Constitution of the United States/First Amend./Free Speech Clause

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

First Amendment: Free Speech Clause

Historical Background on Free Speech Clause[edit | edit source]

The Free Speech Clause went through several iterations before it was adopted as part of the First Amendment. James Madison drafted an initial version of the speech and press clauses that was introduced in the House of Representatives on June 8, 1789. Madison's draft provided: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."[1] The House of Representatives special committee rewrote Madison's language to make the speech and press clauses read: "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed."[2] The Senate subsequently rewrote the speech and press clauses to read: "That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances."[3] Later, the Senate combined the religion clauses and the speech and press clauses[4] and the House and Senate agreed to final language in conference.

There was relatively little debate over the speech and press clauses in the House, and there is no record of debate over the clauses in the Senate.[5] During debate over the clauses, Madison warned against the dangers that would arise "from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty."[6] The general statement of these "simple" principles, however, gave rise to controversy when applied to specific government actions.[7]

The Sedition Act of 1798 sparked one such controversy that "crystallized a national awareness of the central meaning of the First Amendment."[8] The law punished anyone who would "write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute."[9] While Thomas Jefferson and Madison condemned the act as unconstitutional, the Adams Administration used it to prosecute its political opponents.[10] Although the Supreme Court never ruled the Sedition Act unconstitutional prior to its expiration in 1801, the Court later recognized "a broad consensus" from the political and judicial branches that the act was unconstitutional.[11]

Procedural Matters[edit | edit source]

The Overbreadth Doctrine, Statutory Language, and Free Speech[edit | edit source]

The overbreadth doctrine focuses on the need for precision in drafting a statute that may affect First Amendment rights, and more concretely, allows a special kind of facial challenge to statutes.[12] Ordinarily, to prevail in a facial challenge--a claim challenging a statute on its face, rather than only in certain applications--a litigant "must 'establish that no set of circumstances exists under which the [law] would be valid,' or show that the law lacks 'a plainly legitimate sweep.'"[13] Accordingly, if a statute sweeps in both protected and unprotected activity, the Court will ordinarily only invalidate its application to protected conduct.[14] In the context of the First Amendment, however, the Supreme Court has allowed a person whose own conduct may not be constitutionally protected to bring a facial challenge to a law, if the statute is so broadly written that it sweeps in protected speech and could therefore have "a deterrent effect on free expression."[15] The overbreadth doctrine thus allows the facial invalidation of a law that "punishes a 'substantial' amount of protected free speech, 'judged in relation to the statute's plainly legitimate sweep.'"[16] For example, in United States v. Stevens, the Supreme Court applied the overbreadth doctrine to rule unconstitutional a federal law that "criminalize[d] the commercial creation, sale, or possession of certain depictions of animal cruelty."[17] The Court described the statute as "a criminal prohibition of alarming breadth," and concluded that "the presumptively impermissible applications of [the law] . . . far outnumber any permissible ones."[18]

The Supreme Court has recognized, however, that "there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct."[19] The Supreme Court has cautioned that facial "[i]nvalidation for overbreadth is 'strong medicine' that is not to be 'casually employed.'"[20] The requirement that a law must be "substantially" overbroad accounts for this concern.[21] In addition, the Supreme Court has said "a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts, and its deterrent effect on legitimate expression is both real and substantial."[22] Further, the Court has said "that overbreadth analysis does not normally apply to commercial speech."[23]

Vagueness, Statutory Language, and Free Speech[edit | edit source]

Vagueness is a due process doctrine that can be brought into play with regard to any criminal and many civil statutes,[24] but it has a special significance when applied to governmental restrictions of speech: fear that a vague restriction may apply to one's speech may deter constitutionally protected speech as well as constitutionally unprotected speech.[25] In the First Amendment context, vagueness concerns are often combined with claims that the law is substantially overbroad and sweeps in too much protected speech.[26] Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,[27] obscenity and indecency,[28] and restrictions on public demonstrations.[29] However, outside of the overbreadth context, the Court has rejected vagueness challenges where "the statutory terms are clear in their application to [a plaintiff's] proposed conduct"--even when that application may implicate speech, and when the scope of the law "may not be clear in every application."[30]

Prior Restraints on Speech[edit | edit source]

The Supreme Court has recognized that "liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship."[31] Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities.[32] The great struggle for liberty of the press was for the right to publish without a license what for a long time could be published only with a license.[33] Given this history, the Supreme Court reviews "[a]ny system of prior restraints of expression" with "a heavy presumption against its constitutional validity."[34] To state this another way, the government "carries a heavy burden of showing justification for the imposition of such a restraint."[35]

The United States Supreme Court's first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson, in which a 5-4 majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an "obscene, lewd and lascivious" or a "malicious, scandalous and defamatory" issue.[36] An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters.[37] Although the dissenters maintained that the injunction constituted no prior restraint, because that doctrine applied to prohibitions of publication without advance approval of an executive official,[38] the majority deemed it "the essence of censorship" that, in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge.[39] Recognizing that liberty of the press to scrutinize closely the conduct of public affairs was essential, Chief Justice Charles Hughes stated: "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege."[40] The Court, however, did not explore the kinds of restrictions to which the term "prior restraint" would apply other than to assert that prior restraint would only be permissible in "exceptional cases."[41]

The Supreme Court has written that "[t]he special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment."[42] The prohibition on prior restraint, thus, essentially limits restraints until a final judicial determination is made that the First Amendment does not protect the restricted speech. For example, it limits temporary restraining orders and preliminary injunctions pending final judgments rather than permanent injunctions following final judgments that the First Amendment does not protect the restricted speech.[43]

In a number of cases during the mid-1900s, the Court invoked the doctrine of prior restraint to strike down restrictions on First Amendment rights, including a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them.[44] The doctrine that generally emerged from these early cases was that permit systems and prior licensing are constitutionally valid so long as the issuing official's discretion was limited to questions of time, place, and manner.[45] In a 1965 opinion, Freedman v. Maryland, the Supreme Court clarified that in the noncriminal context, a prior restraint may be upheld only if it contains certain procedural safeguards.[46] First, the burden must be on the government to prove that the speech is unprotected.[47] Second, the restraint may not "be administered in a manner which would lend an effect of finality to the censor's determination whether [speech] constitutes protected expression."[48] To meet this second requirement, a statute or "authoritative judicial construction" must ensure "that the censor will, within a specified brief period, either issue a license or go to court to restrain" the speech.[49] Content-neutral time, place, and manner regulations do not have to satisfy the procedural safeguards of Freedman--although pursuant to those early cases, they still must "contain adequate standards to guide the official's decision and render it subject to effective judicial review."[50]

The Court has also encountered the doctrine in the national security area, for example, when the government attempted to enjoin press publication of classified documents pertaining to the Vietnam War[51] and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that, in some circumstances, prior restraint of publication would be constitutional.[52]

Confronting a claimed conflict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant.[53] Though agreed as to the result, the Justices were divided as to whether "gag orders" were ever permissible and if so what the standards for imposing them were. The majority opinion used a now-discredited formulation of the "clear and present danger" test and considered as factors in any decision on the imposition of a restraint upon press reporters "(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger."[54] Though the Court found that one seeking a restraining order must meet "the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied," it refused to "rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint."[55] On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart, the Court determined that such orders protecting parties from abuses of discovery require "no heightened First Amendment scrutiny."[56]

State Action Doctrine and Free Speech[edit | edit source]

The First Amendment by its terms applies only to laws enacted by Congress and not to the actions of private persons.[57] As such, the First Amendment is subject to a "state action" (or "governmental action") limitation similar to that applicable to the Fifth and Fourteenth Amendments.[58] The Supreme Court has stated that "a private entity can qualify as a state actor in a few limited circumstances," such as "[1] when the private entity performs a traditional, exclusive public function; [2] when the government compels the private entity to take a particular action; or [3] when the government acts jointly with the private entity."[59] In addition, some private entities established by the government to carry out governmental objectives may qualify as state actors for purposes of the First Amendment. For example, in Lebron v. National Railroad Passenger Corp., the Court held that the national passenger train company Amtrak, "though nominally a private corporation," qualified as "an agency or instrumentality of the United States" for purposes of the First Amendment.[60] It did not matter, in the Court's view, that the federal statute establishing Amtrak expressly stated that Amtrak was not a federal agency because Amtrak was "established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees."[61]

Starting with the "public function" test, the Court extended the First Amendment to apply to the actions of a private party in Marsh v. Alabama, barring the punishment of a resident of a company-owned town for distributing religious literature.[62] While the town was owned by a private corporation, "it ha[d] all the characteristics of any other American town," including residences, businesses, streets, utilities, public safety officers, and a post office.[63] Under these circumstances, the Court held that "the corporation's property interests" did not "settle the question"[64]: "[w]hether a corporation or a municipality owns or possesses the town[,] the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free."[65] Consequently, the corporation could not be permitted "to govern a community of citizens" in a way that "restrict[ed] their fundamental liberties."[66]

Since Marsh was issued in 1946, however, it has largely been limited to the facts presented in that case, and applies only if a private entity exercises "powers traditionally exclusively reserved to the State."[67] The Supreme Court extended the Marsh decision in 1968: in Amalgamated Food Employees Union v. Logan Valley Plaza, the Court held that a private shopping mall could not prevent individuals from peacefully picketing on the premises, noting similarities between "the business block in Marsh and the shopping center" at issue in that case.[68] However, the Court subsequently disclaimed Logan Valley in Hudgens v. NLRB, rejecting the idea that "large self-contained shopping center[s]" are "the functional equivalent of a municipality."[69] Instead, the Court held that in Hudgens, where a shopping center manager had threatened to arrest picketers for trespassing, "the constitutional guarantee of free expression ha[d] no part to play."[70] As a result, the picketers "did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike."[71] In another decision in which the Supreme Court held that the First Amendment did not prevent a shopping center from banning the distribution of handbills, the Court distinguished Marsh by noting that "the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State."[72] By contrast, the disputed shopping center had not assumed "municipal functions or power."[73] The fact that the shopping center was generally open to the public did not qualify as a "dedication of [the] privately owned and operated shopping center to public use" sufficient "to entitle respondents to exercise therein the asserted First Amendment rights."[74]

More recently, in Manhattan Community Access Corp. v. Halleck, the Supreme Court held that Manhattan Neighborhood Network (MNN), a private, nonprofit corporation designated by New York City to operate public access channels in Manhattan, was not a state actor for purposes of the First Amendment because it did not exercise a "traditional, exclusive public function."[75] Emphasizing the limited number of functions that met this standard under the Court's precedents,[76] the Court reasoned that operating public access channels "has not traditionally and exclusively been performed by government" because "a variety of private and public actors" had performed the function since the 1970s.[77] Moreover, the Court reasoned, "merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints."[78]

Apart from the factual circumstances presented by the company town that exercises powers "traditionally" and "exclusively" held by the government,[79] the Court has sometimes applied the First Amendment against private parties if they have a "sufficiently close relationship" to the government.[80] Such circumstances may exist where a private company "is subject to extensive state regulation"--although government regulation alone is not sufficient to establish the state action requirement.[81] Instead, the inquiry in such a case is "whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself."[82] Accordingly, for example, in Manhattan Community Access Corp., the Supreme Court also held that the city's selection of MNN and the state's extensive regulation of MNN did not in and of themselves create state action.[83]

The question of when broadcast companies are engaged in governmental action subject to the First Amendment has sometimes been a difficult one. In Columbia Broadcasting System v. Democratic National Committee, the Court considered whether a radio station that had a license from the government to broadcast over airwaves in the public domain needed to comply with the First Amendment when it sold air time to third parties.[84] The radio station had a policy of refusing to sell air time to persons seeking to express opinions on controversial issues.[85] Three Justices joined a plurality opinion concluding that the radio station was not engaged in governmental action when it enforced this policy.[86] They reasoned that the federal government had not partnered with or profited from the broadcaster's decisions and that Congress had "affirmatively indicated" that broadcasters subject to federal law retained certain journalistic license.[87] In the view of those Justices, if the Court were "to read the First Amendment to spell out governmental action in the circumstances presented . . . , few licensee decisions on the content of broadcasts or the processes of editorial evaluation would escape constitutional scrutiny."[88] In contrast, three other Members of the Court would have held that the radio station was engaged in governmental action because of the degree of governmental regulation of broadcasters' activities and the station's use of the airwaves, a public resource.[89] And three Justices would not have decided the state action question.[90] Nevertheless, these three Justices joined the Court's opinion concluding that even if the broadcaster was engaged in governmental action, the First Amendment did not require "a private right of access to the broadcast media."[91]

Content-Based and Content-Neutral Regulation of Speech[edit | edit source]

Overview of Content-Based and Content-Neutral Regulation of Speech[edit | edit source]

At its core, the First Amendment's Free Speech Clause prohibits the government from suppressing or forcing conformity with particular ideas or messages.[92] To guard against such abuses of power, the Supreme Court typically has subjected laws that "target speech based on its communicative content" to strict judicial scrutiny.[93] This rule applies not only to laws in the form of federal and state statutes and local ordinances,[94] but also to government regulations and policies[95] and judicial codes of conduct.[96] Additionally, the rule applies not only to outright bans or restrictions on speech but also to financial or other regulatory burdens on speech.[97] Although this essay focuses on when a law is content based or content neutral and the legal effects of that determination, the free speech principles disfavoring content-based discrimination also apply to other forms of government action,[98] including the enforcement of content-neutral laws.[99]

The Court's approach to determining whether a law targets speech based on its content has shifted over time.[100] In the 1980s and early 1990s, for example, the Court examined both the text and justifications for a law, but sometimes placed more emphasis on the latter, asking whether the government's regulatory purpose was related to the suppression of a particular message or form of expression.[101] The Court's 2015 decision in Reed v. Town of Gilbert heralded a more text-focused approach, clarifying that content-based distinctions "on the face" of a law warrant heightened scrutiny even if the government advances a content-neutral justification for that law.[102]

Under Reed, a law can be content based "on its face" or due to a discriminatory purpose or justification.[103] A facially content-based law "draws distinctions based on the message a speaker conveys."[104] Such a law might define regulated speech by "particular subject matter" or by "its function or purpose."[105] The law might even regulate speech on the basis of the particular views expressed.[106] By comparison, a law that is content neutral on its face still may be deemed content based if the law "cannot be justified without reference to the content of the regulated speech," or was adopted "because of disagreement with the message [the speech] conveys."[107]

After Reed, lower courts diverged over whether a law was necessarily content based on its face if its application or enforcement turned on the content of the speech at issue. In City of Austin v. Reagan National Advertising of Austin, LLC, the Court clarified that a law is facially content based if it applies to particular speech because of the subject matter, topic, or viewpoint expressed--that is, if it turns on the "substantive message" conveyed.[108] A law may be facially content neutral, the Court explained, even if "a reader must ask: who is the speaker and what is the speaker saying" to determine if the law applies,[109] so long as that examination is "only in service of drawing neutral" lines that are "agnostic as to content."[110] Thus, in City of Austin, the Court upheld an ordinance that placed certain restrictions only on signs advertising off-premises businesses, even though application of those restrictions depended upon the content of the sign relative to its location.[111]As a general matter, content-based laws are "presumptively unconstitutional" and subject to a strict scrutiny standard of judicial review.[112] This is a difficult test for the government to satisfy.[113] Under strict scrutiny, the government must show that its law serves a compelling governmental interest and is narrowly tailored to advance that interest.[114] Narrow tailoring in this context typically means that "[i]f a less restrictive alternative would serve the [g]overnment's purpose, the legislature must use that alternative."[115] Thus, in challenges to content-based laws under strict scrutiny, the government bears the burden of proving that any proposed alternatives are less effective than the challenged law.[116]

The Court has recognized some exceptions to the general rule that content-based laws receive strict scrutiny, two of which reflect the Court's "limited categorical approach" to First Amendment law.[117] Specifically, the Court has subjected laws regulating "commercial speech" to an intermediate form of scrutiny.[118] Even in the commercial context, though, the Court has applied or considered applying strict scrutiny to laws that completely ban a subset of commercial speech because of its content or that are aimed at particular commercial speakers.[119] In addition to the category of commercial speech (which is protected speech), the Court has recognized some narrowly defined categories of "unprotected speech" that the government may regulate because of their harmful content,[120] such as "true threats" and "defamation."[121] Within those categories, the government may not draw additional content-based distinctions unless "the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable."[122]

There are also some specific contexts in which the Court has allowed for certain types of content-based distinctions,[123] including schools,[124] prisons,[125] and nonpublic forums (that is, government-owned property opened for specific or limited public purposes).[126] Additionally, the Court has held that when the government is providing a public subsidy, such as a tax exemption, or funding a government program, it may draw some types of content-based distinctions to identify the activities it seeks to subsidize and to define the limits of the government program.[127]

The Court has distinguished content-based laws from content-neutral laws, while acknowledging that deciding whether a particular law "is content based or content neutral is not always a simple task."[128] A content-neutral law that imposes only an incidental burden on speech "will be sustained if 'it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.'"[129] Similarly, the government "may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'"[130]

Development of a Judicial Approach to Content-Based Speech Laws[edit | edit source]

As explained in First Amend.: Overview of Content-Based and Content-Neutral Regulation of Speech, laws regulating protected speech on the basis of its content are generally subject to strict judicial scrutiny.[131] As the Supreme Court has acknowledged, however, deciding whether a particular law "is content based or content neutral is not always a simple task."[132] When confronted with the question, the Court has examined a law's text (that is, the face of the law) and considered arguments about the law's justification, purpose, design, and operation.

Whether a content-based distinction on the face of the law rendered that law presumptively invalid has changed over time, with earlier cases lacking a consistent approach.[133] For example, in the 1980s and early 1990s, the Court sometimes considered laws that drew content-based distinctions on their face to be content neutral (and subject to a form of intermediate scrutiny) so long as they were supported by a content-neutral justification.[134] This approach started to shift in the mid-1990s, as the Court began to clarify that a content-neutral purpose cannot "save a law which, on its face, discriminates based on content."[135]

In its 2015 decision in Reed v. Town of Gilbert, the Court squarely held that a facially content-based law is subject to strict scrutiny "regardless of the government's benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech."[136] Thus, under the approach set out in Reed, a law may be content based, and thus presumptively unconstitutional, if it draws content-based distinctions on its face or if it reflects a discriminatory purpose.[137]

Laws Making Facial Content-Based Distinctions Regarding Speech[edit | edit source]

The Supreme Court has recognized that the "First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic."[138] In 1980, the Court struck down a state order prohibiting private utility companies from including inserts in their billing envelopes discussing "controversial issues of public policy."[139] The Court reasoned that the order imposed an impermissible content-based restriction even though it did "not favor either side of a political controversy," reaffirming the general rule that the government may not regulate speech based on its subject matter.[140] The Court explained that to "allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth."[141]

Drawing on these precedents, the Court set out the modern test for determining whether a law is facially content based in two decisions involving local sign ordinances. In its 2015 decision in Reed v. Town of Gilbert, the Court held that a law is content based "on its face" if it "draws distinctions based on the message a speaker conveys."[142] The Court explained that "[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose."[143] The ordinance at issue in Reed fell into the former category because it "single[d] out specific subject matter for differential treatment" by, for example, placing more onerous restrictions on "political" signs than on "ideological" signs.[144]

Other examples of laws that the Court has determined to be facially content based include a federal statute criminalizing the commercial sale of "depictions of animal cruelty,"[145] a federal statute requiring cable television operators to scramble or restrict the daytime transmission of channels "primarily dedicated to sexually-oriented programming,"[146] a federal statute restricting "indecent" and "patently offensive" internet communications,[147] and a state law imposing a sales tax on general interest magazines but exempting religious, trade, and sports magazines.[148]

Although Reed clarified the meaning of "content based" to some extent, courts continued to grapple with the question of whether a law is content based--and thus presumptively unconstitutional--whenever the government must read the speech at issue to determine the law's applicability or the speaker's compliance with the law.[149] In its 2022 decision in City of Austin v. Reagan National Advertising of Austin, LLC, the Court rejected that formulation of the rule as "too extreme an interpretation of this Court's precedent."[150] The case involved a city ordinance restricting "off-premises signs"--signs advertising or directing readers to businesses or events at another location, but not restricting signs advertising activities on the same premises. In practice, determining whether the restrictions applied required reading the sign to identify whether it advertised a business or event on or off of the premises where the sign was posted. In the majority's view, that ordinance was content neutral because it did not "single out any topic or subject matter for differential treatment."[151] Instead, the ordinance distinguished signs based on a content-neutral factor--location--rather than their "substantive message."[152]

City of Austin also addressed the statement in Reed that laws that distinguish speech based on its "function or purpose" are content based.[153] The Court opined that not every "classification that considers function or purpose" is content based.[154] Instead, the Court suggested that defining regulated speech by its function is only problematic when function is used as a "proxy" for regulating content, such as when a legislature attempts to regulate political signs by describing regulated signs as those "designed to influence the outcome of an election."[155]

As with laws that restrict a discrete category of speech, laws that exempt one category of speech from a broader speech restriction could also create a facial content-based distinction.[156] In Regan v. Time, Inc., the Court evaluated a statutory exception to a long-standing ban on photographic reproductions of currency,[157] allowing certain publishers to use these photographs for "educational, historical, or newsworthy purposes."[158] The Court held that the purpose provision was "constitutionally infirm" because whether a photograph is "newsworthy" or "educational" requires the government to make a content-based judgment.[159]

The Court again struck down a content-based exception in Barr v. American Association of Political Consultants.[160] That case concerned a 1991 federal law that, among other things, prohibited automated calls to cell phones, also known as "robocalls."[161] Congress had added a provision in 2015 that exempted calls made to collect debt owed to the federal government, such as student loan debt, from the robocall restriction.[162] Five Justices held that the robocall restriction was impermissibly content based,[163] with a different majority concluding that the appropriate remedy was to "sever" the government-debt exception.[164] A plurality of the Court wrote that "[b]ecause the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech."[165] Thus, even though Congress had removed a restriction on speech when it added the government-debt exception, that 2015 amendment created a "discriminatory exception" that resulted in "unequal treatment" of government-debt collection speech versus speech on other topics.[166]

Laws Regulating Speech with a Content-Discriminatory Purpose[edit | edit source]

Even if a law is content neutral on its face, it could still be considered content based if it "cannot be 'justified without reference to the content of the regulated speech'" or was "adopted by the government 'because of disagreement with the message [the speech] conveys.'"[167] For example, in 1990, the Court held that a defendant could not be prosecuted for burning a flag in violation of a federal statute.[168] The case followed the Court's landmark symbolic-speech case Texas v. Johnson, in which the Court recognized that flag burning is a constitutionally-protected expressive activity under some circumstances.[169] Unlike the state law at issue in Johnson, however, the federal statute contained "no explicit" content-based limitation on flag burning.[170] The Court nonetheless concluded that Congress was concerned with the "communicative impact of flag destruction" because its stated goal of protecting the "physical integrity" of the flag depended on "a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals."[171] That justification for the law rendered it content based for purposes of First Amendment analysis.

The Court has also encountered laws that are content based both on their face and in their "design" and "practical operation."[172] In Sorrell v. IMS Health Inc., the Court considered a state law that prohibited the use of certain pharmacy records for marketing purposes without the prescribers' consent.[173] The Court held that on its face, the law imposed content-based restrictions on the use of these records because it "disfavor[ed] marketing," which is "speech with a particular content."[174] The Court observed, too, evidence of a content-discriminatory purpose, pointing to statements in the legislative record suggesting that "the law's express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs"--a content-based justification.[175]

Laws Making Speaker-Based Distinctions in Regulating Speech[edit | edit source]

The Supreme Court has recognized that the "First Amendment protects speech and speaker, and the ideas that flow from each."[176] While "a differential burden on speakers is insufficient by itself to raise First Amendment concerns,"[177] laws that are "designed or intended to suppress or restrict the expression of specific speakers" because of their ideas violate the First Amendment.[178] In terms of First Amendment analysis, this means that, unlike laws that regulate speech based on subject matter, topic, or viewpoint, laws that distinguish among different speakers are not necessarily deemed content based or presumptively unconstitutional. For example, a regulation distinguishing between cable operators and broadcasters, the Court observed in a 1994 case, differentiated among "speakers in the television programming market" based on "the manner in which [they] transmit their messages to viewers" rather than their content.[179] The Court explained that such distinctions are "not presumed invalid" as long as they are not "a subtle means of exercising a content preference."[180]

Speaker-based distinctions can, however, invite heightened scrutiny in some circumstances. As previously noted, speaker-based distinctions raise the specter of content-based discrimination. The Supreme Court has observed that "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content."[181] The law in Sorrell v. IMS Health, Inc., for example, prohibited pharmaceutical companies from using pharmacy records revealing physicians' individual prescribing practices for marketing purposes without the prescribers' consent.[182] The law did not prohibit other entities from using the records for non-marketing purposes, thus allowing, for example, educational institutions to use the regulated records for research purposes.[183] The Court observed that in addition to imposing content-based restrictions on how the information was used, the law targeted pharmaceutical companies for disfavored treatment, which contributed to the content-based nature of the law.[184]

Even apart from a desire to control the content of speech, the government may violate the First Amendment if it singles out "disfavored speakers" for speech restrictions.[185] In Citizens United v. FEC, for example, the Court held that Congress may not prohibit political speech in the form of independent expenditures because of a speaker's corporate identity.[186]

Thus, speech restrictions that apply to some speakers but not others may trigger heightened scrutiny, especially where the law contains other, facial distinctions based on the message conveyed, or reflects a content-discriminatory purpose.[187]

Content-Based and Compelled Speech[edit | edit source]

The Supreme Court has suggested that laws that compel speech, such as labeling or disclosure requirements, are typically content based because they alter the content of the speaker's message.[188] For example, in a 2018 case, the Court considered a state law that required licensed pregnancy resource centers to post a notice that the state provided free or low-cost access to certain services, including abortion.[189] The Court held that this requirement regulated speech based on its content.[190] The Court reasoned that by requiring the petitioners (pregnancy resource centers that opposed abortion) "to inform women how they can obtain state-subsidized abortions--at the same time petitioners try to dissuade women from choosing that option--the licensed notice plainly 'alters the content' of petitioners' speech."[191] The Court concluded that heightened scrutiny should apply,[192] because the law required the petitioners to adopt a "government-drafted script" about a service--abortion--that the petitioners opposed.[193]

Thus, laws that compel private speakers to make a particular statement or to include certain information in their own speech are likely content based.[194] Whether such requirements would receive strict scrutiny, intermediate scrutiny, or a lesser degree of scrutiny, depends, among other things, on whether they involve commercial speech and concern the speaker's own product or services.[195]

Content-Neutral Laws Burdening Speech[edit | edit source]

The Court has distinguished content-based laws from content-neutral laws, while acknowledging that deciding whether a particular law "is content based or content neutral is not always a simple task."[196] A content-neutral law that imposes only an incidental burden on speech "will be sustained if 'it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.'"[197] Similarly, the government "may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'"[198]

A series of cases allowing speech to be regulated due to its "secondary effects" is related to these content-neutral standards.[199] In Young v. American Mini Theater, the Court recognized a municipality's authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that adult theaters showing motion pictures that depicted specified sexual activities or specified anatomical areas could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area.[200] The Court endorsed this approach in Renton v. Playtime Theatres, rejecting a constitutional challenge to a zoning ordinance restricting the locations of adult theaters after concluding that although the ordinance targeted businesses selling sexually explicit materials, the law was content-neutral because it was justified by studies showing adult theaters produced undesirable secondary effects, rather than being justified by reference to the content of the regulated speech.[201] By contrast, for example, the Court rejected one city's argument that it could prohibit as a nuisance "any movie containing nudity which is visible from a public place."[202] Concluding that the ordinance was not well tailored to the city's stated goals of protecting the privacy interests of passers-by or protecting children, the Court held instead that the law was an unconstitutional content-based regulation.[203]

Viewpoint-Based Regulation of Speech[edit | edit source]

Overview of Viewpoint-Based Regulation of Speech[edit | edit source]

Content-based regulation of speech is generally subject to strict scrutiny and presumptively unconstitutional.[204] The Supreme Court considers viewpoint-based regulation of speech to be "an egregious form of content discrimination."[205] A law[206] is viewpoint-based when it regulates speech based on its "specific motivating ideology" or the speaker's "opinion or perspective."[207] The following general principles have emerged from the Supreme Court's decisions on viewpoint discrimination and the Free Speech Clause of the First Amendment.

First, the Free Speech Clause ordinarily prohibits the government from restricting speech based on the particular views expressed in that speech.[208] Even when regulating speech that is otherwise proscribable, the government typically may not permit some viewpoints and disallow others.[209] The government may differentiate among viewpoints only in limited circumstances,[210] such as when the government itself is the speaker,[211] or when the government selectively funds certain speech as part of a government program.[212] These limited exceptions are discussed elsewhere in the Constitution Annotated.[213]

Second, the government generally may not compel a private party to espouse a particular viewpoint.[214] This principle extends to compelled association[215] and compelled subsidization of speech.[216]

Third, laws that do not single out a specific viewpoint on their face, but that were enacted for the purpose of suppressing an idea or message, or otherwise invite discriminatory enforcement, sometimes run afoul of the First Amendment as well.[217]

Viewpoint-Based Distinctions on the Face of a Law[edit | edit source]

A law that explicitly regulates speech on the basis of the particular ideas or opinions expressed is said to be viewpoint-based "on its face."[218] Such facially viewpoint-based laws, which are unconstitutional in most contexts,[219] can take several forms. The most obvious form is a law that, by its terms, regulates speech based on "the specific motivating ideology or the opinion or perspective of the speaker."[220]

A law need not single out a particular ideology or message to be viewpoint-based, however. For example, a law that categorically prohibits "religious" speech may be viewpoint-based even if it does not draw sectarian distinctions. In Lamb's Chapel v. Center Moriches Union Free School District, the Court considered a local public school board's regulations that allowed organizations to use school property for "social, civic, or recreational uses" but not for "religious purposes."[221] Based on that rule, the school district refused to allow a church to use the property to show a film series about family and child-rearing--subjects that fell within the social-or-civic-use purpose.[222] The Court held that this refusal violated the Free Speech Clause: even though the school district's regulation treated "all religions and all uses for religious purposes" alike, the school district still discriminated on the basis of viewpoint by excluding the films solely on the basis of their "religious standpoint."[223]

Laws that allow the government to determine whether speech is disparaging or offensive also raise concerns about viewpoint discrimination.[224] In the 2017 case Matal v. Tam, the Court considered a provision of the Lanham Act, a federal trademark statute, that prohibited the registration of trademarks "which may disparage . . . persons, living or dead."[225] After holding that trademarks are not a form of government speech (for which viewpoint-based distinctions are sometimes permissible),[226] the Court ruled that the Lanham Act's "disparagement clause" violated the First Amendment.[227] The plurality opinion explained that although the clause "evenhandedly prohibit[ed] disparagement of all groups," it discriminated on the basis of viewpoint because it "denie[d] registration to any mark that is offensive to a substantial percentage of the members of any group," and "[g]iving offense is a viewpoint."[228] Two years later, the Court struck down the Lanham Act's bar to registering "immoral or scandalous" trademarks on similar grounds.[229]

By comparison, in a case involving a government-funded program, the Court upheld a statute requiring a federal agency to "take into consideration general standards of decency and respect for the diverse beliefs and values of the American public" in awarding grants to support the arts.[230] The Court did not "perceive a realistic danger" that the statute would "compromise First Amendment values."[231] The program, the Court observed, was based on otherwise "subjective" grant criteria such as artistic excellence.[232] Given that context, making "decency and respect" a consideration was unlikely to "effectively preclude or punish the expression of particular views."[233]

Viewpoint Discrimination in Facially Neutral Laws[edit | edit source]

A law can discriminate on the basis of viewpoint even if it is viewpoint-neutral on its face. In assessing whether a facially neutral law nevertheless discriminates on the basis of viewpoint, the Supreme Court has asked whether the law, in its "design" or "operation," favors or disfavors a particular point of view.[234]

With regard to discriminatory design, the Court appears to distinguish between a law intended to or crafted to suppress a particular viewpoint and a law advanced or supported by a group with a particular viewpoint. According to the Court, "facially neutral and valid justifications" cannot save a law "that is in fact based on the desire to suppress a particular point of view."[235] A law is not viewpoint-based, however, "simply because its enactment was motivated by the conduct of the partisans on one side of a debate."[236] Further, while the Supreme Court has examined the general purposes of a statute to assess viewpoint neutrality in some cases,[237] the Court has declined to examine the motivations of particular legislators or regulators in other cases.[238]

Various decisions of the Court suggest at least three indicators that a law may have been designed to suppress a particular viewpoint. First, a law that singles out particular speakers may be aimed at restricting certain content or certain viewpoints.[239] For example, in Sorrell v. IMS Health, Inc., the Court held unconstitutional a law limiting who could access certain information about prescriptions and for what purposes.[240] In addition to being content-based on its face, the Court explained, the law authorized "actual viewpoint discrimination" in practice.[241] Formal legislative findings showed that "the law's express purpose and practical effect [were] to diminish the effectiveness of marketing by manufacturers of brand-name drugs."[242] In other words, the Court concluded, the law targeted specific speakers in order to target their messages.[243] Thus, the law, while viewpoint-neutral on its face, was impermissibly "aimed at a particular viewpoint."[244]

Second--and related to speaker-based distinctions--a law that contains numerous exemptions may have the impermissible effect of restricting the speech of individuals or entities with a certain point of view. Exceptions and exemptions are not necessarily viewpoint-based: a law that regulates speech may include certain exemptions to avoid undermining the government's purpose or restricting more speech than is necessary. For example, in a 2014 case, the Court concluded that there was "nothing inherently suspect" in exempting abortion clinic employees from a law that otherwise restricted the zones in which persons could speak outside abortion clinics, because of the need to allow clinic employees "to do their jobs."[245] Because exemptions can introduce content or viewpoint-based distinctions,[246] however, a law that is "wildly underinclusive" may signal that the law was designed to "disfavor[ ] a particular speaker or viewpoint."[247]

Third, a law that restricts only a particular form of expression may be aimed at suppressing a particular viewpoint. For example, Tinker v. Des Moines Independent Community School District arose from the suspension of three public high school students for violating a school policy prohibiting wearing armbands to school.[248] School officials had adopted the policy after learning that a group of students planned to wear black armbands to school as a symbol of opposition to the Vietnam War.[249] The Supreme Court held that the public school's denial of this "form of expression" violated the First Amendment.[250] Although schools have some leeway to restrict student expression that might reasonably lead to "substantial disruption of or material interference with school activities,"[251] there was no indication that such disturbances would take place under the circumstances.[252] Instead, the Court observed, the school adopted the policy in anticipation of this "particular opinion" and prohibited this "particular symbol" but no other political symbols.[253] A public school cannot restrict student speech, the Court explained, based on a "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."[254]

In addition to the design of a law, a claim of viewpoint discrimination may be based on how the law operates in practice. A facially neutral law may be viewpoint-based if, in operation, it restricts or promotes a particular viewpoint.[255] Here again the Court has drawn some distinctions. Government action is not automatically viewpoint-based simply because it affects groups with opposing viewpoints unequally.[256] However, a law that invites discriminatory enforcement may violate the principle of viewpoint-neutrality.[257] The Court has held, for example, that a licensing law is vulnerable to a First Amendment challenge if it "gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers."[258]

Even if a law does not discriminate on the basis of viewpoint on its face, in its design, or in its operation, discriminatory enforcement of that law may still violate the First Amendment because enforcement involves government action subject to the First Amendment.[259] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which the Court ultimately decided on free exercise rather than free speech grounds, is instructive on this point.[260] In that case, a bakery owner was charged with violating the state's antidiscrimination law after refusing to make a cake for a same-sex couple's wedding.[261] The Court's decision focused not on the validity of the antidiscrimination law, but rather on its application to the bakery owner. In the record, the Court found evidence of "a clear and impermissible hostility toward the sincere religious beliefs that motivated [the baker's] objection."[262] The offending statements, the Court held, "violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint."[263]

Viewpoint-Based Distinctions Within Proscribable Speech[edit | edit source]

Although content-based regulation of speech typically receives strict scrutiny,[264] there are certain, limited categories of speech--sometimes called "unprotected" speech--that the government may prohibit because of its harmful content.[265] Even when regulating in these areas, however, the government is not free to draw viewpoint-based distinctions, as explained in R.A.V. v. City of Saint Paul.[266] R.A.V. involved an ordinance that criminalized, among other acts, placing a burning cross on someone's property knowing that it would "arouse[ ] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."[267] For purposes of its analysis, the U.S. Supreme Court accepted the Minnesota Supreme Court's conclusion that the law reached only expressive acts that constitute "fighting words"--a category of unprotected speech.[268] The Court nevertheless concluded that the law violated the First Amendment because it drew additional distinctions between different types of fighting words based on subject matter and viewpoint.[269] The ordinance, the Court explained, applied "only to 'fighting words' that insult, or provoke violence, 'on the basis of race, color, creed, religion or gender.'"[270] The Court held that the city could not "impose special prohibitions on those speakers who express views on disfavored subjects"--that is, on race, religion, or one of the other named topics.[271] The Court also held that the ordinance effectively amounted to "actual viewpoint discrimination" because persons "arguing in favor of racial, color, etc., tolerance and equality" could use fighting words that "could not be used by those speakers' opponents."[272]

Eleven years later, in Virginia v. Black, the Court held that a state could prohibit cross-burning with the intent to intimidate because "burning a cross is a particularly virulent form of intimidation," and such "true threats" are considered unprotected speech under the First Amendment.[273] The ordinance in R.A.V. was distinguishable, the Court explained, because it singled out threats made on the basis of certain viewpoints.[274]

Viewpoint Neutrality in Forum Analysis[edit | edit source]

The government's latitude to regulate speech depends, in part, on the forum where that speech occurs. When the government regulates speech in a traditional public forum, such as a public park or sidewalk, or intentionally designates a forum for public speech, content-based regulations are subject to strict scrutiny.[275] In contrast, when the government opens up a nonpublic forum for a limited public purpose, it "may impose some content-based restrictions on speech."[276] Regardless of the type of forum, however, restrictions on content generally must be viewpoint-neutral to comply with the First Amendment.[277]

The Court applied these standards in several cases involving programs for student organizations at public universities, which generally have been considered limited or nonpublic forums. In one such case from 1995, the Court acknowledged that the government sometimes needs to limit forums it creates to "certain groups" or "certain topics," but ruled that once a government "has opened a limited forum," it may not "discriminate against speech on the basis of its viewpoint."[278] In that case, the university discriminated on the basis of viewpoint by denying funding to a student group because of its religious perspective.[279] By comparison, requiring registered student organizations "to accept all comers" is "textbook viewpoint neutral," the Court held in a 2010 decision.[280]

Apart from the requirement of viewpoint-neutrality, a regulation of speech in a nonpublic forum must be "reasonable" in light of the forum's purpose.[281] A law that is viewpoint-neutral on its face may be unreasonable if it lacks discernible standards to encourage viewpoint-neutral enforcement. In Minnesota Voters Alliance v. Mansky, a 2018 decision, the Court reviewed a state's political "apparel ban," which prohibited wearing any "political badge, political button, or other political insignia" within a polling place.[282] The Court held that a polling place on Election Day is a nonpublic forum subject to reasonable, content-based restrictions.[283] The apparel ban was viewpoint-neutral on its face, the Court determined, because it made "no distinction based on the speaker's political persuasion."[284] The Court nonetheless struck down the apparel ban because it was overbroad in its operation, reaching apparel expressing viewpoints on issues on and off the ballot.[285] In addition, the lack of "objective, workable standards" for election judges to apply made the apparel ban susceptible to viewpoint-discriminatory enforcement, which contributed to its unreasonableness.[286]

Categorical Approach[edit | edit source]

Overview of Categorical Approach to Restricting Speech[edit | edit source]

While content-based restrictions on protected speech are presumptively unconstitutional, the Supreme Court has recognized that the First Amendment permits restrictions upon the content of speech falling within a few limited categories, including obscenity, child pornography, defamation, fraud, incitement, fighting words, true threats, and speech integral to criminal conduct.[287] This "limited categorical approach"[288] to content-based regulations of speech derives from Chaplinsky v. New Hampshire, wherein the Court opined that there exist "certain well- defined and narrowly limited classes of speech [that] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth" such that the government may prevent those utterances and punish those uttering them without raising any constitutional issues.[289] More recent decisions of the Court reflect a reluctance to add any new categories of excepted speech and an inclination to interpret narrowly the excepted categories of speech that have long-established roots in First Amendment law.[290] Further, a 1992 decision cautioned that although "these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)," these categories are not "entirely invisible to the Constitution."[291] Specifically, the Court said a regulation of one of these categories of speech might still violate the First Amendment if it contained additional content- or viewpoint-based distinctions unrelated to the proscribable content: while "the government may proscribe libel . . . it may not make the further content discrimination of proscribing only libel critical of the government."[292]

Early Doctrine of Incitement[edit | edit source]

Criminal punishment for advocating illegal or merely unpopular goals and ideas did not originate in the United States with the post-World War II concern with Communism. Prosecutions occurred under the Sedition Act of 1798,[293] and under the federal espionage laws[294] and state sedition and criminal syndicalism laws[295] in the 1920s and early 1930s.[296] Certain expression, oral or written, may incite, urge, counsel, advocate, or importune the commission of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of "symbolic" action, may either counsel the commission of criminal conduct or itself constitute criminal conduct. Setting aside the problem of symbolic action,[297] the Court had to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. Initially, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, advocating or promoting the conduct could be made criminal.[298]

In the Court's 1919 decision Schenck v. United States,[299] which concerned defendants convicted of violating the Espionage Act by disseminating leaflets seeking to disrupt recruitment of military personnel, Justice Oliver Wendell Holmes formulated the "clear and present danger" test that governed this area for decades. To determine whether speech could be proscribed, he said, "[t]he question . . . is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."[300] Consequently, the Court unanimously affirmed the convictions. One week later, in Frohwerk v. United States, the Court again unanimously affirmed convictions under the same act with Justice Holmes writing, "the First Amendment . . . obviously was not[ ] intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."[301] And, in Debs v. United States,[302] Justice Holmes upheld a conviction because "the natural and intended effect" and the "reasonably probable effect" of the speech for which the defendant was prosecuted was to obstruct military recruiting.

