opponents of alcohol and tobacco advertising tobolster their argument that those products are notentitled to speech protection.

However, Mr. DeVore believes Edge is too narrowand too peculiar to the federal laws regulating statelotteries to permit extrapolation to tobacco or otherproducts. "I feel confident that a Congressional banon tobacco advertising does not pass muster under theFirst Amendment," he said.

Disagreeing with Mr. DeVore is GeorgeWashington University National Law Center Prof.Ronald K. L. Collins, who says that Edge puts bothalcohol and tobacco advertising at risk of beingbanned.

"Tobacco and alcohol advertising are clearly withinthe purview of reasonable government regulation,which would include even banning them," he said.Professor Collins, co-founder of the Washington,D.C.-based Center for the Study of Commercialism,said the Edge decision stunned the advertisingcommunity, which he said was hoping the courtwould use the case to overturn the Posadas case.

Posadas scares even those who would support somerestriction of tobacco advertising, such as RalphNader's Public Citizen Litigation Group inWashington, D.C.

"We would be very uncomfortable to see thePosadas rationale applied to the sale ofpharmaceuticals," said David C. Vladeck, an attorneywith the litigation group. "One of the reassuringthings about Edge is that even though the solicitorgeneral urged the court to decide it on Posadasgrounds and presented it as a Posadas case, the courtdecided it on other grounds," Mr. Vladeck said.

Waiting for Congress

Instead, the court turned to the four-part test itdesigned in 1980 for assessing the constitutionality ofcommercial-speech regulation, a test articulated inCentral Hudson Gas & Electric Corp. v. PublicService Commission, 447 U.S. 557.

Professor Collins said, "The point is that Edge wasthe case they were all watching because they wantedto kill Posadas." Professor Collins" center favorsrestrictions on computer-generated telephoneadvertising and some advertising aimed at children.He added that neither Edge nor Posadas will amountto much if Congress continues to stall on restrictivelegislation.

For years Congress has been considering variousbills aimed at curtailing tobacco and alcoholadvertising. Some would disallow tax deductions fortobacco advertising, while other measures, such asthis year's Sensible Advertising and Family EducationBill sponsored by Rep. Joseph P. Kennedy II,D-Mass., and Sen. Strom Thurmond, R-S.C., wouldforce alcohol ads to contain health and safety warningmessages.

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The advertising community watches these billsclosely, using the familiar "slippery slope" argumentthat legislation to restrict the so-called vices could beused to regulate other products.

"First it was tobacco, then it was alcohol, which isunquestionably good for you in small amounts; andnext it could be high-fat foods, high-sugar foods, andyou don't know where it stops," said Daniel E. Troyof Washington, D.C.'s Wiley, Rein & Fielding. Mr.Troy helped to draft amicus briefs in two of thecourt's commercial-speech cases this year for severalmedia and advertising clients, including the AmericanAdvertising Federation.

Pending Cases

The issue of whether advertising has any impact onbehavior - some studies say it doesn't, particularlywith tobacco use - is one that state and localgovernments are wrestling with as they impose avariety of restrictions on advertising of the so-calledvices - tobacco, alcohol and gambling - as well astry to exert some control over food labelling andnutrition claims.

Many First Amendment lawyers regard foodlabeling as the next generation of commercial-speechcases and are watching a California case, heading forthe 9th U.S. Circuit Court of Appeals, that CahillGordon's Mr. Abrams is handling for a large groupof advertisers and food industries. The case,Association of National Advertisers v. Lungren,93-15644, challenges California's labeling laws,which require products to meet specific standardsbefore advertisers can claim that they are"ozone-friendly" or "biodegradable."

Another California case pending before the 9thCircuit also is being watched because of itscommercial-speech implications. That case, Johnsonv. State Board of Accountancy, 92-16433, challengesCalifornia's law that prohibits certified publicaccountants who advertise from getting commissionson selling financial products such as mutual funds orannuities. Many states have similar prohibitions, butsome, such as Texas and Florida, are not enforcingthem, said Donald B. Verrilli, a partner in theWashington, D.C., office of Chicago's Jenner &Block, Mr. Verrilli is co-counsel for the plaintiff,Ross Johnson.

Good Shape

Despite widespread attempts to regulate advertisingat both the state and local levels - particularlytobacco advertising - most First Amendment scholarsagree that commercial-speech protections are in prettygood shape.

The case that has exhilarated the First Amendmentbar is Discovery. "Discovery is probably the singlemost supportive decision of commercial speech since[Justice Harry A.] Blackmun wrote the Virginiapharmacy case," said Mr. Abrams, referring to the1976 case that protected commercial speech, VirginiaState Board of Pharmacy v. Virginia CitizensConsumer Council, 425 U.S. 748.

