First Amendment Outline

Incitement and Sedition

Vagueness
Overbreadth
Prior Restraint
Defamation
Obscenity
Fighting Words
Symbolic Speech
Commercial Speech
False Statements of Fact
Time, Place and Manner (Content Neutral)
Speech on Private Premises
School Speech
Government Speech
Public Employee Speech
Compelled Speech
Election Speech
Remedies for Violation of Free Speech
1. Preliminary Injunctions-Likely to succeed on merits, irreparable harm
from loss of free speech, balancing of equities.
2. Forward Looking Injunctions
3. 1983.
Standards of Review
1. Strict Scrutiny (Content and Viewpoint Based)
a. Vague
b. Overbroad
c. Underinclusive
d. Not a compelling government interest
e. Not narrowly tailored (Least Restrictive Means
f. Viewpoint based is invalid per se
2. Intermediate Scrutiny
a. Time, Place and Manner (Content Neutral)
b. Symbolic Speech (O Brien)
c. Commercial Speech (Central Hudson)
3. Injunctions
a. Whether injunctions burden no more speech to serve a significant
government interest.
Unprotected Speech
1. Incitement and Sedition (Imminent Lawless Action)
2. Libel and False Speech- Sullivan Test for Public Officials, Gertz for Private
Officials
3. Fighting Words- Chaplinsky
4. True Threats
5. Obscenity-Miller Test
6. Speech Integral to Criminal Conduct
Incitement and Sedition
-The question in this analysis is whether inflammatory words intending to advocate
illegal conduct can be protected under the First Amendment. It can unless it
passes the Brandenburg test.
- While “imminent” is difficult to ascertain, advocating illegal action at some
indefinite future moment does not pass the Brandenburg Test.
Masses (Hand’s Advocacy Test)
- Under the First Amendment, the government may not prohibit speech that is critical
of the United States government but does not directly incite persons to violate the
law.
- To assimilate agitation, legitimate as such, with direct incitement to violent
resistance, is to disregard the tolerance of all methods of political agitation which
in normal times is a safeguard of free government. If a citizen "stops short of
urging upon others that it is their duty or their interest to resist the law," then he
or she is protected by the First Amendment.
Schenk (Holmes’ Clear and Present Danger Test- Overturned by Brandenburg)
 - Speech that would ordinarily be protected by the First Amendment may nevertheless
be prohibited when it is used in such circumstances and is of such a nature as to
create a clear and present danger of substantive evils that Congress has a right to
prevent.
- The First Amendment did not protect Schenck from prosecution, even though, "in
many places and in ordinary times, Schenck, in saying all that was said in the
circular, would have been within his constitutional rights. But the character of
every act depends upon the circumstances in which it is done." In this case,
Holmes said, "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." Therefore, Schenck could
be punished.
Abrams (Clear and Present Danger-Also Overturned by Brandenburg)
- Speech, which would ordinarily be protected by the First Amendment, may
nevertheless be prohibited when it is used in such circumstances and is of such a
nature as to create a clear and present danger of substantive evils that Congress has
a right to prevent.
- Justice John Hessin Clarke in an opinion for the majority held that the defendants'
intent to hinder war production could be inferred from their words, and that
Congress had determined such expressions posed an imminent danger. Their
conviction was accordingly warranted under the "clear-and-present-danger"
standard, derived from the common law and announced in Schenck v. United
States and companion cases earlier in 1919.
Gitlow (Incorporation of 1A through 14A, Bad Tendency Test (Overturned by
Brandenburg)
- State statutes utilizing the state’s police power to regulate speech and the press are
constitutional unless they are arbitrarily or unreasonably exercised.
- The Court embraced "the bad tendency test" found in Shaffer v. United States,
which held that a "State may punish utterances endangering the foundations of
government and threatening its overthrow by unlawful means" because such
speech clearly "present[s] a sufficient danger to the public peace and to the
security of the State."