In Abrams v. United States,[303] however, Justices Holmes and Louis Brandeis dissented on affirming the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with the United States' participation in World War I. The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the government had made no showing of a clear and present danger. Another case in which the Court affirmed a conviction by simply saying that "[t]he tendency of the articles and their efficacy were enough for the offense" drew a similar dissent.[304]

The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,[305] the Court held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the "class struggle" language of the constitution of the organization to which he belonged. A conviction for violating a "red flag" law was voided because the statute was found unconstitutionally vague.[306] Neither case mentioned clear and present danger. An "incitement" test seemed to underlie the opinion in DeJonge v. Oregon,[307] upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry,[308] the Court narrowly rejected the contention that the standard of guilt could be made the "dangerous tendency" of one's words, and indicated that the power of a state to abridge speech "even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government."

Finally, in <vrpd>Thornhill v. Alabama</vrpd>,[309] a state anti-picketing law was invalidated because "no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter." During the same term, the Court reversed the breach of the peace conviction of a Jehovah's Witness who had played an inflammatory phonograph record to persons on the street, the Court discerning no clear and present danger of disorder.[310]

The Court also applied the clear and present danger test in Terminiello v. City of Chicago,[311] in which a 5-4 majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." Justice William O. Douglas wrote for the majority that:

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.337 U.S. at 4-5.

The dissenters focused on the disorders that had actually occurred as a result of Terminiello's speech, Justice Robert Jackson saying: "Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish . . . . In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate."[312] The disorderly consequences of speech were emphasized in Feiner v. New York,[313] in which Chief Justice Fred Vinson said that "[t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner's deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech."

Incitement Movement from Clear and Present Danger Test[edit | edit source]

In Gitlow v. New York,[314] a conviction for distributing a manifesto in violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it created any immediate threat to the security of the state. In so doing, the Court distinguished the "clear and present danger" test used in Schenck: Schenck governed "cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results."[315] By contrast, in Gitlow, the Court observed that "the legislative body itself ha[d] previously determined the danger of substantive evil arising from utterances of a specified character."[316] Thus, a state legislative determination "that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power" was almost conclusive to the Court.[317]

In Whitney v. California,[318] the Court affirmed a conviction under a criminal syndicalism statute based on the defendant's association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves "danger to the public peace and the security of the State" was entitled to almost conclusive weight. In a technical concurrence on procedural grounds, which in fact disagreed with the substance of the majority opinion, Justice Louis Brandeis restated the "clear and present danger" test, saying "even advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy fails short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. . . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated."[319]

In Dennis v. United States,[320] the Court sustained the constitutionality of the Smith Act,[321] which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld convictions under it. The plurality opinion in Dennis recognized that Whitney and Gitlow had largely been superseded by Schenck, and applied a revised version of the clear and present danger test to conclude that the evil sought to be prevented was serious enough to justify suppression of speech.[322] The plurality said the phrase "clear and present danger" should not "be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case."[323] Many of the cases in which it had previously been used to reverse convictions had turned "on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech."[324]

By contrast, in Dennis, the plurality reasoned that "[o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech."[325] Further, the plurality said the government did not need to wait to act until the plan was set in action.[326] The Court adopted a flexible version of the "clear and present danger" test: "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."[327] The "requisite danger" of a conspiracy was found to justify the convictions.[328]

The clear and present danger test was a lighter restriction on governmental power after Dennis, and it virtually disappeared from the Court's language over the next twenty years.[329] Its replacement for part of this period was the much disputed "balancing" test, which made its appearance the year before Dennis in American Communications Ass'n v. Douds.[330] There the Court sustained a law barring the National Labor Relations Board from investigating a labor union's petition if any of its officers failed to file annually an oath disclaiming membership in the Communist Party and belief in the violent overthrow of the government.[331] Chief Justice Fred Vinson, for the Court, rejected reliance on the clear and present danger test because the government's interest in the law was "not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced."[332] Instead, the Court concluded that the law did not interfere with speech--the government's interest was "in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all."[333] In evaluating the permissibility of the oath, the Court said it had to balance "the conflicting individual and national interests." The Court further reasoned, "When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented."[334] As the interest in the restriction, the government's right to prevent political strikes and disruption of commerce, was much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute.[335]

During the 1950s and early 1960s, the Court used the balancing test in decisions that did not concern threatening expression or advocacy but rather governmental inquiries into or regulation of associations and personal beliefs premised on these being predictive of future or intended conduct that government could regulate or prohibit. Thus, in the leading case on balancing, Konigsberg v. State Bar of California,[336] the Court upheld a state's refusal to certify an applicant for admission to the bar. Describing the relevant analysis, the Court said "general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved."[337]

The Court used balancing to sustain congressional and state inquiries into associations and individual activities that were alleged to be subversive[338] and proceedings against the Communist Party and its members.[339] The Court did not use balancing, however, when it struck down restrictions on receiving materials mailed from Communist countries[340] or in cases involving picketing, pamphleteering, and demonstrating in public places.[341] But the only case in which the Court specifically rejected balancing involved a statutory regulation like those that had led the Court to adopt the test in the first place. In United States v. Robel,[342] the Court held invalid under the First Amendment a statute that made it unlawful for any member of an organization that the Subversive Activities Control Board had ordered to register to work in a defense establishment.[343] Writing for the Court, Chief Justice Earl Warren reasoned that the law was flawed because its proscription operated per se "without any need to establish that an individual's association poses the threat feared by the Government in proscribing it,"[344] and, as a result, the rationale of the decision was not clear and present danger but the existence of less restrictive means by which the governmental interest could be accomplished.[345] In a concluding footnote, the Court said: "It has been suggested that this case should be decided by 'balancing' the governmental interests . . . against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. . . . We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict."[346]

The government used the Smith Act provision criminalizing organizing or becoming a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence against Communist Party members. In Scales v. United States,[347] the Court affirmed a conviction and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice John Harlan wrote for the Court, was unprotected under Dennis, and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course, he observed "[i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause . . . does not make criminal all association with an organization which has been shown to engage in illegal advocacy."[348] Only an "active" member of the Party--one who with knowledge of the proscribed advocacy intends to accomplish the aims of the organization--was to be punished, the Court said, not a "nominal, passive, inactive or purely technical" member.[349]

Incitement Current Doctrine[edit | edit source]

In Brandenburg v. Ohio,[350] the Supreme Court reversed a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change. The prevailing doctrine developed in the Communist Party cases was that "mere" advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success.[351] In Brandenburg, however, the Court reformulated these and other rulings to mean "that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[352] The Court has applied the Brandenburg formulation in subsequent cases, although a number of questions remain with respect to the imminence and likelihood aspects of the standard.[353]

Fighting Words[edit | edit source]

In Chaplinsky v. New Hampshire,[354] the Court unanimously sustained a conviction under a state law proscribing "any offensive, derisive or annoying word" addressed to any person in a public place after accepting the state court's interpretation of the statute as being limited to "fighting words"--that is, to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." The Court sustained the statute as "narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace."[355] The Court further explained that "by their very utterance," fighting words "inflict injury or tend to incite an immediate breach of the peace."[356] Accordingly, "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."[357]

Chaplinsky still remains viable for the principle that "the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called 'fighting words,' those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction."[358] But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains the governing standard, but the Court has not upheld a government action on the basis of that doctrine since Chaplinsky itself.[359]

In the related "hostile audience" situation, the Court sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders.[360] But this case has been significantly limited by cases that hold the Fifth Amendment protects the peaceful expression of views that stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that government may not use breach of the peace and disorderly conduct statutes to curb such expression. Specifically, the Court has held that "speech cannot be restricted simply because it is upsetting or arouses contempt," at least when the speech occurs in "a public place on a matter of public concern."[361]

The cases are unclear as to what extent the police must go to protect a speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder entitles the authorities to terminate the speech or other expressive conduct.[362] The Court has also held that, absent incitement to illegal action, government may not punish mere expression or proscribe ideas,[363] regardless of the trifling or annoying caliber of the expression.[364]

True Threats[edit | edit source]

The Supreme Court has cited three "reasons why threats of violence are outside the First Amendment"--"protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur."[365] In Watts v. United States, however, the Court held that only "true" threats are outside ordinary First Amendment protections.[366] The defendant in Watts expressed his opposition to the military draft at a public rally, saying, "If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J."[367] He was convicted of violating a federal statute that prohibited "any threat to take the life of or to inflict bodily harm upon the President of the United States." The Supreme Court reversed. Interpreting the statute "with the commands of the First Amendment clearly in mind,"[368] the Court found that the defendant had not made a "true 'threat,'" but had indulged in mere "political hyperbole."[369]

In NAACP v. Claiborne Hardware Co., White merchants in Claiborne County, Mississippi, sued the NAACP to recover losses caused by a boycott by Black citizens of their businesses, and to enjoin future boycott activity.[370] During the course of the boycott, NAACP Field Secretary Charles Evers told an audience of "black people that any 'uncle toms' who broke the boycott would 'have their necks broken' by their own people."[371] The Court acknowledged that this language "might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence."[372] Yet, no violence had followed directly from Evers' speeches, and the Court found that Evers' "emotionally charged rhetoric did not transcend the bounds of protected speech set forth in Brandenburg. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech."[373] Although the Court held that, under Brandenburg, Evers' speech did not constitute unprotected incitement of lawless action,[374] the Court also cited Watts, thereby implying that Evers' speech also did not constitute a "true threat."[375]

In a 2023 decision, Counterman v. Colorado, the Supreme Court held that, to convict a person of making true threats, a state must show that the speaker had a subjective understanding as to whether the person to whom his words were directed would perceive them as threatening.[376] The Court explained the mens rea or mental state of recklessness would suffice for this showing, adding that, "A person acts recklessly in the most common formulations, when he 'consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another.'"[377]

In 2003's Virginia v. Black, the Supreme Court considered a First Amendment challenge to a state law that banned cross burning carried out with the intent to intimidate.[378] The Court held that, at least in theory, states could prohibit such cross burnings as a "true threat."[379] Specifically, intimidation can be prohibited as "a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death."[380] Cross burning could fall within this category of "intimidating speech," given that the "history of cross burning in this country" demonstrated they were often "intended to create a pervasive fear in victims that they are a target of violence."[381] However, the Court concluded that the specific state law before it was unconstitutional insofar as it allowed the mere fact of cross burning to provide prima facie evidence of the intent to intimidate, creating a chill on constitutionally protected speech.[382]

Defamation[edit | edit source]

One of the most foundational cases in First Amendment jurisprudence occurred in 1964 with the Court's decision in New York Times Co. v. Sullivan.[383] The Times had published a paid advertisement by a civil rights organization criticizing the response of a Southern community to demonstrations led by Dr. Martin Luther King and containing several factual errors. The plaintiff, a city commissioner in charge of the police department, claimed that the advertisement had libeled him even though he was not referred to by name or title and even though several of the incidents described had occurred prior to his assumption of office. Unanimously, the Court reversed the lower court's judgment for the plaintiff. To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be completely foreclosed by the "label" attached to something. The Court said libel could "claim no talismanic immunity from constitutional limitations," and the standards for proving defamation must "satisfy the First Amendment."[384] The Court considered the case "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."[385] Because the advertisement was "an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent."[386]

Prior interpretations had established that the First Amendment contained no exception "for any test of truth."[387] The Court explained that error is inevitable in any free debate, to place on the speaker the burden of proving truth would introduce self-censorship and stifle the free expression which the First Amendment protects.[388] Nor would injury to official reputation afford a warrant for repressing otherwise free speech. Public officials are subject to public scrutiny and "[c]riticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputation."[389] Ultimately, the Court said the First Amendment "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not."[390]

In the wake of the Times ruling, the Court decided two cases involving the type of criminal libel statute upon which Justice Felix Frankfurter had relied in analogy to uphold the group libel law in Beauharnais v. Illinois, discussed in a subsequent essay.[391] In neither case did the Court apply the concept of Times to void them altogether. Garrison v. Louisiana[392] held that a statute that did not incorporate the Times rule of "actual malice" was invalid, while in Ashton v. Kentucky[393] a common-law definition of criminal libel as "any writing calculated to create disturbances of the peace, corrupt the public morals or lead to any act, which, when done, is indictable" was too vague to be constitutional.

Subsequent cases elaborated which defamed individuals had to satisfy the Times rule. Explaining the definition of a "public official," the Court said this includes "at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs."[394] But the Court appeared to expand the concept of "public official" to take on overtones of anyone holding public elective or appointive office.[395] Moreover, candidates for public office were subject to the Times rule and comment on their character or past conduct, public or private, insofar as it touches upon their fitness for office, is protected.[396]

Thus, a wide range of reporting about both public officials and candidates was quickly held to be subject to heightened constitutional standards. While the First Amendment protects scrutiny and criticism of the conduct of official duties by public officials,[397] the Court has also held that criticism that reflects generally upon an official's integrity and honesty is protected.[398] Candidates for public office, the Court has said, place their whole lives before the public, and it is difficult to see what criticisms could not be related to their fitness.[399]

Only three years after its Sullivan decision, the Court said the First Amendment also required a heightened standard to prove defamation of a "public figure," which included those otherwise private individuals who have attained some prominence, either through their own efforts or because it was thrust upon them, with respect to a matter of public interest, or, in Chief Justice Earl Warren's words, those persons who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large."[400] Later, the Court curtailed the definition of "public figure" by playing down the matter of public interest and emphasizing that one becomes a "public figure" by voluntarily assuming a role in public affairs.[401]

Second, in a fragmented ruling, the Court applied the Times standard to private citizens who had simply been involved in events of public interest, usually, though not invariably, not through their own choosing.[402] But, in Gertz v. Robert Welch, Inc.[403] the Court clarified that Sullivan's actual malice standard did not apply to any defamation on a matter of public concern. Instead, persons who are neither public officials nor public figures may recover for the publication of defamatory falsehoods so long as state defamation law establishes a standard higher than strict liability, such as negligence; damages may not be presumed, however, but must be proved, and punitive damages will be recoverable only upon the Times showing of "actual malice."[404]

Subsequent cases have revealed a trend toward narrowing the scope of the "public figure" concept. A socially prominent litigant in a particularly messy divorce controversy was held not to be such a person,[405] and a person convicted years before of contempt after failing to appear before a grand jury was similarly not a public figure even as to commentary with respect to his conviction.[406] Also the Court deemed a scientist who sought and received federal grants for research, the results of which were published in scientific journals, not to be a public figure for purposes of an allegedly defamatory comment about the value of his research.[407] Public figures, the Court reiterated, are those who (1) occupy positions of such persuasive power and influence that they are deemed public figures for all purposes or (2) have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved, and are public figures with respect to comment on those issues.[408]

The Court has elaborated on the principles governing defamation actions brought by private figures. First, when a private plaintiff sues a media defendant for publication of information that is a matter of public concern--such as the Gertz situation--the burden is on the plaintiff to establish the information is false. Thus, the Court held in Philadelphia Newspapers v. Hepps,[409] the common law rule that defamatory statements are presumptively false must give way to the First Amendment interest that true speech on matters of public concern not be inhibited. This means, as the dissenters noted, that a Gertz plaintiff must establish falsity in addition to establishing some degree of fault (for example, negligence).[410] On the other hand, the Court held in Dun & Bradstreet v. Greenmoss Builders that the Gertz standard limiting award of presumed and punitive damages applies only in cases involving matters of public concern, and that selling credit reporting information to subscribers is not such a matter of public concern.[411] The Court has left unclear whether it matters if the defendant to the defamation suit is from the media rather than a private person. The plurality in Dun & Bradstreet declined to follow the lower court's rationale that Gertz protections are unavailable to nonmedia defendants, and a majority of Justices agreed on that point.[412] In Philadelphia Newspapers, however, the Court expressly reserved the issue of "what standards would apply if the plaintiff sues a nonmedia defendant."[413]

Other issues besides who is covered by the Times privilege are of considerable importance. The Court has distinguished "actual malice" from the common law meaning of malice.[414] Under Times, constitutional "actual malice" means the defendant published the defamation with knowledge that it was false or with reckless disregard of whether it was false.[415] Reckless disregard is not simply negligent behavior, but publication with serious doubts as to the truth of what is uttered.[416] A defamation plaintiff under the Times or Gertz standard has the burden of proving by "clear and convincing" evidence, not merely by the preponderance of evidence standard generally used in civil cases, that the defendant acted with knowledge of falsity or with reckless disregard.[417] Moreover, the Court has held, a Gertz plaintiff has the burden of proving the actual falsity of the defamatory publication.[418] A plaintiff suing the press for defamation under the Times or Gertz standards is not required to prove his case or establish "actual malice" absent discovery of the defendant's editorial processes.[419] Through discovery, the plaintiff may inquire into the defendant's state of mind; his thoughts, opinions, and conclusions with respect to the material he gathered; and how he reviewed and handled it. As with other areas of protection or qualified protection under the First Amendment (as well as some other constitutional provisions), appellate courts, and ultimately the Supreme Court, must independently review the findings below to ascertain that constitutional standards were met.[420]

While the Court had suggested in dicta that statements of opinion, unlike assertions of fact, might be absolutely protected,[421] the Court held in Milkovich v. Lorain Journal Co.[422] that there is no constitutional distinction between fact and opinion, hence no "wholesale defamation exemption" for any statement that can be labeled "opinion."[423] Instead, the issue is whether, regardless of the context in which a statement is uttered, the statement is sufficiently factual to be susceptible of being proved true or false. Thus, if statements of opinion may "reasonably be interpreted as stating actual facts about an individual,"[424] then the truthfulness of the factual assertions may be tested in a defamation action. There are sufficient protections for free public discourse already available in defamation law, the Court concluded, without creating "an artificial dichotomy between 'opinion' and fact."[425]

In Masson v. New Yorker Magazine,[426] the Court considered whether a publisher's alterations to quotations attributed to a public figure met the actual malice standard given journalistic conventions allowing publishers to make some alterations to correct grammar and syntax. The Court ruled that "a deliberate alteration of words [in a quotation] does not equate with knowledge of falsity for purposes of [New York Times] unless the alteration results in a material change in the meaning conveyed by the statement."[427]

Application of Defamation Cases to Group Libel, Hate Speech[edit | edit source]

In Beauharnais v. Illinois,[428] relying on dicta in past cases,[429] the Court upheld a state group libel law that made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, part of which was in the form of a petition to his city government, taking a hard-line white-supremacy position and calling for action to keep African Americans out of White neighborhoods. Justice Felix Frankfurter for the Court sustained the statute along the following reasoning. Libel of an individual, he established, was a common-law crime and was now made criminal by statute in every state in the Union. These laws raise no constitutional difficulty because libel is within that class of speech that is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, then no good reason appears to deny a state the power to punish the same utterances when they are directed at a defined group, "unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State."[430] Justice Felix Frankfurter then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably have feared substantial evils from defamatory racist statements. He also held that the Constitution did not require states to accept a defense of truth, because historically a defendant had to show not only truth but publication with good motives and for justifiable ends.[431]

The holding of Beauharnais, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been undercut by subsequent developments, including the Court's subjecting defamation law to First Amendment challenge and endorsing "uninhibited, robust, and wide-open" debate on public issues in New York Times Co. v. Sullivan.[432] Further, in R.A.V. v. City of St. Paul, the Court, in an opinion by Justice Antonin Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not "entirely invisible to the Constitution," even though they "can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content."[433] Content discrimination unrelated to that "distinctively proscribable content," however, runs afoul of the First Amendment.[434] Therefore, the city's bias-motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality, was invalidated for its content discrimination. Consequently, the R.A.V. Court held: "The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects."[435]

In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.[436] The state law did not single out only speech on certain disfavored topics; nor, as a factual matter, did all "cross burners direct their intimidating conduct solely to racial or religious minorities."[437] Under R.A.V., the statute permissibly targeted a subset of true threats "because burning a cross is a particularly virulent form of intimidation."[438]

The Court has also struck down non-libel legislation intended to prevent offense of individuals and groups of people as unconstitutional. For example, in Matal v. Tam, the Supreme Court considered a federal law prohibiting registering trademarks that "may disparage . . . or bring . . . into contempt[ ] or disrepute" any "persons, living or dead."[439] In Tam, the Patent and Trademark Office rejected a trademark application for THE SLANTS for an Asian-American dance-rock band because it found the mark may be disparaging to Asian Americans.[440] The Court held that the disparagement provision violated the Free Speech Clause as "[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend."[441] Two years later, the Court invalidated another statutory trademark restriction--one prohibiting the registration of "immoral" or "scandalous" marks--on similar grounds.[442]

False Statements Outside of Defamation[edit | edit source]

As defamatory false statements can lead to legal liability, false statements in other contexts can violate legal prohibitions. For instance, more than 100 federal criminal statutes punish false statements in areas of concern to federal courts or agencies,[443] and the Court has often noted the limited First Amendment value of such speech.[444] The Court, however, has rejected the idea that all false statements fall outside of First Amendment protection.

In United States v. Alvarez,[445] the Court overturned the Stolen Valor Act of 2005,[446] which imposed criminal penalties for falsely representing oneself to have been awarded a military decoration or medal. In an opinion by Justice Anthony Kennedy, four Justices distinguished false statement statutes that threaten the integrity of governmental processes or that further criminal activity, and evaluated the Act under a strict scrutiny standard.[447] Noting that the Stolen Valor Act applied to false statements made "at any time, in any place, to any person,"[448] Justice Anthony Kennedy suggested that upholding this law would leave the government with the power to punish any false discourse without a clear limiting principle. The plurality applied strict scrutiny to the Act as a content-based law. Justice Stephen Breyer, in a separate opinion joined by Justice Elena Kagan, concurred in judgment, but did so only after evaluating the prohibition under an intermediate scrutiny standard. While Justice Breyer was also concerned about the breadth of the Act, his opinion suggested that a statute more finely tailored to "a subset of lies where specific harm is likely to occur" could withstand legal challenge.[449]

Privacy Torts[edit | edit source]

Government power to protect the privacy interests of its citizens by penalizing publication or authorizing causes of action for publication directly implicates First Amendment rights. Privacy is a concept composed of several aspects.[450] As a tort concept, it embraces at least four branches of protected interests: protection from unreasonable intrusion upon one's seclusion, from appropriation of one's name or likeness, from unreasonable publicity given to one's private life, and from publicity which unreasonably places one in a false light before the public.[451]

Although the Court has recognized valid governmental interests in extending protection to privacy,[452] it has nevertheless interposed substantial free expression interests in the balance. The Court's constitutional jurisprudence in this area has drawn heavily from its rulings in New York Times v. Sullivan and other defamation cases discussed in an earlier essay.[453] Thus, in Time, Inc. v. Hill,[454] the Times standard requiring proof of actual malice precluded recovery under a state privacy statute that permitted recovery for harm caused by exposure to public attention in any publication which contained factual inaccuracies, although not necessarily defamatory inaccuracies, in communications on matters of public interest. Given that this actual malice standard did not limit the recovery of compensatory damages for defamation by private persons, the question arose whether Hill applied to all "false-light" cases or only such cases involving public officials or public figures.[455] More specifically, one defamation case left unresolved the issue "whether the State may ever define and protect an area of privacy free from unwanted publicity in the press."[456] In Cox Broadcasting Corp. v. Cohn, the Court declined to pass on the broad question, holding instead that the accurate publication of information obtained from public records is absolutely privileged.[457] Thus, the state could not permit a civil recovery for invasion of privacy occasioned by the reporting of the name of a rape victim obtained from court records and from a proceeding in open court.[458]

Continuing to adhere to "limited principles that sweep no more broadly than the appropriate context of the instant case," the Court invalidated an award of damages against a newspaper for printing the name of a sexual assault victim lawfully obtained from a sheriff's department press release.[459] The state was unable to demonstrate that imposing liability served a "need" to further a state interest of the highest order, since the same interest could have been served by the more limited means of self regulation by the police, since the particular per se negligence statute precluded inquiry into the extent of privacy invasion (for example, inquiry into whether the victim's identity was already widely known), and since the statute singled out "mass communications" media for liability rather than applying evenhandedly to anyone disclosing a victim's identity.[460]

The tort of intentional infliction of emotional distress has presented special concerns due to its "outrageousness" standard of liability. In Hustler Magazine, Inc. v. Falwell,[461] the Court applied the New York Times v. Sullivan standard to a public figure seeking damages for intentional infliction of emotional distress. The case involved an advertisement "parody" portraying the plaintiff, described by the Court as a "nationally known minister who has been active as a commentator on politics and public affairs," as stating that he lost his virginity "during a drunken incestuous rendezvous with his mother in an outhouse."[462] Affirming liability in this case, the Court believed, would subject "political cartoonists and satirists . . . to damage awards without any showing that their work falsely defamed its subject."[463] The Court noted that "most if not all jurisdictions" had imposed liability for this tort only where the conduct was "outrageous."[464] However, the Court rejected the idea that this "outrageousness" standard could distinguish supposedly impermissible parodies from more traditional political cartoons, explaining that "'[o]utrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views."[465] Therefore, proof of intent to cause injury, "the gravamen of the tort," was insufficient "in the area of public debate about public figures." Additional proof that the publication contained a false statement of fact made with actual malice was necessary, the Court concluded, in order "to give adequate 'breathing space' to the freedoms protected by the First Amendment."[466]

The Court next considered whether an intentional infliction of emotional distress action could be brought by a father against public protestors who picketed the military funeral of his son, where the plaintiff was neither a public official nor a public figure. In Snyder v. Phelps,[467] the Court avoided addressing whether the actual malice standard applied to the intentional infliction of emotional distress upon a private citizen, finding that where public protesters are addressing issues of public concern, the fact that such protests occurred in a setting likely to upset private individuals did not reduce the First Amendment protection of that speech. In Phelps, the congregation of the Westboro Baptist Church, based on the belief that God punishes the United States for its tolerance of homosexuality, particularly in America's armed forces, had engaged in nearly 600 protests at funerals, mostly military. While it was admitted that the plaintiff had suffered emotional distress after a protest at his son's funeral, the Court declined to characterize the protests as directed at the father personally.[468] Rather, considering the "content, form, and context" of that speech,[469] the Court found that the dominant themes of the protest went to public concerns, and thus could not serve as the basis for a tort suit.[470]

The Court has further suggested that the actual malice standard does not apply to a right of publicity claim. In Zacchini v. Scripps-Howard Broadcasting Co.,[471] the Court held unprotected by the First Amendment a broadcast of a video tape of the "entire act" of a "human cannonball" in the context of the performer's suit for damages against the company for having "appropriated" his act, thereby injuring his right to the publicity value of his performance. The Court emphasized two differences between the legal action permitted here and the legal actions found unprotected or not fully protected in defamation and other privacy-type suits. First, the interest sought to be protected was, rather than a party's right to his reputation and freedom from mental distress, the right of the performer to remuneration for putting on his act. Second, the other torts if permitted decreased the information that would be made available to the public, whereas permitting this tort action would have an impact only on "who gets to do the publishing."[472] In both respects, the tort action was analogous to patent and copyright laws in that both provide an economic incentive to persons to make the investment required to produce a performance of interest to the public.[473]

Obscenity[edit | edit source]

Although public discussion of political affairs is at the core of the First Amendment, the guarantees of speech and press are broader, extending also, for example, to sexually explicit entertainment. The Supreme Court has rejected the idea that the First Amendment "applies only to the exposition of ideas," saying "[t]he line between the informing and the entertaining is too elusive for the protection of that basic right."[474] The right to impart and to receive "information and ideas, regardless of their social worth . . . is fundamental to our free society."[475] Accordingly, obscene material, referring to certain sexually explicit material,[476] may be protected even if it is "arguably devoid of any ideological content."[477] Nonetheless, while sexually explicit material may be entitled to constitutional protection, the Court has said the subcategories of obscenity and child pornography--the latter discussed in a subsequent essay--can generally be regulated without triggering heightened scrutiny.[478]

Adjudication over the constitutional law of obscenity began in Roth v. United States,[479] in which the Court ruled that obscenity is not "within the area of protected speech and press."[480] The Court undertook a brief historical survey to demonstrate that "the unconditional phrasing of the First Amendment was not intended to protect every utterance."[481] All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. This history was deemed to demonstrate that "obscenity, too, was outside the protection intended for speech and press."[482] The Court said that although "[a]ll ideas having even the slightest redeeming social importance" were entitled to First Amendment protections, "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance."[483] Because obscenity was not protected at all, tests such as clear and present danger, which the Court had previously applied to assess the constitutionality of other laws, were irrelevant.[484]

The Court clarified, however, that, "sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, for example, in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest."[485] The Court identified the relevant standard for unprotected obscenity as "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."[486] The Court defined material appealing to prurient interest as "material having a tendency to excite lustful thoughts," and defined prurient interest as "a shameful or morbid interest in nudity, sex, or excretion."[487]

In the years after Roth, the Court considered many obscenity cases. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children,[488] unwilling adult recipients,[489] and procedure,[490] these cases are best explicated chronologically. In Manual Enterprises v. Day,[491] the Court upset a Post Office ban upon mailing certain magazines addressed to homosexual audiences, but none of the Court's opinions gained the support of the majority. Nor did a majority opinion emerge in Jacobellis v. Ohio, which reversed a conviction for exhibiting a motion picture.[492] In Ginzburg v. United States,[493] the Court held that in "close" cases borderline materials could be determined to be obscene if the seller "pandered" them in a way that indicated he was catering to prurient interests. On the same day, the same five-Justice majority affirmed a state conviction under a law prohibiting distributing obscene books by applying the "pandering" test and concluding that courts could hold material to be legally obscene if it appealed to the prurient interests of the deviate group to which it was directed.[494] On the same day, however, the Court held that Fanny Hill, a novel, which at that point was 277 years old, was not legally obscene.[495] The Court's prevailing opinion restated the Roth tests that, to be considered obscene, material must (1) have a dominant theme in the work considered as a whole that appeals to prurient interest, (2) be patently offensive because it goes beyond contemporary community standards, and (3) be utterly without redeeming social value.[496]

After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by issuing per curiam dispositions in nearly three dozen cases in which it reversed convictions or civil determinations of obscenity in all but one. The initial case was Redrup v. New York,[497] in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juveniles, protection of unwilling adult recipients, or proscription of pandering,[498] the Court succinctly summarized the varying positions of the seven Justices in the majority and said: "[w]hichever of the constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand . . . ."[499] Although the Court's subsequent cases followed the pattern established in Redrup,[500] the Court's changing membership led to speculation about the continuing vitality of Roth and the Court's Redrup approach.[501]

At the end of the October 1971 Term, the Court requested argument on whether the display of sexually oriented films or of sexually oriented pictorial magazines, when surrounded by notice to the public of their nature and by reasonable protection against exposure to juveniles, was constitutionally protected.[502] By a 5-4 vote during the October 1972 Term, the Court in Paris Adult Theatre I v. Slaton adhered to the Roth principle that the First and Fourteenth Amendments do not protect obscene material even if access is limited to consenting adults.[503] Writing for the Court, Chief Justice Warren Burger observed that the states have wider interests than protecting juveniles and unwilling adults from exposure to pornography; legitimate state interests, effectuated through the exercise of the police power, exist in protecting and improving the quality of life and the total community environment, in improving the tone of commerce in the cities, and in protecting public safety. Consequently, Chief Justice Warren reasoned, it does not matter that the states may be acting based on unverifiable assumptions in deciding to suppress the trade in pornography because the Constitution does not require, in the context of the trade in ideas, that governmental courses of action be subject to empirical verification any more than it does in other fields. Chief Justice Warren further noted that the Constitution does not embody any concept of laissez-faire, or of privacy, or of "free will," that curbs governmental efforts to suppress pornography.[504]

In Miller v. California,[505] the Court prescribed the currently prevailing standard by which courts identify unprotected pornographic materials. Because of the inherent dangers in regulating any form of expression, the Court noted, laws to regulate pornography must be carefully limited and their scope confined to materials that "depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed."[506] The Court further reasoned that law "must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value."[507] The Court disavowed and discarded the standard that a work must be "utterly without redeeming social value" to be suppressed.[508] In determining whether material appeals to a prurient interest or is patently offensive, the trier-of-fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the trier-of-fact's local community standard.[509] Prurient interest and patent offensiveness, the Court indicated, "are essentially questions of fact."[510] By contrast, the prong of the Miller test that looked at the material's "value" is not subject to a community standards test; instead, the appropriate standard is "whether a reasonable person would find [literary, artistic, political, or scientific] value in the material, taken as a whole."[511]

The Court in Miller reiterated that it was not permitting an unlimited degree of suppression of materials. Only "hard core" materials were to be deemed without the protection of the First Amendment, and the Court's idea of the content of "hard core" pornography was revealed in "a few plain examples of what a state" could regulate: "(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."[512] Subsequently, the Court held that a publication was not obscene if it "provoked only normal, healthy sexual desires."[513] To be obscene it must appeal to "a shameful or morbid interest in nudity, sex, or excretion."[514] The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed.[515]

First Amendment values, the Court stressed in Miller, "are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary."[516] While the Court had said juries as triers-of-fact should determine, based on their understanding of community standards, whether material was "patently offensive," it was less clear how appeals courts could appropriately review these jury determinations. In Jenkins v. Georgia,[517] the Court, while adhering to the Miller standards, stated that "juries [do not] have unbridled discretion in determining what is 'patently offensive.'" Miller was intended to make clear that only "hard-core" materials could be suppressed and this concept and the Court's descriptive itemization of some types of hardcore materials were "intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination."[518] Viewing the motion picture in question convinced the Court that "[n]othing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the 'patently offensive' element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment."[519] But, in a companion case, the Court found that a jury determination of obscenity "was supported by the evidence and consistent with" the standards.[520]

While the Court's decisions from the Paris Adult Theatre and Miller era were rendered by narrow majorities,[521] they have since guided the Court. For example, the Court struck down federal regulations aimed at preventing the transmission of indecent materials over the telephone and internet, where those statutes did not adhere to the Miller standard.[522] Even as to materials falling within the constitutional definition of obscene, the Court has recognized a limited private, protected interest in possession within the home,[523] unless those materials constitute child pornography. In Stanley v. Georgia, the appellant appealed his state conviction for possessing obscene films that police officers discovered in his home pursuant to a search warrant for other items which the police did not find. The Court reversed, holding that mere private possession of obscene materials in the home cannot be a criminal offense. The Constitution protects the right to receive information and ideas, the Court said, regardless of their social value, and "that right takes on an added dimension" in the context of a prosecution for possession of something in one's own home. The Court stated: "For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy."[524] Despite the Court's unqualified assertion in Roth that the First Amendment did not protect obscenity, the Court remained concerned with the government interest in regulating commercial distribution of obscene materials. Though the Stanley Court said its decision did not impair Roth and cases relying on that decision,[525] by rejecting each state contention in support of a conviction, the Court appeared to reject much of Roth's basis. In Stanley, the Court made the following points: (1) there is no government interest in protecting an individual's mind from the effect of obscenity; (2) the absence of ideological content in films is irrelevant, since the Court would not distinguish transmission of ideas and entertainment; (3) no empirical evidence supported a contention that exposure to obscene materials may incite a person to antisocial conduct and, even if such evidence existed, government may address this by enforcing laws proscribing the offensive conduct; (4) it is not necessary to punish mere possession in order to punish distribution; and (5) private possession was unlikely to contribute to the problems prompting laws barring public dissemination of obscene materials or exposing children and unwilling adults to such materials.[526]

The Court has confined Stanley's holding to its facts and has also dispelled any suggestion that Stanley applies outside the home or recognizes a right to obtain or supply pornography.[527] For instance, the Court has held Stanley does not apply to possessing child pornography in the home because the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves.[528]

Child Pornography[edit | edit source]

In New York v. Ferber,[529] the Court recognized another category of expression that is outside the coverage of the First Amendment: the visual depiction of children in films or still photographs in a variety of sexual activities or exposures of the genitals. The reason that such depictions may be prohibited was the governmental interest in protecting the physical and psychological well-being of children, whose participation in the production of these materials would subject them to exploitation and harm. The state may go beyond a mere prohibition of the use of children, because it is not possible to protect children adequately without prohibiting the exhibition and dissemination of the materials and advertising about them. Thus, the Court held that "the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required."[530] But, because expression is involved, the government must carefully define what conduct is to be prohibited and may reach only "works that visually depict sexual conduct by children below a specified age."[531]

The Court has considered cases addressing the private possession of child pornography in the home. In Osborne v. Ohio[532] the Court upheld a state law criminalizing possessing or viewing of child pornography as applied to someone who possessed such materials in his home. Distinguishing a prior case protecting the personal possession of obscene material, the Court ruled that Ohio's interest in preventing exploitation of children far exceeded what it characterized as Georgia's "paternalistic interest" in protecting the minds of adult viewers of obscene material.[533] Because the state's interest in regulating child pornography was of greater importance, the Court saw less need to require states to demonstrate a strong necessity for regulating private possession in addition to the commercial distribution and sale.

