Freedom Of Speech, Consumer Interests On High Court Agenda

The Supreme Court begins a new term Monday with the addition of Elena Kagan as Supreme Court justice. The court is expected to start work by denying many of the nearly 2,000 appeals that piled up in recent months. The court also is hearing arguments in a bankruptcy dispute and an appeal by criminal defendants seeking shorter prison terms. Also in the new term the court looks at provocative anti-gay protests at military funerals and a California law banning the sale of violent video games to children. Host Michel Martin talks with Eva Rodriguez, editorial writer specializing in legal affairs at The Washington Post, and Dahlia Lithwick, senior legal correspondent and editor at Slate.com, about the major upcoming cases.

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MICHEL MARTIN, host:

I'm Michel Martin, and this is TELL ME MORE from NPR News.

Today we dig into the disconnect - if there is one - between men and women in the military, and the rest of us. Defense Secretary Robert Gates says there is a growing gap that hurts morale, and leaves too few bearing the burdens of war. We'll talk about his provocative speech later in the program.

But first, it's the first Monday in October, and that means a new term for a new Supreme Court, a court that is now one-third women. In the coming months, the court's docket includes cases covering free speech, privacy, prison reform, violent video games and immigration.

One free speech case looks at the loud, anti-gay protests at military funerals by one small church group. Another will decide on a California law banning the sale of graphically violent video games to children.

With Elena Kagan's appointment to replace Justice John Paul Stevens, the ideologically makeup of the court is not expected the shift much. But one wrinkle: Kagan has recused herself from about a third of the cases the court has agreed to hear, leaving the door open for 4-to-4 splits.

Now, there are just too many cases of interest for us to cover them all. So we've picked just a few of the headliners, and we're going to talk about them with Eva Rodriguez. She's a Washington Post editorial writer who specializes in legal affairs. She's a former Supreme Court reporter, and she joins us from time to time to talk about legal matters.

And we also have with us Dahlia Lithwick, senior legal correspondent and senior editor for slate.com, and she's joining us from just outside the court. Thank you both so much for speaking with us.

Ms. DAHLIA LITHWICK (Senior Legal Correspondent and Senior Editor, Slate.com): Thank you.

MARTIN: All right, Dahlia, why don't you get us started. Is there you know, I was just looking over the list of cases before the court, and it just seems like an maybe I'm making this up, so set me straight.

It seems like an unusually large number of cases that just hit all the hot-button issues that are before us in society, on the one hand. And on the other hand, just a large number of cases where kind of the interests are not so neatly aligned between left and right. Is my perception accurate?

Ms. LITHWICK: No, I think that's actually very perceptive. It's definitely the case that a lot of people are complaining that there's no big, constitutional blockbuster cases this year. You know, there's no Citizens United this year, Michel.

But there's just so many cases that weave into issues that are either hugely important - like gay rights or like, you know, how our prison systems are regulated, or these federalism questions - or issues that are about to become huge, like the Arizona immigration law, you know, states' rights versus the federal government's rights in these pre-emption cases.

So I think it's quite right to say that this will be taking the court's temperature about issues that may not be huge, constitutional, simmering issues, but they really have a lot to do with how we live our lives.

MARTIN: And to that point, Eva, just based on your experience covering the courts, just as I was saying to Dahlia, it just seems as though there's an unusually large number of hot-button issues being addressed here, even if there's no one blockbuster, constitutional case.

Is that intentional? Do you think that the court was if you could help us understand how this works - do you think that the court was looking for an opportunity to weigh in on some of these matters, or is this just the way the cases came to them?

Ms. EVA RODRIGUEZ (Editorial Writer, Washington Post): Well, first of all, the court is a reactive institution. So it can't just reach out and say, hey, we want to hear, you know, this case, bring this lawsuit.

But having said that, I mean, there are a number of pre-emption questions - you know, the federal government versus state and federal regulation versus local regulation - that have been sort of a theme of the Roberts court.

So it would be hard to believe that with the number of those kind of cases that have come before the court lately, that it wasn't deliberate. But in the cases, for example, that we will be talking about today, I think - you know, what happens is, they percolate up through the courts. They tend to be cases with social significance, controversial. And there comes a point when - when there's disagreement in various federal courts in the country or other kinds of splits, it's right for the justices to take, and they do.

MARTIN: And I want to start with one of the cases that I think just evoke, just stirs just a tremendous amount of intense feeling: the Snyder v. Phelps case.

And a lot of people will be familiar with this - who live near military installations or who have family members in the military. Pastor Phelps, the pastor of this Westboro church, a small church, and some of his church members have gone around the country, demonstrating outside of military funerals, in part because the military allows service members who are not open about their sexuality to serve.

And I'll just play a short clip of some of the things that Pastor Phelps and his followers say. And I do have to warn our listeners that the language is offensive, and here it is.

(Soundbite of video clip)

Pastor FRED PHELPS: God hates fags is not only true, it's profound, and it's divine. And we are intent upon publishing that message to the whole world.

MARTIN: So Eva, give us the story here. What are the issues at stake?

Ms. RODRIGUEZ: Well, the issues at stake are decency on a human level. But on a constitutional level, it's the First Amendment that's at stake.

I mean, look, I can't even talk about this case without saying how reprehensible I find the reverend's speech to be, and how I wish he would not picket and shout these things while a military funeral is going on. I think it is just beyond indecent.