Whitney (Bad Tendency Test-Overturned by Brandenburg)
- Under the First and Fourteenth Amendments, states may constitutionally prohibit
speech that represents a clear and present danger of inciting to crime, disturbing the
public peace, or threatening the overthrow of government by unlawful means.
- Brandeis Concurrence: The right of free speech, the right to teach, and the right of
assembly are fundamental rights that may not be denied or abridged. However, these
rights are not absolute. They may be restricted if such restriction is necessary to
protect the state from seriously political, economic, or moral injury. This harm must
be a clear and present danger. The court does not yet have a working standard for
determining how “clear” and “present” a danger must be to justify a restriction on
fundamental rights. However, it is likely this is a high standard, as the protection of
free speech and assembly is fundamental to the United States’ system of government.
To justify suppression of free speech, there must be reasonable grounds to fear that
serious, imminent evil will result if free speech is practiced. In the present case, the
mere assembling together of a political party at a convention does not by itself
 constitute a serious, imminent threat of evil that justifies California’s restriction.
However, the additional facts showing the presence of an actual conspiracy to
overthrow organized government justifies upholding Whitney’s conviction.
De Jonge
- Peaceful political assembly is a right under the 14th Amendment.
Dennis (Overruled by Brandenburg)
- Courts must balance the gravity of the potential evil with the probability of the harm
occurring to properly classify speech as a clear and present danger.
- The Court ruled that Dennis did not have the right under the First Amendment to
the United States Constitution to exercise free speech, publication and assembly,
if the exercise involved the creation of a plot to overthrow the government.
Yates (Protects Radical and Reactionary Speech unless it is a clear a present
danger).
- Speech that advocates overthrow of the government is protected under the First
Amendment unless it is made with the intent to incite illegal activity in the near or
immediate future.
- It construed the Smith Act narrowly, stating that the term "organize" meant to
form an organization, not to take action on behalf of an organization. The Court
drew a distinction between actual advocacy to action and mere belief.
- The Court ruled that the Smith Act did not prohibit "advocacy of forcible
overthrow of the government as an abstract doctrine." The Court recognized that
"advocacy to action" circumstances would be "few and far between." Yates did not
rule the Smith Act unconstitutional, but limited its application to such a degree
that it became nearly unenforceable.
Scales
- Criminal prosecution for membership in a group advocating the overthrow of the
United States government and engaged in the activity of building a group of
members ready to act at an opportune time in the future does not violate the
defendant’s First Amendment rights to freedom of speech and assembly.
Brandenburg Test (Imminent Lawless Action)
- Under the First and Fourteenth Amendments, a state may only regulate speech that
advocates violence if the speech is intended and likely to incite imminent illegal
activity.
- The Court held that the government cannot punish inflammatory speech unless
that speech is "directed to inciting or producing imminent lawless action and is
likely to incite or produce such action".[2][3]: 702 Specifically, the Court struck down
Ohio's criminal syndicalism statute, because that statute broadly prohibited the
mere advocacy of violence. In the process, Whitney v. California (1927)[4] was
explicitly overruled, and Schenck v. United States (1919),[5] Abrams v. United
States (1919),[6] Gitlow v. New York (1925),[7] and Dennis v. United States (1951).[8]
- Three Elements
1. Intent to cause lawlessness.
2. Imminence of lawlessness
3. Likelihood of lawlessness
- The Brandenburg test was the Supreme Court's last major statement on what
government may do about inflammatory speech that seeks to incite others to
lawless action. The Brandenburg test remains the standard used for evaluating
 attempts by the government to punish inflammatory speech, and it has not been
seriously challenged since it was laid down in 1969.
Holder v Humanitarian Law Project (One of only 2x that a restriction on
political speech has passed strict scrutiny)
- A federal law that prohibits individuals and groups from giving “material support” to
certain foreign organizations designated as engaging in terrorist activities does not
violate the First Amendment.