In Ashcroft v. Free Speech Coalition, the Court held unconstitutional the federal Child Pornography Prevention Act (CPPA) to the extent that it prohibited pictures that were not produced with actual minors.[534] The law prohibited computer-generated ("virtual") child pornography, and photographs of adult actors who appeared to be minors, and could have extended to "a Renaissance painting depicting a scene from classical mythology."[535] The Court observed that statutes prohibiting child pornography that uses real children are constitutional because they target "[t]he production of the work, not the content."[536] The CPPA, by contrast, targeted the content, not the means of production. The government's rationales for the CPPA included that "[p]edophiles might use the materials to encourage children to participate in sexual activity" and might "whet their own sexual appetites" with it, "thereby increasing . . . the sexual abuse and exploitation of actual children."[537] The Court found these rationales inadequate because the government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts" and "may not prohibit speech because it increases the chance an unlawful act will be committed 'at some indefinite future time.'"[538] The government had also argued that the existence of "virtual" child pornography "can make it harder to prosecute pornographers who do use real minors," because, "[a]s imaging technology improves . . . , it becomes more difficult to prove that a particular picture was produced using actual children."[539] This rationale, the Court found, "turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech."[540]

In United States v. Williams,[541] the Supreme Court upheld a federal statute that prohibits knowingly advertising, promoting, presenting, distributing, or soliciting material "in a manner that reflects the belief, or that is intended to cause another to believe, that the material" is child pornography that is obscene or that depicts an actual minor (that is, is child pornography that is not constitutionally protected).[542] Under the provision, in other words, "an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute."[543] The Court found that these activities are not constitutionally protected because "[o]ffers to engage in illegal transactions [as opposed to abstract advocacy of illegality] are categorically excluded from First Amendment protection," even "when the offeror is mistaken about the factual predicate of his offer," such as when the child pornography that one offers to buy or sell does not exist or is constitutionally protected.[544]

However, the principles applying to child pornography do not extend to protecting children from encountering sexually explicit material. Although the government has a "compelling" interest in protecting children from seeing or hearing indecent material, total bans applicable to adults and children alike are constitutionally suspect.[545] In Reno v. American Civil Liberties Union,[546] the Court struck down two provisions of the Communications Decency Act of 1996 (CDA), one of which would have prohibited use of an "interactive computer service" to display indecent material "in a manner available to a person under 18 years of age."[547] This prohibition would, in effect, have banned indecent material from all internet sites except those accessible only by adults. Although intended "to deny minors access to potentially harmful speech . . . , [the CDA's] burden on adult speech," the Court wrote, "is unacceptable if less restrictive alternatives would be at least as effective. . . . [T]he Government may not 'reduc[e] the adult population . . . to . . . only what is fit for children.'"[548]

In Reno, the Court distinguished FCC v. Pacifica Foundation,[549] in which it had upheld the Federal Communications Commission's (FCC) restrictions on indecent radio and television broadcasts, because (1) "[t]he CDA's broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet," (2) the CDA imposes criminal penalties, and the Court has never decided whether indecent broadcasts "would justify a criminal prosecution," and (3) broadcast radio and television, unlike the internet, have, "as a matter of history . . . 'received the most limited First Amendment protection,' . . . in large part because warnings could not adequately protect the listener from unexpected program content."[550] By contrast, on the internet, at least as it existed in 1997, the Court believed "the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material."[551]

After the Supreme Court struck down the CDA, Congress enacted the Child Online Protection Act (COPA), which banned "material that is harmful to minors" on websites that have the objective of earning a profit.[552] In ACLU v. Reno, the Third Circuit upheld a preliminary injunction against enforcement of the statute on the ground that, "because the standard by which COPA gauges whether material is 'harmful to minors' is based on identifying 'contemporary community standards[,]' the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech."[553] The Third Circuit reasoned that COPA would have resulted in communications available to a nationwide audience being judged by the standards of the community most likely to be offended. In Ashcroft v. ACLU, the Supreme Court vacated and remanded the Third Circuit decision, holding "that COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment."[554]

Upon remand, the Third Circuit again upheld the preliminary injunction, and the Supreme Court affirmed and remanded the case for trial. The Supreme Court found that the district court had not abused its discretion in granting the preliminary injunction, because the government had failed to show that proposed alternatives to COPA would not be as effective in accomplishing its goal. The primary alternative to COPA, the Court noted, is blocking and filtering software. Filters are less restrictive than COPA because "[t]hey impose selective restrictions on speech at the receiving end, not universal restriction at the source."[555] Subsequently, the district court found COPA to violate the First Amendment and issued a permanent injunction against its enforcement; the Third Circuit affirmed, and the Supreme Court denied certiorari.[556]

In United States v. American Library Association, Inc., a four-Justice plurality of the Supreme Court upheld the Children's Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or "library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them."[557] The plurality asked "whether libraries would violate the First Amendment by employing the filtering software that CIPA requires"[558]--in other words, whether CIPA would effectively violate library patrons' rights. The plurality concluded that it did not, after finding that "Internet access in public libraries is neither a 'traditional' nor a 'designated' public forum," and that it therefore would not be appropriate to apply strict scrutiny to determine whether the filtering requirements are constitutional.[559] The plurality acknowledged "the tendency of filtering software to 'overblock'--that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block."[560] It found, however, that, "[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled."[561]

The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance--in other words, whether the government can require public libraries to limit their speech if they accept federal funds. The plurality found that, assuming that government entities have First Amendment rights (it did not decide the question), "CIPA does not 'penalize' libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress's decision not to subsidize their doing so."[562]

Commercial Speech[edit | edit source]

Commercial Speech Early Doctrine[edit | edit source]

In the 1970s, the Court's treatment of "commercial speech" changed from total nonprotection under the First Amendment to qualified protection. In 1942, the Court had stated that speech concerning commercial transactions is undeserving of First Amendment protection in Valentine v. Chrestensen.[563] In Chrestensen, the Court upheld a city ordinance prohibiting distributing on the street "commercial and business advertising matter," as applied to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city's refusal of certain docking facilities. The Chrestensen doctrine was limited to expression promoting commercial activities; whether the speaker disseminated his expression for profit or through commercial channels did not subject it to any greater regulation than if he offered it for free.[564] The doctrine lasted in this form for decades, until the Court's approach began shifting in the 1970s.

Relying on the Chrestensen doctrine in a 5-4 decision issued in 1973, the Court sustained the application of a city's ban on employment discrimination to bar sex-designated employment advertising in a newspaper.[565] Suggesting that speech does not lose its constitutional protection simply because it appears in a commercial context, the Court nonetheless described placing want-ads in newspapers as "classic examples of commercial speech," controlled by Chrestensen because they were devoid of expressions relating to social policy and "did no more than propose a commercial transaction." But the Court also noted that the advertisements facilitated employment discrimination, which was itself illegal.[566]

In 1975, the Court overturned a conviction under a state statute that made it illegal for any publication by sale or circulation to encourage or prompt procuring an abortion. The Court held the statute unconstitutional as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another state and detailing assistance that state residents could get to obtain abortions in the other state.[567] Distinguishing Chrestensen, the Court discerned that the advertisements conveyed information of other than a purely commercial nature, that they related to services that were legal in the other jurisdiction, and that the state could not prevent its residents from obtaining abortions in the other state or punish them for doing so.

In 1976, the Court eliminated these distinctions by disclaiming Chrestensen's commercial speech "exception" to the First Amendment as it voided a statute that effectively prohibited licensed pharmacists from advertising prescription drug prices.[568] In a suit brought by consumers to protect their right to receive information, the Court held that speech that does no more than propose a commercial transaction is nonetheless of such social value and entitled to protection. Noting that consumers' interests in receiving factual information about prices may sometimes be even "keener" than their interest in political debate, the Court concluded that price competition and access to information about it serves the public interest.[569] The Court ruled that state interests in the ban--protecting professionalism and the quality of prescription goods--were either badly served or not served by the statute.[570]

Turning from the interests of consumers to receive information to that of advertisers to communicate, the Court in 1977 voided a municipal ordinance that barred displaying "For sale" and "Sold" signs on residential lawns, purportedly to limit "white flight" resulting from a "fear psychology" that developed among White residents following sale of homes to non-Whites. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event may not be achieved by restricting the free flow of truthful information.[571]

Central Hudson Test and Current Doctrine[edit | edit source]

The Supreme Court established the standard that generally governs government restrictions on commercial speech in 1980's Central Hudson Gas & Electric Corp. v. Public Service Commission.[572] In that case, the Court explained that commercial speech enjoys "lesser protection" than "other constitutionally guaranteed expression."[573] After emphasizing that First Amendment protection for commercial speech "is based on the informational function of advertising, " the Court said that "there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity."[574] Accordingly, the Court held that the government may prohibit "forms of communication more likely to deceive the public than to inform it" as well as "commercial speech related to illegal activity."[575] But if the regulated "communication is neither misleading nor related to unlawful activity," the government's action is subject to intermediate scrutiny.[576] Under Central Hudson's intermediate standard, the government must prove that its interest is "substantial," and that the regulation "directly advances" that interest and is "not more extensive than is necessary to serve that interest."[577] In Central Hudson, the Court ruled a state regulation banning promotional advertising by electric utilities unconstitutional.[578] Although the Court recognized the state's alleged interests in energy conservation and equitable pricing as substantial, it concluded the total ban was not sufficiently narrowly tailored to the government's interest.[579] The Court stressed that the state regulation extended to "all promotional advertising, regardless of the impact of the touted service on overall energy use"--including barring advertisements of more energy efficient products.[580]

The Court has since described Central Hudson as setting out a four-pronged test for restraints upon commercial expression.[581] The test applies to commercial speech, which the Court has defined alternately as speech that "does 'no more than propose a commercial transaction'"[582] and as "expression related solely to the economic interests of the speaker and its audience."[583] The Court has also distinguished laws that regulate the conduct of sellers--an "area traditionally subject to government regulation"--from those that regulate a seller's speech.[584] In Expressions Hair Design v. Schneiderman, the Court held that a New York State statute that prohibited businesses from displaying a cash price alongside a surcharge for credit card purchases burdened speech.[585] Relying on Supreme Court precedent suggesting that "price regulation alone regulates conduct, not speech," the lower court held that the statute was constitutional.[586] The Supreme Court disagreed, stating "[w]hat the law does regulate is how sellers may communicate their prices," and "[i]n regulating the communication of prices rather than prices themselves, [the statute] regulates speech."[587] The Court, however, remanded the case to the lower court to determine in the first instance whether the law survives First Amendment scrutiny.[588]

Under the first prong of the test, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if an advertisement does not accurately inform the public about lawful activity, it can be suppressed.[589] Accordingly, a statute prohibiting the practice of optometry under a trade name was sustained because there was "a significant possibility" that the public might be misled through deceptive use of the same or similar trade names.[590] Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The state must assert a substantial interest to be achieved by restrictions on commercial speech.[591] Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose.[592] Instead, the regulation must "directly advance" the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.[593] Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive.[594]

Although Central Hudson described the fourth prong as testing whether a restriction is more extensive than necessary, the Court has rejected the idea that a "least restrictive means" test is required.[595] Instead, what is required is a reasonable "fit" between means and ends, with the means "narrowly tailored to achieve the desired objective."[596] The Court, however, does "not equate this test with the less rigorous obstacles of rational basis review; . . . the existence of 'numerous and obvious less-burdensome alternatives to the restriction on commercial speech . . . is certainly a relevant consideration in determining whether the 'between ends and means is reasonable.'"[597]

In City of Cincinnati v. Discovery Network, Inc.,[598] the Court showed the importance of the "reasonable fit" standard by striking down a city's prohibition on distributing "commercial handbills" through freestanding newsracks located on city property. The city's aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited "commercial" publications and permitted "newspapers" bore "no relationship whatsoever" to this legitimate interest.[599] The city could not, the Court ruled, single out commercial speech to bear the full onus when "all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault."[600]

Accordingly, as in Central Hudson itself, the Court has sometimes struck down total bans as insufficiently narrowly tailored. For instance, the Court held that a state could not forbid lawyers from advertising the prices they charged for performing routine legal services.[601] The Court did not deem any of the proffered state justifications for the ban sufficient to overcome the private and societal interest in the free exchange of this form of speech.[602] The Court also held that a state may not categorically prohibit attorney advertising through mailings that target persons known to face particular legal problems,[603] or prohibit an attorney from holding himself out as a certified civil trial specialist,[604] or prohibit a certified public accountant (CPA) from holding herself out as a certified financial planner.[605]

Nonetheless, as stated, the Court's current commercial speech doctrine does not require the least restrictive means, and the Court has upheld a number of commercial speech restrictions under this intermediate scrutiny standard. For instance, in Ohralik v. Ohio State Bar Ass'n, the Supreme Court rejected a constitutional challenge to a state regulation restricting person-to-person solicitation of clients by attorneys.[606] Similarly, the Court upheld a rule prohibiting high school coaches from recruiting middle school athletes, finding that "the dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader."[607] The Court later refused, however, to extend this principle to in-person solicitation by certified public accountants, explaining that CPAs, unlike attorneys, are not professionally "trained in the art of persuasion," and that the typical business executive client of a CPA is "far less susceptible to manipulation" than was the accident victim in Ohralik.[608] A ban on personal solicitation is "justified only in situations 'inherently conducive to overreaching and other forms of misconduct.'"[609] To allow enforcement of such a broad prophylactic rule absent identification of a serious problem such as ambulance chasing, the Court explained, would dilute commercial speech protection "almost to nothing."[610]

Two additional cases illustrate application of the intermediate scrutiny standard. In 1993, the Court upheld a federal law that prohibited broadcasters from broadcasting lottery advertisements in states that prohibit lotteries, while allowing stations in states that sponsor lotteries to broadcast such ads. The Court held there was a "reasonable fit" between the restriction and the asserted federal interest in supporting state anti-gambling policies without unduly interfering with policies of neighboring states that promote lotteries.[611] The prohibition "directly served" the congressional interest, and could be applied to a broadcaster whose principal audience was in an adjoining lottery state, and who sought to run ads for that state's lottery.[612]

Six years later, the Court struck down a provision of the same statute as applied to advertisements for private casino gambling that are broadcast by radio and television stations located in a state where such gambling is legal.[613] The Court emphasized the interrelatedness of the four parts of the Central Hudson test: "Each [part] raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three."[614] For example, although the Court recognized the government had a substantial interest in reducing the social costs of gambling, the fact that Congress has simultaneously encouraged gambling, because of its economic benefits, made it more difficult for the government to demonstrate that its restriction on commercial speech materially advanced its asserted interest and constituted a reasonable "fit."[615] In this case, the federal law's operation was "so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it."[616] Moreover, the Court noted "the regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all."[617]

As mentioned above, the Supreme Court has sometimes suggested that the government has greater power to regulate commercial speech because it "occurs in an area traditionally subject to government regulation."[618]In Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, the Court seemed to take this principle further when it asserted that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling."[619] Subsequently, however, the Court eschewed reliance on this language,[620] and a majority of the Court ultimately rejected Posadas in 44 Liquormart, Inc. v. Rhode Island,[621] striking down the state's ban on advertisements that provide truthful information about liquor prices. The plurality opinion in 44 Liquormart called Posadas's First Amendment analysis "erroneous," declining to give force to its "highly deferential approach," and proclaiming that a state "does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate."[622] Four other Justices concluded that Posadas was inconsistent with the "closer look" that the Court has since required in applying the principles of Central Hudson.[623]

The "different degree of protection" the Court accords commercial speech has a number of consequences as regards other First Amendment doctrine. For instance, somewhat broader times, places, and manner regulations are to be tolerated,[624] and the rule against prior restraints may be inapplicable.[625] Further, disseminators of commercial speech are not protected by the overbreadth doctrine.[626] Nonetheless, there are circumstances in which the nature of the restriction placed on commercial speech may alter the First Amendment analysis, and even result in applying a heightened level of scrutiny.

For instance, in Sorrell v. IMS Health, Inc.,[627] the Court struck down state restrictions on pharmacies and "data-miners" selling or leasing information on the prescribing behavior of doctors for marketing purposes and related restrictions limiting the use of that information by pharmaceutical companies.[628] These prohibitions, however, were subject to a number of exceptions, including provisions allowing such prescriber-identifying information to be used for health care research. Because the restrictions only applied to the use of this information for marketing and because they principally applied to pharmaceutical manufacturers of non-generic drugs, the Court found that these restrictions were content-based and speaker-based limits and thus subject to heightened scrutiny.[629] However, the Court declined to say definitively whether Central Hudson or "a stricter form of judicial scrutiny" should apply because, in the Court's view, the law failed to pass constitutional muster even under Central Hudson.[630]

More recently, the Court noted, "several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases."[631] Sorrell's suggestion that content-based regulations of commercial speech might be subject to "a stricter form of judicial scrutiny"[632] may be further evidence that the Court is increasing protection of commercial speech. Nonetheless, the Central Hudson test remains the primary test for commercial speech restrictions.[633]

Public Forum Doctrine[edit | edit source]

The Public Forum[edit | edit source]

In 1895, while on the highest court of Massachusetts, future Justice Oliver Wendell Holmes rejected a contention that public property was by right open to the public as a place where the right of speech could be recognized,[634] and on review the United States Supreme Court endorsed Justice Oliver Wendell Holmes's view.[635] Years later, beginning with Hague v. CIO,[636] the Court reconsidered the issue. Justice Owen Roberts wrote in Hague:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.Id. at 515.

Although majority of the Justices did not join Justice Roberts's opinion, the Court subsequently endorsed the view in several opinions.[637]

In the 1960s, the Court appeared to call the Roberts view into question,[638] and subsequently a majority endorsed an opinion by Justice Hugo Black asserting a narrower view of speech rights in public places.[639] Later decisions restated and quoted the Roberts language from Hague, and that is now the position of the Court.[640] Public streets and parks,[641] including those adjacent to courthouses[642] and foreign embassies,[643] as well as public libraries[644] and the grounds of legislative bodies,[645] are open to public demonstrations, although the uses to which public areas are dedicated may shape the range of permissible expression and conduct that may occur there.[646] Moreover, not all public properties are public forums. In U.S. Postal Service v. Greenburgh Civic Ass'ns, the Court stated: "[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government,"[647] while in Grayned v. City of Rockford, the Court stated: "The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time."[648] Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.[649] But if government does open non-traditional forums for expressive activities, it may not discriminate on the basis of content or viewpoint in according access.[650]

Speech in public forums is subject to time, place, and manner regulations that take into account such matters as control of traffic in the streets, the scheduling of two meetings or demonstrations at the same time and place, the preventing of blockages of building entrances, and the like.[651] Such regulations are closely scrutinized in order to protect free expression, and, to be valid, must be justified without reference to the content or subject matter of speech,[652] must serve a significant governmental interest,[653] and must leave open ample alternative channels for communication of the information.[654] The Court has written that a time, place, or manner regulation

must be narrowly tailored to serve the government's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied. . .[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest. . ..Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 800 (1989).

A content-neutral time, place, and manner regulation of the use of a public forum must also "contain adequate standards to guide the official's decision and render it subject to effective judicial review."[655] Unlike a content-based licensing scheme, however, it need not "adhere to the procedural requirements set forth in Freedman."[656] In Freedman v. Maryland, the Court had set forth certain requirements, including that the "burden of proving that the film [or other speech] is unprotected expression must rest on the censor," and that the censor must, "within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution."[657]

A corollary to the rule forbidding regulation based on content is the principle--a merging of free expression and equal protection standards--that government may not discriminate between different kinds of messages in affording access.[658] In order to ensure against covert forms of discrimination against expression and between different kinds of content, the Court has insisted that licensing systems be constructed as free as possible of the opportunity for arbitrary administration.[659] The Court has also applied its general strictures against prior restraints in the contexts of permit systems and judicial restraint of expression.[660]

It appears that the government may not deny access to the public forum for demonstrators on the ground that the past meetings of these demonstrators resulted in violence,[661] and may not vary a demonstration licensing fee based on an estimate of the amount of hostility likely to be engendered.[662] The Court has also suggested that the government cannot effectuate a "heckler's veto," the governmental termination of a speech or demonstration because of hostile crowd reaction.[663]

The Court has defined three categories of public property for public forum analysis.[664] First, there is the traditional public forum--places such as streets and parks that have traditionally been used for public assembly and debate.[665] In such a forum, the government "may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited."[666] Second, there is the designated public forum, where the government opens property for communicative activity and thereby creates a public forum.[667] Such a forum may be limited--hence the expression "limited public forum"--for "use by certain groups, for example, Widmar v. Vincent (student groups), or for discussion of certain subjects, for example, City of Madison Joint School District v. Wisconsin PERC (school board business),"[668] but, within the framework of such legitimate limitations, "a content-based prohibition must be narrowly drawn to effectuate a compelling state interest."[669] Third, in a "nonpublic forum," or "a space that 'is not by tradition or designation a forum for public communication,'"[670] the government "may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view."[671]

Public and Nonpublic Forums[edit | edit source]

The distinction between public and nonpublic forums may be difficult to ascertain. Whether a speech restriction will be reviewed under strict scrutiny or only for reasonableness thus may turn in part on whether the government has "intentionally open[ed] a nontraditional forum for public discourse," creating a designated public forum.[672] To determine whether a forum is a designated public forum or a nonpublic forum, the Court will look to the government's intent in opening the forum,[673] the restrictions initially placed on speakers' access to the forum,[674] and the nature of the forum.[675] For example, in Cornelius v. NAACP Legal Defense and Educational Fund, the Court held that the Combined Federal Campaign (CFC), "an annual charitable fundraising drive conducted in the federal workplace,"[676] was a nonpublic forum.[677] Notwithstanding the fact that the federal government had opened the forum for solicitation by some charitable organizations, the Court concluded that "neither [the government's] practice nor its policy [was] consistent with an intent to designate the CFC as a public forum open to all tax-exempt organizations."[678] Accordingly, the Court upheld the government's decision to exclude certain charitable organizations as reasonable in light of the purpose of the forum.[679] Similarly, the Court concluded in another case that a school district had not created a public forum with its system for internal school mail because the district had not, "by policy or by practice," "opened its mail system for indiscriminate use by the general public."[680] The Court therefore concluded that the school district could permissibly exclude a teacher's association from using the mail system, while also allowing a different teacher's association--the teachers' exclusive representative--to use the mail system, because the school's policy was reasonable and consistent with the purposes of the forum.[681]

However, although the government has greater discretion to restrict speech in nonpublic forums,[682] the First Amendment still prohibits certain restrictions even in nonpublic forums. For instance, the Court held in Minnesota Voters Alliance v. Mansky that "[a] polling place in Minnesota qualifies as a nonpublic forum."[683] After reviewing the long history of state regulation of polling places on election day,[684] the Court concluded that because the polling place was "government-controlled property set aside for the sole purpose of voting,"[685] it qualified as "a special enclave, subject to greater restriction."[686] Although the forum's designation as a nonpublic forum meant that the Court did not apply strict scrutiny, the Court nonetheless struck down a Minnesota law that barred all "political" apparel from polling places as unreasonable.[687] The Court acknowledged that the state could permissibly seek to "prohibit certain apparel" in polling places "because of the message it conveys,"[688] but concluded that the particular scheme followed by Minnesota was not "capable of reasoned application."[689] In the Court's view, the breadth of the term "political" and the state's "haphazard interpretations"[690] of that term failed to provide "objective, workable standards" to guide the discretion of the election judges who implemented the statute.[691]

Application of these principles continues to raise often difficult questions. In United States v. Kokinda, a majority of Justices, who ultimately upheld a ban on soliciting contributions on postal premises under the "reasonableness" review governing nonpublic forums, could not agree on the public forum status of a sidewalk located entirely on postal service property.[692] Two years later, in International Society for Krishna Consciousness, Inc. v. Lee, the Court was similarly divided as to whether non-secured areas of airport terminals, including shops and restaurants, constitute public forums.[693] A five-Justice majority held that airport terminals are not public forums and upheld regulations banning the repetitive solicitation of money within the terminals.[694]

A decade later, the Court considered the public forum status of the internet. In United States v. American Library Association, Inc., a four-Justice plurality held that "Internet access in public libraries is neither a 'traditional' nor a 'designated' public forum."[695] The plurality therefore did not apply strict scrutiny in upholding the Children's Internet Protection Act, which provides that a public school or "library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them."[696]

More recently, in Packingham v. North Carolina, the Court appeared to equate the internet to traditional public forums like a street or public park. Specifically, Justice Anthony Kennedy, writing for the Court, observed that, "[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace--the 'vast democratic forums of the Internet' in general, and social media in particular."[697] Consequently, the Court struck down a North Carolina law making it a felony for registered sex offenders to use commercial social networking websites that allow minor children to be members, such as Facebook. Applying strict scrutiny, the Court held that the North Carolina law impermissibly restricted lawful speech as it was not narrowly tailored to serve the government's interest in protecting minors from registered sex offenders because it "foreclose[d] access to social media altogether," thereby "prevent[ing] the user from engaging in the legitimate exercise of First Amendment rights."[698]

Quasi-Public Places[edit | edit source]

The First Amendment precludes government restraint of expression and it does not require individuals to turn over their homes, businesses, or other property to those wishing to communicate about a particular topic.[699] But it may be that in some instances private property is so functionally akin to public property that private owners may not forbid expression upon it. In Marsh v. Alabama,[700] the Court held that the private owner of a company town could not forbid distribution of religious materials by a Jehovah's Witness on a street in the town's business district. The town, wholly owned by a private corporation, had all the attributes of any American municipality, aside from its ownership, and was functionally like any other town. In those circumstances, the Court reasoned, "the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."[701] This precedent lay unused for some twenty years until the Court first indicated a substantial expansion of it, and then withdrew to a narrow interpretation.

First, in Food Employees Union v. Logan Valley Plaza,[702] the Court held constitutionally protected the picketing of a store located in a shopping center by a union objecting to the store's employment of nonunion labor. Finding that the shopping center was the functional equivalent of the business district involved in Marsh, the Court announced there was "no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the 'business district' is not under the same ownership."[703] "[T]he State," said Justice Thurgood Marshall, "may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put."[704] The Court observed that it would have been hazardous to attempt to distribute literature at the entrances to the center, and it reserved for future decision "whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put."[705]

Four years later, the Court answered the reserved question in the negative.[706] Several members of an antiwar group had attempted to distribute leaflets on the mall of a large shopping center, calling on the public to attend a protest meeting. Center guards invoked a trespass law against them, and the Court held that they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it had invited the public in specifically to conduct business with those stores located in the center. Plaintiffs' leafleting, not directed to any store or to the customers qua customers of any of the stores, was unrelated to any activity in the center. Unlike the situation in Logan Valley Plaza, there were reasonable alternatives by which plaintiffs could reach those who used the center. Thus, in the absence of a relationship between the purpose of the expressive activity and the business of the shopping center, the property rights of the center owner will overbalance the expressive rights to persons who would use their property to communicate.

Then, the Court formally overruled Logan Valley Plaza, holding that shopping centers are not functionally equivalent to the company town involved in Marsh.[707] Suburban malls may be the "new town squares" in the view of sociologists, but they are private property in the eye of the law. The ruling came in a case in which a union of employees engaged in an economic strike against one store in a shopping center was barred from picketing the store within the mall. The rights of employees in such a situation are generally to be governed by federal labor laws[708] rather than the First Amendment, although there is also the possibility that state constitutional provisions may be interpreted more expansively by state courts to protect some kinds of public issue picketing in shopping centers and similar places.[709] Henceforth, only when private property "'has taken on all the attributes of a town'" is it to be treated as a public forum.[710]

Role of Government[edit | edit source]

Overview of Government Roles[edit | edit source]

The Supreme Court has granted the government more allowance to control speech in certain contexts where the government is the speaker, or the government otherwise has a valid interest in regulating speech in order to perform certain functions like operating schools or prisons. For example, the government has an interest in educating children free from distractions. In the context of these special government roles, the government may impose some restrictions on expression to achieve its legitimate objectives, but if the regulation goes too far, it will violate the First Amendment.[711]

This idea of granting deference to the government when it performs certain functions is related to the idea that certain individuals--such as members of the military--stand in a distinct relationship with the government.[712] To take another example, government employers have some leeway to control their employees' words and actions similar to private employers, both because those employees stand in a distinct relationship with the government and because the government has a valid interest in efficiently providing public services.[713] The issue of public employee speech is discussed in a subsequent series of essays, but it is similarly premised on the concept of government's legitimate interests in performing certain functions.[714]

Government Speech and Government as Speaker[edit | edit source]

As an outgrowth of the government subsidy cases, such as Rust v. Sullivan,[715] the Court has established the "government speech doctrine" that recognizes that a government entity "is entitled to say what it wishes"[716] and to select the views that it wants to express.[717] In this vein, when the government speaks, the government is not barred by the Free Speech Clause of the First Amendment from determining the content of what it says and can engage in viewpoint discrimination.[718] The underlying rationale for the government speech doctrine is that the government could not "function" if the government could not favor or disfavor points of view in enforcing a program.[719] And the Supreme Court has recognized that the government speech doctrine even extends to when the government receives private assistance in helping deliver a government controlled message.[720] As a consequence, the Court, relying on the government speech doctrine, has rejected First Amendment challenges to (1) regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion;[721] (2) disciplinary actions taken as a result of statements made by public employees pursuant to their official duties;[722] (3) mandatory assessments made against cattle merchants when used to fund advertisements whose message was controlled by the government;[723] (4) a city's decision to reject a monument for placement in a public park;[724] and (5) a state's decision to reject a design for a specialty license plate for an automobile.[725]

A central issue prompted by the government speech doctrine is determining when speech is that of the government, which can be difficult when the government utilizes or relies on private parties to relay a particular message. In Johanns v. Livestock Marketing Association, the Court held that the First Amendment did not prohibit the compelled subsidization of advertisements promoting the sale of beef because the underlying message of the advertisements was "effectively controlled" by the government.[726]

The line can also be blurred when "a government invites the people to participate in a program," such as when the government opens up its property for use by private speakers.[727] In Pleasant Grove City v. Summum, the Court shifted from an exclusive focus on the "effective control" test in holding that "permanent monuments displayed on public property," even when provided by private parties, generally "represent government speech."[728] In so concluding, the Court relied not only on the fact that a government, in selecting monuments for display in a park, generally exercises "effective control" and has "final approval authority" over the monument, but also on (1) the government's long history of "us[ing] monuments to speak for the public"; and (2) the public's common understanding as to monuments and their role in conveying a message from the government.[729] In Walker v. Texas Division, Sons of Confederate Veterans, the Court relied on the same analysis used in Pleasant Grove City to conclude that the State of Texas, in approving privately crafted designs for specialty license plates, could reject designs the state found offensive without running afoul of the Free Speech Clause.[730] Specifically, the Walker Court held that license plate designs amounted to government speech because (1) states historically used license plates to convey government messages; (2) the public closely identifies license plate designs with the state; and (3) the State of Texas maintained effective control over the messages conveyed on its specialty license plates.[731]

By contrast, in Shurtleff v. Boston, the Supreme Court concluded that private flags flown at a city hall plaza did not qualify as government speech.[732] While "the history of flag flying. . . at the seat of government" suggested such flags usually conveyed governmental messages, other factors specific to the city program pointed the other way.[733] Given that the city sometimes flew its own flags but regularly let private groups use the flagpole, the Court suggested the evidence was inconclusive on public perceptions.[734] The critical inquiry was government control: the Court concluded that the city exercised no active control over the flag raisings or the messages of the flags.[735] While the city might have exercised control over scheduling or physical maintenance, there was no evidence it had ever reviewed the flags or denied a group's request, prior to the denial that formed the basis of the lawsuit.[736] Accordingly, while Shurtleff looked to multiple factors to analyze whether the flags were government speech, effective control was "the most salient" factor in the case.[737]

In 2017's Matal v. Tam, the Supreme Court looked at a different type of activity to hold that trademarks do not constitute government speech, concluding that it is "far-fetched to suggest that the content of a registered mark is government speech."[738] The Court distinguished trademarks from the license plates at issue in Walker, a case the Court stated "likely marks the outer bounds of the government-speech doctrine."[739] First, the Court noted that, unlike license plates, trademarks do not have a history of use to convey messages by the government.[740] Second, the Court further reasoned that the government does not maintain direct control over the messages conveyed in trademarks--indeed, "[t]he Federal Government does not dream up these marks, and it does not edit marks submitted for registration."[741] And third, the public, according to the Tam Court, does not closely identify trademarks with the government.[742] Thus, while Tam demonstrates the Court's continuing reliance on the multi-factor test for determining government speech from Walker and Summum, that test is not so flexible as to allow for expression like trademarks to be deemed the speech of the government.

In both Shurtleff and Tam, the Supreme Court held that because the flags and trademarks were not government speech, the government had acted unconstitutionally by creating viewpoint-based distinctions.[743] In Shurtleff, the Court noted that the city had made the plaza with the flagpole available to the public and had itself described that plaza as a public forum.[744] Accordingly, after ruling that the flags were "private, not government, speech," the Court held that the city had violated the Free Speech Clause by excluding a flag based on its religious viewpoint.[745] Although the Court's opinions in Tam did not clearly agree on whether public forum analysis applied,[746] a majority nonetheless ruled that the federal law barring disparaging trademarks entailed unconstitutional viewpoint discrimination.[747]

School Free Speech and Government as Educator[edit | edit source]

Although the Supreme Court had previously held that students in public schools are entitled to some constitutional protection,[748] as are minors generally,[749] it established the controlling standard for assessing First Amendment rights in the school environment in Tinker v. Des Moines Independent Community School District.[750] In that case, the Court articulated a need to balance students' First Amendment protections with the goals and needs of educators and the community.

In Tinker, high school principals had banned students from wearing black armbands as a symbol of protest against the United States' actions in Vietnam.[751] Reversing the lower courts' refusal to reinstate students who had been suspended for violating the ban, the Court set out a balancing test for applying the First Amendment in schools.[752] According to the Court, "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students," and neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."[753] Notwithstanding these protections, the Court affirmed the comprehensive authority of the states and of school officials, consistent with fundamental constitutional safeguards, "to prescribe and control conduct in the schools."[754] On balance, therefore, school authorities may restrict expression to prevent disruption of school activities or discipline,[755] but such restrictions must be justified by "something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."[756]

The Court reaffirmed Tinker in Healy v. James, finding no basis to believe that, "First Amendment protections should apply with less force on college campuses than in the community at large."[757] In Healy, the Court held that students' rights of association, implicit in the First Amendment, were violated when a public college denied a student group official recognition as a campus organization.[758] Denying recognition, the Court held, was impermissible if it was based on factors such as the student organization's affiliation with the national Students for a Democratic Society, on disagreement with the organization's philosophy, or on an unfounded fear of disruption.[759] The Court suggested that how courts strike the balance under the Tinker inquiry may differ depending on the students' ages. The Court emphasized that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,'" but also concluded that a college administration may require "that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law."[760]

In 1982, the Court faced a conflict between a school system's obligation to inculcate community values in students and the free-speech rights of those students. In Board of Education v. Pico, the Court considered a case challenging a school board's authority to remove certain books from high school and junior high school libraries.[761] The procedural posture of the case required the Court to assume that the books were removed because the school board disagreed with the books' content for political reasons.[762] A plurality of the Court thought that students retained substantial free-speech protections and that among these was the right to receive information and ideas.[763] Although the plurality conceded that school boards must be permitted "to establish and apply their curriculum in such a way as to transmit community values," and that "there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political," it reasoned that a school board was constitutionally prohibited from removing library books in order to deny access to political ideas with which the board disagreed.[764] The four dissenters argued that the Constitution did not prevent the school board from expressing community values in this way regardless of its motivation.[765]

The Court struck a different balance between student freedom and educator authority in Hazelwood School District v. Kuhlmeier,[766] in which it relied on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need be only "reasonably related to legitimate pedagogical concerns."[767] The Court distinguished the facts of Kuhlmeier from Tinker, explaining that "[t]he question whether the First Amendment requires a school to tolerate particular student speech--the question that we addressed in Tinker---is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech."[768] The student newspaper at issue had been created by school officials as a part of the school curriculum, and served "as a supervised learning experience for journalism students."[769] Because the newspaper was not a public forum, school officials could maintain editorial control so long as their actions were "reasonably related to legitimate pedagogical concerns."[770] Thus, a principal's decision to remove an article describing student pregnancy in a manner believed inappropriate for younger students, and another article on divorce critical of a named parent, were upheld.[771]

In Morse v. Frederick,[772] the Court held that a school could punish a pupil for displaying a banner that said, "BONG HiTS 4 JESUS" at a school-sponsored event even absent evidence the banner caused substantial disruption.[773] The Court reasoned that schools "may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,"[774] but indicated that it might have reached a different result if the banner had addressed the issue of "the criminalization of drug use or possession."[775] In his concurrence, Justice Samuel Alito commented that the Court's opinion "provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue."[776]

While the Kuhlmeier and Morse cases focused on applying Tinker to on-campus speech, the Court addressed Tinker's application to off-campus speech in its 2021 Mahanoy Area School District v. B.L. decision.[777] In Mahanoy, the Court held that while public schools may have a special interest in some off-campus student speech, there are several features of off-campus speech that diminish "the unique educational characteristics that might call for the special First Amendment leeway" to regulate speech that Tinker provided.[778] The Court identified three distinguishing characteristics of off-campus speech that the Court reasoned made the Tinker standards less applicable.[779] First, off-campus speech, in some circumstances, should fall within the zone of parental, rather than school officials', responsibility.[780] Second, the Court reasoned that allowing schools to regulate off-campus speech would provide an opportunity to regulate student speech 24 hours a day, which may, in effect, chill students' protected speech.[781] Third, the Court emphasized that while a school does have authority to regulate speech that interrupts the school's work,[782] schools also have an interest in protecting students' unpopular expressions, as America's public schools are "the nurseries of democracy."[783] Although the Court recognized that some off-campus speech---such as severe bullying, threats, or participation in online school activities--may require school regulation, it was hesitant to establish any clear general rules about what constitutes off-campus speech.[784] In light of these considerations, the Court held that a school could not regulate a student's social media posts that criticized the school because the circumstances of the speech--the fact that the posts were made at an off-campus convenience store on a personal cellphone to a limited group of people and did not name the specific school or school authorities--diminished the school's interest in regulation.[785]

The line of cases from Tinker to Mahanoy address the First Amendment rights of school and university students. Teachers and other employees of schools also have rights, but those rights are generally analyzed under rules that apply to the government as an employer.[786]

Prison Free Speech and Government as Prison Administrator[edit | edit source]

A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or the legitimate penological objectives of the corrections system.[787] The Supreme Court has recognized that the government has legitimate interests in preserving internal prison order and discipline, maintaining of institutional security against escape or unauthorized entry, and rehabilitating prisoners.[788] In applying these general standards, the Court initially seemed to arrive at somewhat divergent points in assessing prison restrictions on mail and on face-to-face news interviews between reporters and prisoners. Later cases took a more deferential approach to restrictions on both, and the Court walked back language in earlier rulings that suggested heightened scrutiny applied in assessing restrictions on inmates' mail.

In Procunier v. Martinez,[789] the Court invalidated mail censorship regulations that permitted authorities to hold back or to censor mail to and from prisoners whenever they thought that the letters "unduly complain," express "inflammatory . . . views," or were "defamatory" or "otherwise inappropriate."[790] The Court based this ruling not on the rights of the prisoner, but instead on the outsider's right to communicate with the prisoner either by sending or by receiving mail. Under this framework, the Court held, mail regulation must further an important interest unrelated to suppressing expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation; and regulation must not be used simply to censor opinions or other expressions. Further, a restriction must be no greater than is necessary to protecting particular government interest involved.