"It honors commercial speech," Mr. Abrams said.He added that knowing who wrote the decisions hasbecome important in Supreme Courtcommercial-speech cases, noting that Justice Whitewrote Edge, while Justice John Paul Stevens wroteDiscovery.

"Justice White has never been enamored ofcommercial speech," said Mr. Abrams, making apoint that almost every lawyer interviewed for thisarticle mentioned.

For that reason, speech advocates have beenplowing through Supreme Court nominee Judge RuthBader Ginsburg's opinions, and they say they arepleased with the results.

"To my knowledge, she has not written an opinionin a significant case where a free-speech claim hasbeen denied," said Mr. Troy, who has beenresearching Judge Ginsburg. "As a result, those ofus who are strong supporters of commercial speechare mightily encouraged by her nomination."

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HATE CRIME LEGISLATION MUZZLES FREE SPEECH

BY STANLEY FEINGOLDCopyright 1993 The New York Law Publishing Company

The National Law JournalJuly 12, 1993

THE SUPREME COURT on June 11 unanimouslyupheld Wisconsin's penalty enhancement law, Wis.Stat. 939.645, which imposes harsher penalties on acriminal who "intentionally selects the person againstwhom the crime ... is committed . . . because ofthe race, religion, color, disability, sexualorientation, national origin or ancestry of thatperson." Twenty-six other states and the District ofColumbia have similar laws.

In upholding hate crimes laws, the court hasrecognized the threat that prejudice poses to thepublic peace, but ignored the threat that such lawspose to our liberty. It is possible to combat bigotrywithout compromising liberty, but hate crimes lawsare not the way to do it.

Justice William H. Rehnquist's opinion inWisconsin v. Mitchell, 93= 515 (1993), goes counterto the high court's tendency in recent decades torestrict the extent to which offensive expression canbe punished. In almost every area of controversialexpression, including political advocacy, obscenityand libel, the Supreme Court has defined morenarrowly the extent to which governments maypunish speech and expression.

This has even been true in the area of hate speech.In response to increasing bigotry on campuses, manycolleges adopted speech codes that went beyond whatthe Supreme Court had characterized as "fightingwords" in Chaplinsky v. New Hampshire, 315 U.S.568 (1942).

These restrictions prompted outcries that "politicalcorrectness" was stifling the expression of unpopularideas. Lower federal courts voidedanti-discrimination speech codes at the universities ofMichigan and Wisconsin as overbroad and vague,calling into question the similar codes at other publicand private institutions.

Any doubts as to where the Supreme Court stoodappeared to have been resolved last year when, inR.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992),it voided a city ordinance as overbroad, because itpunished nearly all controversial characterizations

likely to arouse "resentment" among definedprotected groups, and under-inclusive, because thegovernment must not selectively penalize fightingwords directed at some groups while not prosecutingthose addressed to others.

Increased Penalty

The famous dictum of Justice Oliver WendellHolmes Jr. in which he defended "freedom for thethought that we hate" has been repeatedly invoked bythe court in defending obnoxious expressions ofopinion. Although the punishment of hate speechgained no support from the St. Paul decision, thecourt has now concluded that hate crimes aresomething else, and the penalty for criminalconviction may be increased when an identifiablegroup hatred inspired the crime. The distinction isthus erased between motive (what the perpetuatorbelieves) and intent (what the perpetrator wants todo).

The wanton brutality of Todd Mitchell and hisfriends, who were all black, in assaulting an innocentyoung man, who was chosen as their target becausehe was white, deserved the full penalty of the law, aswould have any racially motivated crime. However,increasing the penalty because of the beliefs of theassailants opens a Pandora's box of proscribed hatesand presumed motives that will not easily be closed.The logical next step will be to examine theconversations, correspondence and other expressionsof the accused persons to determine whether a hatemotive prompted the crime.

To be consistent, legislatures must now includesother hate categories, including sex, physicalcharacteristics, age, party affiliation,anti-Americanism or position on abortion. If a hatespeech law that enumerated some categories is invalidbecause, in Justice Antonin Scalia's opinion in St.Paul, "government may not regulate use based onhostility - or favoritism - toward the underlyingmessage involved," how can a hate crimes law beupheld that increases the penalty for crimes motivatedby some hates but not those motivated by other hates?

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Majority Can Be Wrong

The effort to compel belief is not only wrong; it isfutile. There is no evidence that hatred is reduced bylaws forbidding beliefs or by punishing more severelycrimes committed by those professing these beliefs.Those who disagree with the court's decision andwould punish only criminal actors and not hatefulspeakers should take heart in recalling that otherunanimous and near-unanimous Supreme Courts havebeen wrong, and later set right. Decisions havedenied the right of free expression with only one ortwo dissents; often there would have been none butfor the presence of a few libertarian justices fromMr. Holmes and Louis D. Brandels to William J.Brennan and Thurgood Marshall. But no suchuncompromising champions of free expression nowsit on the U.S. Supreme Court.