- Upheld 6-3 a federal law that prohibited the providing of service, training, and
“expert advice or assistance” to groups designed as foreign terrorist
organizations. In upholding the law, the Court rejected vagueness, free speech,
and freedom of association challenges.
- In his majority opinion, Chief Justice John G. Roberts, Jr. first addressed the
vagueness argument. He reiterated that, unlike an overbreadth challenge, “a
Fifth Amendment vagueness challenge does not turn on whether a law applies to
a substantial amount of protected expression.” He reasoned that the terms were
clearly defined in the federal law.
- Roberts then addressed the free-speech claim. The U.S. Government, represented
by Solicitor General Elena Kagan, had argued that the law was constitutional
because it regulated mainly conduct, not speech. This implicates the so-called
speech-conduct dichotomy in First Amendment law. The plaintiffs, on the other
hand, had argued that the statute infringed on core political speech. Roberts
rejected both of these positions as extreme.
- Addressing the government’s argument, he noted that the law impacted speech
rather than conduct. The government had argued that the law only incidentally
impacted speech and, thus, argued for application of the so-called “O’Brien Test”
from the draft-card burning case, United States v. O’Brien (1968). Roberts
rejected this, writing that “O’Brien does not provide the applicable standard for
reviewing a content-based regulation of speech.” However, he also rejected the
plaintiffs’ argument that the statute infringed on pure political speech, pointing
out that most of the “material support” prohibited by the law did not involve
speech. Instead, the law clearly prohibits some speech that may provide “material
support” to groups designated as foreign terrorist organizations.
- As a content-based law, Roberts subjected the law to strict scrutiny. The
government has a compelling interest of the highest order – national security and
protecting the country from foreign terrorism. He said the Court must defer to
Congress’ judgment that providing even peaceful aid to these groups could aid
these groups more nefarious efforts. “Such support frees up other resources
within the organization that may be put to violent ends,” Roberts wrote. “It also
importantly helps lend legitimacy to foreign terrorist groups — legitimacy that
makes it easier for those groups to persist, to recruit members, and to raise funds
— all of which facilitate more terrorist attacks.”
Vagueness and Overbreadth
Void for vagueness doctrine.
- A statute is void for vagueness and unenforceable if it is too vague for the
average citizen to understand. This is because constitutionally permissible activity
may be chilled because of a statute's vagueness (either because the statute is a
penal statute with criminal or quasi-criminal civil penalties, or because the
 interest invaded by the vague law is sufficiently fundamental to subject the
statute to strict scrutiny by a court determining its constitutionality).
- There are several reasons a statute may be considered vague; in general, a
statute might be void for vagueness when an average citizen cannot generally
determine what persons are regulated, what conduct is prohibited, or what
punishment may be imposed. For example, criminal laws which do not state
explicitly and what conduct is punishable are void for vagueness.
- A law may be deemed unconstitutionally vague when a law does not specifically
enumerate the practices that are either required or prohibited. In this case, the
ordinary citizen does not know what the law requires.
- To satisfy the Due Process Clause of the Fifth and Fourteenth Amendment,
individuals are entitled to understand the scope and nature of statutes which
might subject them to criminal penalties.
The doctrine also requires that to qualify as constitutional, a law must:[1]
- State explicitly what it mandates, and what is enforceable.
- Define potentially vague terms.
- The doctrine thus serves two purposes. First, all persons receive a fair notice of
what is punishable and what is not. Second, it helps prevent arbitrary
enforcement of the laws and arbitrary prosecutions.[1] The void for vagueness
doctrine developed because, "When Congress does not set minimum guidelines to
govern law enforcement, there is no limit to the conduct that can be
criminalized."