In Turner v. Safley,[791] however, the Court held that a standard that is more deferential to the government applies when the free speech rights only of inmates are at stake. In upholding a Missouri restriction on correspondence between inmates at different institutions, while striking down a prohibition on inmate marriages absent a compelling reason such as pregnancy or birth of a child, the Court announced the appropriate standard: "[W]hen a regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."[792] Four factors "are relevant in determining the reasonableness of a regulation at issue,"[793] the Court explained:

First, is there a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it? Second, are there alternative means of exercising the right that remain open to prison inmates? Third, what impact will accommodation of the asserted constitutional right . . . have on guards and other inmates, and on the allocation of prison resources generally? And, fourth, are ready alternatives for furthering the governmental interest available?Beard v. Banks, 548 U.S. 521, 529 (2006) (citations and internal quotation marks omitted; this quotation quotes language from Turner v. Safley, 482 U.S. at 89-90).

Two years after Turner v. Safley, in Thornburgh v. Abbott, the Court restricted Procunier v. Martinez to regulating outgoing correspondence, finding that the needs of prison security justify a more deferential standard for prison regulations restricting incoming material, whether those incoming materials are correspondence from other prisoners, correspondence from nonprisoners, or outside publications.[794]

In Beard v. Banks, a plurality of the Supreme Court upheld "a Pennsylvania prison policy that 'denies newspapers, magazines, and photographs' to a group of specially dangerous and recalcitrant inmates."[795] These inmates were housed in Pennsylvania's Long Term Segregation Unit and one of the prison's penological rationales for its policy, which the plurality found to satisfy the four Turner factors, was to motivate better behavior on the part of the prisoners by providing them with an incentive to move back to the regular prison population.[796] Applying the four Turner factors to this rationale, the plurality found that (1) there was a logical connection between depriving inmates of newspapers and magazines and providing an incentive to improve behavior; (2) the Policy provided no alternatives to the deprivation of newspapers and magazines, but this was "not 'conclusive' of the reasonableness of the Policy"; (3) the impact of accommodating the asserted constitutional right would be negative; and (4) no alternative would "fully accommodate the prisoner's rights at de minimis cost to valid penological interests."[797] The plurality believed that its "real task in this case is not balancing these factors, but rather determining whether the Secretary shows more than simply a logical relation, that is, whether he shows a reasonable relation" between the policy and legitimate penological objections, as Turner requires.[798] The plurality concluded that he had. Justices Clarence Thomas and Antonin Scalia concurred in the result but would eliminate the Turner factors because they believe that "States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivation--provided only that those deprivations are consistent with the Eighth Amendment."[799]

Only two months after Procunier v. Martinez, the Court rejected a First Amendment challenge to regulations barring face-to-face media interviews with specific inmates.[800] Prison restrictions on such interviews implicate the First Amendment rights of prisoners, the Court held, but such rights must be balanced against "the legitimate penological objectives of the corrections system" and "internal security within the corrections facilities," taking into account available alternative means of communications, such as mail and "limited visits from members of [prisoners'] families, the clergy, their attorneys, and friends of prior acquaintance."[801]

While reaffirming "news gathering is not without its First Amendment protections,"[802] the Court held that the First Amendment did not impose on the government any affirmative obligation "to accord the press special access to information not shared by members of the public generally."[803] In Houchins v. KQED,[804] a broadcaster sued for access to a prison from which public and press alike were barred and as to which there was considerable controversy over conditions of incarceration. Following initiation of the suit, the administrator of the prison authorized limited public tours. The tours were open to the press, but cameras and recording devices were not permitted, there was no opportunity to talk to inmates, and the tours did not include the maximum security area about which much of the controversy centered. The Supreme Court overturned the injunction obtained in the lower courts, the plurality reiterating that the First Amendment does not "mandate[ ] a right of access to government information or sources of information within the government's control," and "until the political branches decree otherwise . . . the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally."[805] Justice Potter Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have allowed the trial court to craft an injunction more narrowly drawn to protect the press's right to use cameras and recorders so as to enlarge public access to the information.[806]

Public Employee Speech and Government as Employer[edit | edit source]

Loyalty Oaths[edit | edit source]

An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates unlawful or disloyal action.

Following the Civil War, the state and federal governments adopted test oaths, which the Supreme Court generally voided as ex post facto laws and bills of attainder.[807] Accepting the state court construction that the law required each candidate to "make oath that he is not a person who is engaged 'in one way or another in the attempt to overthrow the government by force or violence,' and that he is not knowingly a member of an organization engaged in such an attempt," the Court unanimously sustained the provision in a one-paragraph per curiam opinion.[808] Less than two months later, the Court upheld a requirement that employees take an oath that they had not within a prescribed period advised, advocated, or taught the overthrow of government by unlawful means, nor been a member of an organization, with similar objectives; every employee was also required to swear that he was not and had not been a member of the Communist Party.[809] Writing for the Court, Justice Tom Clark perceived no problem with the inquiry into Communist Party membership but cautioned that no issue had been raised whether an employee who was or had been a member could be discharged merely for that reason.[810] With regard to the oath, the Court did not discuss First Amendment considerations but stressed that it believed the appropriate authorities would not construe the oath adversely against persons who were innocent of an organization's purpose during their affiliation, who had severed their associations upon knowledge of an organization's purposes, or who had been members of an organization at a time when it was not unlawfully engaged.[811] Otherwise, the oath requirement was valid as "a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty" and as being "reasonably designed to protect the integrity and competency of the service."[812]

In the following Term, the Court sustained in Adler v. Board of Education a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations that so advocated.[813] The statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification. Justice Sherman Minton observed that everyone had a right to assemble, speak, think, and believe as he pleased, but had no right to work for the state in its public school system except upon compliance with the state's reasonable terms. He stated: "If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not."[814] A state could deny employment based on a person's advocacy of overthrow of the government by force or violence or based on unexplained membership in an organization so advocating with knowledge of the advocacy.[815] With regard to the required list, the Justice observed that the state courts had interpreted the law to provide that a person could rebut the presumption attached to his mere membership.[816]

The same year, the Court invalidated an oath requirement, addressed to membership in the Communist Party and other proscribed organizations, which the state courts had interpreted to disqualify from employment "solely on the basis of organizational membership."[817] Stressing that membership might be innocent, that one might be unaware of an organization's aims, or that he might have severed a relationship upon learning of its aims, the Court struck the law down; one must be or have been a member with knowledge of illegal aims.[818] But subsequent cases reiterated the power of governmental agencies to inquire into the associational relationships of their employees for purposes of determining fitness and upheld dismissals for refusal to answer relevant questions.[819] In Shelton v. Tucker,[820] however, a 5-4 majority held that, although a state could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the state's interests, and had a considerable potential for abuse.

The Court relied on vagueness when loyalty oaths aimed at "subversives" next came before it. In Cramp v. Board of Public Instruction,[821] it unanimously held an oath too vague that required one to swear, among other things, that "I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party." Similarly, in Baggett v. Bullitt,[822] the Court struck down two oaths, one requiring teachers to swear that they "will by precept and example promote respect for the flag and the institutions of the United States of America and the State of Washington, reverence for law and order and undivided allegiance to the government," and the other requiring all state employees to swear, among other things, that they would not "aid in the commission of any act intended to overthrow, destroy, or alter or assist in the overthrow, destruction, or alteration" of government. Although couched in vagueness terms, the Court's opinion stressed that the vagueness was compounded by its effect on First Amendment rights and seemed to emphasize that the state could not deny employment to one simply because he unintentionally lent indirect aid to the cause of violent overthrow by engaging in lawful activities that he knew might add to the power of persons supporting illegal overthrow.[823]

More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell[824] involved an oath that as supplemented would have been violated by one who "knowingly and willfully becomes or remains a member of the communist party. . . or any other organization having for its purposes the overthrow by force or violence of the government" with "knowledge of said unlawful purpose of said organization." The law's blanketing in of "knowing but guiltless" membership was invalid, wrote Justice William O. Douglas for the Court, because one could be a knowing member but not subscribe to the illegal goals of the organization; moreover, it appeared that one must also have participated in the unlawful activities of the organization before public employment could be denied.[825] Next, in Keyishian v. Board of Regents,[826] the oath provisions sustained in Adler[827] were declared unconstitutional. A number of provisions were voided as vague,[828] but the Court held invalid a new provision making Communist Party membership prima facie evidence of disqualification for employment because the opportunity to rebut the presumption was too limited. It could be rebutted only by denying membership, denying knowledge of advocacy of illegal overthrow, or denying that the organization advocates illegal overthrow. But "legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations."[829] Similarly, in Whitehill v. Elkins,[830] an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.

Loyalty oath cases from the 1970s reflected the heightened constitutional protections announced in Keyishian. In Connell v. Higginbotham,[831] the Court invalidated an oath provision reading "that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence" because the statute provided for summary dismissal of an employee refusing to take the oath, with no opportunity to explain that refusal. Cole v. Richardson[832] upheld a clause in an oath "that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method" upon the construction that this clause was mere "repetition, whether for emphasis or cadence," of the first part of the oath, which was a valid "uphold and defend" positive oath. More broadly, as Keyishian suggests and as discussed in subsequent essays, the Court has rejected the Adler rationale that public employment may be subject to unreasonable conditions because there is no right to public employment.[833] Instead, the controlling principle now is that government may not deny employment or other benefits on a basis that infringes a person's constitutionally protected interests.[834]

Political Activities and Government Employees[edit | edit source]

Abolition of the "spoils system" in federal employment brought with it restrictions on political activities by federal employees. In 1876, federal employees were prohibited from requesting from, giving to, or receiving from any other federal employee money for political purposes, and the Civil Service Act of 1883 more broadly forbade civil service employees to use their official authority or influence to coerce political action of any person or to interfere with elections.[835] By the Hatch Act, federal employees, and many state employees as well, are forbidden to "take any active part in political management or in political campaigns."[836] As applied through the regulations and rulings of the Office of Personnel Management, formerly the Civil Service Commission, the Act prevents employees from running for public office, distributing campaign literature, playing an active role at political meetings, circulating nomination petitions, attending a political convention except as a spectator, publishing a letter soliciting votes for a candidate, and all similar activity.[837] The question was whether government, which may not prohibit citizens in general from engaging in these activities, could nonetheless so control the off-duty activities of its own employees.

In United Public Workers v. Mitchell,[838] the Court answered in the affirmative. While the Court refused to consider the claims of persons who had not yet engaged in forbidden political activities, it ruled against a mechanical employee of the Mint who had done so. The Court's opinion, by Justice Stanley Reed, recognized that the restrictions of political activities imposed by the Act did in some measure impair First Amendment and other constitutional rights,[839] but it based its decision upon the established principle that no right is absolute. The standard by which the Court judged the validity of the permissible impairment of First Amendment rights was a due process standard of reasonableness.[840] Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitchell.[841]

In Civil Service Commission v. National Association of Letter Carriers, however, a divided Court, reaffirming Mitchell, sustained the Act's limitations upon political activity against a range of First Amendment challenges.[842] The Court emphasized that the interest of the government in forbidding partisan political activities by its employees was so substantial that it overrode the rights of those employees to engage in political activities and association.[843] The issue in Letter Carriers, however, was whether the language that Congress had enacted, forbidding employees to take "an active part in political management or in political campaigns,"[844] was unconstitutional on its face, either because the statute was too imprecise to allow government employees to determine what was forbidden and what was permitted, or because the statute covered conduct that Congress could not forbid as well as conduct subject to prohibition or regulation. With respect to vagueness, the plaintiffs contended and the lower court had held that the quoted proscription was inadequate to provide sufficient guidance and that the only further elucidation Congress had provided was in a section stating that the forbidden activities were the same activities that the Commission had as of 1940, and reaching back to 1883, "determined are at the time of the passage of this act prohibited on the part of employees. . .by the provisions of the civil-service rules. . . ."[845] This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings it had made that were not available to employees and that were in any event mutually inconsistent and too broad.

The Court held, on the contrary, that Congress had intended to confine the Commission to the boundaries of its rulings as of 1940 but had further intended the Commission by a process of case-by-case adjudication to flesh out the prohibition and to give content to it. The Commission had done that. It had regularly summarized in understandable terms the rules that it applied, and it was authorized as well to issue advisory opinions to employees uncertain of the propriety of contemplated conduct. "[T]here are limitations in the English language with respect to being both specific and manageably brief," said the Court, but it thought the prohibitions as elaborated in Commission regulations and rulings were "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interests."[846] There were conflicts, the Court conceded, between some of the things forbidden and some of the protected expressive activities, but these were at most marginal. Thus, some conduct arguably protected did, under some circumstances, so partake of partisan activities as to be properly proscribable. But the Court would not invalidate the entire statute for this degree of overbreadth.[847] Subsequently, in Bush v. Lucas[848] the Court held that the civil service laws and regulations constitute a sufficiently "elaborate, comprehensive scheme" to afford federal employees an adequate remedy for deprivation of First Amendment rights as a result of disciplinary actions by supervisors, and that therefore there is no need to create an additional judicial remedy for the constitutional violation.

The Court has also addressed the balance between elected officials' First Amendment rights to speak about matters of public concern and elected bodies' rights to censure objectionable speech. In Houston Community College System v. Wilson, a community college Board of Trustees censured one of its elected members after he made public comments that the Board found "inappropriate," "reprehensible," and "not consistent with the best interests of the College."[849] The Board member claimed the censure violated his First Amendment right to be free from government retaliation for engaging in protected speech.[850] While acknowledging that elected representatives, like the Board member, have the right to speak freely on government policy, the Court recognized that the censure issued by the other elected representatives was also a form of protected speech.[851] According to the Court, the Board member could not use his First Amendment rights "as a weapon to silence other representatives seeking to do the same."[852] Although it concluded that the censure at issue did not violate the First Amendment, the Court explained its decision was a "narrow one" involving only a First Amendment retaliation claim regarding the "censure of one member of an elected body by other members of the same body."[853] As a result, claims involving other forms of discipline or punishment, such as expulsion or exclusion, may produce a different outcome.[854]

Honoraria and Government Employees[edit | edit source]

In United States v. National Treasury Employees Union (NTEU),[855] the Court struck down an honoraria ban as applied to lower-level employees of the Federal Government. The Court distinguished the honoraria ban from the Hatch Act on the grounds that the honoraria ban suppressed employees' right to free expression while the Hatch Act sought to protect that right.[856] The Court also observed that there was no evidence of improprieties in the acceptance of honoraria by members of the plaintiff class of federal employees.[857] The Court emphasized further difficulties with the "crudely crafted" honoraria ban: it was limited to expressive activities and had no application to other sources of outside income, it applied when neither the subjects of speeches and articles nor the persons or groups paying for them bore any connection to the employee's job responsibilities, and it exempted a "series" of speeches or articles without also exempting individual articles and speeches. These "anomalies" led the Court to conclude that the "speculative benefits" of the ban were insufficient to justify the burdens it imposed on expressive activities.[858]

Pickering Balancing Test for Government Employee Speech[edit | edit source]

While the government does not have complete freedom to restrict the speech of its employees, it does have some power. "[I]t cannot be gainsaid," the Court said in Pickering v. Board of Education, "that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general."[859] Pickering concerned the dismissal of a high school teacher who had written a critical letter to a local newspaper reflecting on the administration of the school system. The letter also contained several factual errors. "The problem in any case," Justice Thurgood Marshall wrote for the Court, "is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."[860] The Court's analysis suggested some factors that might be relevant in conducting the balancing test. Dismissal of a public employee for criticism of his superiors was improper, the Court indicated, where the relationship of employee to superior was not so close, such as day-to-day personal contact, that problems of discipline or harmony among coworkers, or problems of personal loyalty and confidence, would arise.[861] The school board had not shown that any harm had resulted from the false statements in the letter, and it could not proceed on the assumption that the false statements were per se harmful, inasmuch as the statements primarily reflected a difference of opinion between the teacher and the board about the allocation of funds. Moreover, the allocation of funds is a matter of important public concern about which teachers have informed and definite opinions of which the community should be aware. The Pickering Court stated: "In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public."[862]

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,[863] sustained the constitutionality of a federal law that authorized the removal or suspension without pay of an employee "for such cause as will promote the efficiency of the service" when the "cause" cited concerned speech by an employee. The employee charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, "is without doubt intended to authorize dismissal for speech as well as other conduct."[864] But, referencing its Letter Carriers analysis,[865] it ruled that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statute all the myriad situations that arise in the course of employment, and inasmuch as the language used was informed by developed principles of agency adjudication coupled with a procedure for obtaining legal counsel from the agency on the interpretation of the law.[866] Nor was the language overbroad, continued the Court, because it "proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the government as an employer.. . .We hold that the language 'such cause as will promote the efficiency of the service' in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad."[867]

The Court clarified the Pickering inquiry in Connick v. Myers,[868] involving what the Court characterized, in the main, as an employee grievance rather than an effort to inform the public on a matter of public concern. The employee, an assistant district attorney involved in a dispute with her supervisor over transfer to a different section, was fired for insubordination after she circulated a questionnaire among her peers soliciting views on matters relating to employee morale. The Court found this firing permissible, stating: "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment."[869] Whether an employee's speech addresses a matter of public concern, the Court indicated, must be determined not only by its content, but also by its form and context.[870] Because one aspect of the employee's speech did raise matters of public concern, Connick also applied Pickering's balancing test, holding that "a wide degree of deference is appropriate" when "close working relationships" between employer and employee are involved.[871] The issue of public concern is not only a threshold inquiry, but, under Connick, still figures in the balancing of interests: as the Connick Court stated, "the State's burden in justifying a particular discharge varies depending upon the nature of the employee's expression" and its importance to the public.[872]

On the other hand, the Court has indicated that an employee's speech may be protected as relating to matters of public concern even in the absence of any effort or intent to inform the public.[873] In Rankin v. McPherson[874] the Court held protected an employee's comment, made to a co-worker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the President's policies--If they go for him again, I hope they get him. Indeed, the Court in McPherson emphasized the clerical employee's lack of contact with the public in concluding that the employer's interest in maintaining the efficient operation of the office (including public confidence and good will) was insufficient to outweigh the employee's First Amendment rights.[875]

In City of San Diego v. Roe,[876] the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer's "expression does not qualify as a matter of public concern. . . and Pickering balancing does not come into play."[877] The Court also noted that the officer's speech, unlike federal employees' speech in United States v. National Treasury Employees Union (NTEU),[878] "was linked to his official status as a police officer, and designed to exploit his employer's image," and therefore "was detrimental to the mission and functions of his employer."[879] The Court, therefore, had "little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [that is, Pickering or NTEU]."[880]

In Garcetti v. Ceballos, the Court held that there is no First Amendment protection--Pickering balancing is not to be applied--"when public employees make statements pursuant to their official duties," even if those statements are about matters of public concern.[881] In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that he was subjected to retaliatory employment actions, and he sued. The Supreme Court held "that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."[882] The fact that the employee's speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.[883] Rather, the "controlling factor" was "that his expressions were made pursuant to his duties."[884]

In distinguishing between wholly unprotected "employee speech" and quasi-protected "citizen speech," sworn testimony outside of the scope of a public employee's ordinary job duties appears to be "citizen speech." In Lane v. Franks,[885] the director of a state government program for underprivileged youth was terminated from his job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator's employment in the government program. The employee challenged the termination on First Amendment grounds.

The Court held generally that testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen, subject to the Pickering-Connick balancing test.[886] The Court noted that "[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court and society at large, to tell the truth."[887] In so holding, the Court confirmed that Garcetti's holding is limited to speech made in accordance with an employee's official job duties and does not extend to speech that merely concerns information learned during that employment. The Court in Lane ultimately found that the plaintiff's speech deserved protection under the Pickering-Connick balancing test because the speech was both a matter of public concern (the speech was testimony about misuse of public funds) and the testimony did not raise concerns for the government employer.[888]

In a 2022 case, the Supreme Court expressly connected the issue of public employee speech to the related issue of government speech,[889] saying that the Free Speech Clause question in Kennedy v. Bremerton School District turned on whether a football coach had acted "in his capacity as a private citizen," or whether instead his actions "amount[ed] to government speech attributable to" his public employer.[890] The school had disciplined the coach for praying at the 50-yard line immediately after football games, while he was still on duty.[891] The parties agreed that the coach's prayer implicated a matter of public concern, but the school argued his speech was unprotected under Pickering because he was speaking in his official capacity as a public employee.[892] The Court held instead that the coach's prayers were private speech, stating the speech was not within the scope of his ordinary duties and he "was not seeking to convey a government-created message."[893] The Court noted further that during this postgame period, employees "were free to attend briefly to [other] personal matters" and students were engaged in other activities, suggesting the coach's "prayers were not delivered as an address to the team, but instead in his capacity as a private citizen."[894] Although the coach was on duty and his prayers were delivered at his workplace, these facts were not dispositive to the analysis.[895] Ultimately, the Court held that the school had not met its burden to justify the restrictions on the coach's religious speech.[896]

The protections applicable to government employees have been extended to independent government contractors, the Court announcing that "the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of their protection."[897]

In sum, although a public employer may not muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can,[898] the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of "public concern," then Connick applies and the employer is largely free of constitutional restraint.[899] If the speech does relate to a matter of public concern, then unless the speech was made by an employee pursuant to his duties, Pickering's balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee's duties[900] balanced against the employee's First Amendment rights.[901] Although the general approach is easy to describe, it has proven difficult to apply.[902] The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for "whistleblowers" add to the mix.[903]

Media Regulation[edit | edit source]

Overview of Media Regulation[edit | edit source]

The protections of the First Amendment extend regardless of the medium of expression--speech will remain constitutionally protected whether it is communicated in a park, in a newspaper, or in a movie.[904] Nonetheless, the standards for assessing First Amendment protections may vary according to the medium of expression.[905] In particular, as discussed in the following essays, the Supreme Court has recognized that "differential treatment" of speech may sometimes be "'justified by some special characteristic of' the particular medium being regulated."[906] Further, although the Supreme Court has recognized that both the Free Speech and Free Press Clauses protect media outlets,[907] such organizations are not relieved from complying with generally applicable laws simply because such laws may have incidental effects on the exercise of free speech rights.[908]

Taxation of Media[edit | edit source]

The First Amendment often requires heightened scrutiny of restrictions that target or disfavor the media. For example, the Supreme Court has invalidated taxes that single out media organizations for payment. In Grosjean v. American Press Co., while recognizing that newspapers are not "immune from any of the ordinary forms of taxation for support of the government," the Court voided a state 2% tax on the gross receipts of advertising in newspapers with a circulation exceeding 20,000 copies a week.[909] In the Court's view, the tax was analogous to the eighteent-century English practice of imposing advertising and stamp taxes on newspapers for the express purpose of pricing the opposition penny press beyond the means of the mass of the population.[910] The tax at issue focused exclusively upon newspapers, it imposed a serious burden on the distribution of news to the public, and it appeared to be a discriminatorily selective tax aimed almost solely at the opposition to the state administration.[911] Combined with the standard that government may not impose a tax as a prior restraint upon the exercise of a constitutional right itself,[912] these tests seem to permit general business taxes upon receipts of businesses engaged in communicating protected expression without raising any First Amendment issues.[913]

Ordinarily, a tax singling out the press for differential treatment is highly suspect, and creates a heavy burden of justification on the state. This is so, the Court explained in 1983, in part because "differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression."[914] The Court said the state's interest in raising revenue was not sufficient justification for differential treatment of the press, where the state had alternative means to achieve the same interest. Moreover, the Court refused to adopt a rule permitting analysis of the "effective burden" imposed by a differential tax; even if the current effective tax burden could be measured and upheld, the threat of increasing the burden on the press might have "censorial effects," and "courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation."[915]

A tax that targets specific subgroups within a segment of the press for differential treatment can also trigger heightened constitutional scrutiny. An Arkansas sales tax exemption for newspapers and for "religious, professional, trade, and sports journals" published within the state was struck down as an invalid content-based regulation of the press.[916] Entirely as a result of content, some magazines were treated less favorably than others. The measure was viewed as not narrowly tailored to achieve allegedly "compelling" state interests such as raising revenue, encouraging "fledgling" publishers, and fostering communications.[917]

In 1991, the Court upheld a state tax that discriminated among different components of the communications media on a content-neutral basis, proclaiming that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas."[918]

The general principle that government may not impose a financial burden based on the content of speech underlay the Court's invalidation of New York's "Son of Sam" law, which provided that a criminal's income from publications describing his crime was to be placed in escrow and made available to victims of the crime.[919] Although the Court recognized a compelling state interest in ensuring that criminals do not profit from their crimes, and in compensating crime victims, it found that the statute was not narrowly tailored to those ends. The statute applied only to income derived from speech, not to income from other sources, and it was significantly overinclusive because it reached a wide range of literature (for example, the Confessions of Saint Augustine and Thoreau's Civil Disobedience) "that did not enable a criminal to profit from his crime while a victim remains uncompensated."[920]

Labor and Antitrust Regulation of Media[edit | edit source]

Just as newspapers and other communications businesses are subject to nondiscriminatory taxation, they are entitled to no immunity from the application of general laws regulating their relations with their employees and prescribing wage and hour standards. In Associated Press v. NLRB,[921] application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem. The Court explained that "[t]he publisher of a newspaper has no special immunity from the application of general laws," and noted that the federal law did not interfere with "the impartial distribution of news." Similarly, the Court has found no problem with requiring newspapers to pay minimum wages and observe maximum hours.[922]

In another case, the Court rejected a First Amendment challenge to using antitrust laws to break up restraints on competition in the newsgathering and publishing field.[923] The Court suggested that antitrust regulation could serve First Amendment purposes--protecting press freedom by promoting "the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society."[924] Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of the possibility of antitrust law attack,[925] even if such activities might promote speech.[926]

Broadcast Radio and Television[edit | edit source]

Because there are a limited number of broadcast frequencies for radio and non-cable television use, the Federal Government licenses access to these frequencies, permitting some applicants to use them and denying the greater number of applicants such permission. Even though this licensing system is in form a variety of prior restraint, the Court has held that it does not present a First Amendment issue because of the unique characteristic of broadcast scarcity.[927] Thus, the Federal Communications Commission (FCC) has broad authority to determine the right of access to broadcasting,[928] although, to avoid heightened constitutional scrutiny, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.[929]

In Red Lion Broadcasting Co. v. FCC, the Court upheld an FCC regulation that required broadcasters to afford persons an opportunity to reply if they were attacked on the air on the basis of their "honesty, character, integrity or like personal qualities," or if they were legally qualified candidates and a broadcast editorial endorsed their opponent or opposed them.[930] In Red Lion, Justice Byron White explained that "differences in the characteristics of [various] media justify differences in First Amendment standards applied to them."[931] In contrast to speaking or publishing, the Court noted that broadcast frequencies are limited and some few must be given the privilege over others. The Court held that a particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. The Court ruled that the government could require that a licensee to "conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves."[932] Furthermore, Justice Byron White explained that by helping expand access to different ideas, these restrictions furthered the "collective right" of the viewers and listeners, "to have the medium function consistently with the ends and purposes of the First Amendment."[933] The broadcasters had argued that, if they were required to provide equal time at their expense to persons attacked and to points of view different from those expressed on the air, expression would be curbed through self-censorship, for fear of controversy and economic loss. Justice Byron White thought this possibility "at best speculative," but if it should materialize "the Commission is not powerless to insist that they give adequate and fair attention to public issues."[934]

In Columbia Broadcasting System v. Democratic National Committee,[935] the Court rejected claims of political groups that a broadcaster's policy of not running "editorial" advertisements violated the First Amendment. Though it declined to require broadcaster access based on the First Amendment or existing federal law, the Court left open the possibility that "at some future date Congress or the [FCC]--or the broadcasters--may devise some kind of limited right of access that is both practicable and desirable."[936] Consequently, in CBS v. FCC,[937] the Court upheld a federal law requiring "reasonable access" to broadcast stations for candidates seeking federal elective office. The constitutional analysis restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.

In FCC v. League of Women Voters,[938] the Court took the same general approach to governmental regulation of broadcasting, but struck down a total ban on editorializing by stations receiving public funding. In summarizing the principles guiding analysis in this area, the Court reaffirmed that Congress may regulate in ways that would be impermissible in other contexts, but indicated that broadcasters are entitled to greater protection than may have been suggested by Red Lion, saying broadcast "restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest, such as ensuring adequate and balanced coverage of public issues."[939] The Court said that "in sharp contrast to the restrictions upheld in Red Lion or in [CBS v. FCC], which left room for editorial discretion and simply required broadcast editors to grant others access to the microphone, [the challenged federal law] directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner."[940] The ban on all editorializing was deemed too severe and restrictive a means of accomplishing the governmental purposes--protecting public broadcasting stations from being coerced, through threat or fear of withdrawal of public funding, into becoming "vehicles for governmental propagandizing," and also keeping the stations "from becoming convenient targets for capture by private interest groups wishing to express their own partisan viewpoints."[941] Expression of editorial opinion was described as a "form of speech . . . that lies at the heart of First Amendment protection,"[942] and the ban was said to be "defined solely on the basis of . . . content," since it had been interpreted as speech directed at "controversial issues of public importance."[943] Moreover, the ban on editorializing was both overinclusive, applying to commentary on local issues of no likely interest to Congress, and underinclusive, not applying at all to expression of controversial opinion in the context of regular programming. Therefore, the Court concluded, the restriction was not narrowly enough tailored to fulfill the government's purposes.

Sustaining FCC discipline of a broadcaster who aired a record containing a series of repeated "barnyard" words, considered "indecent" but not obscene, the Court articulated additional justifications allowing greater regulation of indecent broadcasting.[944] The Court noted first that broadcast was "uniquely pervasive," confronting individuals "not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder."[945] Second, the Court emphasized that, "broadcasting is uniquely accessible to children, even those too young to read. . . . amply justify[ing] special treatment of indecent broadcasting."[946] The Court emphasized the "narrowness" of its holding, which "requires consideration of a host of variables."[947] The use of more than "an occasional expletive," the time of day of the broadcast, the likely audience, "and differences between radio, television, and perhaps closed-circuit transmissions" were all relevant in the Court's view.[948]

Cable Television[edit | edit source]

The Court has recognized that cable television "implicates First Amendment interests," because a cable operator communicates ideas through selection of original programming and through exercise of editorial discretion in determining which stations to include in its offering.[949] Moreover, "settled principles of . . . First Amendment jurisprudence" govern review of cable regulation; cable is not limited by "scarce" broadcast frequencies and does not require the same less rigorous standard of review that the Court applies to regulation of broadcasting.[950] Cable does, however, have unique characteristics that can justify regulations singling out cable for special treatment.[951] The Court in Turner Broadcasting System v. FCC[952] upheld federal statutory requirements that cable systems carry local commercial and public television stations. Although these "must-carry" requirements "distinguish[ed] between speakers in the television programming market," they did so based on the manner of transmission and not on the content the messages conveyed, and hence were content-neutral.[953] The regulations could therefore be measured by the "intermediate level of scrutiny" set forth in United States v. O'Brien.[954] Two years later, however, a splintered Court could not agree on what standard of review to generally apply to content-based restrictions of cable broadcasts. Striking down a requirement that cable operators must, in order to protect children, segregate and block programs with patently offensive sexual material, a plurality opinion in Denver Area Educational Telecommunications Consortium v. FCC,[955] found it unnecessary to determine whether strict scrutiny or some lesser standard applies, because it deemed the restriction invalid under any of the alternative tests. The plurality[956] rejected assertions that public forum analysis,[957] or a rule giving cable operators' editorial rights "general primacy" over the rights of programmers and viewers,[958] should govern.

Subsequently, in United States v. Playboy Entertainment Group, Inc.,[959] the Supreme Court made clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based speech restrictions on cable television. The Court struck down a federal statute designed to "shield children from hearing or seeing images resulting from signal bleed," which refers to blurred images or sounds that come through to non-subscribers.[960] The statute required cable operators, on channels primarily dedicated to sexually oriented programming, either to scramble fully or otherwise fully block such channels, or to not provide such programming when a significant number of children are likely to be viewing it, which, under an FCC regulation meant to transmit the programming only from 10 p.m. to 6 a.m. The Court found that, even without "discount[ing] the possibility that a graphic image could have a negative impact on a young child," it could not conclude that Congress had used "the least restrictive means for addressing the problem."[961] Congress in fact had enacted another provision that was less restrictive and that served the government's purpose. This other provision required that, upon request by a cable subscriber, a cable operator, without charge, fully scramble or otherwise fully block any channel to which a subscriber does not subscribe.[962]

Newspapers, Telephones, and the Internet[edit | edit source]

The Supreme Court has clarified that the relaxed First Amendment standards allowing greater regulation of broadcast and (to a lesser extent) cable television do not apply to newspapers, telephone communications, or the internet. Looking first at newspapers, the Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper.[963] Granting that the number of newspapers had declined over the years, that ownership had become concentrated, and that new entries were prohibitively expensive, the Court agreed with proponents of the law that the problem of newspaper responsibility was a great one. But press responsibility, although desirable, "is not mandated by the Constitution," whereas press freedom is. The compulsion exerted by government on a newspaper to print what it would not otherwise print, "a compulsion to publish that which 'reason tells them should not be published,'" runs afoul of the free press clause.[964]

The Court expressly distinguished the broadcast medium from telephone[965] and internet[966] communications in ruling unconstitutional two different statutes prohibiting certain transmissions of indecent messages. A 2017 opinion went so far as to equate the internet with streets or parks, historically some of the most important--and constitutionally protected--forums for the exercise of First Amendment rights.[967]

Political Speech[edit | edit source]

Overview of Campaign Finance[edit | edit source]

Federal and state governments regulate political campaign financing. At the federal level, the Federal Election Campaign Act (FECA)[968] imposes contribution limits, source restrictions for contributions, disclosure and disclaimer requirements for political advertising, and a presidential public financing system.[969] In a landmark 1976 ruling, Buckley v. Valeo, and its progeny, the Supreme Court has held that such regulation can infringe on First Amendment guarantees of freedom of speech and association.[970] According to the Court, limits on campaign contributions--which involve giving money to an entity, such as a candidate's campaign committee--and expenditures--which involve spending money directly for electoral advocacy--implicate rights of political expression and association under the First Amendment.[971] Likewise, the Court has held that campaign disclosure and disclaimer requirements can infringe on the right to privacy of association and belief as guaranteed under the First Amendment.[972] In evaluating challenges under the First Amendment, the Court has assigned different standards of review to various types of campaign finance regulation, based on the burdens imposed and the government interests served.[973]

Campaign Finance Contribution Limits and Source Restrictions[edit | edit source]

The Supreme Court in Buckley v. Valeo held that contribution limits are subject to a more lenient standard of review than expenditure limits because they impose only a marginal restriction on speech and will be upheld if the government can demonstrate that they are a "closely drawn" means of achieving a "sufficiently important" governmental interest.[974] Unlike expenditure limits, which reduce the amount of expression, the Court opined that contribution limits involve "little direct restraint" on the speech of a contributor.[975] While acknowledging that a contribution limit restricts an aspect of a contributor's freedom of association by affecting a contributor's ability to support a candidate, the Court determined that a contribution limit still permits symbolic expressions of support and does not infringe on a contributor's freedom to speak about candidates and issues.[976]

Under the First Amendment, the Supreme Court has evaluated the constitutionality of specific types of contribution limits. In Buckley, the Court upheld the constitutionality of the Federal Election Campaign Act (FECA)[977] base limits, which cap the amounts of money an individual can contribute to a candidate, party, or political committee.[978] In assessing whether a contribution limit is closely drawn, the Court determined it necessary to examine whether the limit is so low that it significantly impedes a candidate from raising the necessary funds for effective advocacy.[979] In Nixon v. Shrink Missouri Government PAC, the Court announced that while limits must be closely drawn to a sufficiently important interest, the amount of the limitation "need not be 'fine tuned.'"[980] In contrast, in Randall v. Sorell, in a plurality opinion, the Court determined that contribution limits were too low to comport with First Amendment free-speech guarantees when they were substantially lower than limits previously upheld by the Court and limits in effect in other states.[981]

Similarly, in McConnell v. FEC, the Supreme Court upheld against facial constitutional challenges, among other things, a prohibition on national political parties fundraising or spending federally-unregulated funds, known as soft money.[982] The Court determined that the subject provisions of law are, in effect, contribution limits and source restrictions--not expenditure limits because they do not limit the total amount of funds that parties can spend.[983] Hence, the Court applied the "less rigorous" standard of scrutiny that it applied in Buckley to contribution limits.[984] However, the McConnell Court invalidated a prohibition on individuals age seventeen and under from making contributions, reasoning that minors enjoy First Amendment protection and that the prohibition was not closely drawn to serve a sufficiently important government interest.[985]

The Court has considered the constitutionality of aggregate contribution limits, which cap the total amount that an individual can contribute to a candidate, political party, or political committee. In Buckley, the Court upheld the constitutionality of a FECA aggregate contribution limit in effect in 1976, characterizing the limit as a "quite modest restraint" that served to prevent circumvention of base limits.[986] In McCutcheon v. FEC, however, in a plurality opinion, the Court invalidated a similar aggregate limit, determining that regardless of whether strict scrutiny or the "closely drawn" standard applies, the Court needed to "assess the fit" between the government's stated objective and the means to achieve it.[987] Observing a "substantial mismatch" between the two, the opinion concluded that even under the more lenient standard of review, the limits could not be upheld.[988]

In Davis v. FEC, the Supreme Court held that a FECA provision establishing a series of staggered increases in contribution limits for candidates whose opponents significantly self-finance their campaigns violates the First Amendment.[989] The Court reasoned that limits on a candidate's right to advocate for his or her own election are not justified by the compelling governmental interest of preventing corruption because the use of personal funds actually lessens a candidate's reliance on outside contributions, thereby counteracting coercive pressures and risks of abuse that contribution limits seek to avoid.[990]

The Supreme Court has also upheld the constitutionality of laws limiting who can make a campaign contribution, known as a source restriction. In FEC v. Beaumont, the Supreme Court upheld the constitutionality of a FECA prohibition on corporations making direct campaign contributions from their general treasuries in connection with federal elections.[991] The Court observed that large, unlimited contributions can threaten "political integrity," necessitating restrictions in order to counter corruption or its appearance.[992] In that same vein, while not issuing an opinion, the Supreme Court in Bluman v. FEC affirmed a lower court ruling that upheld the constitutionality of another FECA source restriction that prohibits contributions by foreign nationals.[993]

Campaign Finance Expenditure Limits[edit | edit source]

In contrast to contribution limits, the Supreme Court has determined that expenditure limits impose a substantial restraint on speech and association and, hence, are subject to a strict scrutiny standard of review that requires narrow tailoring to serve a compelling governmental interest.[994] According to the Court in Buckley v. Valeo, expenditure limits impose a restriction on the amount of money that a candidate can spend on communications, thereby reducing the number and depth of issues discussed and the size of the audience reached.[995] Such restrictions, the Court determined, are not justified by an overriding governmental interest because expenditures do not involve money flowing directly to the benefit of a candidate's campaign fund and hence, the risk of quid pro quo corruption does not exist.[996] Upon a similar premise, the Court rejected the government's interest in limiting the ability of a wealthy candidate to draw upon personal wealth to finance a campaign and invalidated a law limiting expenditures from personal funds.[997] When a candidate self-finances, the Court observed, the candidate's dependence on outside contributions is reduced, thereby lessening the risk of corruption.[998]

Relying on Buckley, in the 2010 decision of Citizens United v. FEC, the Court invalidated two FECA prohibitions on independent electoral spending by corporations and labor unions.[999] The Court invalidated, first, the long-standing prohibition on corporations and labor unions[1000] using their general treasury funds for independent expenditures,[1001] and second, a Bipartisan Campaign Reform Act (BCRA) prohibition on the use of such funds for electioneering communications.[1002] According to the Court, independent expenditures and electioneering communications are protected speech, regardless of whether the speaker is a corporation. Although the statutory prohibition contained an exception that permitted the use of corporate treasury funds to establish, administer, and solicit contributions to a political action committee (PAC) for such spending,[1003] the Court determined that merely permitting speech through a PAC does not equate to allowing a corporation to speak directly because corporations and PACs are separate associations.[1004] The Court also concluded that upholding the ban on corporate independent electoral spending would have the "dangerous, and unacceptable" result of permitting Congress to prohibit the political speech of media corporations.[1005]

While invalidating the FECA ban on corporate and union-funded independent expenditures, the Citizens United ruling also overturned a 1990 ruling, Austin v. Michigan Chamber of Commerce,[1006] determining that it conflicted with a 1978 precedent, First National Bank of Boston v. Bellotti.[1007] In Bellotti, the Court had invalidated a state prohibition on corporate independent expenditures related to referenda, holding that the government cannot restrict political speech because the speaker is a corporation.[1008] Criticizing the Austin decision for "bypass[ing] Buckley and Bellotti," the Court in Citizens United rejected the "antidistortion interest" that the Court in Austin "identified" to justify limits on political speech.[1009] According to the Court, independent expenditures, including those made by corporations, do not cause corruption or the appearance of corruption.[1010] The Court further denounced the Austin precedent for permitting "interfer[ence] with the 'open marketplace' of ideas protected by the First Amendment" through a ban on speech by millions of associations of citizens--many of them small corporations without large aggregations of wealth.[1011]

Similarly, in invalidating the BCRA-enacted prohibition on corporate and union treasury-funded electioneering communications, the Citizens United ruling overruled a portion of its 2003 decision in McConnell v. FEC that upheld the facial validity of the prohibition, concluding that the McConnell decision had relied on Austin.[1012] The Court reached this conclusion despite a limiting principle imposed by a 2007 ruling, FEC v. Wisconsin Right to Life, Inc. (WRTL).[1013] In WRTL, the Court had narrowed the definition of an electioneering communication to mitigate concerns that the law could prohibit First Amendment protected issue speech, known as issue advocacy. According to the Court in WRTL, the term "electioneering communication" could constitutionally encompass only express advocacy[1014]--communications expressly advocating for the election or defeat of a clearly identified candidate, including for example, statements such as "vote for" or "vote against"--or the "functional equivalent" of express advocacy. Further, the Court in WRTL advised that communications that could reasonably be interpreted as something other than an appeal to vote for or against a specific candidate could not be considered electioneering communications.