Only three years after the court upheldPennsylvania's compulsory flag salute law, in the1940 case Minersville School District v. Gobitis, 310U.S. 586, the sole dissenter was joined by a newmember and three switch justices, leading to therejection of a similar law in West Virgina. WestVirginia State Board of Education v. Barnette, 319U.S. 624 (1943).

The new justice, Robert H. Jackson, wrote theopinion in language that is pertinent now: "If there isany fixed star in our constitutional constellation, it isthat no official, high or petty, can prescribe whatshall be orthodox in politics, nationalism, religion, orother matters of opinion or force citizens to confessby word or act their faith therein. If there are anycircumstances which permit an exception, they do notnow occur to us."

A Supreme Court that maintains it is not punishingdisapproved belief when it enhances criminalpunishment because of that belief can also argue thatit does not seek to compel approved belief.However, we are still free not to believe it.

Special to The National Law Journal; Mr.Feingold, for many years on the political sciencefaculty at City College of New York, now teaches atWestchester Community College in Valhalla, NewYork.

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HIGH COURT RULES BUSINESS SOLICITATION IS A RIGHTFREE SPEECH: JUSTICES STRIKE DOWN A FLORIDA LAW

FORBIDDING ACCOUNTANTS FROM SEEKING OUT NEW CLIENTS IN PERSON.

By DAVID G. SAVAGE, TIMES STAFF WRITERCopyright 1993 The Times Mirror Company

Los Angeles TimesApril 27, 1993

The Supreme Court, in a ruling that extendsfree-speech rights to certain business practices, onMonday struck down a Florida law that barredaccountants from soliciting new clients in person.

On an 8-1 vote, the justices said that accountants,like other professionals, have a constitutional right toconvey "truthful, non-deceptive information" abouttheir businesses.

The ruling likely invalidates similar laws fromTexas, Minnesota and Louisiana. These measures arebased on the view that, because accountants mustmake objective judgments about a company'sfinances, they should not be permitted to aggressivelysell themselves to clients.

But in recent years, the justices have insisted thatthe First Amendmentprotects advertising and solicitations, as well astraditional political speeches and pamphlets. Just lastmonth, the court struck down a Cincinnati ordinancethat banned sidewalk news racks containingmagazines loaded with real estate ads.

The court opinion rejected the city's defense thatadvertising always should be accorded a "lesserprotection" under the First Amendment.

In Monday's opinion, Justice Anthony M. Kennedyexpressed strong support for what lawyers label"commercial speech."

"The commercial marketplace, like other spheresof our social and cultural life, provides a forumwhere ideas and information flourish. Some of theideas and information are vital, some of slightworth," Kennedy said. "But the general rule is thatthe speaker and the audience, not the government,assess the value of the information presented."

But the court stopped short of overturning a 1978decision that upheld an Ohio law forbidding lawyersfrom directly soliciting business from victims of anauto accident.

Unlike the classic ambulance chaser, accountantswill be speaking to "sophisticated and experiencedbusiness executives" who are "far less susceptible tomanipulation than the young accident victim" in the1978 case, Kennedy said.

The case decided Monday began in 1985 whenScott Fane, a New Jersey certified public accountant,moved to Florida.

He specialized in providing tax advice to smallbusinesses and had built his practice by solicitingclients in person.

But the Florida Board of Accountancy prohibitedCPAs from "any direct, in-person, uninvitedsolicitation" of customers. Believing that hisfree-speech rights had been violated, Fane filed a suitin federal court seeking to have the regulation struckdown.

A federal judge agreed and invalidated the rule, asdid an appeals court in Atlanta. The Justices agreedto hear the case (Edenfield vs. Fane, 91-1594), butonly Justice Sandra Day O'Connor sided with thestate. In her view, the government may regulate"pure profit seeking" by business persons.

In his opinion concurring with the majority, JusticeHarry A. Blackmun chided his colleagues for notgoing further and ruling that commercial speech isentitled to the same constitutional protection asspeech about public affairs.

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Cities and Counties

92-1450 WATERS v. CHURCHILLEmployees-Retaliatory dismissal-Commentson matter of public concern-First Amendment-Immunity.

Ruling below (CA 7, 977 F2d 1114):Public hospital that fired employee for criti-

cism, later found to be protected under FirstAmendment, of hospital's cross-training programfor nurses may be liable for violating employee'sfree-speech rights, even if hospital had insuffi-cient knowledge about precise content of employ-ee's speech because of inadequate investigation ofemployee's conduct.