- It is usually combined with the overbreadth doctrine, which focuses on the need
for precision in drafting a statute that may affect First Amendment rights;5 an
overbroad statute that sweeps under its coverage both protected and unprotected
speech and conduct will normally be struck down as facially invalid, although in a
non- First Amendment situation the Court would simply void its application to
protected conduct.6
- A fundamental explication of the modern Supreme Court’s concerns regarding
overly vague statutes is found in Grayned v. City of Rockford (1972). The Court
upheld a city ordinance restricting any “noise or diversion” that would disrupt
activities at a public school against claims of vagueness. Because Rockford’s
ordinance was aimed at disruptive speech and was grounded in the interest of
ensuring the order needed for a proper education, the Court found no
constitutional violation. But the Court did suggest three reasons why overly vague
statutes are unconstitutional.
 First, due process requires that a law provide fair warning and provides a
“persons of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.”
 Second, the law must provide “explicit standards” to law enforcement officials,
judges, and juries so as to avoid “arbitrary and discriminatory application.”
 Third, a vague statute can “inhibit the exercise” of First Amendment freedoms
and may cause speakers to “steer far wider of the unlawful zone . . . than if the
boundaries of the forbidden areas were clearly marked.”
The third element of Grayned is particularly important with respect to the First
Amendment. The modern Supreme Court has consistently said that the void-for-
vagueness doctrine will be applied with extreme strictness where First Amendment
freedoms are concerned. As early as 1963, in NAACP v. Button, the Court explained that
“[s]tandards of permissible statutory vagueness are strict in the area of free expression.
. . . The objectionable quality of vagueness and overbreadth does not depend upon
absence of fair notice to a criminally accused or upon unchanneled delegation of
legislative powers, but upon the danger of tolerating, in First Amendment freedoms, the
existence of a penal statute susceptible of sweeping and improper application.”
Overbreadth
- Overbreadth is concerned with facial challenges to laws.
- A statute is overly broad (hence, overbreadth) if, in
proscribing unprotected speech, it also proscribes protected speech.
- Because an overly broad law may deter constitutionally protected speech, the
overbreadth doctrine allows a party to whom the law may constitutionally be
applied to challenge the statute on the ground that it violates the First
Amendment rights of others.
- Overbreadth is closely related to vagueness; if a prohibition is expressed in a way
that is too unclear for a person to reasonably know whether or not their conduct
falls within the law, then to avoid the risk of legal consequences they often stay
far away from anything that could possibly fit the uncertain wording of the law.
The law's effects are thereby far broader than intended or than the U.S.
Constitution permits, and hence the law is overbroad.
- When federal or state laws are challenged in the United States court system for
their constitutionality, they may be either challenged based on a facial challenge,
challenging the whole of the law or provision and all applications of it, or may be
through an as-applied challenge for a specific case or set of circumstances.
- The "strong medicine" of overbreadth invalidation need not and generally should
not be administered when the statute under attack is unconstitutional as applied
to the challenger before the court. See U.S. v. Stevens, 130 [Link]. 1577, 1592
(Alito, J., dissenting). The overbreadth doctrine is to "strike a balance between
competing social costs". U.S. v. Williams, 553 U.S. 285, 292. Specifically, the
doctrine seeks to balance the "harmful effects" of "invalidating a law that in some
of its applications is perfectly constitutional" as a possibility that "the threat of
enforcement of an overbroad law deters people from engaging in constitutionally
protected speech".
- In determining whether a statute's overbreadth is substantial, the courts consider
a statute's application to real-world conduct, not fanciful hypotheticals.
Accordingly, the courts have repeatedly emphasized that an overbreadth claimant
bears the burden of demonstrating, "from the text of [the law] and from actual
fact" that substantial overbreadth exists. Virginia v. Hicks, 539 U.S. 113 (2003).
Similarly, "there must be a realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties not before the
Court for it to be facially challenged on overbreadth grounds".
