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Supreme Court to review free speech in new era

American Jewish Committee legislative director Richard Foltin addresses a Senate committee. (American Jewish Committee)

American Jewish Committee legislative director Richard Foltin addresses a Senate committee. (American Jewish Committee)

WASHINGTON, Sept. 26 (JTA) — The fear of terrorism is about to find its way into the U.S. Supreme Court. When the new court term opens on the first Monday in October, Oct. 7, several cases involving free speech, including cross burnings and anti-abortion protests, will top the docket. Legal observers expect the court to examine when speech encourages violence or if speech itself can be so intimidating that it should not be tolerated. Concern about the connections between speech and action is a sign of the times, they say, since speech leading to violent action can now be seen in the context of terrorism. “Hate speech in America used to not have a real impact,” according to Marc Stern, co-director of the American Jewish Congress’ legal department. “That’s harder to say now.” The focus on free speech issues marks a change in focus for court watchers in the Jewish community. In June, the high court ended its last term with a dramatic ruling that school vouchers were constitutional, effectively relegating the battle over government funding for parochial schools to the state level. The ruling, years in the making, divided Jewish groups. There are not expected to be any major church-state issues on the docket this year, though the court often accepts last-minute cases. Several Jewish groups have signed on to briefs related to the free speech cases coming before the court. The court will examine whether a Virginia statute that bans cross-burning “with the intent of intimidating any person or group of persons” is overly broad and in violation of the First Amendment. The Anti-Defamation League drafted a brief affirming that the government may criminalize cross-burning even though it is a form of expressive speech. But the brief was not on behalf of either party in the case. The group expressed concern that the court might go much further than merely invalidating the statute which would have unintended consequences for a range of currently permissible speech. “We want to help the court arrive at a bright line of permissible expressive speech on one side and intentional criminal threats on the other side,” said Michael Lieberman, Washington counsel for the ADL. “There’s a lot at stake especially where we have seen hate speech lead to terrible violent action.” Hadassah, the Jewish Council for Public Affairs, the American Jewish Committee, the Religious Action Center of Reform Judaism and the National Council of Jewish Women signed on to the brief. In the case, Virginia v. Black, the defendants, convicted in 1999 under state law for burning a cross, said the statute was unconstitutional because it impermissibly infringed upon expressive conduct. But the Virginia Court of Appeals unanimously upheld their convictions, declaring that the statute “targets only expressive conduct undertaken with the intent to intimidate another.” The justices decided that even though cross-burning is a form of speech, the message is beyond the protection of the First Amendment and can be banned by the government. Last year, however, the Virginia Supreme Court in a 4-3 decision found the state law prohibiting cross-burning was unconstitutional and threw out the convictions. The court said such acts are a protected form of speech. A number of states and the federal government make it a crime to burn crosses. Now the U.S. Supreme Court will have a chance to clarify the laws. In two cases pitting violent anti-abortion protesters against a pro-choice group, the court will examine the extent to which protest might be regulated. The question before the justices is whether the federal anti-racketeering law would allow a court order to protect abortion clinics and whether the Hobbs Act, which makes it a crime to obstruct, delay or affect interstate commerce by robbery or extortion, can be applied to political protests. In the cases, Scheidler v. NOW and Operation Rescue v. NOW, the defendants maintain that finding against them could mean criminalizing other kinds of social and political protest. Joseph Scheidler, a leader of the Pro-Life Action Network, a national organization of anti-abortion groups, was involved with protest missions that ranged from picketing and leafleting to violent attacks and destruction of facilities. The National Organization of Women filed suit against the group, alleging that its protest missions amounted to a pattern of extortion and therefore violated the Racketeer Influenced and Corrupt Organizations Act. NOW says there is a difference between nonviolent social protest and the orchestrated campaign of fear and violence perpetrated by the anti-abortion group. The NCJW joined a brief in support of NOW. In 2001, the 7th Circuit Court of Appeals ruled against the defendants saying that the lower court’s decision “respected the line between protected expression and unprotected conduct.” Because the First Amendment does not protect violent acts or threats, the court said, it supported the jury’s findings. Another case Jewish groups are watching is the court’s examination of whether a state can be sued for violating the Family and Medical Leave Act. In the Nevada case, a man who took leave to care for his sick wife sued his employer for terminating him and thereby violating the law. In the Family and Medical Leave Act, Congress allowed for states to be sued, but it appears the Supreme Court may decide that Congress had inappropriately exercised its power by allowing such lawsuits. Jewish groups are concerned about the high court’s continuing trend to wear down Congress’ authority to legislate in areas of social policy, said Richard Foltin, legislative director for the American Jewish Committee. The ADL, the AJCommittee and NCJW joined a brief defending the law. Other cases that the court may decide to take up include: • An affirmative action case involving admissions at the University of Michigan. The university defends its policy of using g race as a factor in admissions to promote diversity. Opponents of affirmative action maintain that race as the deciding factor in admissions is bad public policy. The high-stakes case would likely split the Jewish community, which has been divided on the issue. • a case involving Lemrick Nelson, who was accused but acquitted in a state trial of the 1991 murder of Chasidic student Yankel Rosenbaum during riots between blacks and Jews in the Crown Heights section of Brooklyn. Nelson, who was convicted in a federal trial in 1996 on civil rights violations, is challenging the federalization of his crime, specifically Congress’ power to pass a law under the commerce clause making it a federal crime to kill someone because of his religion. The AJCongress wrote a brief against Nelson and the AJCommittee and the ADL joined it. Aside from the cases being heard, the looming question at the Supreme Court again this year is whether any justices will announce their retirement. With several justices up there in years, such an announcement has been anticipated for a number of years. A change in the makeup of the court — which is so narrowly divided on church-state issues as well as civil rights and other topics of interest to the Jewish community — would be dramatic. “I’m anticipating there may well be a retirement and it throws a lot of things into disarray,” said Sammie Moshenberg, director of the Washington office of the National Council of Jewish Women.

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