Campaign Finance Disclosure and Disclaimer Requirements[edit | edit source]

The Supreme Court has generally affirmed the constitutionality of campaign disclosure requirements. In Buckley v. Valeo, the Court identified three governmental interests justifying Federal Election Campaign Act (FECA) disclosure requirements.[1015] First, the Court determined that disclosure provides the electorate with information as to the source of campaign money, how it is spent, and "the interests to which a candidate is most likely to be responsive"--an informational interest.[1016] Second, the Court stated that disclosure serves to deter corruption and its appearance by uncovering large contributions and expenditures "to the light of publicity," observing that with this information, voters are better able to detect illicit "post-election special favors" by an officeholder in exchange for the contributions.[1017] Third, the Court identified disclosure requirements as an essential method of detecting violations for referral to law enforcement.[1018] In upholding the constitutionality of FECA's disclosure requirements for independent expenditures, the Court determined that so long as they encompass only funds used for express advocacy communications, the requirement is constitutional.[1019] Likewise, in McConnell v. FEC, rejecting a facial challenge to enhanced disclosure requirements, the Court observed that the Buckley ruling distinguished between express advocacy and issue advocacy for the purposes of statutory construction, not constitutional command, and therefore, the First Amendment did not require creating "a rigid barrier" between the two in this case.[1020] In other words, the Court determined, because electioneering communications are intended to influence an election, the absence of "magic words" of express advocacy does not obviate the government's interest in requiring disclosure of such ads in order to combat corruption or its appearance.[1021]

Expanding on its holding in Buckley, in subsequent campaign finance disclosure cases, the balancing of interests has tipped in favor of the constitutionality of disclosure requirements under the First Amendment. In Citizens United v. FEC, the Court upheld FECA's disclosure requirements for electioneering communications as applied to a political documentary and broadcast advertisements promoting it.[1022] The Court determined that while they may burden the ability to speak, disclosure requirements "impose no ceiling on campaign-related activities," and "do not prevent anyone from speaking."[1023] Accordingly, the Court evaluated the requirements under a standard of "exacting scrutiny," a less-rigorous standard than the "strict scrutiny" standard the Court has used to evaluate restrictions on campaign expenditures.[1024] Exacting scrutiny requires a "substantial relation" between the disclosure requirement and a "sufficiently important" government interest, the Court announced.[1025] Further, in Doe v. Reed, the Court upheld the constitutionality of a Washington State public records law.[1026] Categorizing the statute as a disclosure requirement and, therefore, "not a prohibition of speech," the Court evaluated the law under the standard of exacting scrutiny.[1027] The Court determined that the law was substantially related to the governmental interest of safeguarding the integrity of the electoral process and announced that public disclosure "promotes transparency and accountability in the electoral process to an extent other measures cannot."[1028]

Similar to disclosure requirements, the Supreme Court has upheld the constitutionality under the First Amendment of campaign finance disclaimer requirements.[1029] In McConnell v FEC, the Supreme Court upheld the facial validity of the FECA disclaimer requirements, as amended by Bipartisan Campaign Reform Act (BCRA).[1030] Specifically, the Court determined that the FECA disclaimer requirement "bear[ ] a sufficient relationship to the important governmental interest of 'shedding the light of publicity on campaign financing.'"[1031] Revisiting the issue in Citizens United, the Court upheld the disclaimer requirement in BCRA as applied to a political documentary and the broadcast advertisements that an organization planned to run promoting the movie.[1032] According to the Court, while they may burden the ability to speak, like disclosure requirements, disclaimer requirements "impose no ceiling on campaign-related activities," and "do not prevent anyone from speaking."[1033]

Lobbying[edit | edit source]

To lobby means generally "to try to persuade a government official . . . in an attempt to influence some action proposed to be taken."[1034] In its most basic form, lobbying is a form of petitioning the government,[1035] a right protected under the First Amendment.[1036]

While the First Amendment protects the right to petition, the Supreme Court has determined that Congress may regulate individuals who are paid to lobby Congress. For example, Congress may require that lobbyists register, make specific disclosures, and submit reports to Congress. In United States v. Harriss, individuals charged with violating the Federal Regulation of Lobbying Act argued that the registration, reporting, and disclosure requirements of that statute violated their right to petition under the First Amendment.[1037] In upholding the Act, the Court recognized that "[p]resent-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected."[1038] According to the Court, it is important that elected representatives have the necessary information to be able to "evaluate such pressures."[1039] Rather than prohibiting lobbying, the Act merely required a "modicum of information" from those hired to influence Congress to make transparent "who is being hired, who is putting up the money, and how much."[1040] Requiring disclosures about lobbying activities was within Congress's "power of self-protection," for the purpose of maintaining "the integrity of a basic governmental process."[1041]

Beyond regulating paid lobbyists, the Court has also held that Congress has no obligation to subsidize the lobbying activities of private entities. In Cammarano v. United States, the Court upheld a regulation that denied a tax deduction for business expenses spent on lobbying.[1042] The Court explained that the taxpayers were not being denied a tax deduction for engaging in constitutionally protected activities, rather, they were "simply being required to pay for those activities entirely out of their own pockets."[1043] Citing Cammarano, the Court subsequently upheld a statutory provision that similarly denied tax benefits for lobbying activities.[1044] In Regan v. Taxation With Representation of Washington, a nonprofit organization challenged the denial of its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code because a substantial part of its activities were lobbying related.[1045] The organization claimed, among other things, that the prohibition on lobbying activities under 501(c)(3) violated the First Amendment.[1046] In rejecting this argument, the Court determined that Congress had not infringed on or regulated any First Amendment activity, rather, it had "merely refused to pay for the lobbying our of public moneys."[1047]

Although the Court has allowed Congress to regulate paid lobbyists and to decline to subsidize lobbying activity, it has refused to apply other laws when their application chills the underlying exercise of the right to petition the government. For example, the Noerr-Pennington doctrine--established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.[1048] and United Mine Workers v. Pennington[1049]--provides limited immunity from antitrust liability for those "engaging in conduct . . . aimed at influencing decisionmaking by the government."[1050] Under this line of cases, competitors who work in concert to influences the government do not violate the Sherman Antitrust Act.[1051] The Court has reiterated that the Noerr-Pennington doctrine was crafted to "avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances."[1052] The right to petition extends to "all departments of the Government," and includes access to administrative agencies and courts.[1053] The Noerr-Pennington doctrine shields efforts to influence public officials "regardless of intent or purpose."[1054] The Court, however, has recognized a "sham exception" to the doctrine, excluding conduct from immunity that is a "mere sham to cover . . . an attempt to interfere directly with the business relationships of a competitor."[1055]

Legislative Investigations[edit | edit source]

As discussed in an earlier essay, Congress possesses an inherent power of investigation in aid of legislation.[1056] Nonetheless, the government's power of investigation is subject to First Amendment restrictions when the power as exercised results in deterrence or penalization of protected beliefs, associations, and conduct. In early cases, the Supreme Court narrowly construed the authority of congressional committees in order to avoid First Amendment infringement.[1057] Later cases introduced a test that balanced the interests of the legislative bodies in inquiring about both protected and unprotected associations and conduct against what were perceived to be limited restraints upon the speech and association rights of witnesses, and upheld committee investigations.[1058] Later, the Court articulated the balance somewhat differently and required that the investigating agency show "a subordinating interest which is compelling" to justify the inquiry's restraint on First Amendment rights.[1059]

Compelled Speech[edit | edit source]

Overview of Compelled Speech[edit | edit source]

For both the religion and speech clauses of the First Amendment, liberty of belief is the foundation of the liberty to practice one's religion and to express one's opinions.[1060] As the Supreme Court has stated: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."[1061] Speaking in the context of religious freedom, the Court said that, although the freedom to act on one's beliefs could be limited, the freedom to believe what one will "is absolute."[1062] Accordingly, as discussed in the following essays, courts will ordinarily subject government actions that compel speech to heightened constitutional scrutiny--but courts will more readily uphold certain types of disclosure requirements, particularly in the commercial context. An earlier essay discussed the Court's jurisprudence involving disclosures and disclaimers imposed in the context of campaign finance and electioneering regulations.[1063]

Flag Salutes and Other Compelled Speech[edit | edit source]

One question the Supreme Court has considered is whether the government may compel a person to declare or affirm publicly a personal belief. In Minersville School District v. Gobitis,[1064] the Supreme Court had upheld the power of Pennsylvania to expel from its schools children who refused upon religious grounds to join in a flag salute ceremony and recite the pledge of allegiance. The Court explained that "[c]onscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs."[1065] But three years later, in West Virginia State Bd. of Educ. v. Barnette,[1066] a 6-3 majority of the Court overturned Gobitis.[1067] Focusing on the free speech arguments rather than protections for religious exercise, the Court said that the state policy constituted "a compulsion of students to declare a belief," requiring "the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks."[1068] The Court ruled that the power of a state to follow a policy that "requires affirmation of a belief and an attitude of mind," however, is limited by the First Amendment, which, under the standard then prevailing, required the state to prove that for the students to remain passive during the ritual "creates a clear and present danger that would justify an effort even to muffle expression."[1069]

The rationale of Barnette became the basis for the Court's decision in Wooley v. Maynard,[1070] which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto "Live Free or Die."[1071] Acting on the complaint of a motorist who again raised religious objections to this statement, the Court held that the plaintiff could not be compelled by the state to display a message making an ideological statement on his private property. In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment, at least where the speech was not likely to be identified with the owner and the owner could effectively disavow any connection with the speaker's message.[1072]

The Supreme Court has also held other governmental efforts to compel speech to violate the First Amendment; these include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations,[1073] a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers' criticism and attacks on their records,[1074] an Ohio statute that prohibited the distribution of anonymous campaign literature,[1075] a Massachusetts statute that required private citizens who organized a parade to include among the marchers a group imparting a message--in this case support for gay rights--that the organizers did not wish to convey,[1076] and a California law that required certain pro-life centers that offer pregnancy-related services to provide certain notices.[1077] The Court also struck down a federal funding condition that required funding recipients to adopt a policy explicitly opposing sex trafficking.[1078]

The Court continued its reliance on Barnette in 303 Creative LLC v. Elenis a decision prohibiting the application of a state nondiscrimination law to a website designer who wished to refuse to design websites for same sex weddings.[1079] The Colorado Anti-Discrimination Act prohibits "public accommodations" from denying services to individuals based on sexual orientation and other characteristics.[1080] A website designer who wanted to make wedding websites only for marriages "between one man and one woman" brought a pre-enforcement lawsuit, seeking an injunction to prevent the state from applying this law to punish her for discriminating against same-sex marriages.[1081] The Supreme Court held that wedding websites are "pure speech" protected by the First Amendment and that enforcement of Colorado's law requiring creation of wedding websites for same sex marriages would impermissibly compel speech.[1082]

The principle of Barnette, however, does not extend so far as to bar a government from requiring employees or certain persons seeking professional licensing or other benefits to swear an oath that they will uphold and defend the Constitution.[1083]

In contrast to the arguably political speech at issue in Barnette, the Supreme Court has at times found no First Amendment violation when government compels the disclosure of information in a commercial or professional setting. Regarding compelled disclosures in commercial speech, the Court held that an advertiser's "constitutionally protected interest in not providing any particular factual information in his advertising is minimal," and accordingly, a provision requiring a seller to disclose factual information about his goods or services will not violate the First Amendment so long as the requirement is "reasonably related to the State's interest in preventing deception of consumers."[1084]

Moreover, the Court has upheld regulations of professional conduct that only incidentally burden speech. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court considered a law requiring physicians to obtain informed consent before they could perform an abortion.[1085] Specifically, the law at issue in Casey required doctors to tell their patients prior to an abortion about the nature of the procedure, the health risks involved, the age of the unborn child, and the availability of printed materials from the state about various forms of assistance.[1086] In a plurality opinion, the Court rejected a free-speech challenge to the informed consent requirement, viewing the law as "part of the practice of medicine" and a permissible incidental regulation of speech.[1087]

However, the Court has cautioned that reduced scrutiny for compelled commercial and professional speech is limited to particular contexts. For example, limited scrutiny of compelled commercial disclosures only applies to requirements that sellers provide "purely factual" and "uncontroversial information" in their commercial dealings.[1088] As a result, in considering the constitutionality of a California law requiring certain medically licensed, pro-life crisis pregnancy centers to disclose information to patients about the availability of state-subsidized procedures, including abortions, the Court in National Institute of Family and Life Advocates v. Becerra concluded that the Zauderer rule for compelled disclosures of purely factual, uncontroversial information was inapplicable.[1089] Specifically, the Court noted that the notice requirements were unrelated to services that the clinics provided and that the notice included information about abortion, "anything but an 'uncontroversial' topic."[1090]

In that same ruling, the Court rejected the argument that the California law's disclosure requirements were comparable to the informed consent regulations upheld in Casey.[1091] In contrast to the law in Casey, the National Institute of Family and Life Advocates Court concluded that the disclosure requirements were not tied to a particular medical procedure and did not require disclosure of information about the risks or benefits of any medical procedures the clinics provided.[1092] In this sense, the California law, unlike the informed consent law in Casey, did not incidentally burden speech, but instead "regulat[ed] speech as speech."[1093]

The Supreme Court has also rejected a First Amendment challenge to the compelled labeling of foreign political propaganda. Specifically, in Meese v. Keene, the Court upheld a provision of the Foreign Agents Registration Act of 1938 that required that, when an agent of a foreign principal seeks to disseminate foreign "political propaganda," he must label such material with certain information, including his identity, the principal's identity, and the fact that he has registered with the Department of Justice. The Court emphasized that "Congress did not prohibit, edit, or restrain the distribution of advocacy materials," but only "required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda."[1094]

Compelled Subsidization[edit | edit source]

It is to be expected that disputes will sometimes arise between an organization and some of its members regarding the organization's messaging or expression. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.[1095] But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations arising from the First Amendment's protections for speech and association.[1096] It does not always violate the constitution when compulsory fees are used to subsidize the speech of others.[1097] However, the Court has recognized constitutional limitations can arise, for example, in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.[1098] The Court has recognized in this context that "'compelled funding of the speech of other private speakers or groups' presents the same dangers as compelled speech."[1099]

In Railway Employees' Dep't v. Hanson, the Supreme Court upheld the constitutionality of a law authorizing private union shop agreements that required employees to join a union, noting that the record in the case did not indicate that union dues were being "used as a cover for forcing ideological conformity or other action in contravention of the First Amendment," such as by being spent to support political candidates.[1100] In International Ass'n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.[1101]

The Supreme Court held in Janus v. American Federation of State, County, & Municipal Employees, Council 31, that "public sector agency-shop arrangements violate the First Amendment,"[1102] overruling a forty-year old precedent, Abood v. Detroit Board of Education, that had generally approved of such arrangements.[1103] However, even Abood itself had only permitted some aspects of compelled fee regimes,[1104] and the Court had, for years prior to Janus, signaled its growing discomfort with Abood.[1105] Understanding the historical course of the jurisprudence governing compelled agency fees is important to understand the ramifications of Janus.

In Abood v. Detroit Bd. of Education,[1106] the Court found Hanson and Street applicable to the public employment context.[1107] Recognizing that any system of compelled support restricted employees' right not to associate and not to support, the Court nonetheless found the governmental interests served by an "agency shop" agreement[1108]--the promotion of labor peace and stability of employer-employee relations--to be of overriding importance and to justify the impact upon employee freedom.[1109] But the Court drew a different balance when it considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union's duties as collective-bargaining representative. The Court believed that to compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.[1110] The Court's remedy, however, was not to restrain the union from making non-collective bargaining related expenditures, but was to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions.[1111] Later, the Court further tightened the requirements. It concluded that a proportionate refund was inadequate because "even then the union obtains an involuntary loan for purposes to which the employee objects";[1112] an advance reduction of dues corrected the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union's fee.[1113] Therefore, the union procedure must also "provide for a reasonably prompt decision by an impartial decisionmaker."[1114]

In Davenport v. Washington Education Ass'n,[1115] the Court noted that, although it had previously outlined the minimum "procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,"[1116] it "never suggested that the First Amendment is implicated whenever governments place limitations on a union's entitlement to agency fees above and beyond what Abood and Hudson require."[1117] Thus, the Court held in Davenport that the State of Washington could prohibit "expenditure of a nonmember's agency fees for election-related purposes unless the nonmember affirmatively consents."[1118] The Court added that "Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely."[1119]

In Knox v. Service Employees International Union,[1120] the Court suggested constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt-in system. The union in Knox had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for non-union employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic, and described the Court's prior jurisprudence allowing opt-out provisions as anomalous, in the sense of the burdens it imposed on the constitutional rights of objecting nonmembers. The majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed non-union employees to opt in rather than requiring them to opt out.[1121]

Doubts on the constitutionality of mandatory union dues in the public sector intensified in Harris v. Quinn.[1122] Building on concerns outlined in Knox, the Court expressed reservations about Abood's central holding that the collection of an agency fee from public employees withstood First Amendment scrutiny because of the desirability of "labor peace" and the problem of "free ridership." Specifically, the Court questioned (1) the scope of the precedents (like Hanson and Street) that the Abood Court relied on; (2) Abood's failure to appreciate the distinctly political context of public sector unions; and (3) Abood's dismissal of the administrative difficulties in distinguishing between public union expenditures for collective bargaining and expenditures for political purposes.[1123] Notwithstanding these concerns about Abood's core holding, the Court in Harris declined to overturn Abood outright. Instead, the Court focused on the peculiar status of the employees at issue in the case before it: home health care assistants subsidized by Medicaid. These "partial-public employees" were under the direction and control of their individual clients and not the state, had little direct interaction with state agencies or employees, and derived only limited benefits from the union.[1124] As a consequence, the Court concluded that Abood's rationale--the labor peace and free rider concerns--did not justify compelling dissenting home health care assistants to subsidize union speech.[1125]

In Janus v. American Federation of State, County, & Municipal Employees, Council 31, the Supreme Court formally overruled Abood and held "that public sector agency-shop arrangements violate the First Amendment."[1126] The Court rejected the governmental interests said to justify the compelled fees in Abood, holding instead that labor peace can be achieved through less restrictive means and that the government does not have a "compelling interest" in avoiding free riders.[1127] The majority opinion criticized Abood's extension of Hanson and Street, saying neither of those cases "gave careful consideration to the First Amendment" and arguing that Abood's reliance on those cases led it to apply an overly deferential standard to analyze public-sector agency fee arrangements.[1128] In the Court's view, granting too much deference to legislative judgments about the strength of asserted government interests or about whether the challenged action truly supports those interests "is inappropriate in deciding free speech issues."[1129] The Court also disagreed with additional justifications said to justify the agency-shop arrangements, notably holding that they could not be upheld under Pickering v. Board of Education,[1130] a case in which the Court acknowledged that public employers may sometimes place certain restrictions on employees' speech.[1131] Accordingly, after Janus, "States and public-sector unions may no longer extract agency fees from nonconsenting employees."[1132]

Turning to government restrictions on union support, in Ysursa v. Pocatello Education Ass'n,[1133] the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union's First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was "justified by the State's interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics."[1134]

The Court has held that a labor relations body may not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.[1135]

Unconstitutional Conditions on Speech[edit | edit source]

Overview of Unconstitutional Conditions Doctrine[edit | edit source]

The "unconstitutional conditions" doctrine reflects the Supreme Court's repeated pronouncement that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests."[1136] Although the doctrine is not limited to the First Amendment context,[1137] many of the leading Supreme Court cases on unconstitutional conditions have involved the freedom of speech. While the doctrine does not have a formal test,[1138] the basic principle is that the government normally may not require a person, as a condition of receiving a public benefit, to relinquish a constitutional right--most notably, by speaking or refraining from speaking on a certain subject.[1139] How this principle applies in a particular legal challenge depends in part on the "benefit" offered by the government, which can take different forms, including public employment, a tax exemption, or government funding.[1140]

Conditions of Public Employment[edit | edit source]

Some of the earliest unconstitutional conditions cases involving free speech arose in the public employment context. Perry v. Sindermann, a 1972 case, involved a state college's decision not to renew the contract of a professor who had publicly criticized the college administration's policies.[1141] The Supreme Court held that, even though the professor did not have a "contractual or tenure right to re-employment," he could still contend that the college impermissibly retaliated against him for exercising his First Amendment rights.[1142] The Court reasoned that "if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited," thus allowing the government to "'produce a result which [it] could not command directly.'"[1143]

The Court reiterated its skepticism of "indirect" constraints on freedom of speech in its 1976 decision in Elrod v. Burns. In Elrod, the Court ruled unconstitutional a county sheriff's practice of firing non-policymaking employees solely because of their political party affiliation after a change in leadership.[1144] Writing for a plurality of the Court, Justice William Brennan reasoned that the "threat of dismissal" for failure to support "the favored political party" "unquestionably inhibits protected belief and association."[1145] Like the Perry Court, the Elrod plurality rejected the "notion that because there is no right to a government benefit, such as public employment, the benefit may be denied for any reason."[1146] Instead, it concluded that the government cannot use an indirect means (that is, the benefit of public employment) "to achieve what it may not command directly" (that is, support for a particular political party).[1147] While acknowledging the long history of patronage politics in America,[1148] the plurality evaluated the dismissal practice under the "exacting" scrutiny standard used to judge the validity of other "significant impairment[s]" of free speech rights.[1149] If patronage dismissal was to "survive constitutional challenge," Justice William Brennan wrote, "it must further some vital government end by a means that is least restrictive of freedom of belief and association."[1150] The plurality rejected the argument that patronage dismissals further "government effectiveness and efficiency."[1151] While acknowledging that the practice might foster "political loyalty" or preserve aspects of the democratic process, the plurality concluded that the practice was not narrowly tailored to achieve these ends.[1152]

Following Elrod, the Court clarified in Branti v. Finkel that "the ultimate inquiry" in evaluating a patronage dismissal "is not whether the label 'policymaker' or 'confidential' fits a particular position."[1153] Instead, "the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved."[1154] In the case of an assistant public defender, the Court found it "manifest" that the attorney's continued employment could not "properly be conditioned upon his allegiance to the political party in control of the county government."[1155] The Court reasoned that the "primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State"--a duty untethered to "partisan political interests."[1156]

The Court extended the reasoning of Elrod and Branti to other forms of political patronage decisions in Rutan v. Republican Party of Illinois.[1157] The Rutan Court held that a state governor's office could not constitutionally base "promotion, transfer, recall [after a layoff], and hiring decisions involving low-level public employees . . . on party affiliation and support."[1158] The Court concluded that, like patronage dismissals, these practices significantly infringed public employees' First Amendment rights.[1159] The Court then held that the political patronage practices were not "narrowly tailored to further vital governmental interests."[1160] Citing less speech-restrictive alternatives, the Court reasoned that a "government's interest in securing effective employees can be met by discharging, demoting, or transferring staff members whose work is deficient," and its "interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views."[1161]

Conditions on Tax Exemptions[edit | edit source]

The Supreme Court has treated tax exemptions as a kind of government subsidy subject to the unconstitutional conditions doctrine. In an early unconstitutional conditions case, Speiser v. Randall, the Supreme Court considered a California law requiring applicants for a veterans' property tax exemption to sign an oath that they "do not advocate the overthrow" of the federal or state government "by force or violence or other unlawful means."[1162] The Court stated that to "deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech."[1163] In the Court's view, such a requirement would "coerc[e] the claimants to refrain from the proscribed speech."[1164]

In another decision concerning tax exemptions, Regan v. Taxation with Representation of Washington (TWR), the Supreme Court held that the government need not subsidize private entities' speech to comply with the First Amendment.[1165] Specifically, the TWR Court upheld the Internal Revenue Code's ban on "substantial lobbying" activities by tax-exempt Section 501(c)(3) organizations.[1166] In the statutory scheme before the Court, both Section 501(c)(3) "charitable" and Section 501(c)(4) "social welfare" organizations were exempt from federal taxation.[1167] However, only donations to Section 501(c)(3)s were tax deductible.[1168] The Supreme Court held that the "substantial lobbying" restriction on Section 501(c)(3) organizations was not an unconstitutional condition.[1169] Unlike in Speiser where the taxpayer had to refrain from speaking in order to qualify for a tax exemption, the Court reasoned, TWR could engage in substantial lobbying activities, while still qualifying as a tax-exempt organization (albeit not one that could receive tax-deductible contributions).[1170] The Court concluded that the lobbying restriction merely reflected Congress's decision "not to subsidize" substantial lobbying.[1171]

Conditions on Federal Funding[edit | edit source]

From 1980 to 2020, much of the Court's jurisprudence on free-speech-related unconstitutional conditions developed in the context of conditions on federal funding, specifically federal grant programs.[1172] These cases proceeded from the principle, identified in Regan v. Taxation with Representation of Washington,[1173] that the government is not required to subsidize speech with which it does not agree.

Restrictions on Editorializing[edit | edit source]

In FCC v. League of Women Voters of California, the Court considered a condition prohibiting any "noncommercial educational broadcasting station" that received certain federal grants from "editorializing."[1174] The Court rejected the Government's argument that this condition was a permissible exercise of Congress's spending power in the form of a decision not to "subsidize" editorializing by public broadcast stations.[1175] Unlike the organization in TWR, the Court reasoned, a regulated station had no way "to segregate its activities according to the source of its funding," creating a complete bar to editorializing.[1176]

Finding TWR inapposite, the Court analyzed the condition as a restriction on a broadcaster's speech according to First Amendment standards.[1177] After affirming that Congress has more leeway to regulate broadcasting than other types of media such as newspapers,[1178] the Court stated that the condition against editorializing was constitutional only if it was "narrowly tailored to further a substantial governmental interest."[1179] After considering three different potential government interests, the Court ultimately concluded that the condition failed to meet this standard.[1180] First, the Court reasoned, the condition did not substantially advance an interest in protecting grantee-stations from "governmental coercion and interference" that might be associated with federal funding, nor was it narrowly tailored to further that asserted interest.[1181] Second, the Court recognized the government's interest in preventing viewer or listener confusion about the source of the editorializing, but concluded that a less-restrictive disclaimer requirement would have served this interest as effectively.[1182] Third, the Court reasoned that the condition was not narrowly tailored to Congress's substantial interest in "ensuring adequate and balanced coverage of public issues"--an interest "already secured by a variety of other regulatory means that intrude far less drastically upon the 'journalistic freedom' of noncommercial broadcasters."[1183]

Selective Funding Arrangements[edit | edit source]

Because the Constitution does not require the government to subsidize speech,[1184] the Court has held that the government may "selectively fund a program to encourage certain activities," including activities that involve speech, "without at the same time funding" other activities.[1185] The Court announced this rule in 1991 in Rust v. Sullivan, a case involving funding for family-planning services under Title X of the Public Health Service Act.[1186] That act provides that no funds appropriated under Title X "shall be used in programs where abortion is a method of family planning."[1187] For the Supreme Court, there was "no question" that this restriction was constitutional.[1188] The Court held that the government made a permissible choice to "fund one activity to the exclusion of the other."[1189]

The challenged regulations implementing this statutory restriction posed a closer question, but the Court ultimately upheld the regulatory conditions as well. One provision barred a Title X project from providing "counseling concerning the use of abortion as a method of family planning" or "referral[s] for abortion as a method of family planning."[1190] The Court rejected the argument that the prohibition on abortion counseling and referrals discriminated on the basis of viewpoint.[1191] The Court reasoned that the government was not "suppressing a dangerous idea"; it was prohibiting "a project grantee or its employees from engaging in activities outside of the project's scope"; the program was "designed" to "encourage family planning," not fund "prenatal care."[1192] The Court concluded that "when the Government appropriates public funds to establish a program[,] it is entitled to define the limits of that program."[1193]

In addition, the Court upheld provisions in the regulations prohibiting Title X projects from "engaging in activities that 'encourage, promote or advocate abortion as a method of family planning'" and requiring Title X projects to be "'physically and financially separate' from prohibited abortion activities."[1194] In the Court's view, the regulations did not "force the Title X grantee to give up abortion-related speech; they merely require[d] that the grantee keep such activities separate and distinct from Title X activities," thereby ensuring that public funds are "spent for the purposes for which they were authorized."[1195] In other words, the regulations governed "the scope of the Title X project's activities," leaving "the grantee unfettered in its other activities."[1196]

Building on Rust, the Court in National Endowment for the Arts v. Finley suggested that including some subjective criteria in competitive grantmaking does not necessarily amount to impermissible viewpoint discrimination.[1197] There, the Court upheld a federal statute requiring the NEA, in awarding grants, to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public."[1198] The Court concluded that this "advisory language" imposed "no categorical requirement" to reject applicants whose works did not meet the "decency and respect" provision.[1199] Thus, the Court held, the provision did not "introduce considerations that, in practice, would effectively preclude or punish the expression of particular views."[1200] Instead, the Court concluded, the provision "merely adds some imprecise considerations to an already subjective selection process."[1201] As such, it did not violate the First Amendment on its face.[1202]

Government's Message Versus Private Speakers[edit | edit source]

The Court has cautioned that "Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise."[1203] In Legal Services Corp. v. Velazquez, the Court struck down a condition on federal grants to local organizations providing free legal services to indigent clients.[1204] The condition prohibited grantees from representing clients in cases which "involve an effort to amend or otherwise challenge existing law" regarding "a Federal or State welfare system."[1205] As interpreted by the government, the condition required lawyers working for a grantee both to decline a representation that would involve such arguments and to withdraw from a representation when such arguments "became apparent after representation was well underway."[1206]

The Court held that the condition was unconstitutional.[1207] The Court distinguished Rust, explaining that in the circumstances presented there, the government "used private speakers to transmit information pertaining to its own program"[1208] In other words, the government was the speaker in Rust through its program.[1209] In contrast, the Court reasoned, the federal program in Velazquez "was designed to facilitate private speech, not to promote a governmental message."[1210] Congress funded the program so that grantees could "provide attorneys to represent the interests of indigent clients."[1211] In addition, a lawyer working for a grantee speaks on her client's behalf; she is "not the government's speaker."[1212] The condition, the Court reasoned, could prohibit lawyers from presenting "all the reasonable and well-grounded arguments necessary for proper resolution" of welfare cases, thereby "distort[ing]" the "usual functioning" of the legal system to the detriment of individual clients and the courts deciding those cases.[1213] The Court observed that while Congress "was not required to fund the whole range of legal representations or relationships," it could not use funding of private speech to "suppress[ ]. . . ideas thought inimical to the Government's own interest."[1214]

Public Entities and Private Access[edit | edit source]

In 2003, the Court upheld a speech-related condition on funding for a governmental entity. The case, United States v. American Library Association (ALA), concerned two federal programs that provided rebates and grants to help public libraries provide internet access for patrons.[1215] A condition on both programs required recipient libraries to install filtering software to block access to pornographic sites and other material deemed harmful to minors.[1216] The ALA argued that this condition violated libraries' First Amendment right to provide constitutionally protected speech to the public.[1217]

The Court rejected ALA's unconstitutional conditions argument without resolving whether public libraries, as governmental entities, have First Amendment rights.[1218] A plurality of the Court reasoned that, as in Rust, Congress was defining the limits of the programs it was funding--programs designed to help libraries "fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes."[1219] More specifically, the plurality explained, the required filtering software blocks online materials that libraries traditionally would have excluded from their off-line collections.[1220] Echoing TWR and Rust, the plurality also concluded that the condition did not "penalize" a recipient's decision to "provide [its] patrons with unfiltered Internet access"; it "simply reflect[ed] Congress's decision not to subsidize" such access.[1221]

Conditions Exceeding the Scope of the Program[edit | edit source]

Ten years after United States v. American Library Association, in Agency for International Development v. Alliance for Open Society International, the Court considered a condition requiring recipients of federal funding for global HIV/AIDs programs to "have a policy explicitly opposing prostitution and sex trafficking."[1222] A group of funding recipients--domestic organizations with programs outside the United States--challenged this policy requirement on free speech grounds, arguing that it would require them to limit even their privately funded activities.[1223] During the course of the litigation, the federal government issued guidelines allowing funding recipients to work with affiliate organizations that did not have the specified policy so long as the recipients "retain 'objective integrity and independence from any affiliated organization.'"[1224]

The Court acknowledged that the government could not adopt the policy requirement "as a direct regulation of speech."[1225] Because the policy requirement was a funding condition,[1226] however, the Court considered whether it "define[d] the limits of the government spending program" or sought "to leverage funding to regulate speech outside the contours of the program itself."[1227] For a majority of the Court, the policy requirement clearly fell "on the unconstitutional side of [that] line."[1228] The Court reasoned that "the condition by its very nature affects 'protected conduct outside the scope of the federally funded program'" because it requires recipients to "adopt--as their own--the Government's view on an issue of public concern."[1229] The government's guidelines about affiliation with noncompliant entities did not "save" the condition because they required the recipient to either distance itself from its affiliate and their shared message, or clearly identify with its affiliate while espousing the government's message "only at the price of evident hypocrisy."[1230]

The "distinction drawn in these cases--between conditions that define the federal program and those that reach outside it--is not always self-evident."[1231] Nevertheless, it appears to be the line that the Supreme Court has drawn in analyzing funding conditions that affect a recipient's speech--that is, at least for restrictions that the government could not impose directly.[1232]

Requirements That Can Be Imposed Directly[edit | edit source]

In a 2006 decision, the Supreme Court held that a funding condition that affects speech is not an unconstitutional condition "if it could be constitutionally imposed directly."[1233] In Rumsfeld v. Forum for Academic & Institutional Rights, the Court considered a law that required a federal department to withhold certain funds from any higher education institution that had "a policy or practice" of giving military recruiters less favorable access to its campus and students than non-military recruiters.[1234] The requirement comported with the First Amendment, the Court held, because it primarily regulated conduct and the government's interest in supporting military recruiting was sufficient to justify any incidental burdens on expression.[1235] Because Congress could directly require higher education institutions to provide equal access to military recruiters, it could also take the indirect measure of conditioning funding on compliance with the equal-access requirement.[1236]

Symbolic Speech[edit | edit source]

Overview of Symbolic Speech[edit | edit source]

Communication of political, economic, social, and other views is not accomplished solely by face-to-face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also "expressive conduct" or "symbolic speech," which includes activities such as picketing and marching, distribution of leaflets and pamphlets, door-to-door solicitation, flag desecration, and draft-card burnings.[1237] Sit-ins and stand-ins may effectively express a protest about certain things.[1238]

The Supreme Court has said that conduct will be sufficiently "communicative . . . to bring the First Amendment into play" if there is an "intent to convey a particularized message, and . . . the likelihood was great that the message would be understood by those who viewed it."[1239] Further, the conduct must itself be "inherently" expressive--merely "combining speech and conduct" is not sufficient to "transform conduct into 'speech.'"[1240] Expressive conduct is evaluated under a "less stringent" constitutional standard than pure speech and thus more subject to regulation and restriction.[1241] Some expressive conduct may be forbidden altogether, when "a sufficiently important governmental interest in regulating the nonspeech element" of the activity justifies "incidental limitations" on the protected expression.[1242] The relevant test is an intermediate scrutiny standard that was announced in United States v. O'Brien: "a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."[1243] This intermediate standard is related to the idea that even regulations of pure speech may sometimes be justified if they regulate only the time, place, or manner of the speech--that is, focusing on non-content elements of the speech.[1244] If speech is oral, it may be noisy enough to be disturbing,[1245] and, if it is written, it may be litter;[1246] in either case, the noise or litter aspects of the speech may be regulable.[1247]

United States v. O'Brien[1248] affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O'Brien had publicly burned his draft card. Finding that the government's interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than necessary to serve the interest, the Court upheld the statute. Subsequently, the Court upheld a "passive enforcement" policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others.[1249]

Leaflets and Handbills[edit | edit source]

In Lovell v. City of Griffin,[1250] the Supreme Court struck down a permit system applying to the distribution of circulars, handbills, or literature of any kind. The First Amendment, the Court said, "necessarily embraces pamphlets and leaflets," which "have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest."[1251] State courts, responding to what appeared to be a hint in Lovell that prevention of littering and other interests might be sufficient to sustain a flat ban on literature distribution,[1252] upheld total prohibitions and were reversed in Schneider v. State.[1253] The Court held that "[m]ere legislative preferences" for keeping "the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it."[1254] In Talley v. California,[1255] the Court struck down an ordinance that banned all handbills that did not carry the name and address of the author, printer, and sponsor. The Court noted that "[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind," allowing criticism of "oppressive practices and laws either anonymously or not at all."[1256] Imposing identification requirements "might deter perfectly peaceful discussions of public matters of importance."[1257] Responding to the city's defense that the ordinance was aimed at providing a means to identify those responsible for fraud, false advertising, and the like, the Court noted that "the ordinance is in no manner so limited," saying the Court would not, therefore, "pass on the validity of an ordinance limited to these or any other supposed evils."[1258]

Talley's anonymity rationale was strengthened in McIntyre v. Ohio Elections Comm'n,[1259] invalidating Ohio's prohibition on the distribution of anonymous campaign literature. There is a "respected tradition of anonymity in the advocacy of political causes," the Court noted, and neither of the interests asserted by Ohio justified the limitation. The Court held that the state's interest in informing the electorate was "plainly insufficient," and, although the more weighty interest in preventing fraud in the electoral process might be accomplished by a direct prohibition, it could not be accomplished indirectly by an indiscriminate ban on a whole category of speech.[1260] Ohio could not apply the prohibition, therefore, to punish anonymous distribution of pamphlets opposing a referendum on school taxes.[1261]

The handbilling cases were distinguished in City Council v. Taxpayers for Vincent,[1262] in which the Court held that a city may prohibit altogether the use of utility poles for posting of signs. Although a city's concern over visual blight could be addressed by an anti-littering ordinance not restricting the expressive activity of distributing handbills, in the case of utility pole signs "it is the medium of expression itself" that creates the visual blight. Hence, the city's prohibition, unlike a prohibition on distributing handbills, was narrowly tailored to curtail no more speech than necessary to accomplish the city's legitimate purpose.[1263] Ten years later, however, the Court unanimously invalidated a town's broad ban on residential signs that permitted only residential identification signs, "for sale" signs, and signs warning of safety hazards.[1264] Prohibiting homeowners from displaying political, religious, or personal messages on their own property entirely foreclosed "a venerable means of communication that is unique and important," and that is "an unusually cheap form of communication" without viable alternatives for many residents.[1265] The ban was thus reminiscent of total bans on leafleting, distribution of literature, and door-to-door solicitation that the Court had struck down in the 1930s and 1940s. The prohibition in Vincent was distinguished as not removing a "uniquely valuable or important mode of communication," and as not impairing citizens' ability to communicate.[1266]

Flags as a Case Study in Symbolic Speech[edit | edit source]

Very little expression is "mere" speech. Conduct may have a communicative content, intended to express a point of view. Expressive conduct may consist of flying a particular flag as a symbol[1267] or in refusing to salute a flag as a symbol.[1268]

In one case, the Supreme Court concluded that "the flag salute is a form of utterance," explaining that symbolism is communication, and "[t]he use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind."[1269] When conduct or action has a communicative content to it, governmental regulation or prohibition implicates the First Amendment, but this does not mean that such conduct or action is necessarily immune from governmental process.

