by Alison Ferland, VCOG 2003 summer intern

Virginia v. Black

On April 7, 2003, Justice Sandra Day O'Connor issued the majority opinion for the U.S. Supreme Court in Virginia v. Black, ruling that Virginia can validly prohibit cross-burning with the intent to intimidate, but it cannot be prima facie evidence of that intent. The Virginia Supreme Court had struck down the statute as an impermissible violation of free speech.

Three respondents were convicted under Virginia's statute, which outlawed all cross-burning done with intent to intimidate: two respondents for attempting to burn a cross on the lawn of an African-American neighbor, and one for burning a cross at a Ku Klux Klan rally on private property.

The high court ruled that Virginia could permissibly outlaw cross-burning carried out with the intent to intimidate, because such conduct is not a form of expression protected by the First Amendment. At the same time, however, the court invalidated the prima facie provision of the Virginia statute, because it did not take into account whether or not a particular instance of cross burning was done with the intent to intimidate.

Justice David Souter, joined by Justices Anthony Kennedy and Ruth Bader Ginsburg, dissented, arguing that the Virginia statute is wholly unconstitutional.

Justice Antonin Scalia filed a separate opinion in which he argued that the case should be remanded for the Virginia Supreme Court to adjudicate on the issue of the prima facie provision.

Justice Clarence Thomas dissented, asserting that the statute should be upheld in its entirety and that the court did not have to even consider free speech implications because the unique and virulent history of cross-burning shows that it is a form of proscribable intimidation.

Pierce County v. Guillen

A unanimous Supreme Court upheld a federal statute that prohibits certain documents "compiled or collected" for the purposes of particular federal highway safety programs from being accessible to the public.

Congress enacted the Hazard Elimination Program in 1973 to provide federal funding for road improvements to state and local governments that undertake a thorough evaluation of public roads, identifying and ranking potential dangers. Many states, however, were reluctant to create a database with this information because they feared it could hurt them in liability suits. To allay those fears Congress adopted three separate amendments between 1987 and 1995 to prevent data compiled or collected in connection with highway safety programs from being available to the public for litigation purposes.

Two parties who each requested compiled information from Pierce County in a negligence lawsuit against the county challenged the statute after being denied access to the records under the federal statute. They said the denial violated the Washington Public Disclosure Act. The Wasington Supreme Court agreed, but the Supreme Court reversed on Jan. 14.

Thomas delivered the opinion for the court, ruling that the statute was a valid exercise of Congress' commerce power. The court clarified, however, that the statute protects the disclosure of information compiled or collected for the highway safety program only, not for unrelated purposes.

Treasury Department v. Chicago

Just three months after agreeing to review a case concerning the scope of the federal Freedom of Information Act as applied to the Bureau of Alcohol Tobacco and Firearms' trace and multiple gun sales databases, the Supreme Court removed the case from its docket in February and remanded it to the 7th U.S. Circuit Court of Appeals.

The City of Chicago sought information from the databases as part of its lawsuit against the gun industry. ATF partially denied the request, claiming some of the information could be withheld under FOIA's exemption 7(A), which allows the withholding of law enforcement records when the disclosing of said records "could reasonably be expected to interfere with enforcement proceedings," and exemption 7(C), which permits the withholding of law enforcement records if their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

The 7th Circuit unanimously affirmed the lower court decision that the information had to be released. Releasing the names and addresses on the databases would not unnecessarily intrude upon personal privacy, and ATF had not sufficiently met its burden of proving that the release of the information would unduly hinder an active law enforcement proceeding, the 7th Circuit ruled.

The high court accepted the case for review on Nov. 12 and oral arguments were slated for March 4, but on Feb. 26, the court removed the case from its docket. The court remanded the case to the 7th Circuit with instructions to consider the effect of congressional action, as part of the budgeting process, of prohibiting ATF from spending the necessary money to provide the information requested by Chicago.

Nike v. Kasky

In 1996, Nike was publicly accused of mistreating its workers in Southeast Asia. Nike launched its own public relations campaign, which included press releases, editorial advertisements and letters to university athletic officials and presidents, denying the accusations.

Marc Kasky filed suit against Nike on behalf of the people of California, accusing the corporation of false advertising and intentional misrepresentation. Nike countered that its speech was wholly protected by the First Amendment.

The California Supreme Court said Kasky could maintin his suit, agreeing that Nike's campaign amounted to commercial speech and was therefore entitled to lesser First Amendment protection.

The Supreme Court dismissed the case without opinion on the last day of its 2002-2003 term. In a written concurrence, Stevens said the case had procedural defects that precluded the high court's examination until after a trial in California. Justices Stephen Breyer, O'Connor and Kennedy dissented and would have decided the case.

Office of Independent Counsel v. Favish

The Supreme Court agreed to hear oral arguments during its 2003-2004 term on whether photographs taken from the scene of one-time White House deputy counsel Vince Foster's apparent suicide in 1993 may be properly withheld under the privacy exemption to the federal FOIA.

The court's acceptance of the case comes almost three years after it declined to review a similar dispute involving the public interest group Accuracy in Media (AIM).

The U.S. Circuit Court of Appeals for the District of Columbia upheld the National Park Service's refusal to release the photos to AIM.

When the Supreme Court refused to review that case, AIM's attorney, Allan J. Favish, filed a personal FOIA request for the photos. The Office of Independent Counsel denied his request, citing Exemption 7(C), and he filed suit.

After an initial trial court victory for the OIC, the 9th U.S. Circuit Court of Appeals reversed and ordered the release of nine out of 10 photos. The panel said that it was unnecessary for Favish to justify his request by demonstrating government wrongdoing.

Oral arguments will likely be heard this fall.