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                           ACLU NEWS ANALYSIS

      Supreme Court Term Relatively Successful For Civil Liberties

For IMMEDIATE RELEASE
July 1, 1994

	NEW YORK -- The 1993 Supreme Court Term that ended this week was a
relatively successful one for civil liberties. In contrast to past years,
the Court's opinions were generally moderate in both tone and substance. 

	On the positive side, the Court issued important rulings on free
speech, the separation of church and state, and sex discrimination. The
Court also held, in two significant cases, that the government's "war on
drugs" is not an excuse to abandon the Constitution. By contrast, the
Court's rulings on the death penalty and habeas corpus can best be
described as mixed. Moreover, the Court continued to chip away at the
protections of the Voting Rights Act in two cases decided on the Term's
final day. 

	"This is a Court that is still searching for its identity," said
Steven R. Shapiro, the ACLU's Legal Director. "The lack of a clearly
dominant ideology produces shifting coalitions from case to case.  The
result is a Court that is cautious about its role and restrained in its
rhetoric." 

	"With the retirement of Justice Blackmun, the Court is losing its
most passionate defender of civil liberties," Shapiro continued. "But it
is no longer a Court that appears intent upon a wholesale dismantling of
the Bill of Rights." 

	"Measured against the recent past, that represents progress," he
concluded. 

	 The Court's record this year was particularly strong in First
Amendment cases. In Ladue v. Gilleo, the Court unanimously struck down a
local ordinance that, with minor exceptions, prohibited the posting of any
signs in a suburban community outside of St . Louis. The ACLU represented
a resident of the town who was barred from placing a small sign in her
second-story bedroom window protesting United States participation in the
Gulf War. The opinion, written by Justice Stevens, stressed that such
signs were a traditional and inexpensive means of communication that could
not be totally banned in pursuit of some aesthetic ideal. 

	In Turner Broadcasting v. FCC, the Court ordered further hearings
to determine the constitutionality of the so-called "must carry" rules,
which require cable systems to include the broadcast stations as part of
the basic cable package offered to consumer s. For the first time, the
Court unanimously ruled that cable operators are entitled to significant
First Amendment protection. At the same time, a majority of the Court held
that the unique monopoly status enjoyed by many cable operators as a
result of government awarded franchises may justify some regulation that
would not be appropriate in other First Amendment contexts. The Court's
ruling closely mirrored the position taken in the ACLU's
friend-of-the-court brief. 

	In Ibanez v. Florida Dep't of Business and Prof. Regulation, the
Court held that restrictions on commercial speech must be based on
something more than the state's "unsupported assertions" that the
regulation is necessary. In Waters v. Churchill, the Court held that a
public employer must conduct at least a reasonable investigation before
dismissing an employee on the basis of speech that is alleged to be
insubordinate. And, in Campbell v. Acuff-Rose Music Inc., the Court
rejected the argument that commercial parodies could never claim the
benefit of the fair use exception to the copyright laws. 

	Although the Supreme Court decided only one religion case this
year, its ruling in Board of Education of Kiryas Joel School District v.
Grumet strongly reaffirmed the fundamental principle of separation between
church and state. Relying on that principle , the Court invalidated a
school district in upstate New York that had been created for the special
benefit of a religious community.  The Court held that such preferential
treatment violated the basic tenets of the Establishment Clause. 

	The Court also demonstrated a strong commitment to the principle
of sexual equality in two closely watched cases. First, in Harris v.
Forklift Systems, Inc., the Court held that the anti-discrimination
provisions of Title VII protect an employee against a hostile working
environment even if the employee did not suffer serious psychological
injury as a a result.  Second, in J.E.B. v. T.B., the Court held that a
prosecutor could not use peremptory challenges to disqualify potential
jurors on the basis of t heir gender. Building on an earlier opinion that
had barred the use of peremptory challenges on the basis of race, the
court wrote: "While the prejudicial attitudes toward women in this country
have not been identical to those held toward racial minorities, the
similarities between the experiences of racial minorities and women, in
some contexts, overpower the differences." 

