McDermott Attorneys Involved in Two First Amendment U.S. Supreme Court Victories
WASHINGTON, D.C. (June 25, 2007) — Today, the U.S. Supreme Court issued favorable decisions on behalf of McDermott Will & Emery clients in both Federal Election Commission v. Wisconsin Right to Life (FEC) and Morse v. Frederick (Morse), two First Amendment cases.
On April 25, 2007, trial partner M. Miller Baker of the Washington, D.C. office appeared at counsel table in FEC, representing appellee Wisconsin Right to Life (WRTL). Also present at WRTL's counsel table was Kathleen Sullivan, former dean of the Stanford Law School, and Richard Coleson of Bopp, Coleson, and Bostrom. Prominent First Amendment lawyer James Bopp, Jr., of Bopp, Coleson, and Bostrom argued on behalf of WRTL.
Today, the U.S. Supreme Court ruled 5-4 that as applied to WRTL's broadcast ads exhorting Wisconsin voters to urge Senators Kohl and Feingold to oppose the filibuster of judicial nominees, the Bipartisan Campaign Reform Act of 2002 (commonly known as the McCain-Feingold law) violated the First Amendment. The issue in the case is whether the McCain-Feingold law's ban on corporate and labor union funded broadcast advertisements that merely mention a candidate's name within 60 days of a general election or within 30 days of a primary election violates the First Amendment. In this case, WRTL could not run its proposed broadcast ads in Wisconsin in September 2004 because Senator Feingold’s name was on the primary ballot, even though the issue of the filibuster of judicial nominees was a live issue about to be voted on by the Senate. A wide array of groups across the political spectrum, including the ACLU, the AFL-CIO and the U.S. Chamber of Commerce, filed amicus briefs in support of WRTL. Washington, D.C. partner Michael Nadel and Washington, D.C. associate Jeff Mikoni assisted on the briefing.
In Morse, the closely-watched First Amendment student speech case also known as the “Bong Hits 4 Jesus” case, new McDermott partner Eric Hagen of the Los Angeles office represented petitioners Deborah Morse and the Juneau School Board while at his previous firm, Kirkland & Ellis. On March 19, 2007, Mr. Hagen second-chaired the oral argument at the Court. Former U.S. Solicitor General Kenneth W. Starr, of counsel with Kirkland, served as petitioners’ counsel of record. Mr. Hagen joined McDermott on June 8, 2007, and he continues to represent the petitioners.
At issue in Morse, was whether public high school students have a First Amendment right to promote illegal drugs in the school setting and, if so, whether a public high school principal could be held personally liable for damages when she disciplined the student for violating a school district rule against promoting drugs. In January 2002, shortly before the Winter Olympic Games in Salt Lake City, the Juneau-Douglas High School celebrated the arrival of the Olympic Torch Relay in Alaska. With the student body assembled in front of the school during school hours, then high school senior Joseph Frederick unfurled a 14-foot banner that read “Bong Hits 4 Jesus.” Principal Deborah Morse asked Frederick to remove the banner. When he refused to cooperate and violated other student conduct rules, she suspended him. Frederick responded by filing a federal lawsuit against the principal and the school board, asserting that his free speech rights were violated and seeking compensatory and punitive damages.
Chief Judge John Sedwick of the District of Alaska dismissed the lawsuit in 2003. But in 2006, the Ninth Circuit Court of Appeals reversed. The Ninth Circuit held that the student’s rights were violated and that the principal had no immunity from being sued personally for damages.
Today, the U.S. Supreme Court reversed the Ninth Circuit. The Court unanimously decided that Principal Morse should face no personal liability on the student’s damages claim, and, in a majority decision authored by Chief Justice Roberts and joined by four other Justices, the Court held that the student’s First Amendment rights were not violated because public schools may restrict speech that is “reasonably viewed as promoting illegal drug use.”
These two decisions by the U.S. Supreme Court follow on the heels of the unanimous decision by the U.S. Supreme Court on June 11, 2007, for McDermott client Jeffrey H. Beck in Beck v. PACE International Union (05-1448), an ERISA case. Mr. Baker argued before the Court on behalf of Beck.
