Supreme Court to Review Range of Free Speech, Business Cases

Justice Sonia Sotomayor Steps Fully Into New Role

Free speech, business law and securities are among the issues that the U.S. Supreme Court began reviewing this week.

Before it recessed for the summer, the Supreme Court granted 45 petitions for certiorari in cases to be reviewed for its October term. Fourteen of the cases that the court has agreed to hear are criminal cases that raise questions about the Fifth, Sixth and Eighth Amendments.

Statistics indicate that the court will reverse a majority of these cases, according to the October term preview provided by the Supreme Court Institute at Georgetown University in Washington. Last term, the court reversed nearly 76 percent of its cases.

“The odds are that the courts will reverse the lower courts decision,” according to David Cole, a professor at Georgetown University Law School. “The courts don’t seek to affirm, but to see whether the law is constitutional.”

Cole, an expert on constitutional law, criminal law and national security, and four other Georgetown law professors introduced several cases that have been brewing over the past couple of years and that have finally made it to the Supreme Court at a recent session titled “Anticipating the Supreme Court’s October Term 2009: What to Expect.”

Each year, the institute aims to promote understanding in law students, faculty and the legal profession of the significance and dynamics of the Supreme Court decision-making process.

During the October term, the Supreme Court will be slightly different. For example, this term will be one of the first times the court will rehear a case. Cole said that is very rare that the Supreme Court asks to rehear a case. Rehearing the October 2008 case is not the only thing that will be different this term.

“Secondly,” he said, “we have a new Supreme Court justice, Sonia Sotomayor.”

Cole also spoke about two prominent First Amendment cases: the United States v. Stevens and Salazar v. Buono, which deals with whether an individual has Article III standing to bring an Establishment Clause suit challenging the display of a religious symbol on government land.

The United States v. Stevens is a free speech challenge to federal law barring depictions of animal cruelty. Robert J. Stevens, a man in his sixties from Virginia, was convicted in 2005 for selling depictions of dog fighting. He apparently narrated videos to “educate” others about dog fights and attacks.

Stevens was the first to be tried under a 1999 law stating that depictions of animal cruelty are illegal without an educational, religious or journalistic value. Stevens was sentenced to 37 months in prison and in 2008, he challenged his conviction. The U.S. Court of Appeals for the 3rd Circuit overturned his sentence and ruled that the law was unconstitutional under the First Amendment, which protects freedom of expression.

Opponents of Stevens, like the Northwest Animal Rights Network in Support of the United States, and the Humane Society of the United States, said, however, that depictions of animal cruelty should be parallel to depictions of child pornography and punishable the same way.

Professor Julie O’Sullivan spoke about criminal cases including Graham v. Florida and Black v. United States.

“There are many important cases this term, over a far range of subject matters,” O’Sullivan said. “But it seems to me that the campaign finance case is the blockbuster, for now at least. Who knows what cases the Court will accept for review in the coming months?”

According to O’Sullivan, because most of these cases are not capital cases, the court will apply a fact-specific analysis for every case.