	On a less positive note, the Court held that two key provisions of
the 1991 Civil Rights Act did not apply to cases that arose before the Act
was adopted, including the provision authorizing a jury trial and
compensatory damages in Title VII cases.  The irony of the Court's rulings
in Landgraf v. USI Film Products and Rivers v. Roadway Express, Inc. is
that the 1991 Civil Rights Act was expressly enacted by Congress because
it disagreed with the Court's interpretation of the federal civil rights
laws in a series of prior decisions. The full force of Congress' effort to
remedy the situation has now, unfortunately, been muted again. 

	The Court did not have any abortion cases on its docket this year.
However, in NOW v. Scheidler, the Court held that RICO does not require
proof of an economic motive and thus refused to dismiss RICO charges
brought against anti-choice protesters by a coalition of abortion clinics
and women's organizations. In a separate concurring opinion, Justices
Souter and Kennedy "caution[ed] courts applying RICO to bear in mind the
First Amendment interests that could be at stake."  The ACLU raised
similar concerns in its amicus brief.

	Madsen v. Women's Health Center, Inc. raised related issues in a
different context. Striving again for a middle ground, the Court, in an
opinion by Chief Justice Rehnquist, rejected the claim that the First
Amendment barred an injunction against anti-choice protesters who had
been blocking access to an abortion clinic in Melbourne, Florida. At the
same time, the Court held that any injunction must be narrowly tailored to
protect clinic access without burdening more speech than is necessary to
accomplish that task. Utilizing this standard, the Court then upheld some
of the injunction's provisions and struck down others. 

	Continuing a recent trend, the Court also struck down two
prosecutorial strategies employed by the government as part of its "war on
drugs." In U.S. v. James Daniel Good Real Property, the Court held that
someone convicted of a drug offense was nonetheless entitled to notice
and a hearing before the government seized his home. In Montana Dep't of
Revenue v. Kurth Ranch, the Court held that the Double Jeopardy Clause
barred the government from imposing a punitive "drug tax" on a defendant
who had already been convicted for violating the drug laws. 

	The Court's approach to the death penalty this year was less clear
cut. In Simmons v. South Carolina, the Court held that once the prosecutor
argued in favor of the death penalty based on the defendant's future
dangerousness, the defendant had a right to tell the jury that state law
prohibited his release on parole. Four days earlier, in Romano v.
Oklahoma, the Court upheld a death sentence imposed by a jury that was
told, prior to its deliberations, that the defendant was already facing a
death sentence for another crime. The four dissenters argued that this
knowledge unconstitutionally diminished the jury's sense of responsibility
for its decision in favor of the death penalty. 

	The Court sent another mixed message on the last day of the Term.
In Tuilaepa v. California, the Court upheld California's death penalty
statute against a vagueness challenge. But, in McFarland v. Scott, the
Court ruled that federal district judges have authority to appoint a
lawyer to assist a death row inmate in preparing a habeas corpus petition,
and to issue a stay of execution while the petition is prepared. 

	In Farmer v. Brennan, the Court dealt with a different aspect of
criminal justice. The ACLU in that case represented a transsexual prisoner
who was raped only days after she had been placed in the general
population of a maximum security prison for men.  The Court held that
prison officials could be held liable if they ignored an obvious risk
faced by a prisoner placed in their care. The Court's willingness to
accept circumstantial proof that prison officials knew of the risk and did
nothing about it will make it easier now to get a full hearing on claims
of prison violence. 

	Finally, the Court ended its Term with two disappointing voting
rights cases. In Holder v. Hall, an ACLU case, the Court ruled that
plaintiffs could not utilize Section 2 of the Voting Rights Act to
challenge a Georgia county's decision to invest all of its executive and
legislative power in a single commissioner (unlike most other counties in
the state), even if that form of government significantly diminished the
opportunity of minority voters to elect representatives of their choice.
In Johnson v. DeGrandy, the Court held that vote dilution under Section 2
must be measured by a totality of the circumstances test.  While that test
is consistent with legislative intent, it was applied in this case to
disallow two minority districts that had been ordered by the lower court.

                                --endit--
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