Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term

Abstract

In the old days, speakers in notable First Amendment cases sought to express public opposition to dominant norms, whether from the perspective of anaichists and socialists on the left or Nazis and Ku Klux Klan members on the right, and constitutional protection for such political protest is now mostly uncontroversial. Free speech issues grow more divisive as they move away from paradigm cases of political dissent. Last Term, the speakers who brought First Amendment challenges to the Supreme Court included a Playboy cable channel, a nude dancing establishment called Kandyland, a state political candidate, and sidewalk anti-abortion protestors. All lost except Playboy, which succeeded in invalidating a federal statute requiring the scrambling of sexually explicit programming. The Court rejected free speech challenges to a state public nudity ban that prohibited nude erotic dancing, a state campaign finance regulation that limited the amount of contributions to state political candidates, and a state statute that restricted speakers' unbidden approaches to people entering and exiting health care facilities, including abortion clinics.

First Amendment claimants fared better at vindicating the rights of expressive associations to disassociate from members they would rather not have: The Court upheld the right of the Boy Scouts to eject a gay scoutmaster and the right of California political parties to exclude from their primary elections cross-over voters who were not registered party members. But the Court also held that students at public universities do not have a First Amendment right to disassociate from ideologically controversial student organizations by withholding portions of mandatory student activity fees.