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The Supreme Court and Freedom of Expression (the 2002–2003 Term)

The Supreme Court’s 2002–2003 term included a fair number of First Amendment cases. There were a few surprises among the Court’s decisions (and at least one “non-decision”). The term represented the first time the Court has approved a law restricting access to Internet pornography (U.S. v. American Library Association 2003).2 The Court also permitted the state of Virginia to punish cross-burning (Virginia v. Black),3 a decision seemingly at odds with a Precedent (R.A.V. v. St. Paul 1992)4 the Court tried to distinguish. The Court opened the door to its landmark decision in McConnell v. Federal Elections Commission (2003)5-an earlydecided 2003–2004 case the fuller explication of which will await the next volume of the Yearbook-by upholding prohibitions against even nonprofit associations making contributions to most federal candidates (Federal Elections Commission v. Beaumont).6 The term also included a case involving citizens’ referenda, but since the only mention of First Amendment issues was in dicta, we do not offer a detailed explication of the case in this essay.7 While not at all a surprise, the Court’s ruling in Eldred v. Ashcroft (2003),8 upholding Congress’ extension of copyright yet another 20 years, will surely have a huge impact on the system of freedom of expression. Rounding out the slew of First Amendment cases was a decision upholding restrictions on visitations in a public housing project (Virginia v. Hicks)9 and in a state prison (Overton v. Bazzetta)10, clarifying the notion of “dilution” in trademark law (Moseley v. V. Secret Catalogue)11 and the scope of actionably fraudulent assertions on the part of telemarketers (Madigan v. Telemarketing Associates).12