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The Supreme Court and Freedom of Expression, 2008–2009

The 2008-2009 Term was not brimming with cases related to the Yearbook’s subject matter. Indeed, the two most anticipated First Amendment cases resulted in a non-decision and a decision that purposely postponed the constitutional issues. In the first, court watchers were a bit surprised when the justices requested a second round of briefs and arguments in a case that asked if a 90-minute film highly critical of Hillary Clinton’s campaign for the presidency (the film was produced at a time when most pundits assumed she would win the Democratic nomination) was just an unusually long political advertisement, thus subject to the panoply of federal election campaign laws governing funding and public disclosure of donors. Whereas in the first round litigants addressed the matter of how the film should be treated under current law, the justices asked explicitly that both sides now address whether the case should be the vehicle for overturning at least a couple of Supreme Court precedents. The case was re-argued in September, 2009, several weeks before the Court’s traditional opening session. The second case, with which we will begin our more elaborate review momentarily, found the FCC defending itself against the charge that its sanctioning of FOX Television for on-air epithets uttered by Cher and Nicole Richie may have exceeded its authority. But the Court ruled only on a narrower statutory question, leaving the First Amendment issues to another day. Rounding out the relevant cases from the 2008-2009 Term are two decisions involving associational interests related to government employees’ payroll deductions going to labor unions’ litigation (in Maine) and political (in an Iowa case) expenses, and an Establishment Clause case from Utah over the display on public land of a monument to the Ten Commandments. We begin with the Fox Television case.