Give the justices some credit. Just when the experts were sure that the U.S. Supreme Court had become a lock-step conservative team, it confounded them. At least a little. As the court last week entered the homestretch of its 19911992 term, with most of its key rulings still pending, the justices issued a First Amendment decision that might have made the liberal Warren court of the ’60s proud. They struck down a Georgia ordinance that gave local officials broad power to require permits and fees for rallies and parades. Such discretion, the justices ruled, violated the free-speech rights of demonstrators.
The law, enacted in rural Forsyth County outside Atlanta, was a response to a series of heated protests in 1987. Several dozen civil-rights marchers were attacked by white supremacists; the following weekend about 20,000 marchers showed up. Bringing in 3,000 law-enforcement officers to handle the protests cost the county more than $670,000. After the ordinance passed, the Nationalist Movement–a white-supremacist group-sued. It argued that the ordinance amounted to a “heckler’s veto” of their right of expression, since the county could base a fee for a parade permit on anticipated costs incurred during a protest.
The Supreme Court agreed. " Those wishing to express views unpopular with bottle-throwers, for example, may have to pay more for their permit," wrote Justice Harry Blackmun for the 5-4 majority. “This case shows it is still possible to put together five votes for the First Amendment,” says Duke law professor Walter Dellinger. But the rub may be that slim margin. A strong dissent by Chief Justice William Rehnquist said the majority could easily have resolved the case on narrower grounds. Some critics say conservative Justices Anthony Kennedy, Sandra Day O’Connor and David Souter–all in the majority-were duped. " The First Amendment is so deeply embedded in our culture that even if you had all conservatives on the court, you’re still going to get liberal rulings," says Bruce Fein, a former Reagan Justice Department lawyer. Those principles will be tested this week, when the justices are expected to rule in a First Amendment case that only the ACLU could love: are restrictions on swastikas, burning crosses and other kinds of hate speech constitutional? This time, the justices might not be so liberal.