- Generally, a litigant challenging a law as unconstitutional may not assert the
rights of a third party, and thus he must show that the law is either
unconstitutional as applied to him (i.e., an applied challenge)1 or that there are no
circumstances in which the law would be constitutional (i.e., a facial
challenge).2 However, there is an exception to this general rule known as the
doctrine of overbreadth, which generally arises in the context of First Amendment
challenges.3 The Supreme Court has held that prudential and constitutional
limitations on third-party standing might not apply in cases in which the litigant
brings a facial First Amendment challenge to a law as being substantially too
 broad and therefore chilling third parties’ rights protected by the First
Amendment.4 The Court has permitted standing for such litigants when the law
interferes with a potential or currently existing relationship (e.g., a business
relationship) with a third party whose First Amendment rights could be hindered
by the law.5

- 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.1 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.’2 Accordingly, if a statute sweeps in both protected and unprotected
activity, the Court will ordinarily only invalidate its application to protected
conduct.3 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.4 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.’ 5 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.6 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.7
- 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.8 The Supreme Court has cautioned that facial [i]nvalidation for
overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’ 9 The
requirement that a law must be substantially overbroad accounts for this
concern.10 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.11 Further, the Court has said that overbreadth analysis does not
normally apply to commercial speech.
At least three motives drive the government’s impulse to fashion overbroad regulations.
 First, officials may employ overbroad regulations to suppress a broad range of
criticisms directed against those in power.
 Second, officials may selectively enforce broad regulations to protect or
suppress communicative content as they choose.
 Third, governments may adopt broad regulations to avoid judicial
determinations of content or viewpoint discrimination.
Judicial examination of free speech regulations reflects an enduring concern: that free
expression needs “breathing space” to survive.
- One of the essential characteristics of contemporary overbreadth doctrine that
the Court emphasized in Broadrick v. Oklahoma (1973) is that it is “manifestly
strong medicine,” to be employed “sparingly and only as a last resort,” and not in
 situations in which “a limiting construction has been or could be placed on the
challenged statute.”
- A second characteristic of the doctrine is that a regulation’s overbreadth “must be
not only real, but substantial as well, judged in relation to the statute’s plainly
legitimate sweep.” This determination entails balancing the potential harm to
society when unprotected speech goes unpunished against the societal
implications of silencing communicators. As the Court ruled in Gooding v.
Wilson (1972), these implications include leaving grievances to fester and foisting
the “chilling effects” of regulation upon those whose speech is protected by the
Constitution.
- Precisely because of these chilling effects, the overbreadth doctrine permits those
to whom the law constitutionally may be applied to argue that it would be
unconstitutional as applied to others. This doctrine constitutes an exception to the
traditional third-party standing rule. However, in a series of recent cases,
including Hill v. Colorado (2000), the Supreme Court implied that only parties
whose speech is unprotected may facially challenge regulations on overbreadth
grounds, a development that would alter the historical development of
overbreadth doctrine.
Coates v Cincinnati (Vague)
- An ordinance that prohibits more than three persons from assembling and engaging
in annoying conduct on public property is unconstitutionally vague and impermissibly
infringes upon the constitutional right to free assembly.
- Ordinance is "is unconstitutionally vague because it subjects the exercise of the
right of assembly to an unascertainable standard, and unconstitutionally broad
because it authorizes the punishment of constitutionally protected conduct."
- The ordinance specified no standard of conduct at all (annoying conduct being
based mainly on opinion), "men of common intelligence must necessarily guess at
its meaning." Given its breadth, the ordinance would give the city the power to
punish conduct which would otherwise be constitutionally protected.
[8]
Additionally, the ordinance violated the constitutionally protected right of free
assembly, a core guarantee which could not be abridged merely because someone
might be "annoyed."[8] Additionally, such a ordinance would give the state an
unlawful power to punish virtually any act.[3]
Broadrick v Oklahoma (Overbroad)
- Decided that states can limit their employees’ partisan political activities without
violating employees’ First Amendment rights. Additionally, the Court ruled that
individuals may not contest statutes that might violate the First Amendment
rights of others if the statutes are not overbroad. Writing for the five-justice
majority, Justice Byron R. White determined that “the statute . . . seeks to
regulate political activity in an even-handed and neutral manner” and that it
“regulates a substantial spectrum of conduct that is as manifestly subject to state
regulation as the public peace or criminal trespass.” He disposed of Broadrick’s
equal protection argument by finding that a state could distinguish between
classes of employees. Moreover, White found that the Oklahoma statute was
constitutional on its face and did not violate the First Amendment. Earlier that
day, the Court had approved the Hatch Act’s similar restrictions on political
activity for federal civil servants in United States Civil Service Commission v.