The Court divided when it had to deal with one of the more popular forms of "symbolic" conduct of the late 1960s and early 1970s--flag burning and other forms of flag desecration. Thus, in Street v. New York,[1270] the defendant had been convicted under a statute punishing desecration "by words or act" upon evidence that when he burned the flag he had uttered contemptuous words. The conviction was set aside because it might have been premised on his words alone or on his words and the act together, and no valid governmental interest supported penalizing verbal contempt for the flag.[1271]

A few years later the Court reversed two other flag desecration convictions, one on due process/vagueness grounds, the other under the First Amendment. In Smith v. Goguen,[1272] a statute punishing anyone who "publicly . . . treats contemptuously the flag of the United States" was held unconstitutionally vague, and a conviction for wearing trousers with a small United States flag sewn to the seat was overturned. The language subjected the defendant to criminal liability under a standard "so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag."[1273]

The First Amendment was the basis for reversal in Spence v. Washington,[1274] which set aside a conviction under a statute punishing the display of a United States flag to which something is attached or superimposed. The defendant had hung his flag from his apartment window upside down with a peace symbol taped to the front and back. The act, the Court thought, was a form of communication, and because of the nature of the act, and the factual context and environment in which it was undertaken, the Court held it to be protected. The context considered by the Court included the fact that the flag was privately owned, that it was displayed on private property, and that there was no danger of breach of the peace. The Court also emphasized that the act was intended to express an idea and it did so without damaging the flag. The Court assumed that the state had a valid interest in preserving the flag as a national symbol, but left unclear whether that interest extended beyond protecting the physical integrity of the flag.[1275]

The underlying assumption that flag burning could be prohibited as a means of protecting the flag's symbolic value was later rejected. Twice, in 1989 and again in 1990, the Court held that prosecutions for flag burning at a public demonstration violated the First Amendment. First, in Texas v. Johnson[1276] the Court rejected a state desecration statute designed to protect the flag's symbolic value, and then in United States v. Eichman[1277] rejected a more limited federal statute purporting to protect only the flag's physical integrity. Both cases were decided by 5-4 votes, with Justice William Brennan writing the Court's opinions.[1278] The Texas statute invalidated in Johnson defined the prohibited act of "desecration" as any physical mistreatment of the flag that the actor knew would seriously offend other persons. This emphasis on causing offense to others meant that the law was not "unrelated to the suppression of free expression" and that consequently the deferential standard of United States v. O'Brien, discussed in an earlier essay, was inapplicable.[1279] Applying strict scrutiny instead, the Court ruled that the state's prosecution of someone who burned a flag at a political protest was not justified under the state's asserted interest in preserving the flag as a symbol of nationhood and national unity. The Court's opinion left open the question whether the Court would uphold a "content-neutral" statute protecting the physical integrity of the flag.

Immediately following Johnson, Congress enacted a new flag protection statute providing punishment for anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States."[1280] The law was designed to be content-neutral and to protect the "physical integrity" of the flag.[1281] Nonetheless, the 1990 decision in United States v. Eichman overturned convictions of flag burners, as the Court found that the law suffered from "the same fundamental flaw" as the Texas law in Johnson.[1282] The government's underlying interest, characterized by the Court as resting upon "a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals,"[1283] still related to the suppression of free expression. Support for this interpretation was found in the fact that most of the prohibited acts are usually associated with disrespectful treatment of the flag; this suggested to the Court "a focus on those acts likely to damage the flag's symbolic value."[1284] As in Johnson, such a law could not withstand strict scrutiny analysis.

Public Issue Picketing and Parading[edit | edit source]

In its early cases, the Supreme Court held that picketing and parading were forms of expression entitled to some First Amendment protection.[1285] Those early cases did not, however, explicate the difference in application of First Amendment principles that the difference between mere expression and speech-plus would entail. Many of these cases concerned disruptions or feared disruptions of the public peace occasioned by the expressive activity and the ramifications of this on otherwise protected activity.[1286] A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and expanded the procedural guarantees that must accompany a permissible licensing system.[1287] In Hughes v. Superior Court, however, the Supreme Court upheld an injunction against picketers asking a grocery store to adopt a quota-hiring system for Black employees, affirming the state court's ruling that picketing to coerce the adoption of racially discriminatory hiring was contrary to state public policy.[1288]

A series of civil rights picketing and parading cases led the Court to formulate standards seemingly more protective of expressive activity. The process began with Edwards v. South Carolina,[1289] in which the Court reversed a breach of the peace conviction of several Black protesters for their refusal to disperse as ordered by police. The statute was so vague, the Court concluded, that the demonstrators had been convicted simply because they peaceably expressed unpopular views. Describing the demonstration upon the grounds of the legislative building in South Carolina's capital, Justice Potter Stewart observed that "[t]he circumstances in this case reflect an exercise of these basic [First Amendment] constitutional rights in their most pristine and classic form."[1290] In subsequent cases, however, the Court rejected the idea that the First Amendment "afford[s] the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as . . . to those who communicate ideas by pure speech."[1291] The Court emphasized that "certain forms of conduct mixed with speech may be regulated or prohibited," and further concluded that picketing and parading may be regulated under a sufficiently narrowly drawn statute "even though [such conduct is] intertwined with expression and association."[1292]

The Court must determine, of course, whether the regulation is aimed primarily at conduct, or whether instead the aim is to regulate the content of speech. In a series of decisions, the Court refused to permit restrictions on parades and demonstrations, and reversed convictions for breach of the peace and similar offenses, when, in the Court's view, opponents of the demonstrators' messages had created the disturbance.[1293] Subsequently, however, the Court upheld a ban on residential picketing in Frisby v. Shultz,[1294] finding that the city ordinance was narrowly tailored to serve the "significant" governmental interest in protecting residential privacy. As interpreted, the ordinance banned only picketing that targeted a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing.[1295]

In 1982's NAACP v. Claiborne Hardware Co.,[1296] the Justices confronted a case, that, like Hughes v. Superior Court,[1297] involved a state court injunction on picketing, although this one also involved a damage award. The case arose in the context of a protest against racial conditions by Black citizens of Claiborne County, Mississippi. Listing demands that included desegregation of public facilities, hiring Black policemen, hiring more Black employees by local stores, and ending verbal abuse by police, the local chapter of the National Association for the Advancement of Colored People, Inc. (NAACP) unanimously voted to boycott the area's White merchants. The boycott was carried out through speeches and nonviolent picketing and solicitation of others to cease doing business with the merchants. Individuals were designated to watch stores and identify Black people patronizing the stores; their names were then announced at meetings and published. Persuasion of others included social pressures and threats of social ostracism. Acts of violence did occur from time to time, directed in the main at Black people who did not observe the boycott.

The state Supreme Court imposed joint and several liability upon leaders and participants in the boycott, and upon the NAACP, for all of the merchants' lost earnings during a seven-year period on the basis of the common law tort of malicious interference with the merchants' business, holding that the existence of acts of physical force and violence and the use of force, violence, and threats to achieve the ends of the boycott deprived it of any First Amendment protection.

Reversing, the Supreme Court observed that the goals of the boycotters were legal and that most of their means were constitutionally protected; although violence was not protected, its existence alone did not deprive the other activities of First Amendment coverage, particularly where there was no evidence that the boycott organizers authorized, ratified, or even had specific knowledge of the violence. Thus, speeches and nonviolent picketing, both to inform the merchants of grievances and to encourage others to join the boycott, were protected activities, and association for those purposes was also protected.[1298] The Court ruled that the activity was protected even though nonparticipants had been urged to join by threats of social ostracism: "[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action."[1299] The boycott had a disruptive effect upon local economic conditions and resulted in loss of business for the merchants, but in the Court's view, these consequences did not justify suppression of the boycott. Government may regulate certain economic activities having an incidental effect upon speech (for example, labor organizing or business conspiracies to restrain competition),[1300] but that power of government does not extend to suppression of picketing and other boycott activities involving, as this case did, speech upon matters of public affairs with the intent of affecting governmental action and motivating private actions to achieve racial equality.[1301]

The critical issue for the lower court, however, had been the occurrence of violent acts. The Supreme Court first affirmed that the "First Amendment does not protect violence" or prevent a state "from imposing tort liability for business losses that are caused by violence and by threats of violence."[1302] Nonetheless, the Court stressed that the First Amendment demands precision of regulation "[w]hen such conduct occurs in the context of constitutionally protected activity," limiting "the grounds that may give rise to damages liability and . . . the persons who may be held accountable for those damages."[1303] In other words, the states may impose damages for the consequences of violent conduct, but they may not award compensation for the consequences of nonviolent, protected activity.[1304] Thus, the state courts had to compute, upon proof by the merchants, what damages had been the result of violence, and only those nonviolent persons who associated with others with an awareness of violence and an intent to further it could similarly be held liable.[1305] Because most of the acts of violence had occurred early on, in 1966, there was no way constitutionally that much if any of the later losses of the merchants could be recovered in damages.[1306] As to the field secretary of the local NAACP, the Court refused to permit imposition of damages based upon speeches that could be read as advocating violence, because they did not meet the standard for speech likely to incite imminent lawless action.[1307] The award against the NAACP fell with the denial of damages against its local head, and, in any event, the protected right of association required a rule that would immunize the NAACP without a finding that it "authorized--either actually or apparently--or ratified unlawful conduct."[1308]

Claiborne Hardware is, thus, a seminal decision in the Court's effort to formulate standards governing state power to regulate or to restrict expressive conduct that comes close to or crosses over the line to encompass some violent activities; it requires great specificity and the drawing of fine discriminations by government so as to reach only that portion of the activity that does involve violence or the threat of violence.[1309]

More recently, disputes arising from anti-abortion protests outside abortion clinics have occasioned another look at principles distinguishing lawful public demonstrations from proscribable conduct. In Madsen v. Women's Health Center,[1310] the Court refined principles governing issuance of "content-neutral" injunctions that restrict expressive activity.[1311] The appropriate test, the Court stated, is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant governmental interest."[1312] Regular time, place, and manner analysis (requiring that regulation be narrowly tailored to serve a significant governmental interest) "is not sufficiently rigorous," the Court explained, "because injunctions create greater risk of censorship and discriminatory application, and because of the established principle that an injunction should be no broader than necessary to achieve its desired goals."[1313] Applying its new test, the Court upheld an injunction prohibiting protesters from congregating, picketing, patrolling, demonstrating, or entering any portion of the public right-of-way within thirty-six feet of an abortion clinic--after concluding that the injunction targeted this particular group of protesters because of their past actions, rather than because of the content or viewpoint of their speech. The Court also upheld the injunction's noise restrictions designed to ensure the health and well-being of clinic patients. Other aspects of the injunction, however, did not pass the test. The Court believed inclusion of private property within the thirty-six-foot buffer was not adequately justified, nor was inclusion in the noise restriction of a ban on "images observable" by clinic patients. A ban on physically approaching any person within 300 feet of the clinic unless that person indicated a desire to communicate burdened more speech than necessary, in the Court's view. Also, a ban on demonstrating within 300 feet of the residences of clinic staff was not sufficiently justified, as the Court said the restriction covered a much larger zone than an earlier residential picketing ban that the Court had upheld.[1314]

In Schenck v. Pro-Choice Network of Western New York,[1315] the Court applied the Madsen test to another injunction that placed restrictions on demonstrating outside an abortion clinic. The Court upheld the portion of the injunction that banned "demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities"--what the Court called "fixed buffer zones."[1316] It struck down a prohibition against demonstrating "within fifteen feet of any person or vehicles seeking access to or leaving such facilities"--what it called "floating buffer zones."[1317] The Court cited "public safety and order"[1318] in upholding the fixed buffer zones, but it found that the floating buffer zones "burden[ed] more speech than is necessary to serve the relevant governmental interests"[1319] because they made it "quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction."[1320] The Court also upheld a "provision, specifying that once sidewalk counselors who had entered the buffer zones were required to 'cease and desist' their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones."[1321]

In Hill v. Colorado,[1322] the Court upheld a Colorado statute that made it unlawful, within 100 feet of the entrance to any health care facility, to "knowingly approach" within eight feet of another person, without that person's consent, "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person."[1323] This decision is notable because it upheld a statute, and not, as in Madsen and Schenck, merely an injunction directed to particular parties. The Court found the statute to be a content-neutral time, place, and manner regulation of speech that "reflect[ed] an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners."[1324] The restrictions were content-neutral because they regulated only the places where some speech may occur, and because they applied equally to all demonstrators, regardless of viewpoint. Although the restrictions did not apply to all speech, the Court deemed the "kind of cursory examination" that might be required to distinguish casual conversation from protest, education, or counseling not "problematic," noting that it often would not be necessary to know the exact content of speech to determine whether a person's course of conduct was covered by the law.[1325] The Court further held that the law was narrowly tailored to achieve the state's interests, saying that the eight-foot restriction did not significantly impair the ability to convey messages by signs, and ordinarily allowed speakers to come within a normal conversational distance of their targets. Because the statute allowed the speaker to remain in one place, persons who wished to hand out leaflets could position themselves beside entrances near the path of oncoming pedestrians, and consequently were not deprived of the opportunity to get the attention of persons entering a clinic.

In McCullen v. Coakley, the Court applied the same content-neutral analysis as that in Hill, but nonetheless struck down a statutory thirty-five-foot buffer zone at entrances and driveways of abortion facilities.[1326] The Court concluded that the buffer zone was not narrowly tailored to serve governmental interests in maintaining public safety and preserving access to reproductive healthcare facilities, the concerns claimed by Massachusetts to underlie the law.[1327] The opinion cited several alternatives to the buffer zone that would not curtail the use of public sidewalks as traditional public forums for speech, nor significantly burden the ability of those wishing to provide "sidewalk counseling" to women approaching abortion clinics. Specifically, the Court held that, to preserve First Amendment rights, targeted measures, such as injunctions, enforcement of anti-harassment ordinances, and use of general crowd control authority, as needed, are preferable to broad, prophylactic measures.[1328]

Different types of issues were presented by Hurley v. Irish-American Gay Group,[1329] in which the Court held that a state's public accommodations law could not be applied to compel private organizers of a St. Patrick's Day parade to accept in the parade a unit that would proclaim a message that the organizers did not wish to promote. Each participating unit affects the message conveyed by the parade organizers, the Court observed, and application of the public accommodations law to the content of the organizers' message contravened the "fundamental rule . . . that a speaker has the autonomy to choose the content of his own message."[1330]

Labor Union Protests and Marches[edit | edit source]

The Supreme Court has suggested that "public-issue picketing" rests "on the highest rung of the hierarchy of First Amendment values," while labor picketing might be treated somewhat differently.[1331] Though the public issue cases are "logically relevant" to labor picketing, the cases dealing with application of economic pressures by labor unions are set apart by different "economic and social interests."[1332]

It was in a labor case that the Court first held picketing to be entitled to First Amendment protection.[1333] Striking down a flat prohibition on picketing with intent to influence or induce someone to do something, the Court said: "In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution."[1334] The Court further reasoned that "the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests."[1335]

The Court soon recognized several caveats to this protection, saying, for example, that peaceful picketing may be enjoined if it is associated with violence and intimidation.[1336] Although initially the Court continued to find picketing protected in the absence of violence,[1337] it soon decided a series of cases recognizing a potentially far-reaching exception: injunctions against peaceful picketing in the course of a labor controversy may be enjoined when such picketing is counter to valid state policies in a domain open to state regulation.[1338] The apparent culmination of this course of decision was International Brotherhood of Teamsters v. Vogt, in which Justice Felix Frankfurter broadly rationalized all the cases and derived the rule that "a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy."[1339] Although the Court has not disavowed this broad language, the Vogt exception has apparently not swallowed the entire Thornhill rule.[1340] The Court has indicated that "a broad ban against peaceful picketing might collide with the guarantees of the First Amendment."[1341]

Solicitation[edit | edit source]

In Martin v. City of Struthers, the Supreme Court struck down an ordinance forbidding solicitors or distributors of literature from knocking on residential doors in a community, the asserted aims of the ordinance being to protect privacy, to protect the sleep of many who worked night shifts, and to protect against burglars posing as canvassers. The 5-4 majority concluded that "[t]he dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas."[1342]

Later, although striking down an ordinance because of vagueness, the Court observed that it "has consistently recognized a municipality's power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing" with a more "narrowly drawn ordinance, that does not vest in municipal officers the undefined power to determine what messages residents will hear."[1343] However, an ordinance that limited solicitation of contributions door-to-door by charitable organizations to those that use at least 75% of their receipts directly for charitable purposes, defined so as to exclude the expenses of solicitation, salaries, overhead, and other administrative expenses, was invalidated as overbroad.[1344] The Court rejected a privacy rationale, as just as much intrusion was likely by permitted as by non-permitted solicitors. A rationale of prevention of fraud was also unavailing, as the Court did not believe that all associations that spent more than 25% of their receipts on overhead were actually engaged in a profit-making enterprise, and, in any event, more narrowly drawn regulations, such as disclosure requirements, could serve this governmental interest.

The Court similarly invalidated laws regulating solicitation in Secretary of State v. Joseph H. Munson Co.,[1345] and Riley v. National Federation of the Blind.[1346] In Munson, the Court invalidated an overbroad Maryland statute limiting professional fundraisers to 25% of the amount collected plus certain costs, and allowing waiver of this limitation if it would effectively prevent the charity from raising contributions. In Riley, the Court invalidated a North Carolina fee structure containing even more flexibility.[1347] The Court saw "no nexus between the percentage of funds retained by the fundraiser and the likelihood that the solicitation is fraudulent," and expressed concern about the law placing the burden on the fundraiser to show that a fee structure is reasonable.[1348] Moreover, a requirement that fundraisers disclose to potential donors the percentage of donated funds previously used for charity was also invalidated in Riley, the Court indicating that the "more benign and narrowly tailored" alternative of disclosure to the state (accompanied by state publishing of disclosed percentages) could make the information publicly available without so threatening the effectiveness of solicitation.[1349]

In Watchtower Bible & Tract Soc'y v. Village of Stratton, the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy--religious, political, or commercial--without first registering with the mayor and receiving a permit.[1350] "It is offensive to the very notion of a free society," the Court wrote,"that a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so."[1351] The Court ruled that the ordinance violated the right to anonymity, burdened the freedom of speech of those who hold "religious or patriotic views" that prevent them from applying for a license, and effectively banned "a significant amount of spontaneous speech" that might be engaged in on a holiday or weekend when it was not possible to obtain a permit.[1352]

