Two interesting First Amendment developments at the Supreme Court worth watching….

A Really Big Cross

On February 27, 2019, the Court will hear argument in American Legion v. American Humanist Association, a case over whether Maryland’s maintenance of a 93-year old WWI memorial in the shape of a 40-foot cross violates the Establishment Clause.  As some of you may know, there are roughly 8 bazillion federal court decisions (that’s an estimate) regarding whether the government can or must allow monuments or memorials that feature religious symbols to stand on public grounds, and most of the decisions are extremely fact-specific, often focusing on the history of the monument and the property on which it is located.

For example, on the same day in 2005, the Supreme Court struck down a display of the Ten Commandments in McCreary County v. ACLU of Kentucky, in large part because it was part of a recent display posted for what appeared to be religious reasons, but in Van Orden v. Perry allowed a Ten Commandments monument to remain standing on the grounds of the Texas Capitol building, where it had been for 40 years as one of 17 monuments commemorating Texas history.

American Legion could be just another fact-specific ruling (there is evidence that the main reason the state maintains the monument is due to traffic safety concerns), but it could also be taken as an opportunity by the conservative side of the Court to clarify Establishment Clause jurisprudence, which Justice Thomas has called for several times in recent years.  At stake may be the almost-50 year-old Lemon test, about which 25 years ago in Lamb’s Chapel v. Center Moriches Union Free School District Justice Scalia complained, “Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and the school attorneys of Center Moriches Union Free School District.”

We shall have to wait and see if Lemon survives American Legion.

A Collateral Attack on Fake News?

Yesterday Justice Clarence Thomas called for a reconsideration of New York Times v. Sullivan, the 1964 Supreme Court decision that held that the Constitution requires a higher burden of proof (“actual malice”) for public officials suing for defamation.  In a concurring opinion issued in connection with the Supreme Court’s decision not to hear an appeal from Katherine McKee, one of the women who claimed she was raped by Bill Cosby, Justice Thomas argued that nothing in the Constitution requires public figures to satisfy an actual malice standard in state law defamation cases.

Now, this is really nothing new:  Justice Thomas doesn’t agree with much of the Supreme Court’s First Amendment jurisprudence, and it is not uncommon for him to issue such “lone decisions” complaining about old First Amendment cases.  In the 2007 “Bong Hits 4 Jesus” case of Morse v. Frederick, Justice Thomas wrote separately to express his opinion that Tinker is not and never has been good law, stating “I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t — a standard continuously developed through litigation against local schools and their administrators.”  But his position yesterday dovetails with many of the President’s attacks on what he calls the “fake news” media, and could lead a lower court to explicitly reject New York Times v. Sullivan in an effort to force the Supreme Court to take up and reconsider that decision.

Again, we shall have to see….