Supreme Court: chance to reverse (or keep) past trends
The US Supreme Court, which has shown itself in recent years to be as liberal on First Amendment questions as it is conservative on criminal issues, opens its 1982-83 term Monday, Oct. 4. The already crowded argument schedule which faces the justices, with 125 cases through next February, contains a large number of cases in these two areas of the law, providing the court ample opportunity to continue or reverse recent trends.Skip to next paragraph
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Over the last dozen years, the Burger court has enlarged the First Amendment's protection of free speech, a free press, and freedom of religion in a number of different directions. The First Amendment guarantee of freedom of expression now includes a candidate's right to spend freely to win election, the right of attorneys and merchants to advertise free of undue government regulation, the right of citizens and newsmen to attend criminal trials, and the right of corporations to make their views known on issues before the voters.
An unusual pair of cases leads the list of First Amendment issues before the court this term. On Tuesday, Oct. 12, the court will hear arguments in Bob Jones University v. United States and Goldsboro Christian Schools v. United States. The schools argue that by denying them tax-exempt status, which most schools enjoy, the government has unconstitutionally penalized them for following their religious beliefs.
Both schools discriminate against blacks, arguing that this policy is dictated by their religious beliefs. The Internal Revenue Service (IRS) based its denial of tax-favored status on this policy, which runs counter to the national policy disfavoring such discrimination.
In early 1982, however, the Reagan administration abandoned the IRS position, stating that unless Congress authorized the IRS to deny tax-exempt status for this particular reason, the IRS was not authorized to refuse it to otherwise qualified schools.
Since the Reagan administration would no longer defend the IRS policy, the justices took the unusual step in April of appointing a nongovernment lawyer to argue the IRS case.
William T. Coleman, formerly transportation secretary in the Ford cabinet and one of the nation's leading black attorneys, will argue that the justices should uphold as appropriate the IRS denial of tax-exempt status to these schools. To do otherwise, he wrote in his brief to the court, ''would be utterly inconsistent with federal law and fundamental national policy condemning racial discrimination in public and private education. . . .''
Among the other First Amendment cases which will be argued this term are two from Ohio, each involving a challenge to that state's election laws. One, Brown v. Socialist Workers '74 Campaign Committee, which will be argued Oct. 4, contests the state law requiring political parties to disclose their contributors. The other, Anderson v. Celebrezze, brought by former independent presidential candidate John B. Anderson, protests the law requiring independents to declare their presidential candidacy many months before the major parties nominate their choices.
In addition, the government is asking the justices to reinstate two federal laws that lower courts found to violate the First Amendment. One bars protests at the Supreme Court itself, the other bans the mailing of unsolicited ads for contraceptives.
Of the nearly two dozen criminal cases set for argument before the court this fall and winter, 80 percent are brought by prosecutors who are asking the justices to overturn lower court decisions in favor of defendants.
It is particularly notable that eight of these cases, one-third of the total, focus on one issue - the power of police to stop an individual or to search him or his property.
The Fourth Amendment guarantees Americans that they will not be subjected to unreasonable search or seizure. Few areas of the law have been as difficult for the justices to apply. The court's recent rulings in this area have generated more confusion than clarity; just this June the court overturned one of its own rulings on this matter, which was less than a year old.
All of the search cases are brought by prosecutors who are upset that a lower court found a particular search or arrest unconstitutional. One of the more far-reaching of these cases, Florida v. Royer, is to be argued Oct. 12.
Florida will argue that it was proper for its agents to stop and question an air traveler who fit the ''profile'' of a drug courier and who, in fact, was carrying 65 pounds of marijuana in his luggage. A state court held this stop to be an unconstitutional seizure.