  1. Annals of Cong. 434 (1789). Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Id. at 435. Although passed by the House, the amendment was defeated by the Senate.
  2. Id. at 731.
  3. The Bill of Rights: A Documentary History 1148-49 (B. Schwartz ed. 1971).
  4. Id. at 1153.
  5. The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Cong. 731-49 (Aug. 15, 1789).
  6. Id. at 738.
  7. For example, Madison refused to concur officially in President George Washington's condemnation of "[c]ertain self-created societies"--political clubs supporting the French Revolution--and he successfully deflected Federalist interest in censuring such societies. I. Brant, James Madison: Father of the Constitution 1787-1800, at 416-20 (1950). "If we advert to the nature of republican government," Madison told the House, "we shall find that the censorial power is in the people over the government, and not in the government over the people." 4 Annals of Cong. 934 (1794). However, while a member of his county's committee on public safety, Madison had promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161-62, 190-92 (W. Hutchinson & W. Rachal, eds., 1962). Writing to Madison in 1788, Jefferson stated: "A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed." 13 Papers of Thomas Jefferson 442 (J. Boyd ed., 1955). A year later, Jefferson suggested to Madison that the free speech-free press clause might read something like: "The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations." 15 Papers, supra, at 367.
  8. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964).
  9. 1 Stat. 596 (1798)
  10. See J. Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties 159 et seq. (1956).
  11. N.Y. Times Co., 376 U.S. at 276.
  12. NAACP v. Button, 371 U.S. 415, 432-33 (1963).
  13. Ams. for Prosperity Found. v. Bonta, No. 19-251, slip op. at 15 (U.S. July 1, 2021) (internal citations omitted) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987); Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)).
  14. See, e.g., Barr v. Am. Ass'n of Political Consultants, No. 19-631, slip op at 13-14 (U.S. July 6, 2020) (discussing severability doctrine and the "power and preference" for partial invalidation of a statute); United States v. Salerno, 481 U.S. 739, 745 (1987) ("[W]e have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."). But cf., e.g., Aptheker v. Secretary of State, 378 U.S. 500, 515-16 (1964) (concluding a First Amendment overbreadth case provided the appropriate analysis for a right-to-travel challenge to a statute that could not be narrowed due to the law's "indiscriminately cast and overly broad scope").
  15. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984).
  16. Virginia v. Hicks, 539 U.S. 113, 118-19 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
  17. United States v. Stevens, 559 U.S. 460, 464, 482 (2010).
  18. Id. at 474, 481. See, also, e.g., United States v. Robel, 389 U.S. 258, 266 (1967) (federal law barring members of registered Communist-action organizations from employment in defense facilities); Lewis v. City of New Orleans, 415 U.S. 130, 131-32 (1974) (state law prohibiting using fighting words towards police performing official duties); Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-18 (1975) (city ordinance prohibiting films with nudity from being shown when visible from public streets); Doran v. Salem Inn, 422 U.S. 922, 932-34 (1975) (local ordinance prohibiting topless dancing in certain establishments, in the context of an appeal of a preliminary injunction); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633-39 (1980) (municipal ordinance prohibiting certain charitable organizations from soliciting contributions); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 949-50 (1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451, 455, 467 (1987) (city ordinance making it unlawful to "oppose, molest, abuse, or interrupt" police officer in performance of duty); Bd. of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569, 570, 577 (1987) (resolution banning all "First Amendment activities" at airport); Reno v. ACLU, 521 U.S. 844, 874-879 (1997) (statute banning "indecent" material on the internet); Iancu v. Brunetti, No. 18-302, slip op. at 11 (June 24, 2019) (federal law prohibiting the registration of immoral or scandalous trademarks); Ams. for Prosperity Found. (state law requiring charities to file forms disclosing information about donors).
  19. Hicks, 539 U.S. at 119 (upholding an ordinance banning from streets within a low-income housing development any person who is not a resident or employee and who "cannot demonstrate a legitimate business or social purpose for being on the premises"). The Supreme Court has also rejected application of the doctrine in, for example, Arnett v. Kennedy, 416 U.S. 134, 158-64 (1974) (plurality opinion); Parker v. Levy, 417 U.S. 733, 757-61 (1974); and New York v. Ferber, 458 U.S. 747, 766-74 (1982).
  20. United States v. Williams, 553 U.S. 285, 293 (2008) (quoting L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39 (1999)).
  21. Hicks, 539 U.S. at 119-20.
  22. Erznoznik, 422 U.S. at 216.
  23. Bd. of Trs. v. Fox, 492 U.S. 469, 481 (1989); see also, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 380 (1977) ("[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context.")
  24. The vagueness doctrine generally requires that a statute be precise enough to give fair warning to actors that contemplated conduct is criminal, and to provide adequate standards to enforcement agencies, factfinders, and reviewing courts. See Fifth Amend.: Overview of Void for Vagueness Doctrine through Fifth Amend.: Laws That Establish Permissible Criminal Sentences.
  25. See, e.g., Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 807 (2011).
  26. See Fifth Amend.: Overview of Void for Vagueness Doctrine; see also, e.g., NAACP v. Button, 371 U.S. 415, 432-33 (1963).
  27. E.g., Cramp v. Bd. of Pub. Instruction, 368 U.S. 278 (1961); Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Bd. of Regents, 385 U.S. 589 (1967). See also Gentile v. State Bar of Nev., 501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements).
  28. E.g., Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968); Reno v. ACLU, 521 U.S. 844, 870-874 (1997). In Nat'l Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the Court held that a "decency" criterion for the awarding of grants, which "in a criminal statute or regulatory scheme . . . could raise substantial vagueness concerns," was not unconstitutionally vague in the context of a condition on public subsidy for speech.
  29. E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); Gregory v. City of Chicago, 394 U.S. 111 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971). See also Smith v. Goguen, 415 U.S. 566 (1974) (flag desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974) (punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) (door-to-door canvassing).
  30. Holder v. Humanitarian L. Project, 561 U.S. 1, 21 (2010); see also, e.g., Young v. Am. Mini Theatres, 427 U.S. 50, 59-61 (1976) (rejecting vagueness challenge brought by litigants who were "not affected" by "any element of vagueness" in the challenged laws, where they had not shown the statute had a real and substantial deterrent effect on protected speech).
  31. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).
  32. 3 Joseph Story, Commentaries on the Constitution of the United States § 1876 (1833).
  33. Lovell v. Griffin, 303 U.S. 444, 451 (1938); Near, 283 U.S. at 713.
  34. Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963).
  35. Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
  36. Near, 283 U.S. at 702, 723.
  37. Id. at 704.
  38. Id. at 733-36 (Butler, J., dissenting).
  39. Id. at 713 (majority opinion).
  40. Id. at 720 (emphasis added).
  41. Id. at 716.
  42. Pittsburgh Press Co. v. Pittsburgh Comm'n on Hum. Rels., 413 U.S. 376, 390 (1973); see also Vance v. Univ. Amusement Co., 445 U.S. 308, 315-16 (1980) ("[T]he burden of supporting an injunction against a future exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication.").
  43. See Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 169-71 (1998).
  44. E.g., Lovell v. Griffin, 303 U.S. 444 (1938); Cantwell v. Connecticut, 310 U.S. 296 (1940); Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268 (1951); Staub v. City of Baxley, 355 U.S. 313 (1958). For other applications, see Grosjean v. American Press Co., 297 U.S. 233 (1936); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944). Some of these cases involved both free speech and free exercise rights. See First Amend.: Laws Neutral to Religious Practice during the 1940s and 1950s.
  45. Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New Hampshire, 345 U.S. 395 (1953). In Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175 (1968), the Court held invalid the issuance of an ex parte injunction to restrain the holding of a protest meeting. The Carroll Court held that usually notice must be given the parties to be restrained and an opportunity for them to rebut the contentions presented to justify the sought-for restraint. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Court held invalid as a prior restraint an injunction preventing the petitioners from distributing 18,000 pamphlets attacking respondent's alleged "blockbusting" real estate activities; he was held not to have borne the "heavy burden" of justifying the restraint. The Court stated: "No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy . . . is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record." Id. at 419-20. See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property is facially invalid as prior restraint).
  46. Freedman v. Maryland, 380 U.S. 51, 58 (1965).
  47. Id.
  48. Id.
  49. Id. at 59. The Court further explained that "[a]ny restraint imposed in advance of a final judicial determination on the merits must . . . be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution," and "the procedure must . . . assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license." Id. at 59. The necessity of immediate appellate review of orders restraining the exercise of First Amendment rights was strongly emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977), and seems to explain the Court's action in Philadelphia Newspapers v. Jerome, 434 U.S. 241 (1978). But see Moreland v. Sprecher, 443 U.S. 709 (1979) (party can relinquish right to expedited review through failure to properly request it).
  50. Thomas v. Chi. Park Dist., 534 U.S. 316, 322-23 (2002).
  51. New York Times Co. v. United States, 403 U.S. 713 (1971). The vote was 6-3, with Justices Hugo Black, William O. Douglas, William Brennan, Potter Stewart, Byron White, and Thurgood Marshall in the majority and Chief Justice Warren Burger and Justices John Harlan and Harry Blackmun in the minority. Each Justice issued an opinion.
  52. The three dissenters thought such restraint appropriate in this case. Id. at 748, 752, 759. Justice Potter Stewart thought restraint would be proper if disclosure "will surely result in direct, immediate, and irreparable damage to our Nation or its people," id. at 730, while Justice Byron White did not endorse any specific phrasing of a standard. Id. at 730-33. Justice William Brennan would preclude even interim restraint except upon "governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea." Id. at 712-13. With respect to the right of the Central Intelligence Agency to prepublication review of the writings of former agents and its enforcement through contractual relationships, see Snepp v. United States, 444 U.S. 507 (1980); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975), cert. denied, 421 U.S. 992 (1975); United States v. Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).
  53. Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).
  54. Id. at 562 (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950), aff'd, 341 U.S. 494, 510 (1951)). Applying the tests, the Court agreed that (a) there was intense and pervasive pretrial publicity and more could be expected, but that (b) the lower courts had made little effort to assess the prospects of other methods of preventing or mitigating the effects of such publicity and that (c) in any event the restraining order was unlikely to have the desired effect of protecting the defendant's rights. Id. at 562-67. For more information on the Court's movement away from the clear-and-present danger standard, see First Amend.: Incitement Movement from Clear and Present Danger Test.
  55. Nebraska Press Ass'n, 427 U.S. at 569-70. The Court distinguished between reporting on judicial proceedings held in public and reporting of information gained from other sources, but found that a heavy burden must be met to secure a prior restraint on either. Id. at 570. See also Oklahoma Publ'g Co. v. Dist. Ct., 430 U.S. 308 (1977) (setting aside injunction restraining news media from publishing name of juvenile involved in pending proceeding when name has been learned at open detention hearing that could have been closed but was not); Smith v. Daily Mail Publ'g Co., 443 U.S. 97 (1979).
  56. 467 U.S. 20, 36 (1984). The decision was unanimous, all other Justices joining Justice Lewis Powell's opinion for the Court, but Justices William Brennan and Thurgood Marshall noting additionally that under the facts of the case important interests in privacy and religious freedom were being protected. Id. at 37, 38.
  57. Through interpretation of the Fourteenth Amendment, the prohibition extends to the states as well. See Bill of Rights: The Fourteenth Amendment and Incorporation. Of course, the First Amendment also applies to the non-legislative branches of government--to every "government agency--local, state, or federal." Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).
  58. See, e.g., First Amend.: State Action Doctrine and Free Speech.
  59. Manhattan Cmty. Access Corp. v. Halleck, No. 17-702, slip op. at 6 (U.S. June 17, 2019) (internal citations omitted) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 352-54 (1974), Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982), and Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-42 (1982), respectively).
  60. 513 U.S. 374, 383, 394 (1995); see also Dep't of Transp. v. Ass'n of Am. R.R., 575 U.S. 43, 55 (2015) (extending the holding of Lebron, such that Amtrak was considered a governmental entity "for purposes of" the Fifth Amendment due process and separation-of-powers claims presented by the case).
  61. Lebron, 513 U.S. at 391-93, 398.
  62. Marsh v. Alabama, 326 U.S. 501, 509 (1946). A state statute "ma[de] it a crime to enter or remain on the premises of another after having been warned not to do so"; the resident had been warned that, pursuant to a company policy, she could not distribute religious literature without a permit, and she subsequently disregarded that warning and refused to leave a sidewalk. Id. at 503-04. Accordingly, although the case involved a criminal prosecution brought by the State of Alabama, liability turned on the town's ability to prevent residents from distributing literature without a permit. See id.
  63. Id. at 502-03.
  64. Id. at 505.
  65. Id. at 507. See also id. at 508 (noting that residents of company towns, like residents of other towns, "must make decisions which affect the welfare of community and nation," and that to do this, they must have access to "uncensored" information).
  66. Id. at 509.
  67. Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974) (emphasis added). Accord Lugar v. Edmonson Oil Co., 457 U.S. 922, 939 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158-59 (1978).
  68. 391 U.S. 308, 317 (1968). In dissent, Justice Hugo Black would have ruled that the picketers could not, "under the guise of exercising First Amendment rights, trespass on . . . private property for the purpose of picketing." Id. at 329 (Black, J., dissenting).
  69. Hudgens v. NLRB, 424 U.S. 507, 520 (1976).
  70. Id. at 521.
  71. Id.
  72. Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972).
  73. Id.
  74. Id. at 569-70.
  75. Manhattan Cmty. Access Corp. v. Halleck, No. 17-702, slip op. at 2-3, 6 (U.S. June 17, 2019)
  76. Id. at 6-7 (stating that while "running elections" and "operating a company town" qualify as traditional, exclusive public functions, "running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity" do not).
  77. Id. at 7.
  78. Id. at 10.
  79. Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).
  80. See Pub. Utils. Comm'n v. Pollak, 343 U.S. 451, 462 (1952) (holding that such a relationship existed where the private company operated a public utility that represented a "substantial monopoly" under congressional authority and, more importantly, the company operated "under the regulatory supervision" of a governmental agency, and the particular action being challenged involved action by that agency).
  81. Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974); see also Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001).
  82. Jackson, 419 U.S. at 351.
  83. See id. at 11 (reasoning that absent performance of a traditional and exclusive public function, a private entity is not a state actor merely because the government licenses, contracts with, grants a monopoly to, or subsidizes it); id. at 12 (reasoning that state regulations that "restrict MNN's editorial discretion" and effectively require it to "operate almost like a common carrier" do not make MNN a state actor). The majority also rejected the argument that MNN was simply standing in for New York City in managing government property, reasoning that the record did not show that any government owned, leased, or otherwise had a property interest in the public access channels or the broader cable network in which they operated. Id. at 14-15.
  84. 412 U.S. 94 (1973).
  85. Id. at 98.
  86. Id. at 120 (plurality opinion of Burger, C.J., and Stewart and Rehnquist, JJ.).
  87. Id. at 119-20.
  88. Id. at 120.
  89. Id. at 150 (Douglas, J., concurring in the judgment); id. at 172-73 (Brennan and Marshall, JJ., dissenting).
  90. See id. at 171 (Brennan, J., dissenting) (noting that Justices Byron White, Harry Blackmun, and Lewis Powell would not have reached the state action question).
  91. Id. at 129 (majority opinion).
  92. See Police Dep't of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (explaining that "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content"); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (opining that under the First Amendment, the government may not "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein").
  93. Reed v. Town of Gilbert, 576 U.S. 155, 163-64 (2015); see also Citizens United v. FEC, 558 U.S. 310, 340 (2010) ("Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints."); Ashcroft v. ACLU, 542 U.S. 656, 660 (2004) (to guard against content-based prohibitions as a "repressive force in the lives and thoughts of a free people," the Constitution "demands that content-based restrictions on speech be presumed invalid and that the Government bear the burden of showing their constitutionality" (internal citations omitted)).
  94. E.g., Reed, 576 U.S. at 164 (holding that a town's sign ordinance violated the First Amendment).
  95. See, e.g., Widmar v. Vincent, 454 U.S. 263, 264, 277 (1981) (holding that a state university's policy to open its buildings to student groups while denying student groups access "for purposes of religious worship or religious teaching" violated the First Amendment).
  96. See Republican Party v. White, 536 U.S. 765, 768 (2002) (holding unconstitutional an ethical standard promulgated by a state supreme court that prohibited candidates for judicial office from "announc[ing]" their "views on disputed legal or political issues").
  97. See Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) (explaining that the "government's ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace").
  98. See, e.g., Rankin v. McPherson, 483 U.S. 378, 390-92 (1987) (holding that a county law enforcement office unlawfully fired a clerical employee based on the content of her speech even under the more lenient standards applicable when the government is acting as employer).
  99. See, e.g., Cohen v. California, 403 U.S. 15, 18 (1971) (reversing the judgment of conviction of a defendant who was arrested for disorderly conduct in a courthouse because of the content of the message inscribed on his jacket).
  100. See First Amend.: Development of a Judicial Approach to Content-Based Speech Laws.
  101. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
  102. Reed, 576 U.S. at 163-64.
  103. Id.
  104. Id. at 163.
  105. Id.
  106. Id. Because the Supreme Court considers viewpoint discrimination "an egregious form of content discrimination," cases analyzing viewpoint-based laws are discussed separately in a later essay. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). See First Amend.: Overview of Viewpoint-Based Regulation of Speech.
  107. Reed, 576 U.S. at 164 (quoting Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989)).
  108. No. 20-1029, slip op. at 6, 8-9 (Apr. 21, 2022).
  109. Id. at 6 (internal quotation marks omitted).
  110. Id.
  111. Id. at 8.
  112. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
  113. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983) ("With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances.").
  114. United States v. Playboy Ent. Grp., 529 U.S. 803, 813 (2000).
  115. Id.
  116. Ashcroft v. ACLU, 542 U.S. 656, 665 (2004).
  117. R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992).
  118. See First Amend.: Commercial Speech Early Doctrine to First Amend.: Central Hudson Test and Current Doctrine.
  119. E.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501-04 (1996) (plurality opinion); Cincinnati v. Discovery Network, 507 U.S. 410, 429 (1993).
  120. United States v. Stevens, 559 U.S. 460, 468 (2010); R.A.V., 505 U.S. at 383; New York v. Ferber, 458 U.S. 747, 763-64 (1982).
  121. See First Amend.: Fighting Words; First Amend.: True Threats; First Amend.: Defamation.
  122. R.A.V., 505 U.S. at 388.
  123. See FCC v. Pacifica Found., 438 U.S. 726, 744 (1978) (plurality opinion) (explaining that "[b]oth the content and the context of speech are critical elements of First Amendment analysis").
  124. Mahanoy Area Sch. Dist. v. B.L., No. 20-255, slip op. at 5 (U.S. June 23, 2021) (identifying three categories of student speech that schools may regulate). See First Amend.: School Free Speech and Government as Educator.
  125. E.g., Beard v. Banks, 548 U.S. 521, 526 (2006). See First Amend.: Prison Free Speech and Government as Prison Administrator.
  126. Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018). See First Amend.: The Public Forum.
  127. See First Amend.: Conditions on Tax Exemptions; First Amend.: Conditions on Federal Funding.
  128. Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994).
  129. Id. at 662 (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968)).
  130. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). For more discussion of the time, place, and manner doctrine, see First Amend.: The Public Forum.
  131. See First Amend.: Overview of Content-Based and Content-Neutral Regulation of Speech.
  132. Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994).
  133. Compare Erznoznik v. Jacksonville, 422 U.S. 205, 209-11 (1975) (suggesting that intermediate scrutiny was inappropriate for an ordinance prohibiting drive-in movie theaters from showing films containing nudity when their screens were visible from a public place, because the ordinance "discriminate[d] among movies solely on the basis of content"), with Young v. Am. Mini Theatres, 427 U.S. 50, 71-73 (1976) (viewing an ordinance restricting the location of "adult" movie theatres as a permissible restriction on the "place" where films could be exhibited even though the law distinguished among films based on their content).
  134. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (explaining that the "principal inquiry in determining content neutrality" is "whether the government has adopted a regulation of speech because of disagreement with the message it conveys" and that the "government's purpose is the controlling consideration"); see, e.g., Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 791 n.1, 804 (1984) (applying intermediate scrutiny to an ordinance that excepted certain historical and cultural markers from a general prohibition on posting signs on public property). Relatedly, the Court has upheld some zoning restrictions on adult theatres on the grounds that the restrictions were based on the undesirable "secondary effects" of such theatres rather than the content of the movies shown there. See First Amend.: Content-Neutral Laws Burdening Speech.
  135. Turner Broad. Sys. v. FCC, 512 U.S. 622, 642-43 (1994).
  136. Reed, 576 U.S. at 165 (quoting Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 429 (1993)).
  137. Id.
  138. Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 537, 544 (1980) (citing Police Dep't of Chi. v. Mosley, 408 U.S. 92, 95 (1972)).
  139. Id. at 533.
  140. Id. at 537-39; see also FCC v. League of Women Voters, 468 U.S. 364, 366, 383 (1984) (reasoning that a ban on "editorializing" by noncommercial broadcasting stations receiving federal funds was "defined solely on the basis of the content of the suppressed speech").
  141. Consol. Edison Co., 447 U.S. at 538.
  142. 576 U.S. 155, 163 (2015).
  143. Id.
  144. Id. at 159-60, 169; see also Burson v. Freeman, 504 U.S. 191, 197, 207, 211 (1992) (plurality opinion) (concluding that a state law prohibiting the solicitation of votes and the display or distribution of campaign materials within 100 feet of a polling place entrance was content based because the statute reached only political speech, not "other categories of speech, such as commercial solicitation," but concluding that the law nonetheless survived strict scrutiny); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 493, 521 (1981) (plurality opinion) (striking down a billboard ordinance that "favor[ed] certain kinds of messages--such as onsite commercial advertising, and temporary political campaign advertisements--over others").
  145. United States v. Stevens, 559 U.S. 460, 468 (2010).
  146. United States v. Playboy Ent. Grp., 529 U.S. 803, 806, 811 (2000); see also Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 115-18, 123 (1991) (holding that a state law imposed an unconstitutional, content-based burden on speech by requiring anyone who contracts with an accused or convicted person for a depiction of the person's crime to turn over any income from that work to the state's crime victims board); Erznoznik v. Jacksonville, 422 U.S. 205, 211-12 (1975) (holding that an ordinance prohibiting drive-in movie theaters visible from public streets from showing films depicting nudity was an invalid, content-based prohibition).
  147. Reno v. ACLU, 521 U.S. 844, 868 (1997); see also Sable Commc'ns of Cal. v. FCC, 492 U.S. 115, 122 (1989) (suggesting that a law banning "indecent" interstate commercial telephone communications regulated "the content of constitutionally protected speech"); Boos v. Barry, 485 U.S. 312, 315, 334 (1988) (finding content based and holding unconstitutional a law banning the display of signs outside of an embassy that bring the foreign government of that embassy into "public disrepute").
  148. Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221, 223, 230-33 (1987) (holding that this "selective taxation" system violated the First Amendment).
  149. City of Austin v. Reagan Nat'l Advert. of Austin, LLC, No. 20-1029, slip op. at 6 (Apr. 21, 2022); Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134 (1992) (holding that a county ordinance requiring a permit to hold a public parade or assembly and a fee for "necesary and reasonable" police protection was content based as implemented because "[i]n order to assess accurately the cost of security for parade participants," the county "must necessarily examine the content of the message that is conveyed"). Other decisions of the Court sometimes framed the standard as whether the law turns on what a speaker says. See Holder v. Humanitarian Law Project, 561 U.S. 1, 27 (2010) (holding that a federal statute prohibiting material support to foreign terrorist organizations was content based because whether the law would allow the plaintiffs to speak with a foreign terrorist organization "depends on what they say").
  150. City of Austin, slip op. at 6.
  151. Id. at 8.
  152. Id. See First Amend.: Content-Neutral Laws Burdening Speech.
  153. City of Austin, slip op. at 11.
  154. Id.
  155. Id. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 345 (1995) (reasoning that a state's ban on anonymous campaign literature defined the regulated documents "by their content," which was "publications containing speech designed to influence the voters in an election").
  156. See Carey v. Brown, 447 U.S. 455, 460-63, 471 (1980) (holding that a statute banning residential picketing but exempting labor picketing was a content-based restriction on speech that violated the First Amendment and the Equal Protection Clause); Police Dep't of Chi. v. Mosley, 408 U.S. 92, 93, 102 (1972) (holding the same with respect to an ordinance banning picketing outside of schools).
  157. Regan v. Time, Inc., 468 U.S. 641, 644 (1984) (plurality opinion).
  158. Id. (quoting 18 U.S.C. § 504(1)).
  159. Id. at 648-49 (majority opinion). The Court ruled that the purpose provision was "unenforceable," but upheld other statutory exceptions allowing the photographs to be published subject to certain size and color limitations. Id. at 658-59 (plurality opinion).
  160. Barr v. Am. Ass'n of Political Consultants, No. 19-631, slip op. (U.S. July 6, 2020) (plurality opinion); id. at 1 (Gorsuch, J., concurring in the judgment in part and dissenting in part).
  161. Id. at 1 (plurality opinion).
  162. Id.
  163. Id. at 9; id. at 3 (Gorsuch, J., concurring in the judgment in part and dissenting in part).
  164. Id. at 25 (plurality opinion); id. at 2 (Sotomayor, J., concurring in the judgment); id. at 1 (Breyer, J., concurring in the judgment with respect to severability and dissenting in part).
  165. Id. at 7 (plurality opinion).
  166. Id. at 18, 20.
  167. Reed v. Town of Gilbert, 576 U.S. 155, 164 (2015) (quoting Ward, 491 U.S. at 791).
  168. United States v. Eichman, 496 U.S. 310, 319 (1990).
  169. 491 U.S. 397 (1989). See First Amend.: Overview of Symbolic Speech.
  170. Eichman, 496 U.S. at 315.
  171. Id. at 315-17 (observing too that the law prohibited mutilating, defacing, defiling, burning, or trampling upon a flag but authorized the disposal of a "worn or soiled" flag).
  172. Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011).
  173. Id. at 559.
  174. Id. at 564. For a discussion of the components of the law that the Court deemed viewpoint discriminatory, see First Amend.: Viewpoint Discrimination in Facially Neutral Laws.
  175. Id. at 565. Although it found the law to be content based, the Court ultimately concluded that the law failed even the intermediate scrutiny that applies to commercial speech restrictions. Id. at 571.
  176. Citizens United v. FEC, 558 U.S. 310, 341 (2010).
  177. Leathers v. Medlock, 499 U.S. 439, 452 (1991).
  178. United States v. Playboy Ent. Grp., 529 U.S. 803, 812 (2000).
  179. Turner Broad. Sys. v. FCC, 512 U.S. 622, 645 (1994).
  180. Id.
  181. Citizens United, 558 U.S. at 340.
  182. Sorrell v. IMS Health Inc., 564 U.S. 552, 559 (2011). For additional discussion of Sorrell, see First Amend.: Laws Regulating Speech with a Content-Discriminatory Purpose.
  183. Sorrell, 564 U.S. at 563, 573.
  184. Id. at 564. For a discussion of the components of the law that the Court deemed viewpoint discriminatory, see First Amend.: Viewpoint Discrimination in Facially Neutral Laws.
  185. Citizens United v. FEC, 558 U.S. 310, 341 (2010).
  186. Id. at 341-65. See First Amend.: Campaign Finance Expenditure Limits.
  187. In FCC v. League of Women Voters, the Court struck down a law banning noncommercial educational broadcasting stations that received federal funds from "editorializing." 468 U.S. 364, 402 (1984). In explaining its application of heightened scrutiny, the Court observed that the law "single[d] out noncommercial broadcasters and denie[d] them the right to address their chosen audience on matters of public importance," which suggested that Congress sought "to limit discussion of controversial topics and thus to shape the agenda for public debate." Id. at 384. For additional discussion of League of Women Voters, see First Amend.: Restrictions on Editorializing.
  188. Nat'l Inst. of Family & Life Advocates (NIFLA) v. Becerra, No. 16-1140, slip op. at 7 (U.S. June 26, 2018); Riley v. Nat'l Fed'n of Blind, 487 U.S. 781, 795 (1988) ("Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech.").
  189. NIFLA, slip op. at 3.
  190. Id. at 7.
  191. Id. (quoting Riley, 487 U.S. at 795).
  192. In some circumstances, the Court has evaluated commercial disclosure requirements under a less rigorous standard of scrutiny. See First Amend.: Overview of Compelled Speech.
  193. NIFLA, slip op. at 7, 9. Although the Court suggested that the notice requirement should receive strict scrutiny, the Court declined to resolve whether strict or intermediate scrutiny was the appropriate standard because it concluded that the law "cannot survive even intermediate scrutiny." Id. at 14-16 (evaluating the law at the preliminary injunction stage and concluding that the petitioners were likely to succeed on the merits of their First Amendment challenge).
  194. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 345 (1995) (reasoning that a state's ban on anonymous campaign literature was "a direct regulation of the content of speech" because it required such documents to contain the name and address of the person or organization that issued them); Riley, 487 U.S. at 795 (evaluating a requirement that professional fundraisers disclose information about charitable contributions collected during the previous year before soliciting funds as a content-based regulation of speech); Pac. Gas & Elec. Co. v. Pub. Utils. Com., 475 U.S. 1, 9-16, 20-21 (1986) (plurality opinion) (invalidating a state law that required a private company to include in its billing envelopes, alongside its own newsletter, third-party speech that the company opposed).
  195. NIFLA, slip op. at 14. See also, First Amend.: Campaign Finance Disclosure and Disclaimer Requirements, for a discussion of the exacting scrutiny standard that generally applies to campaign-finance disclosure requirements.
  196. Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994).
  197. Id. at 662 (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968)). See also, e.g., San Francisco Arts & Ath., Inc. v. U.S. Olympic Comm., 483 U.S. 522, 536-40 (1987) (applying this standard to uphold an incidental speech restriction prohibiting certain uses of the word "Olympic"). The distinction between, on the one hand, directly regulating, and, on the other hand, incidentally affecting, the content of expression was sharply drawn by Justice John Harlan in Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 (1961): "Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. . . . On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved." Cf, e.g., Arcara v. Cloud Books, 478 U.S. 697, 707 (1986) (upholding the application of a statute authorizing closure of places of prostitution to an adult bookstore, saying O'Brien was not applicable to "a statute directed at imposing sanctions on nonexpressive activity").
  198. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). For more discussion of the time, place, and manner doctrine, see First Amend.: The Public Forum.
  199. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (saying an ordinance was content-neutral where the law was justified by a desire to combat undesirable secondary effects of speech, rather than justified by reference to the speech's content). Cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) ("Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular 'secondary effects' of the speech[.]").
  200. 427 U.S. 50, 70 (1976) (plurality opinion) (saying governments could regulate "the places where sexually explicit films may be exhibited," drawing a line "on the basis of content without violating the government's paramount obligation of neutrality" because the place-based regulation was unaffected by the viewpoint or message of the film); id. at 82 n.6 (Powell, J., concurring) (saying the regulation was not impermissibly content-based when it treated "certain movie theaters differently because they have markedly different effects upon their surroundings").
  201. Renton, 475 U.S. at 48, 51. The Supreme Court also upheld zoning of sexually oriented businesses in FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), and City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). Cf. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566-72 (1991) (plurality opinion) (upholding application of Indiana's public indecency statute to prohibit totally nude dancing under the O'Brien standard); id. at 582 (Souter, J., concurring) (saying he would uphold the law based on "the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments"); Erie v. Pap's A.M., 529 U.S. 277, 290 (2000) (plurality opinion) (upholding the application of a statute prohibiting public nudity to an adult entertainment establishment, citing both O'Brien and Renton and noting that "one purpose of the ordinance is to combat harmful secondary effects"); id. at 310 (Scalia, J., concurring) (expressing doubt about the "secondary effects").
  202. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208 (1975).
  203. Id. at 211-18.
  204. See First Amend.: Overview of Categorical Approach to Restricting Speech.
  205. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).
  206. This group of essays generally refers to viewpoint-based laws, which may include statutes or regulations. However, as these cases illustrate, the principle of viewpoint neutrality also extends to the policies of public institutions, the enforcement of public laws, and other types of government actions. See, e.g., Bose Corp. v. Consumers Union, 466 U.S. 485, 505 (1984) (stating that the "principle of viewpoint neutrality" imposes "a special responsibility on judges" when deciding whether a particular communication receives First Amendment protection).
  207. Rosenberger, 515 U.S. at 829.
  208. See First Amend.: Viewpoint-Based Distinctions on the Face of a Law.
  209. See First Amend.: Viewpoint-Based Distinctions Within Proscribable Speech.
  210. See, e.g., Morse v. Frederick, 551 U.S. 393, 403 (2007) (holding that a high school principal may "restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use").
  211. See, e.g., Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 219 (2015) (holding that an organization could not "force Texas to include a Confederate battle flag on its specialty license plates" because those plates were "government speech"); Pleasant Grove City v. Summum, 555 U.S. 460, 481 (2009) (holding that a city's "decision to accept certain privately donated monuments while rejecting respondent's" was "best viewed as a form of government speech" that did not require viewpoint-neutrality).
  212. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) (explaining that "viewpoint-based funding decisions can be sustained" where the government uses "private speakers to transmit information pertaining to its own program"); Rust v. Sullivan, 500 U.S. 173, 193 (1991) (holding that the government does not discriminate on the basis of viewpoint when "it has merely chosen to fund one activity to the exclusion of" another).
  213. See First Amend.: Government Speech and Government as Speaker; First Amend.: Selective Funding Arrangements; First Amend.: Government's Message Versus Private Speakers.
  214. See Pac. Gas & Elec. Co. v. Pub. Utils. Com., 475 U.S. 1, 12 (1986) (plurality opinion) (concluding that an agency order requiring a regulated utility company to include a message from an opposing organization in its billing envelopes discriminated on the basis of viewpoint and violated the First Amendment); Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding that the State of New Hampshire could not constitutionally punish the respondents for covering up the state motto "Live Free or Die," to which they objected on religious grounds, on their vehicles' license plates). See First Amend.: Overview of Compelled Speech.
  215. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (holding that the "forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints"); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group, 515 U.S. 557, 581 (1995) (reasoning that the government may not "compel" a speaker "to alter [its] message by including one more acceptable to others"). See First Amend.: Overview of Compelled Speech.
  216. See, e.g., United States v. United Foods, 533 U.S. 405, 416 (2001) (holding that compelling handlers of fresh mushrooms to subsidize generic advertising for that product when some handlers objected to the views expressed in those advertisements violated the First Amendment); Bd. of Regents v. Southworth, 529 U.S. 217, 233 (2000) (holding that "[w]hen a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others"). See First Amend.: Overview of Compelled Speech and First Amend.: Compelled Subsidization.
  217. See First Amend.: Viewpoint Neutrality in Forum Analysis.
  218. Iancu v. Brunetti, No. 18-302, slip op. at 6 (U.S. June 24, 2019).
  219. As explained in the Overview, there are certain contexts in which the government can draw viewpoint-based distinctions, such as when the government itself is the speaker. See First Amend.: Overview of Viewpoint-Based Regulation of Speech. See also First Amend.: Government Speech and Government as Speaker; First Amend.: Selective Funding Arrangements; First Amend.: Government's Message Versus Private Speakers.
  220. Reed v. Town of Gilbert, 576 U.S. 155, 168 (2015) (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995))).
  221. 508 U.S. 384, 387 (1993).
  222. Id. at 393.
  223. Id.; see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 831 (1995) (holding that a public university's denial of funding to a student-run religious publication amounted to viewpoint discrimination because the university "does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints").
  224. The Court held in Snyder v. Phelps that the government cannot punish speech in a public place on a matter of public concern "simply because it is upsetting or arouses contempt." 562 U.S. 443, 458 (2011). In that case, the Court held that the First Amendment barred an intentional infliction of emotional distress claim against members of a church who picketed a soldier's funeral. Id. at 459. In the Court's assessment, "any distress" caused by the picketing "turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself." Id. at 457.
  225. Matal v. Tam, No. 15-1293, slip op. at 5 (U.S. June 19, 2017) (quoting 15 U.S.C. § 1052(a)).
  226. Id. at 18. A plurality of the Court further rejected analogies to federal benefits and government-funded programs for which "some content- and speaker-based restrictions are permitted." Id. at 18-23 (plurality opinion). The Court did not resolve the question of whether trademarks are commercial speech. The plurality reasoned that the law failed even the "relaxed" intermediate scrutiny standard applicable to commercial speech regulations. Id. at 23-24.
  227. Id. at 26 (majority opinion).
  228. Id. at 22 (plurality opinion). At least four of the concurring Justices agreed with the plurality that the clause discriminated on the basis of viewpoint. Id. at 1 (Kennedy, J., concurring in part and concurring in the judgment).
  229. Iancu v. Brunetti, No. 18-302, slip op. at 6 (U.S. June 24, 2019) (reasoning that "the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation").
  230. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 576 (1998) (quoting 20 U.S.C. § 954(d)(1)). See First Amend.: Selective Funding Arrangements.
  231. Nat'l Endowment for the Arts, 524 U.S. at 583.
  232. Id. at 585, 589-90.
  233. Id. at 583, 590.
  234. Turner Broad. Sys. v. FCC, 512 U.S. 622, 647 (1994).
  235. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 812 (1985) (holding that the federal government's decision to exclude advocacy groups from a charity drive aimed at federal employees was reasonable in light of the purposes of the charity drive, but allowing the respondent organization to argue that the decision was a pretext for viewpoint discrimination on remand).
  236. Hill v. Colorado, 530 U.S. 703, 724 (2000) (explaining that enacting a law "in response to the activities of antiabortion protesters" did not render that law viewpoint-based).
  237. E.g., Turner Broad. Sys., 512 U.S. at 646.
  238. E.g., United States v. O'Brien, 391 U.S. 367, 383-84 (1968).
  239. See Citizens United v. FEC, 558 U.S. 310, 340, 353-55 (2010) (opining that "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content"). Court-ordered injunctions, which necessarily apply to particular litigants (and thus particular speakers), present different considerations than a generally-applicable law that targets particular speakers. In Madsen v. Women's Health Ctr., the Court held that an injunction against a group of anti-abortion protestors was not impermissibly viewpoint-based because it was based on the group's "past actions," not "the contents of [their] message." 512 U.S. 753, 762-63 (1994).
  240. 564 U.S. 552, 579-80 (2011).
  241. Id. at 565.
  242. Id.
  243. Id.
  244. Id.
  245. McCullen v. Coakley, 573 U.S. 464, 483 (2014). For other reasons, the Court ultimately held that the law violated the First Amendment because it "burden[ed] substantially more speech than necessary to achieve" the government's interests. Id. at 490.
  246. E.g., Barr v. Am. Ass'n of Pol. Consultants, Inc., No. 19-631, slip op. at 9 (U.S. July 6, 2020) (plurality opinion).
  247. Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 802 (2011). See Nat'l Inst. of Family and Life Advocates v. Becerra, No. 16-1140, slip op. at 6 n.2, 15 (U.S. June 26, 2018) (expressing reservations about a law's underinclusivity because of the scope of its exemptions, but declining to decide whether the law was viewpoint-based because it violated the First Amendment on other grounds).
  248. 393 U.S. 503, 504 (1969).
  249. Id.
  250. Id. at 514.
  251. Id. See First Amend.: School Free Speech and Government as Educator.
  252. Tinker, 393 U.S. at 514.
  253. Id. at 510.
  254. Id. at 509; see also Healy v. James, 408 U.S. 169, 187 (1972) (providing that a state college may not deny official recognition to a student group based on "mere disagreement" with the group's philosophy).
  255. Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011).
  256. In Wood v. Moss, the Court held that Secret Service agents had not violated a clearly established First Amendment principle by separating protestors and supporters of the President at an impromptu dinner stop. 572 U.S. 744, 748 (2014). The Court suggested that the agents could not treat those groups differently solely based on their respective viewpoints. Id. at 761-62. The record showed, however, that the "because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not." Id. at 762.
  257. See First Amend.: Viewpoint Neutrality in Forum Analysis.
  258. Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 759, 772 (1988) (holding unconstitutional parts of a city ordinance "giving the mayor unfettered discretion to deny a permit application and unbounded authority to condition the permit on any additional terms" the mayor deemed necessary).
  259. See, e.g., Cohen v. California, 403 U.S. 15, 18, 26 (1971) (overturning a conviction that was based, not on conduct prohibited by the statute, but on the offensiveness of the defendant's speech).
  260. See No. 16-111, slip op. at 1, 3-4 (U.S. June 4, 2018). See First Amend.: Laws that Discriminate Against Religious Practice.
  261. No. 16-111, slip op. at 1, 4 (U.S. June 4, 2018).
  262. Id. at 12.
  263. Id. at 16 (emphasis added). The Court cited both free speech and free exercise cases for this principle, but decided the case solely on free exercise grounds. Id. at 16-17.
  264. See First Amend.: Overview of Categorical Approach to Restricting Speech.
  265. R.A.V. v. City of St. Paul, 505 U.S. 377, 383-84 (1992) (referring to "proscribable content"); id. at 406 (White, J., concurring in the judgment) (referring to "unprotected speech").
  266. Id. at 388-91 (majority opinion).
  267. Id. at 380.
  268. Id. at 380-81. See First Amend.: Fighting Words.
  269. R.A.V., 505 U.S. at 381, 391.
  270. Id. at 391. Justice Antonin Scalia, writing for the majority, gave the following example: "One could hold up a sign saying, for example, that all 'anti-Catholic bigots' are misbegotten; but not that all 'papists' are, for that would insult and provoke violence 'on the basis of religion.'" Id. at 391-92.
  271. Id. at 391.
  272. Id.
  273. 538 U.S. 343, 359-60, 363 (2003). The Court ruled that a certain provision of the statute at issue was unconstitutionally overbroad. Id. at 367 (plurality opinion).
  274. Id. at 361 (majority opinion).
  275. Minn. Voters All. v. Mansky, No. 16-1435, slip op. at 7 (U.S. June 14, 2018).
  276. Id. at 8; see, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 48-49 (1983) (reasoning that because a public school's mail system was not a public forum, it had no constitutional obligation to let any organization use its mail boxes).
  277. See Manhattan Cmty. Access Corp. v. Halleck, No. 17-1702, slip op. at 8-9 (U.S. June 17, 2019) (stating that "[w]hen the government provides a forum for speech (known as a public forum)," it "ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint"); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985) (explaining that "[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral").
  278. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).
  279. Id. at 825-27; see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 109 (2001) (holding that a public school engaged in viewpoint discrimination when it excluded a club from its "afterschool forum" because of the club's "religious nature").
  280. Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 694-95 (2010) (holding, in addition, that the policy did not discriminate on the basis of viewpoint in effect); see also Turner Broad. Sys. v. FCC, 512 U.S. 622, 647 (1994) (holding that a federal statute requiring cable companies to transmit certain broadcast stations was not viewpoint-based because it did not differentiate among the messages that the stations carry).
  281. Cornelius, 473 U.S. at 806.
  282. No. 16-1435, slip op. at 3 (U.S. June 14, 2018).
  283. Id. at 8-9.
  284. Id. at 9.
  285. Id. at 13-17.
  286. Id. at 18.
  287. See United States v. Stevens, 559 U.S. 460, 468 (2010).
  288. R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992).
  289. 315 U.S. 568, 571-72 (1942).
  290. See, e.g., United States v. Alvarez, 567 U.S. 709, 718 (2012) (plurality opinion) ("Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements."); Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 792 (2011) (holding that the obscenity exception to the First Amendment does not cover violent speech); Stevens, 559 U.S. at 472 (declining to "carve out" an exception to First Amendment protections for depictions of illegal acts of animal cruelty); Hustler Magazine v. Falwell, 485 U.S. 46, 55 (1988) (refusing to restrict speech based on its level of "outrageousness").
  291. R.A.V., 505 U.S. at 383.
  292. Id. at 383-84.
  293. Ch. 74, 1 Stat. 596 (1798). As discussed in First Amend.: Historical Background on Free Speech Clause, the Sedition Act was eventually widely considered unconstitutional.
  294. The cases included Schenck v. United States, 249 U.S. 47 (1919) (affirming conviction for attempting to disrupt conscription by circulation of leaflets condemning the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming conviction for attempting to create insubordination in armed forces based on one speech advocating socialism and opposition to war, and praising resistance to the draft); Abrams v. United States, 250 U.S. 616 (1919) (affirming convictions based on two leaflets, one of which attacked President Wilson as a coward and hypocrite for sending troops into Russia and the other of which urged workers not to produce materials to be used against their brothers).
  295. The cases included Gitlow v. New York, 268 U.S. 652 (1925) (affirming conviction based on publication of "manifesto" calling for the furthering of the "class struggle" through mass strikes and other mass action); Whitney v. California, 274 U.S. 357 (1927) (affirming conviction based upon adherence to party which had platform rejecting parliamentary methods and urging a "revolutionary class struggle," the adoption of which defendant had opposed).
  296. See also, e.g., Taylor v. Mississippi, 319 U.S. 583 (1943), setting aside convictions of three Jehovah's Witnesses under a statute that prohibited teaching or advocacy intended to encourage violence, sabotage, or disloyalty to the government after the defendants had said that it was wrong for the President "to send our boys across in uniform to fight our enemies" and that boys were being killed "for no purpose at all." The Court found no evil or sinister purpose, no advocacy of or incitement to subversive action, and no threat of clear and present danger to government.
  297. See First Amend.: Overview of Symbolic Speech.
  298. Davis v. Beason, 133 U.S. 333 (1890); Fox v. Washington, 236 U.S. 273 (1915).
  299. 249 U.S. 47 (1919).
  300. 249 U.S. at 52.
  301. Frohwerk v. United States, 249 U.S. 204, 206 (1919) (citations omitted).
  302. 249 U.S. 211, 215-16 (1919).
  303. 250 U.S. 616 (1919).
  304. Schaefer v. United States, 251 U.S. 466, 479 (1920). See also Pierce v. United States, 252 U.S. 239 (1920).
  305. 274 U.S. 380 (1927).
  306. Stromberg v. California, 283 U.S. 359 (1931).
  307. 299 U.S. 353 (1937). See id. at 364-65.
  308. 301 U.S. 242, 258 (1937). At another point, clear and present danger was alluded to without any definite indication it was the standard. Id. at 261.
  309. 310 U.S. 88, 105 (1940). The Court admitted that the picketing resulted in economic injury to the employer, but found such injury "neither so serious nor so imminent" as to justify restriction. The doctrine of clear and present danger did not play a future role in labor picketing cases.
  310. Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).
  311. 337 U.S. 1 (1949).
  312. 337 U.S. at 25-26.
  313. 340 U.S. 315, 321 (1951).
  314. 268 U.S. 652 (1925).
  315. Id. at 670-71.
  316. 268 U.S. at 671.
  317. 268 U.S. at 668. Justice Oliver Wendell Holmes dissented. "If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." Id. at 673.
  318. 274 U.S. 357, 371 (1927), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969).
  319. 274 U.S. at 376.
  320. 341 U.S. 494 (1951).
  321. 54 Stat. 670 (1940), 18 U.S.C. § 2385.
  322. Dennis, 341 U.S. at 507-09, 517.
  323. Id. at 508.
  324. 341 U.S. at 508.
  325. 341 U.S. at 509.
  326. 341 U.S. at 508, 509.
  327. 341 U.S. at 510 (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950). Justice Felix Frankfurter, concurring, adopted a balancing test. Id. at 517. Justice Robert Jackson appeared to proceed on a conspiracy approach rather than one depending on advocacy. Id. at 561. Justices Hugo Black and William O. Douglas dissented, reasserting clear and present danger as the standard. Id. at 579, 581. Note the recurrence to the Learned Hand formulation in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562 (1976), although the Court appeared in fact to apply balancing.
  328. Dennis, 341 U.S. at 510-11. In Yates v. United States, 354 U.S. 298 (1957), the Court discussed its constitutional jurisprudence while interpreting the Smith Act to require advocacy of unlawful action, to require the urging of doing something now or in the future, rather than merely advocacy of forcible overthrow as an abstract doctrine, and by finding the evidence lacking to prove the former.
  329. Cf. Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1, 8 (1965). See Garner v. Louisiana, 368 U.S. 157, 185-207 (1961) (Harlan, J., concurring).
  330. 339 U.S. 382 (1950). See also Osman v. Douds, 339 U.S. 846 (1950). Balancing language was used by Justice Hugo Black in his opinion for the Court in Martin v. City of Struthers, 319 U.S. 141, 143 (1943), but it seems not to have influenced the decision. Similarly, in Schneider v. Irvington, 308 U.S. 147, 161-62 (1939), Justice Owen Roberts used balancing language that he apparently did not apply.
  331. The law, § 9(h) of the Taft-Hartley Act, 61 Stat. 146 (1947), was repealed, 73 Stat. 525 (1959), and replaced by a section making it a criminal offense for any person "who is or has been a member of the Communist Party" during the preceding five years to serve as an officer or employee of any union. § 504, 73 Stat. 536 (1959); 29 U.S.C. § 504 . It was held unconstitutional in United States v. Brown, 381 U.S. 437 (1965).
  332. Id. at 396.
  333. Id. For additional discussion of Douds and other cases involving loyalty oaths impinging on associational freedom, see First Amend.: Denial of Employment or Public Benefits.
  334. 339 U.S. at 399, 410.
  335. 339 U.S. at 400-06.
  336. 366 U.S. 36 (1961).
  337. 366 U.S. at 50-51. Again, the ruling in Konigsberg is discussed in more detail in First Amend.: Denial of Employment or Public Benefits.
  338. Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v. Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States, 365 U.S. 431 (1961).
  339. Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961); Scales v. United States, 367 U.S. 203 (1961).