However, part of what makes this country great is that the First Amendment protects not just popular speech, but profoundly unpopular speech. And if we gag people like Reverend Phelps, then we're going down a slope that I don't think anybody wants.

You know, I think there's real tension here. But I think that the law is fairly clearly on the side of even, you know, a despicable actor like Reverend Phelps.

MARTIN: Dahlia, there are some limits on free speech. There's the shouting-fire-in-a-crowded-theater argument. What is the legal principle that allows this case to come before the court? What's the question?

Ms. LITHWICK: Well, actually, one of the mysteries of this Phelps case is that most folks who really think about First Amendment doctrine very critically think that the Fourth Circuit, the appeals court in this case, actually got it right and that, as Eva just said, this is not a terrifically hard case about free speech.

This was core political speech. It happened, you know, within the zoning constraints and the regulations of the funeral. So even though it's you know, and I agree; it's despicable, hateful and deliberately inflammatory speech. I don't think anybody who has really, really thought about the First Amendment that hard thinks this is a tough case as a constitutional issue.

In other words, if the Fourth Circuit got it right, the real mystery here is why the Supreme Court took it. And so I think some of the doctrines that are tangled up in this case that the court may want to probe a little further, is there a difference between this kind of, you know, revolting and inflammatory speech if it happens at a funeral, if it happens in something that's a sacred space?

You know, think of the mosque at ground zero - or the alleged mosque at ground zero. Is there some move on the court to say no, this is speech that happens in a sort of very special place, or because these are private people in a moment of grief, who didn't choose to be part of the debate about gays in the military. Matthew Snyder was not gay. Are they protected somehow, you know, because of that?

But as a doctrinal matter, Michel, this case - saying, this is core political speech about core government issues, should be protected - and typically has been protected.

MARTIN: If you're just joining us, you're listening to TELL ME MORE from NPR News. We're talking just about a couple of major cases that the Supreme Court will hear in its new term that opens today.

Our guests are Dahlia Lithwick of Slate.com, and Eva Rodriguez of the Washington Post editorial board.

Another hot-button issue is, of course, immigration and the - immigration and how that issue should be addressed. And Eva talked about the whole question of pre-emption.

There's a case called the Chamber of Commerce v. Whiting that will be argued in December, that challenges what's called Arizona's law - that lets the state suspend the licenses of employers who knowingly hire illegal immigrants. Eva, tell us about the legal principles involved in this case. What's the issue here?

Ms. RODRIGUEZ: Well, here, you know, in its simplest terms, the federal government is saying, uh-uh, states - you know, Arizona, you can't do this. This is our turf as far as legislating and regulating on immigration.

And what the federal government objects to is Arizona's move to punish employers who knowingly hire undocumented workers or illegal immigrants, and require - the state requires employers to use the eVerify system, the federal system to verify whether Social Security numbers are correct, or someone's in the country legally.

The reason the federal government has a problem with that is specifically, when the federal government established eVerify, it said look, we're going to provide this as a means for employers who choose to use it, to use it.

And the federal government is now saying: Arizona, you can't require employers to do this. And by the way, that licensing scheme? You know, you claim to have the power to revoke the licenses of employers who hire illegal immigrants; that's just a silly smoke screen for you to tread on our turf. You know, stay out - is what the federal government, ironically, is saying in this case.

MARTIN: And Dahlia, we only have about a minute and a half left. So I wanted to ask you just about one more case that's just attention-getting, and the kind of thing that I think a lot of parents are interested in.

Schwarzenegger v. Entertainment Merchants Association - the question here is selling violent video games to minors, whether California can forbid the sale of violent video games to children.

I think it's surprising because I think many people to think that there's a question about this because you can restrict, say, access of minors to movies. So the question for some is, why doesn't the same rule apply to video games? What's the legal issue here?

Ms. LITHWICK: Well, the issue here, starkly presented, is whether the court is going to allow California to carve out, essentially, another kind of speech that's banned. And the court's been very reluctant to do that, hasn't done it in decades - has certainly said that minors can be prevented from exposure to obscene speech, but never said kind of generally, vaguely violent speech or graphically violent speech can be carved out as unprotected.

And as you'll recall, last year the court declined to say that cruelty to animals could be carved out as a form of unprotected speech. Eight to one, the court said, uh-uh, we're not creating new classes of speech.

So here you have not only the makers of violent video games, but also movies and other people, saying violence is not a class of speech that gets - that the court gets to say no, unprotected entirely.

And so I think it's going to be a real challenge to prove - both that these violent video games harm children or make children more violent, but also to induce this court to say, there's a whole new class of speech that we're not going to protect.

MARTIN: And as I said, so many cases, so little time. Ladies, thank you both so much just for - just skimming the surface of what is sure to be a very interesting court session.

Dahlia Lithwick is a senior legal correspondent and senior editor at Slate.com. She writes a column called Supreme Court Dispatches. And she spoke with us from Washington. Eva Rodriguez is an editorial writer who specializes in legal affairs for the Washington Post. She's also a former Supreme Court reporter. She joined us from the studios at the Washington Post. Ladies, thank you both so much.

Ms. LITHWICK: Thank you.

Ms. RODRIGUEZ: Thank you.

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