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Last Monday was a bad day at the Supreme Court, by and large, for First Amendment claimants and criminal defendants. In its race to finish its term by month’s end, the Court on June 16 issued four major opinions, three of them fully supporting government regulations against constitutional claims. The fourth allows the government to forcibly medicate defendants to render them competent to stand trial — but under new standards that might make the practice rare. The Court’s actions leave 10 decisions yet to hand down — including major rulings on affirmative action and gay rights. The justices are scheduled to release opinions today and are expected to add at least one other day to their calendar this week. On June 16, in Federal Election Commission v. Beaumont, No. 02-403, the Court by a 7-2 vote upheld the long-standing ban on corporate contributions to political candidates as it applies to nonprofit advocacy corporations. The majority opinion, written by Justice David Souter, was quickly viewed as a significant boost for supporters of the Bipartisan Campaign Reform Act, the so-called McCain-Feingold law, whose constitutionality will be argued before the high court on Sept. 8. “The decision reaffirms in clear and unambiguous terms the power of Congress to prevent corporations, including nonprofit corporations, from using their treasuries for contributions to candidates and officeholders,” says Deborah Goldberg of the Brennan Center for Justice, adding that the decision “bodes well” for the soft money ban in the BCRA. In Beaumont, North Carolina Right to Life Inc. challenged the ban on corporate contributions, asserting that it infringed on the speech rights of advocacy groups like itself. The U.S. Court of Appeals for the 4th Circuit agreed, distinguishing the anti-abortion group from for-profit corporations. “Any attack on the federal prohibition,” Justice Souter wrote, “goes against the current of a century of congressional efforts to curb corporations’ potentially deleterious influences on federal elections.” Noting that the ban on corporate contributions dates back to the Tillman Act of 1907, Souter said subsequent rulings have done nothing but uphold the prohibition. “Concern about the corrupting potential underlying the corporate ban may indeed be implicated by advocacy corporations,” Souter added. He cited by name the AARP, the National Rifle Association, and the Sierra Club as examples of nonprofit advocacy corporations that have become “some of the nation’s most politically powerful organizations.” Significantly, Souter rejected the notion that “strict scrutiny” should be used to review the contribution ban. Invoking the 1976 case Buckley v. Valeo, Souter said the Court had determined that contributions had less First Amendment significance than expenditures by candidates, and so could be evaluated under a less demanding standard. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, asserting that “strict scrutiny” should apply and that under that standard, the ban should be struck down. Justice Anthony Kennedy wrote a concurrence agreeing with the majority on the specific ban, but noting that if the case had squarely presented the distinction between contributions and expenditures, he would have joined Thomas and Scalia. That means three justices might be inclined to overturn the basic holding of Buckley in a way that would invalidate numerous campaign finance regulations on First Amendment grounds. Other rulings on June 16: • Virginia v. Hicks, No. 02-371, in which the Court upheld a trespassing regulation in a Richmond, Va., housing project that restricts the movement of unauthorized people on streets within the project. The regulation was challenged by Kevin Hicks, who had been banned because of prior trespassing. He claimed the rule was overly broad and could violate the First Amendment by requiring protesters and leafleters to gain permission in advance from government authorities. But Justice Scalia, noting that Hicks was not involved in First Amendment activities himself, said Hicks had not shown enough potential harm to speech to invoke the overbreadth doctrine. “Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating),” said Scalia. He noted that the application of the policy could still be challenged through as-applied litigation. American Civil Liberties Union lawyer Mark Lopez says the ruling is disturbing because Hicks had spent a year in jail for “nothing more than walking on a public street.” • Sell v. United States, No. 02-5664, which says the government may, under limited circumstances, force a defendant to take anti-psychotic medication for the purpose of rendering the individual competent to stand trial. [See "New Challenge Expected by Hill Shooter," Page 1.] The case involved Charles Sell, a St. Louis dentist charged with Medicaid fraud. Diagnosed with delusional disorders, Sell has been fighting government efforts to medicate him for four years. The District Court and the U.S. Court of Appeals for the 8th Circuit agreed he should be medicated to enable him to stand trial. Justice Stephen Breyer, writing for a 6-3 majority, said that individuals have a significant “liberty interest” in avoiding unwanted medication, but that interest can be outweighed if certain conditions are met. Breyer said a judge must determine if the medication is appropriate, if its side effects won’t affect the fairness of the trial, and if there are no less intrusive alternatives. A prior determination that the medication was needed for reasons unrelated to trial competence would eliminate the need for the government to prove it was needed for the trial, Breyer added. But he said that as a result of the new hurdles placed on the process, forced medication for trial competence “may be rare” in the future. In Sell’s case, the appeals court ruling was vacated, and the case returns for a new determination of whether medication should be ordered. Justices Scalia, Thomas, and Sandra Day O’Connor said the ruling will encourage “opportunistic behavior” by defendants, such as taking medication for only part of a trial. • Overton v. Bazzetta, No. 02-94, upholding restrictive visitation policies imposed on Michigan prison inmates. The rules limited visits by minors and former prisoners, and banned visits outright for inmates who violate substance-abuse rules — except for visits from lawyers and clergy. A group of inmates filed a Section 1983 lawsuit claiming the rules violate their First Amendment associational rights as well as Eighth Amendment bars against cruel and unusual punishment. Justice Kennedy wrote for a unanimous Court that the regulations “bear a rational relation to legitimate penological interests.” The Michigan regulations, Kennedy said, are “not a dramatic departure from accepted standards for conditions of confinement.” He added that inmates can still write or make phone calls to those who cannot visit under the rules. “Alternatives to visitation need not be ideal . . . they need only be available,” said Kennedy. The ruling was applauded by Charles Hobson, a lawyer with the Criminal Justice Legal Foundation, who said, “This decision is important because it restricts the power of the lower federal courts to dictate corrections policy to the states.”

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