[JURIST] The US Supreme Court [official website; JURIST news archive] handed down decisions in five cases Monday, including Morse v. Frederick [Duke Law case backgrounder; JURIST report], where the Court held that public schools do not violate the First Amendment rights of students by sanctioning them for speech during a school-sanctioned activity that may be reasonably interpreted to promote the use of illegal substances. A high school student was suspended after he displayed a banner with the message "Bong hits 4 Jesus" during a televised parade on a school day. The student subsequently sued his principal, arguing that the principal unreasonably restricted his right to free speech. The Court reversed the Ninth Circuit's decision [PDF text] and held that the "First Amendment does not require schools to tolerate at school events student expression that contributes" to the danger of illegal drug use. Read the Court's opinion [text] per Chief Justice Roberts, along with a concurrence [text] from Justice Thomas, a second concurrence [text] from Justice Alito, a partial concurrence and dissent [text] from Justice Breyer, and a dissent [text] from Justice Stevens.

In Hein v. Freedom from Religion Foundation [Duke Law case backgrounder; JURIST report], the Court held that taxpayers do not have standing to challenge executive branch actions under the Establishment Clause. The Freedom from Religion Foundation (FFR) [advocacy website] filed a lawsuit over the use of government funds to promote President Bush's Faith-Based and Community Initiatives [official website]. The district court held that FFR did not have standing to sue and dismissed the case, but the US Court of Appeals for the Seventh Circuit ruled [opinion text, PDF] that taxpayers have standing to challenge a program created by a Presidential executive order, alleged to promote religion, and which is financed by a congressional appropriation. The Supreme Court reversed Monday, holding:

The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action.

We have never found taxpayer standing under such circumstances.

Read the Court's opinion [text] per Justice Alito, along with a concurrence [text] from Justice Kennedy, a second concurrence [text] from Justice Scalia, and a dissent [text] from Justice Souter.

In Federal Election Commission v. Wisconsin Right to Life [Duke Law case backgrounder; JURIST report], consolidated with McCain v. Wisconsin Right to Life, the Court held that Section 203 of the Bipartisan Campaign Reform Act [text; FEC materials] is unconstitutional as applied to pre-election issue ads run by Wisconsin Right to Life [advocacy website]. Under the BCRA, interest groups cannot run corporate-sponsored radio or TV advertisements that mention a candidate's name within 30 days of a primary or 60 days of a general election. In 2004, the Wisconsin anti-abortion group was prevented from running ads urging people to ask Senator Russ Feingold not to filibuster President Bush's judicial nominees, because Feingold was up for re-election that year. Wisconsin Right to Life argued it was not trying to influence an election, but was merely trying to rally support on an unrelated issue. The Supreme Court affirmed the lower court's decision [PDF text] in the case [FEC docket materials], writing:

We now confront such an as-applied challenge. Resolving it requires us first to determine whether the speech at issue is the "functional equivalent" of speech expressly advocating the election or defeat of a candidate for federal office, or instead a "genuine issue a[d]." We have long recognized that the distinction between campaign advocacy and issue advocacy "may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions." Our development of the law in this area requires us, however, to draw such a line, because we have recognized that the interests held to justify the regulation of campaign speech and its "functional equivalent" "might not apply" to the regulation of issue advocacy.

In drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the "functional equivalent" of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases. [citations omitted]

Read the Court's opinion [text] per Chief Justice Roberts, along with a concurrence [text] from Justice Alito, a second concurrence [text] from Justice Scalia, and a dissent [text] from Justice Souter.

In Wilkie v. Robbins [Duke Law case backgrounder], the Court held that government officials acting in their official capacity cannot be personally held liable for damages under the Racketeer Influenced and Corrupt Organizations Act (RICO) [text] for trying to obtain property for the government. Robbins filed a lawsuit against several employees of the Bureau of Land Management [official website], seeking to hold them liable under RICO and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics [opinion text] for alleged extortion in trying to gain a reciprocal right-of-way through Robbins' private property. The US Court of Appeals for the Tenth Circuit ruled [opinion text] that the government officials' alleged wrongful use of lawful authority to procure a right-of-way was counter to established law, but the Supreme Court reversed. The Court said that neither a "private action for damages of the sort recognized in Bivens … or a claim against the officials in their individual capacities under [RICO]" is available. Read the Court's opinion [text] per Justice Souter, along with a concurrence [text] from Justice Thomas, and a partial concurrence and dissent [text] from Justice Ginsburg.

Finally, in National Association of Home Builders v. Defenders of Wildlife [Duke Law case backgrounder], consolidated with Environmental Protection Agency v. Defenders of Wildlife, the Court held that Section 7(a)(2) of the Endangered Species Act [EPA materials] does not "effectively operate" as an additional criterion to be considered by the Environmental Protection Agency when determining whether to transfer permitting power under the Clean Water Act [EPA materials] to state authorities. According to the Court, "Section 402(b) of the Clean Water Act requires that the Environmental Protection Agency transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met" and "Section 7(a)(2) of the Endangered Species Act of 1973 provides that a federal agency must consult with agencies designated by the Secretaries of Commerce and the Interior in order to 'insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species.'" The US Court of Appeals for the Ninth Circuit ruled [PDF text] that the Environmental Protection Agency was required to determine whether a decision to transfer permitting powers would negatively impact endangered species, but the Supreme Court reversed Monday, holding that the Endangered Species Act provision does not "effectively operate[] as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned." Read the Court's opinion [text] per Justice Alito, along with a dissent [text] from Justice Stevens and a second dissent [text] from Justice Breyer.