Questions presented: (1) May public employerthat terminates employee based on credible, sub-stantiated reports of unprotected, insubordinatespeech be held liable for retaliatory dischargeunder First Amendment if it is later shown thatreports were inaccurate and that employee actu-ally spoke on protected matters of public concern,when employer's ignorance of protected speech isresult of incomplete investigation? (2) Were pub-lic officials, in January 1987, immune from liabil-ity for discharging employee based on credible,substantiated reports of unprotected, insubordi-nate speech that were later shown to be inaccu-rate-because (a) it was clearly established thatinsubordinate speech was not protected by FirstAmendment and (b) it was not clearly estab-lished that public officials had duty to investigatebeyond interviewing reporter of speech threetimes and recipient of speech once and allowingdischarged employee opportunity to discussspeech in question?

Petition for certiorari filed 3/8/93, by DonaldJ. McNeil, Lawrence A. Manson, Dorothy VossWard, Janet M. Kyte, and Keck, Mahin & Cate,all of Chicago, Ill.

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CABLERS TURN TO HIGH COURT ON MUST-CARRY

Brooks BoliekCopyright 1993 BPI Communications, Inc.

The Hollywood ReporterJuly 6, 1993, Tuesday

The nation's cable industry urged the U.S.Supreme Court to grant it full First Amendmentstatus last week when the cablers appealed a lowercourt's ruling upholding the meat of the 1992 CableAct.

"The basic principals of the First Amendment -the belief that government should not decide whomay speak or what they may say - are no lessapplicable to new forms of speech than to old forms,"the appeal, filed late Friday, read. "The (lowercourt's decision) marks a serious departure fromthose principles and warrants plenary review by thisCourt."

Cablers told the high court that there is really nodistinction between what they do and whatnewspapers, broadcasters, film studios and bookpublishers do.

"There is no difference between cable televisionand those media given full protection that wouldjustify allowing the government to dictate the contentof speech that must be provided by cable televisionto its subscribers," the appeal states.

The appeal, filed by 17 cable entities includingTime Warner Entertainment, Turner BroadcastingSystems, Daniels Cablevision, USA Network and theNational Cable Television Assn., contends that athree-judge panel erred when it upheld themust-carry" provisions of the law this spring.

"The district court clearly got off on the wrongfoot by treating must-carry law as 'simply anindustry-specific antitrust and fair trade regulatorylegislation,' " cable attorneys argued.

In 1992, Congress approved, over then-PresidentGeorge Bush's veto, the cable law, which, amongother things, allows broadcasters to demand thatcable companies carry their signal or to negotiate forpayments to allow cablers to retransmit that signal.

In April, a three-judge panel here on a 2-1 votedecided that the law was constitutional because itregulated economic activity rather than speech. The

major cable companies in May filed notice that theywould ask the Supreme Court to decide whether thelower court is wrong and filed their appeal last week.

Fallout from approval of the act continued to takeits toll in Washington as NCTA chief Jim Mooneyresigned last week (HR 7/2). And while he rejectedthe notion that it forced him out, it has been widelyspeculated that the bill's approval was a major factor.

In its appeal, cable television claims it waswrongly singled out by Congress, contending thatlawmakers decided to restrict their speech.

Using the lower court's logic, the cablers arguethat the earlier ruling could allow the government to"direct every newspaper to commit a section of itspages to the publication of material submitted byparticular writers, or compel bookstores to carry aspecified amount of works published by 'local'authors, or movie theaters to show films produced bydesignated movie studios."

They reject the contention that the regulations areeconomic in nature contending that the government ismaking cable a second-class citizen by sayingbroadcasters are a preferred speaker.

"(I)t is simply not the business of the governmentto reorder the private marketplace for speech,commanding that certain speakers be left to fend forthemselves," the attorneys wrote. "Whether thegovernment legislates discrimination because itprefers certain speech, or just because it preferscertain speakers, does not change the illegitimatenature of the intrusion."

Broadcasters have benefited from the advent ofcable, blowing the argument that cable is a"bot-tleneck" that can choke off broadcasters accessto viewers, they argue.

"Far from being imperiled, in fact broadcasting hasflourished," the cablers contend, noting that there arenow 1,118 commercial broadcast stations, a 22percent jump since 1986, and 363 educationalstations, a 15 percent increase over the same time.

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'This significant expansion took place at leastpartially because of the growth of cable television,

the appeal states.

The Supreme Court will decide whether it will hearthe case sometime this year. If it does, it will likelytake the court until next year to hear the case.Meanwhile the FCC has already begun implementingthe act, having approved its rules governingmust-carry and retransmission consent earlier in theyear.

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