  340. Lamont v. Postmaster General, 381 U.S. 301 (1965).
  341. E.g., Cox v. Louisiana, 379 U.S. 536 and 559 (1965) (2 cases); Edwards v. South Carolina, 372 U.S. 229 (1963); Adderley v. Florida, 385 U.S. 39 (1966); Brown v. Louisiana, 383 U.S. 131 (1966). But see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where balancing reappears and in which other considerations overbalance the First Amendment claims.
  342. 389 U.S. 258 (1967).
  343. Subversive Activities Control Act of 1950, § 5(a)(1)(D), 64 Stat. 992, 50 U.S.C. § 784 (a)(1)(D).
  344. United States v. Robel, 389 U.S. 258, 265 (1967).
  345. 389 U.S. at 265-68.
  346. 389 U.S. at 268 n.20.
  347. 367 U.S. 203 (1961). Justices Hugo Black and William O. Douglas dissented on First Amendment grounds, id. at 259, 262, while Justice William Brennan and Chief Justice Warren dissented on statutory grounds. Id. at 278.
  348. 367 U.S. at 229.
  349. 367 U.S. at 220. In Noto v. United States, 367 U.S. 290 (1961), the Court reversed a conviction under the membership clause because the evidence was insufficient to prove that the Party had engaged in unlawful advocacy. "[T]he mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it." Id. at 297-98.
  350. 395 U.S. 444 (1969).
  351. Yates v. United States, 354 U.S. 298 (1957); Scales v. United States, 367 U.S. 203 (1961); Noto v. United States, 367 U.S. 290 (1961). See also Bond v. Floyd, 385 U.S. 116 (1966); Watts v. United States, 394 U.S. 705 (1969).
  352. 395 U.S. at 447 (emphasis added).
  353. See, e.g., Hess v. Indiana, 414 U.S. 105 (1973); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982). In Stewart v. McCoy, 537 U.S. 993 (2002), Justice John Paul Stevens, in a statement accompanying a denial of certiorari, wrote that, while Brandenburg's "requirement that the consequence be 'imminent' is justified with respect to mere advocacy, the same justification does not necessarily adhere to some speech that performs a teaching function. Long range planning of criminal enterprises--which may include oral advice, training exercises, and perhaps the preparation of written materials--involve speech that should not be glibly characterized as mere 'advocacy' and certainly may create significant public danger. Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech." Id. at 995.
  354. 315 U.S. 568 (1942).
  355. 315 U.S. at 573.
  356. 315 U.S. at 572.
  357. Id.
  358. Cohen v. California, 403 U.S. 15, 20 (1971). Cohen's conviction for breach of the peace, occasioned by his appearance in public with an "offensive expletive" lettered on his jacket, was reversed, in part because the words were not a personal insult and there was no evidence of audience objection.
  359. The Court held that government may not punish profane, vulgar, or opprobrious words simply because they are offensive, but only if they are "fighting words" that have a direct tendency to cause acts of violence by the person to whom they are directed. Gooding v. Wilson, 405 U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105 (1973); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Lucas v. Arkansas, 416 U.S. 919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Karlan v. City of Cincinnati, 416 U.S. 924 (1974); Rosen v. California, 416 U.S. 924 (1974); see also Eaton v. City of Tulsa, 416 U.S. 697 (1974).
  360. Feiner v. New York, 340 U.S. 315 (1951). See also Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which the Court held that a court could enjoin peaceful picketing because violence occurring at the same time against the businesses picketed could have created an atmosphere in which even peaceful, otherwise protected picketing could be illegally coercive. But compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
  361. Snyder v. Phelps, 562 U.S. 443, 458 (2011).
  362. The principle actually predates Feiner. See Cantwell v. Connecticut, 310 U.S. 296 (1940); Terminiello v. Chicago, 337 U.S. 1 (1949). For subsequent application, see Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Brown v. Louisiana, 383 U.S. 131 (1966); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). Significant is Justice John Harlan's statement of the principle reflected by Feiner. "Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951)." Cohen v. California, 403 U.S. 15, 20 (1971).
  363. Cohen v. California, 403 U.S. 15 (1971); Bachellar v. Maryland, 397 U.S. 564 (1970); Street v. New York, 394 U.S. 576 (1969); Schacht v. United States, 398 U.S. 58 (1970); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959); Stromberg v. California, 283 U.S. 359 (1931).
  364. Coates v. City of Cincinnati, 402 U.S. 611 (1971); Cohen v. California, 403 U.S. 15 (1971); Gooding v. Wilson, 405 U.S. 518 (1972).
  365. R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).
  366. 394 U.S. 705, 708 (1969) (per curiam).
  367. 394 U.S. at 706.
  368. 394 U.S. at 707.
  369. 394 U.S. at 708.
  370. 458 U.S. 886 (1982). Claiborne is also discussed below under "Public Issue Picketing and Parading."
  371. 458 U.S. at 900, n.29. See id. at 902 for a similar remark by Evers.
  372. 458 U.S. at 927.
  373. 458 U.S. at 928.
  374. Brandenburg v. Ohio, 395 U.S. 444 (1969). Brandenburg is discussed above under "Is There a Present Test?"
  375. Claiborne, 458 U.S. at 928 n.71.
  376. Counterman v. Colorado,, No. 22-138 (U.S. June 27, 2023).
  377. Id. slip op. at 11 (quoting Voisine v. United States,, 579 U.S. 686, 691 (2016)).
  378. Virginia v. Black, 538 U.S. 343, 347 (2003).
  379. Id. at 360, 363.
  380. Id. at 360.
  381. Id.
  382. Id. at 364-65 (plurality opinion); id. at 386 (Souter, J., concurring in the judgment in part and dissenting in part) (concluding that the law was an impermissibly content-based statute, in part because "the prima facie evidence provision skews prosecutions . . . toward suppressing ideas."). A cross burning done as "a statement of ideology, a symbol of group solidarity," or "in movies such as Mississippi Burning," however, would be protected speech. Id. at 365-366 (plurality opinion).
  383. 376 U.S. 254 (1964).
  384. 376 U.S. at 269. Justices Hugo Black, William O. Douglas, and Arthur Goldberg, concurring, would have held libel laws per se unconstitutional. Id. at 293, 297.
  385. 376 U.S. at 269, 270.
  386. 376 U.S. at 271.
  387. 376 U.S. at 271.
  388. 376 U.S. at 271-72, 278-79. The substantial truth of an utterance is ordinarily a defense to defamation. See Masson v. New Yorker Magazine, 501 U.S. 496, 516 (1991).
  389. 376 U.S. at 272-73.
  390. 376 U.S. at 279-80. The same standard applies for defamation contained in petitions to the government, the Court having rejected the argument that the petition clause requires absolute immunity. McDonald v. Smith, 472 U.S. 479 (1985).
  391. Beauharnais v. Illinois, 343 U.S. 250, 254-58 (1952); First Amend.: Application of Defamation Cases to Group Libel, Hate Speech.
  392. 379 U.S. 64 (1964).
  393. 384 U.S. 195 (1966).
  394. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
  395. See Rosenblatt v. Baer, 383 U.S. 75 (1966) (supervisor of a county recreation area employed by and responsible to the county commissioners may be public official within Times rule); Garrison v. Louisiana, 379 U.S. 64 (1964) (elected municipal judges); Henry v. Collins, 380 U.S. 356 (1965) (county attorney and chief of police); St. Amant v. Thompson, 390 U.S. 727 (1968) (deputy sheriff); Greenbelt Cooperative Pub. Ass'n v. Bresler, 398 U.S. 6 (1970) (state legislator who was major real estate developer in area); Time, Inc. v. Pape, 401 U.S. 279 (1971) (police captain). The categorization does not, however, include all government employees. Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979).
  396. Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971).
  397. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
  398. Garrison v. Louisiana, 379 U.S. 64 (1964), involved charges that judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to "racketeer influences." The Court rejected the argument that these criticisms were not about how the judges conducted their courts but were personal attacks upon their integrity and honesty. The Court observed: "Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation . . . .The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character." Id. at 76-77.
  399. In Monitor Patriot Co. v. Roy, 401 U.S. 265, 274-75 (1971), the Court said: "The principal activity of a candidate in our political system, his 'office,' so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of 'purely private' concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry 'Foul' when an opponent or an industrious reporter attempts to demonstrate the contrary. Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks. The clash of reputations is the staple of election campaigns and damage to reputation is, of course, the essence of libel. But whether there remains some exiguous area of defamation against which a candidate may have full recourse is a question we need not decide in this case."
  400. Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Chief Justice Earl Warren concurring in the result). Curtis involved a college football coach, and Associated Press v. Walker, decided in the same opinion, involved a retired general active in certain political causes. The suits arose from reporting allegations, respectively, that the football coach fixed a football game and the retired general led a violent crowd in opposition to enforcement of a desegregation decree. While the Court was extremely divided, Chief Justice Warren's rule became the generally accepted rule. Essentially, four Justices opposed applying the Times standard to "public figures," although they would have imposed a lesser but constitutionally based burden on public figure plaintiffs. Id. at 133 (plurality opinion of Harlan, Clark, Stewart, and Fortas, JJ.). Three Justices applied Times, id. at 162 (Warren, C.J.), and id. at 172 (Brennan and White, JJ.). Two Justices would have applied absolute immunity. Id. at 170 (Black and Douglas, JJ.). See also Greenbelt Cooperative Pub. Ass'n v. Bresler, 398 U.S. 6 (1970).
  401. Public figures "[f]or the most part [are] those who . . . have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
  402. Rosenbloom v. Metromedia, 403 U.S. 29 (1971). Rosenbloom had been prefigured by Time, Inc. v. Hill, 385 U.S. 374 (1967), a "false light" privacy case considered infra
  403. 418 U.S. 323, 346 (1974).
  404. Id. at 347, 349.
  405. Time, Inc. v. Firestone, 424 U.S. 448 (1976). See also Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979).
  406. Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979).
  407. Hutchinson v. Proxmire, 443 U.S. 111 (1979).
  408. 443 U.S. at 134 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974)).
  409. 475 U.S. 767 (1986).
  410. 475 U.S. at 780 (Stevens, J., dissenting).
  411. 472 U.S. 749 (1985). Justice Lewis Powell wrote a plurality opinion joined by Justices William Rehnquist and Sandra Day O'Connor, and Chief Justice Warren Burger and Justice Byron White, both of whom had dissented in Gertz, added brief concurring opinions agreeing that the Gertz standard should not apply to credit reporting. Justice William Brennan, joined by Justices Thurgood Marshall, Harry Blackmun, and John Paul Stevens, dissented, arguing that Gertz had not been limited to matters of public concern, and should not be extended to do so.
  412. 472 U.S. at 753 (plurality); id. at 773 (Justice White); id. at 781-84 (dissent).
  413. 475 U.S. at 779 n.4. Justice Wiliam Brennan added a brief concurring opinion expressing his view that such a distinction is untenable. Id. at 780.
  414. See, e.g., Herbert v. Lando, 441 U.S. 153, 199 (1979) (Stewart, J., dissenting).
  415. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); Garrison v. Louisiana, 379 U.S. 64, 78 (1964); Cantrell v. Forest City Publishing Co., 419 U.S. 245, 251-52 (1974).
  416. St. Amant v. Thompson, 390 U.S. 727, 730-33 (1968); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967). A finding of "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers" is alone insufficient to establish actual malice. Harte-Hanks Commc'ns v. Connaughton, 491 U.S. 657 (1989) (nonetheless upholding the lower court's finding of actual malice based on the "entire record").
  417. Gertz v. Robert Welch, Inc., 418 U.S. 323, 331-32 (1974); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 83 (1967). See New York Times Co. v. Sullivan, 376 U.S. 254, 285-86 (1964) ("convincing clarity"). A corollary is that the issue on motion for summary judgment in a New York Times case is whether the evidence is such that a reasonable jury might find that actual malice has been shown with convincing clarity. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).
  418. Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986) (leaving open the issue of what "quantity" or standard of proof must be met).
  419. Herbert v. Lando, 441 U.S. 153 (1979).
  420. New York Times Co. v. Sullivan, 376 U.S. 254, 284-86 (1964). See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933-34 (1982). Harte-Hanks Commc'ns v. Connaughton, 491 U.S. 657, 688 (1989) ("the reviewing court must consider the factual record in full"); Bose Corp. v. Consumers Union of United States, 466 U.S. 485 (1984) (the "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a) must be subordinated to this constitutional principle).
  421. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ("under the First Amendment there is no such thing as a false idea"); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6 (1970) (holding protected the accurate reporting of a public meeting in which a particular position was characterized as "blackmail"); Letter Carriers v. Austin, 418 U.S. 264 (1974) (holding protected a union newspaper's use of epithet "scab").
  422. 497 U.S. 1 (1990).
  423. 497 U.S. at 18.
  424. 497 U.S. at 20. In Milkovich the Court held to be actionable assertions and implications in a newspaper sports column that a high school wrestling coach had committed perjury in testifying about a fight involving his team.
  425. 497 U.S. at 19.
  426. 501 U.S. 496 (1991).
  427. 501 U.S. at 517.
  428. 343 U.S. 250 (1952).
  429. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707-08 (1931).
  430. Beauharnais v. Illinois, 343 U.S. 250, 254-58 (1952).
  431. 343 U.S. at 265-66.
  432. 376 U.S. 254 (1964). See also Collin v. Smith, 447 F. Supp. 676 (N.D. Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff'd, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 (1978) (Justices Harry Blackmun and William Rehnquist dissenting on the basis that Court should review case that is in "some tension" with Beauharnais). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval).
  433. 505 U.S. 377, 383 (1992).
  434. 505 U.S. at 384.
  435. Id. 505 U.S. at 391. On the other hand, the First Amendment permits enhancement of a criminal penalty based on the defendant's motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 485. It distinguished R.A.V. as involving a limitation on speech rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias inspired crimes (for example, they are more likely to provoke retaliatory crimes). Id. at 487-88. See generally Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 Sup. Ct. Rev. 1.
  436. 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as "a burning cross is not always intended to intimidate," but may constitute a constitutionally protected expression of opinion. Id. at 365-66.
  437. 538 U.S. at 362 (majority opinion).
  438. 538 U.S. at 362-63.
  439. No. 15-1293, slip op. (2017).
  440. Id. at 1.
  441. Id. at 1-2.
  442. Iancu v. Brunetti, 588 U.S., No. 18-302, slip op. at 2 (2019) (quoting 15 U.S.C. § 1052(a)). See also First Amend.: Obscenity.
  443. United States v. Wells, 519 U.S. 482, 505-507, nn. 8-10 (1997) (Stevens, J., dissenting) (listing statute citations).
  444. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) ("False statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas."); Virginia State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. at 771 ("Untruthful speech, commercial or otherwise, has never been protected for its own sake.").
  445. 567 U.S. 709 (2012).
  446. 18 U.S.C. § 704.
  447. Alvarez, slip op. at 8-12 (Kennedy, J.). Justice Anthony Kennedy was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor.
  448. Alvarez, slip op. at 10 (Kennedy, J). Justice Anthony Kennedy was joined in his opinion by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor.
  449. Alvarez, slip op. at 8-9 (Breyer, J).
  450. See, e.g., William Prosser, Law of Torts 117 (4th ed. 1971); William Prosser, Privacy, 48 Calif. L. Rev. 383 (1960); J. Thomas McCarthy, The Rights of Publicity and Privacy (1987); Thomas Emerson, The System of Freedom of Expression 544-61 (1970). Note that we do not have here the question of the protection of one's privacy from governmental invasion.
  451. Restatement (Second), of Torts §§ 652A-652I (1977). These four branches were originally propounded in Prosser's 1960 article, incorporated in the Restatement, and now "routinely accept[ed]." J. Thomas McCarthy, § 5.8[A].
  452. Time, Inc. v. Hill, 385 U.S. 374, 383 n.7 (1967); and id. at 402, 404 (Harlan, J., concurring in part and dissenting in part), 411, 412-15 (Fortas, J., dissenting); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487-89 (1975).
  453. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964); First Amend.: Defamation.
  454. 385 U.S. 374 (1967). See also Cantrell v. Forest City Publ'g Co., 419 U.S. 245 (1974).
  455. Cf. Cantrell v. Forest City Publ'g Co., 419 U.S. 245, 250-51 (1974); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 490 n.19 (1975).
  456. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491 (1975) (explaining the open question).
  457. More specifically, the information was obtained "from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection." 420 U.S. at 491. There was thus involved both the First Amendment and the traditional privilege of the press to report the events of judicial proceedings. Id. at 493, 494-96.
  458. 420 U.S. at 491.
  459. The Fl. Star v. B.J.F., 491 U.S. 524, 533 (1989).
  460. Id. at 537-41. The Court left open the question "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, the government may ever punish not only the unlawful acquisition, but the ensuing publication as well." Id. at 535 n.8. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that a content-neutral statute prohibiting the publication of illegally intercepted communications (in this case a cell phone conversation) violates free speech where the person who publishes the material did not participate in the interception, and the communication concerns a public issue.
  461. 485 U.S. 46 (1988).
  462. 485 U.S. at 47, 48.
  463. 485 U.S. at 53.
  464. 485 U.S. at 53.
  465. 485 U.S. at 55.
  466. 485 U.S. at 53, 56.
  467. 562 U.S. 443 (2011).
  468. Signs displayed at the protest included the phrases "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "God Hates Fags," "You're Going to Hell," and "God Hates You." slip op. at 2.
  469. Id. at 8 (citations omitted).
  470. Justice Alito, in dissent, argued that statements made by the defendants on signs and on a website could have been reasonably interpreted as directed at the plaintiffs, and that even if public themes were a dominant theme at the protest, that this should not prevent a suit from being brought on those statements arguably directed at private individuals. slip op. at 9-11 (Alito, J., dissenting).
  471. 433 U.S. 562 (1977). The "right of publicity" tort is conceptually related to one of the privacy strands: "appropriation" of one's name or likeness for commercial purposes. Id. at 569-72. Justices Lewis Powell, William Brennan, and Thurgood Marshall dissented, finding the broadcast protected, id. at 579, and Justice Stevens dissented on other grounds. Id. at 582.
  472. 433 U.S. at 573-74. Plaintiff was not seeking to bar the broadcast but rather to be paid for the value he lost through the broadcasting.
  473. 433 U.S. at 576-78.
  474. Winters v. New York, 333 U.S. 507, 510 (1948). Illustrative of the general observation is the fact that "[m]usic, as a form of expression and communication, is protected under the First Amendment." Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Nude dancing is also. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 564 (1991).
  475. Stanley v. Georgia, 394 U.S. 557, 564 (1969).
  476. See, e.g., Cohen v. California, 403 U.S. 15, 20 (1971) (noting that "obscene expression" must be "erotic," not just crude); accord Mahanoy Area Sch. Dist. v. B.L., No. 20-255, slip op. at 8 (U.S. June 23, 2021).
  477. Id. at 566. See also Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959). The last case involved the banning of the movie Lady Chatterley's Lover on the ground that it dealt too sympathetically with adultery. The Court stated: "It is contended that the State's action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing." Id. at 688-89.
  478. First Amend.: Child Pornography.
  479. 354 U.S. 476 (1957). Heard at the same time and decided in the same opinion was Alberts v. California, involving a state obscenity law. The Court's first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957), considered infra. Earlier the Court had divided 4-4 and thus affirmed a state court judgment that Edmund Wilson's Memoirs of Hecate County was obscene. Doubleday & Co. v. New York, 335 U.S. 848 (1948).
  480. Roth v. United States, 354 U.S. 476, 485 (1957). Justice William Brennan later changed his mind on this score, arguing that, because the Court had failed to develop a workable standard for distinguishing the obscene from the non-obscene, regulation should be confined to protecting children and non-consenting adults. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
  481. 354 U.S. at 483.
  482. 354 U.S. at 482-83.
  483. 354 U.S. at 484. See also Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
  484. 354 U.S. at 486 (quoting Beauharnais v. Illinois, 343 U.S. 250, 266 (1952)).
  485. 354 U.S. at 487, 488.
  486. 354 U.S. at 489.
  487. 354 U.S. at 487 n.20. A statute defining "prurient" as "that which incites lasciviousness or lust" covers more than obscenity, the Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985). The Court noted that obscenity consists in appeal to "a shameful or morbid" interest in sex, not in appeal to "normal, healthy sexual desires." Id. Brockett involved a facial challenge to the statute, so the Court did not have to explain the difference between "normal, healthy" sexual desires and "shameful" or "morbid" sexual desires.
  488. In Butler v. Michigan, 352 U.S. 380 (1957), the Court unanimously reversed a conviction under a statute that punished general distribution of materials unsuitable for children. Protesting that the statute "reduce[d] the adult population of Michigan to reading only what is fit for children," the Court pronounced the statute void. Narrowly drawn proscriptions for distribution or exhibition to children of materials which would not be obscene for adults are permissible, Ginsberg v. New York, 390 U.S. 629 (1968), although the Court insists on a high degree of specificity. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968); Rabeck v. New York, 391 U.S. 462 (1968). Even those Justices who would proscribe obscenity regulation for adults concurred in protecting children in this context. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Brennan, J., dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. The Court stated: "Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 (1975) (in context of nudity on movie screen). See also FCC v. Pacifica Foundation, 438 U.S. 726, 749-50 (1978); Pinkus v. United States, 436 U.S. 293, 296-98 (1978).
  489. The Court emphasized protecting unwilling adults in Rowan v. Post Office Dep't, 397 U.S. 728 (1970), which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material. But, absent intrusions into the home, FCC v. Pacifica Found., 438 U.S. 726 (1978), or a degree of captivity that makes it impractical for the unwilling viewer or auditor to avoid exposure, government may not censor content, in the context of materials not meeting constitutional standards for denomination as pornography, to protect the sensibilities of some. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-12 (1975). But see Pinkus v. United States, 436 U.S. 293, 300 (1978) (jury in determining community standards must include both "'sensitive' and 'insensitive' persons" in the community, but may not "focus[ ] upon the most susceptible or sensitive members when judging the obscenity of materials . . . ").
  490. The First Amendment requires that procedures for suppressing distribution of obscene materials provide for expedited consideration, for placing the burden of proof on government, and for hastening judicial review. Additionally, Fourth Amendment search and seizure law has absorbed First Amendment principles, so that the law governing searches for and seizures of allegedly obscene materials is more stringent than in most other areas. Marcus v. Search Warrant, 367 U.S. 717 (1961); A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky, 413 U.S. 496 (1973); Lo-Ji Sales v. New York, 442 U.S. 319 (1979); see also Walter v. United States, 447 U.S. 649 (1980). Scienter--knowledge of the nature of the materials--is a prerequisite to conviction, Smith v. California, 361 U.S. 147 (1959), but the prosecution need only prove the defendant knew the contents of the material, not that he knew they were legally obscene. Hamling v. United States, 418 U.S. 87, 119-24 (1974). See also Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (public nuisance injunction of showing future films on basis of past exhibition of obscene films constitutes impermissible prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) (criminal defendants may not be bound by a finding of obscenity of materials in prior civil proceeding to which they were not parties). None of these strictures applies, however, to forfeitures imposed as part of a criminal penalty. Alexander v. United States, 509 U.S. 544 (1993) (upholding RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses). Justice Anthony Kennedy, dissenting in Alexander, objected to the "forfeiture of expressive material that had not been adjudged to be obscene." Id. at 578.
  491. 370 U.S. 478 (1962).
  492. 378 U.S. 184 (1964). Without opinion, citing Jacobellis, the Court reversed a judgment that Henry Miller's Tropic of Cancer was obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964). Jacobellis is best known for Justice Potter Stewart's concurrence, contending that criminal prohibitions should be limited to "hard-core pornography." The category "may be indefinable," he added, but "I know it when I see it, and the motion picture involved in this case is not that." Id. at 197. The difficulty with this visceral test is that other members of the Court did not always "see it" the same way; two years later, for example, Justice Stewart was on opposite sides in two obscenity decisions decided on the same day. A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General, 383 U.S. 413 (1966) (concurring on basis that book was not obscene); Mishkin v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that material was obscene).
  493. 383 U.S. 463 (1966). Pandering remains relevant in pornography cases. Splawn v. California, 431 U.S. 595 (1977); Pinkus v. United States, 436 U.S. 293, 303-04 (1978).
  494. Mishkin v. New York, 383 U.S. 502 (1966). See id. at 507-10 for discussion of the legal issue raised by the limited appeal of the material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767, 772 (1977).
  495. A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General, 383 U.S. 413 (1966).
  496. 383 U.S. at 418. On the precedential effect of the Memoirs plurality opinion, see Marks v. United States, 430 U.S. 188, 192-94 (1977).
  497. 386 U.S. 767 (1967).
  498. 386 U.S. at 771.
  499. 386 U.S. at 770-71. The majority was thus composed of Chief Justice Earl Warren and Justices Hugo Black, William O. Douglas, William Brennan, Potter Stewart, Byron White, and Abe Fortas.
  500. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82-83 & n.8 (1973) (Brennan, J., dissenting) (describing Redrup practice and listing thirty-one cases decided on the basis of it).
  501. See United States v. Reidel, 402 U.S. 351 (1971) (federal prohibition of dissemination of obscene materials through the mails is constitutional); United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) (customs seizures of obscene materials from baggage of travelers are constitutional). In Grove Press v. Maryland State Board of Censors, 401 U.S. 480 (1971), a state court determination that the motion picture "I Am Curious (Yellow)" was obscene was affirmed by an equally divided Court, Justice William O. Douglas not participating. And Stanley v. Georgia, 394 U.S. 557, 560- 64, 568 (1969), had insisted that Roth remained the governing standard.
  502. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Alexander v. Virginia, 408 U.S. 921 (1972).
  503. 413 U.S. 49 (1973).
  504. 413 U.S. at 57, 60-62, 63-64, 65-68. Delivering the principal dissent, Justice William Brennan argued that the Court's Roth approach allowing the suppression of pornography was a failure, that the Court had not and could not formulate standards by which protected materials could be distinguished from unprotected materials, and that the First Amendment had been denigrated through the exposure of numerous persons to punishment for the dissemination of materials that fell close to one side of the line rather than the other, but more basically by deterrence of protected expression caused by the uncertainty. Id. at 73. Justice William Brennan stated: "I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents." Id. at 113. Justices Stewart and Marshall joined Justice William Brennan's opinion; Justice William O. Douglas dissented separately, adhering to the view that the First Amendment absolutely protected all expression. Id. at 70.
  505. 413 U.S. 15 (1973).
  506. Miller v. California, 413 U.S. 15, 27 (1973). The Court may read into federal statutes standards it has formulated. United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe statutes proscribing materials that are "obscene," "lewd," "lascivious," "filthy," "indecent," and "immoral" as limited to the types of "hard core" pornography reachable under the Miller standards). For other cases applying Miller standards to federal statutes, see Hamling v. United States, 418 U.S. 87, 110-16 (1974) (use of the mails); United States v. Orito, 413 U.S. 139 (1973) (transportation of pornography in interstate commerce). The Court's insistence on specificity in state statutes, either as written by the legislature or as authoritatively construed by the state court, appears to have been significantly weakened, in fact if not in enunciation, in Ward v. Illinois, 431 U.S. 767 (1977).
  507. Miller v. California, 413 U.S. at 24.
  508. Id. at 24-25.
  509. It is the unprotected nature of obscenity that allows this inquiry; offensiveness to local community standards is, of course, a principle completely at odds with mainstream First Amendment jurisprudence. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
  510. 413 U.S. at 30-34. The Court stated: "A juror is entitled to draw on his knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law." Hamling v. United States, 418 U.S. 87, 104 (1974). The holding does not compel any particular circumscribed area to be used as a "community." In federal cases, it will probably be the judicial district from which the jurors are drawn, id. at 105-106. The jurors may be instructed to apply "community standards" without any definition being given of the "community." Jenkins v. Georgia, 418 U.S. 153, 157 (1974). In a federal prosecution for using the mails to transmit pornography, the fact that the legislature of the state in which the transaction occurred had abolished pornography regulation except for dealings with children does not preclude permitting jurors in a federal case to make their own definitions of what is offensive to contemporary community standards; they may be told of the legislature's decision but they are not bound by it. Smith v. United States, 431 U.S. 291 (1977).
  511. Pope v. Illinois, 481 U.S. 497, 500-01 (1987).
  512. Miller v. California, 413 U.S. 15, 25 (1973). Quoting Miller's language in Hamling v. United States, 418 U.S. 87, 114 (1974), the Court reiterated that it was only "hard-core" material that was unprotected. The Court stated: "While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is 'patently offensive' within the meaning of the obscenity test set forth in the Miller cases." Referring to this language in Ward v. Illinois, 431 U.S. 767 (1977), the Court upheld a state court's power to construe its statute to reach sadomasochistic materials not within the confines of the Miller language.
  513. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985).
  514. Id.
  515. Kaplan v. California, 413 U.S. 115 (1973).
  516. Id. at 25.
  517. 418 U.S. 153 (1974).
  518. Id. at 160-61.
  519. Id. at 161. The film at issue was Carnal Knowledge.
  520. Hamling v. United States, 418 U.S. 87 (1974). In Smith v. United States, 431 U.S. 291, 305-06 (1977), the Court explained that jury determinations in accordance with their own understanding of the tolerance of the average person in their community are not unreviewable. Judicial review would pass on (1) whether the jury was properly instructed to consider the entire community and not simply the members' own subjective reaction or the reactions of a sensitive or of a callous minority, (2) whether the conduct depicted fell within the examples specified in Miller, (3) whether the work lacked serious literary, artistic, political, or scientific value, and (4) whether the evidence was sufficient. The Court indicated that the value test of Miller "was particularly amenable to judicial review." The value test is not to be measured by community standards, the Court later held in Pope v. Illinois, 481 U.S. 497 (1987), but instead by a "reasonable person" standard. An erroneous instruction on this score, however, may be "harmless error." Id. at 503.
  521. For other five-four decisions of the era, see Marks v. United States, 430 U.S. 188 (1977); Smith v. United States, 431 U.S. 291 (1977); Splawn v. California, 431 U.S. 595 (1977); and Ward v. Illinois, 431 U.S. 767 (1977).
  522. See, e.g., Sable Commc'ns of Cal. v. FCC, 492 U.S. 115, 126 (1989); Reno v. Aclu, 521 U.S. 844, 874 (1997); see also .
  523. Stanley v. Georgia, 394 U.S. 557 (1969).
  524. Id. at 564.
  525. Id. at 560-64, 568.
  526. Id. at 565-68.
  527. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-68 (1973). Transportation of unprotected material for private use may be prohibited, United States v. Orito, 413 U.S. 139 (1973), and the mails may be closed, United States v. Reidel, 402 U.S. 351 (1971), as may channels of international movement, United States v. Thirty-seven Photographs, 402 U.S. 363 (1971); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).
  528. Osborne v. Ohio, 495 U.S. 103 (1990).
  529. 458 U.S. 747 (1982). The Court's decision was unanimous, although there were several limiting concurrences. Compare, e.g., id. at 775 (Justice William Brennan, arguing for exemption of "material with serious literary, scientific, or educational value"), with id. at 774 (Justice O'Connor, arguing that such material need not be excepted). The Court did not pass on the question, inasmuch as the materials before it were well within the prohibitable category. Id. at 766-74.
  530. Id. at 763-64.
  531. Id. at 764 (emphasis original). Child pornography need not meet Miller obscenity standards to be unprotected by the First Amendment. Id. at 764-65.
  532. 495 U.S. 103 (1990).
  533. Id at 108.
  534. 535 U.S. 234 (2002).
  535. Id. at 241.
  536. Id. at 249; see also id. at 241.
  537. Id..
  538. Id. at 253.
  539. Id. at 242.
  540. Id. at 255. Following Ashcroft v. Free Speech Coalition, Congress enacted the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003), which, despite the decision in that case, defined "child pornography" so as to continue to prohibit computer-generated child pornography (but not other types of child pornography produced without an actual minor). 18 U.S.C. § 2256 (8)(B). In United States v. Williams, 128 S. Ct. 1830, 1836 (2008), the Court, without addressing the PROTECT Act's new definition, cited Ashcroft v. Free Speech Coalition with approval.
  541. 553 U.S. 285 (2008).
  542. 18 U.S.C. § 2252A(a)(3)(B).
  543. 128 S. Ct. at 1839.
  544. 128 S. Ct. at 1841, 1842, 1843. In a dissenting opinion joined by Justice Ruth Bader Ginsburg, Justice David Souter agreed that "Congress may criminalize proposals unrelated to any extant image," but disagreed with respect to "proposals made with regard to specific, existing [constitutionally protected] representations." Id. at 1849. Justice David Souter believed that, "if the Act stands when applied to identifiable, extant [constitutionally protected] pornographic photographs, then in practical terms Ferber and Free Speech Coalition fall. They are left as empty as if the Court overruled them formally" Id. at 1854. Justice Antonin Scalia's opinion for the majority replied that this "is simply not true . . . Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography . . . There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts." Id. at 1844-45.
  545. See Sable Commc'ns v. FCC, 492 U.S. 115 (1989) (FCC's "dial-a-porn" rules imposing a total ban on "indecent" speech are unconstitutional, given less restrictive alternatives--e.g., credit cards or user IDs--of preventing access by children). Pacifica Foundation is distinguishable, the Court reasoned, because that case did not involve a "total ban" on broadcast, and also because there is no "captive audience" for the "dial-it" medium, as there is for the broadcast medium. 492 U.S. at 127-28. Similar rules apply to regulation of cable TV. In Denver Area Educ. Telecommc'ns Consortium, 518 U.S. 727, 755 (1996), the Court, acknowledging that protection of children from sexually explicit programming is a "compelling" governmental interest (but refusing to determine whether strict scrutiny applies), nonetheless struck down a requirement that cable operators segregate and block indecent programming on leased access channels. The segregate-and-block restrictions, which included a requirement that a request for access be in writing, and which allowed for up to thirty days' delay in blocking or unblocking a channel, were not sufficiently protective of adults' speech and viewing interests to be considered either narrowly or reasonably tailored to serve the government's compelling interest in protecting children. In United States v. Playboy Ent. Group, Inc., 529 U.S. 803 (2000), the Supreme Court, explicitly applying strict scrutiny to a content-based speech restriction on cable TV, struck down a federal statute designed to "shield children from hearing or seeing images resulting from signal bleed." Id. at 806. In striking down the Communications Decency Act of 1996, the Court would "neither accept nor reject the Government's submission that the First Amendment does not forbid a blanket prohibition on all 'indecent' and 'patently offensive' messages communicated to a 17-year-old--no matter how much value the message may have and regardless of parental approval. It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute." Reno v. ACLU, 521 U.S. 844 (1997). In Playboy Ent. Grp., 529 U.S. at 825, the Court wrote: "Even upon the assumption that the government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech." The Court also would "not discount the possibility that a graphic image could have a negative impact on a young child" (id. at 826), thereby suggesting again that it may take age into account when applying strict scrutiny.
  546. 521 U.S. 844 (1997).
  547. The other provision the Court struck down would have prohibited indecent communications, by telephone, fax, or e-mail, to minors. Id.
  548. Id. at 874-75. The Court did not address whether, if less restrictive alternatives would not be as effective, the government would then be permitted to reduce the adult population to only what is fit for children. Id.
  549. 438 U.S. 726 (1978).
  550. 521 U.S. at 867.
  551. Id.
  552. "Harmful to minors" statutes ban the distribution of material to minors that is not necessarily obscene under the Miller test. In Ginsberg v. New York, 390 U.S. 629, 641 (1968), the Supreme Court, applying a rational basis standard, upheld New York's harmful-to-minors statute.
  553. ACLU v. Reno, 217 F.3d 162, 166 (3d Cir. 2000).
  554. Ashcroft v. ACLU, 535 U.S. 564, 585 (2002).
  555. Id. at 667. Justice Stephen Breyer, dissenting, wrote that blocking and filtering software is not a less restrictive alternative because "it is part of the status quo" and "[i]t is always less restrictive to do nothing than to do something." Id. at 684. The majority opinion countered that Congress "may act to encourage the use of filters," and "[t]he need for parental cooperation does not automatically disqualify a proposed less restrictive alternative." Id. at 669.
  556. ACLU v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff'd sub nom. ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, 555 U.S. 1137 (2009).
  557. 539 U.S. 194, 199 (2003).
  558. Id. at 203.
  559. Id. at 205.
  560. Id. at 208.
  561. Id. at 209. Justice Anthony Kennedy, concurring, noted that, "[i]f some libraries do not have the capacity to unblock specific Web sites or to disable the filter . . . that would be the subject for an as-applied challenge, not the facial challenge made in this case." Id. at 215. Justice David Souter, dissenting, noted that "the statute says only that a library 'may' unblock, not that it must." Id. at 233.
  562. Id. at 212.
  563. 316 U.S. 52 (1942). See also Breard v. City of Alexandria, 341 U.S. 622 (1951). The doctrine was one of the bases upon which the banning of all commercials for cigarettes from radio and television was upheld. Capital Broad. Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), aff'd per curiam, 405 U.S. 1000 (1972).
  564. Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959); Ginzburg v. United States, 383 U.S. 463, 474-75 (1966), advertisements dealing with political and social matters which newspapers carry for a fee, N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265-66 (1964), and motion pictures which are exhibited for an admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952), were all during this period held entitled to full First Amendment protection regardless of the commercial element involved.
  565. Pittsburgh Press Co. v. Comm'n on Hum. Rels., 413 U.S. 376 (1973).
  566. Id. at 385, 389. The Court continues to hold that government may ban commercial speech related to illegal activity. Cent. Hudson Gas & Elec. Corp. v. PSC, 447 U.S. 557, 563-64 (1980).
  567. Bigelow v. Virginia, 421 U.S. 809 (1975).
  568. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976).
  569. Id. at 763-64.
  570. Id. at 766-70.
  571. Linmark Assocs. v. Twp. of Willingboro, 431 U.S. 85 (1977).
  572. 447 U.S. 557, 566 (1980).
  573. Id. at 563. Commercial speech is viewed by the Court as usually hardier than other speech; because advertising is the sine qua non of commercial profits, it is less likely to be chilled by regulation. Thus, the difference inheres in both the nature of the speech and the nature of the governmental interest. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56 (1978).
  574. Cent. Hudson, 447 U.S. at 563.
  575. Id. at 563-64.
  576. Id. at 564.
  577. Id. at 566.
  578. Id. at 568, 572.
  579. Id. at 568-71.
  580. Id. at 570.
  581. In one case, the Court referred to the test as having three prongs, referring to its second, third, and fourth prongs, as, respectively, its first, second, and third. The Court in that case did, however, apply Central Hudson's first prong as well. Fl. Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995).
  582. Va. State Bd. of Pharm., 425 U.S. at 762 (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Hum. Rels., 413 U.S. 376, 385 (1973)).
  583. Cent. Hudson, 447 U.S. at 561. The Court has viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. Consolidated Edison Co. v. PSC, 447 U.S. 530 (1980). See also, e.g., Harris v. Quinn, 573 U.S. 616, 648 (2014) (holding that union speech on matters of public concern did "much more than" propose a commercial transaction). So too, the Court has refused to treat as commercial speech charitable solicitation undertaken by professional fundraisers, characterizing the commercial component as "inextricably intertwined with otherwise fully protected speech." Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 796 (1988). By contrast, a mixing of home economics information with a sales pitch at a Tupperware party did not remove the transaction from commercial speech. Bd. of Trs. v. Fox, 492 U.S. 469 (1989). The mere linking of a product to matters of public debate does not thereby entitle an ad to the increased protection afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).
  584. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978). In Ohralik, the Court said it could cite "[n]umerous examples . . . of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, corporate proxy statements, the exchange of price and production information among competitors, and employers' threats of retaliation for the labor activities of employees." Id. at 456 (citations omitted).
  585. 581 U.S. 37 (2017).
  586. Id. at 5.
  587. Id. at 9-10.
  588. Id. at 1.
  589. Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 563, 564 (1980). Within this category fall the cases involving the possibility of deception through such devices as use of trade names, Friedman v. Rogers, 440 U.S. 1 (1979), and solicitation of business by lawyers, Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), as well as the proposal of an unlawful transaction, Pittsburgh Press Co. v. Comm'n on Hum. Rels., 413 U.S. 376 (1973).
  590. Friedman v. Rogers, 440 U.S. 1 (1979).
  591. Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 564, 568-69 (1980). See also San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (1987) (governmental interest in protecting USOC's exclusive use of word "Olympic" is substantial); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (government's interest in curbing strength wars among brewers is substantial, but interest in facilitating state regulation of alcohol is not substantial). Contrast United States v. Edge Broad. Co., 509 U.S. 418 (1993), finding a substantial federal interest in facilitating state restrictions on lotteries. "Unlike the situation in Edge Broadcasting," the Coors Court explained, "the policies of some states do not prevent neighboring states from pursuing their own alcohol-related policies within their respective borders." 514 U.S. at 486. However, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), the Court deemed insubstantial a governmental interest in protecting postal patrons from offensive but not obscene materials. Accord Matal v. Tam, 582 U.S. 218 (2017).
  592. 447 U.S. at 569. The ban here was found to directly advance one of the proffered interests. Contrast this holding with Bates v. State Bar of Ariz., 433 U.S. 350 (1977); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976); Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (prohibition on display of alcohol content on beer labels does not directly and materially advance government's interest in curbing strength wars among brewers, given the inconsistencies and "overall irrationality" of the regulatory scheme); and Edenfield v. Fane, 507 U.S. 761 (1993) (Florida's ban on in-person solicitation by certified public accountants does not directly advance its legitimate interests in protecting consumers from fraud, protecting consumer privacy, and maintaining professional independence from clients), where the restraints were deemed indirect or ineffectual.
  593. United States v. Edge Broad. Co., 509 U.S. 418, 427 (1993) ("this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity").
  594. Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 565, 569-71 (1980). See also Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) (ruling that the governmental interest in not interfering with parental efforts at controlling children's access to birth control information could not justify a ban on commercial mailings about birth control products); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (there are less intrusive alternatives--e.g., direct limitations on alcohol content of beer--to prohibition on display of alcohol content on beer label); Matal v. Tam, No. 15-1293, slip op. at 25-26 (U.S. June 19, 2017) (ruling that a ban on disparaging trademarks was not "narrowly drawn" to the government's interest in "protecting the orderly flow of commerce"). Note, however, that, in San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 539 (1987), the Court applied the test in a manner deferential to Congress: "the restrictions [at issue] are not broader than Congress reasonably could have determined to be necessary to further these interests."
  595. Board of Trustees v. Fox, 492 U.S. 469, 476-77 (1989).
  596. Bd. of Trs. v. Fox, 492 U.S. 469, 480 (1989). In a 1993 opinion the Court elaborated on the difference between reasonable fit and least restrictive alternative. "A regulation need not be 'absolutely the least severe that will achieve the desired end,' but if there are numerous and obvious less-burdensome alternatives to the restriction . . . , that is certainly a relevant consideration in determining whether the 'fit' between ends and means is reasonable." City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993).
  597. Fl. Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995). See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357, 371-72 (2002) (discussing previous cases in which the Court had looked to the availability of less-speech restrictive alternatives for the government to achieve its interests).
  598. 507 U.S. 410 (1993). See also Edenfield v. Fane, 507 U.S. 761 (1993), decided the same Term, relying on the "directly advance" third prong of Central Hudson to strike down a ban on in-person solicitation by certified public accountants.
  599. 507 U.S. at 424.
  600. Id. at 426. The Court also noted the "minute" effect of removing sixty-two "commercial" newsracks while 1,500 to 2,000 other newsracks remained in place. Id. at 418.
  601. Bates v. State Bar of Ariz., 433 U.S. 350 (1977). Chief Justice Warren Burger and Justices Lewis Powell, Potter Stewart, and William Rehnquist dissented. Id. at 386, 389, 404.
  602. Id. at 368-79. See also In re R.M.J., 455 U.S. 191 (1982) (invalidating sanctions imposed on attorney for deviating in some respects from rigid prescriptions of advertising style and for engaging in some proscribed advertising practices, because the state could show neither that his advertising was misleading nor that any substantial governmental interest was served by the restraints).
  603. Shapero v. Ky. Bar Ass'n, 486 U.S. 466 (1988). Shapero was distinguished in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), a 5-4 decision upholding a prohibition on targeted direct-mail solicitations to victims and their relatives for a 30-day period following an accident or disaster. "Shapero dealt with a broad ban on all direct mail solicitations" (id. at 629), the Court explained, and was not supported, as Florida's more limited ban was, by findings describing the harms to be prevented by the ban. Dissenting Justice Anthony Kennedy disagreed that there was a valid distinction, pointing out that in Shapero the Court had said that "the mode of communication [mailings versus potentially more abusive in-person solicitation] makes all the difference," and that mailings were at issue in both Shapero and Florida Bar. 515 U.S. at 637 (quoting Shapero, 486 U.S. at 475).
  604. Peel v. Il. Att'y Disciplinary Comm'n, 496 U.S. 91 (1990).
  605. Ibanez v. Fl. Bd. of Acct., 512 U.S. 136 (1994) (also ruling that Accountancy Board could not reprimand the CPA, who was also a licensed attorney, for truthfully listing her CPA credentials in advertising for her law practice).
  606. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). But compare In re Primus, 426 U.S. 412 (1978). The distinction between in-person and other attorney advertising was continued in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) ("print advertising . . . in most cases . . . will lack the coercive force of the personal presence of the trained advocate").
  607. Tenn. Secondary Sch. Athletic Ass'n v. Brentwood Acad., 551 U.S. 291, 298 (2007).
  608. Edenfield v. Fane, 507 U.S. 761, 775 (1993).
  609. Id. at 774 (quoting Ohralik, 436 U.S. at 464).
  610. 507 U.S. at 777.
  611. United States v. Edge Broad. Co., 509 U.S. 418 (1993).
  612. 507 U.S. at 428.
  613. Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173 (1999).
  614. Id. at 184.
  615. Id. at 186-87.
  616. Id. at 190.
  617. Id. at 195.
  618. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56 (1978). See also, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011) ("[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.").
  619. 478 U.S. 328, 345-46 (1986).
  620. In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (invalidating a federal ban on revealing alcohol content on malt beverage labels), the Court rejected reliance on Posadas, pointing out that the statement in Posadas had been made only after a determination that the advertising could be upheld under Central Hudson. The Court found it unnecessary to consider the greater-includes-lesser argument in United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993), upholding through application of Central Hudson principles a ban on broadcast of lottery ads.
  621. 517 U.S. 484 (1996).
  622. 517 U.S. at 510 (opinion of Stevens, J., joined by Kennedy, Thomas, and Ginsburg, JJ.). Justice John Paul Stevens' opinion also dismissed the Posadas "greater-includes-the-lesser argument" as "inconsistent with both logic and well-settled doctrine," pointing out that the First Amendment "presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct." Id. at 511-512.
  623. Id. at 531-32 (O'Connor, J., concurring, joined by Rehnquist, C.J., Souter, and Breyer, JJ.).
  624. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976); Bates v. State Bar of Ariz., 433 U.S. 350, 384 (1977). But, in Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93-94 (1977), the Court refused to accept a times, places, and manner defense of an ordinance prohibiting "For Sale" signs on residential lawns. First, ample alternative channels of communication were not available, and second, the ban was seen rather as a content limitation.
  625. Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 571 n.13 (1980), citing Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 772 n.24 (1976). See First Amend.: Prior Restraints on Speech.
  626. Bates v. State Bar of Ariz., 433 U.S. 350, 379-81 (1977); Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 565 n.8 (1980).
  627. 564 U.S. 552, 557 (2011).
  628. "Detailers," marketing specialists employed by pharmaceutical manufacturers, used the reports to refine their marketing tactics and increase sales to doctors. Id. at 558.
  629. Id. at 565.
  630. Id. at 571. Although the state advanced a variety of proposed governmental interests to justify the regulations, the Court found these interests (expectation of physician privacy, discouraging harassment of physicians, and protecting the integrity of the doctor-physician relationship) were ill-served by the content-based restrictions. Sorrell. The Court also rejected the argument that the regulations were an appropriate way to reduce health care costs, noting that "[t]he State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers--that is, by diminishing detailers' ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the 'fear that people would make bad decisions if given truthful information' cannot justify content-based burdens on speech." Id. at 577.
  631. Thompson v. W. States Med. Ctr., 535 U.S. 357, 367 (2002). For instance, Justice John Paul Stevens criticized the Central Hudson test because it seemingly allows regulation of any speech propounded in a commercial context regardless of the content of that speech: "[A]ny description of commercial speech that is intended to identify the category of speech entitled to less First Amendment protection should relate to the reasons for permitting broader regulation: namely, commercial speech's potential to mislead." Rubin v. Coors Brewing Co., 514 U.S. 476, 494 (1995) (Stevens, J., concurring). Justice Clarence Thomas, similarly, wrote that, in cases "in which the government's asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the Central Hudson test should not be applied because such an interest' is per se illegitimate." Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173, 197 (1999) (Thomas, J., concurring) (internal quotation marks omitted). Other decisions in which the Court majority acknowledged that some Justices would grant commercial speech greater protection than it has under the Central Hudson test include United States v. United Foods, Inc., 533 U.S. 405, 409-410 (2001) (mandated assessments, used for advertising, on handlers of fresh mushrooms struck down as compelled speech, rather than under Central Hudson), and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001) (various state restrictions on tobacco advertising struck down under Central Hudson as overly burdensome).
  632. Sorrell, 564 U.S. at 571.
  633. See, e.g.,