National Association of Letter Carriers (1973). Like the federal government,
states have interests in a fair, impartial, and efficient public service, which
justifies limits on the political activities of government employees. According to
 White, the Oklahoma law limited conduct more than it did speech; he cited the
state attorney general’s interpretation of the law as “prohibiting ‘clearly partisan
political activity’ only.” Further, the Court determined that the state statute was
not unconstitutionally vague. White explained that all language involves some
imprecision, but the language of the statute was clear enough that an “ordinary
person exercising ordinary common sense can sufficiently understand and
comply” with it. Finally, Broadrick and the others were accused of conduct clearly
prohibited by the statute. They challenged the statute on the basis that it was
overly broad: it might be unconstitutional in some situations and therefore could
not be applied to them in situations in which the statute was constitutional. White
pointed out that ordinarily litigants may not complain about a statute because it
might “be applied unconstitutionally to others, in other situations not before the
Court.” The overbreadth must be real and substantial, measured against the
legitimate sweep of the statute. Only in special circumstances do courts allow
litigants to attack statutes facially for overbreadth for prohibitions that do not or
might not apply to the litigants: the statutes must only seek to regulate only
spoken words; the statutes control the time, place, and manner of speech; the
speech at issue requires some prior official approval; or the claim involves
criminal laws that might apply to protected speech. White concluded that because
the statute at issue involved conduct more than pure speech and any overreach
was modest, a claim of overbreadth was not appropriate.
- A party whose alleged conduct falls within a statute's legitimate bounds cannot
challenge the statute on the grounds that it might be unconstitutionally overbroad if
applied to other persons or circumstances not before the court.
- The Court agreed with lower court rulings that the law was overbroad, however
found that the entire statute could not be stricken. The code contained a
severability provision indicating that the law should not be completely invalidated
unless the one unconstitutional provision could not be stricken without making
the law unworkable.
US v Stevens
- A federal law that seeks to ban visual and auditory depictions of animal cruelty is
overbroad in violation of the First Amendment.
- The Courts will consider a law invalidated as though through a facial challenge "if
a substantial number of its applications are unconstitutional." This is an
alternative to an as applied or facial challenge.
- The government had argued that depictions of animal cruelty should fall into an
unprotected category of speech, like obscenity or child pornography. The
government analogized to New York v. Ferber (1982), where the Court had
created the unprotected category of child pornography.
- Roberts resisted this in strong language, writing: “Our decisions in Ferber and
other cases cannot be taken as establishing a freewheeling authority to declare
new categories of speech outside the scope of the First Amendment.”
- Having rejected the attempt to create a new unprotected category of speech,
Roberts then addressed whether the law was substantially overbroad. He found
that the law was too broad and could apply to hunting videos and livestock
slaughter. He explained that certain types of hunting are lawful in some states
and unlawful in others and could lead to prosecutions of individuals for conduct
that was legal in certain jurisdictions.
- Roberts explained that the market for dogfighting videos was “dwarfed by the
market for other depictions, such as hunting magazines and videos.” To Roberts,
 this was clear evidence that the statute, as currently written, was substantially
overbroad. He left open the question of whether a narrowly drawn statute
targeting only crush videos or dogfighting videos would pass constitutional
muster.
Freedom of the Press
Prior Restraint
Prior restraint (also referred to as prior censorship[1] or pre-publication
censorship) is censorship imposed, usually by a government or institution, on
expression, that prohibits particular instances of expression. It contrasts with
censorship which establishes general subject matter restrictions and reviews a
particular instance of expression only after the expression has taken place. In First
Amendment law, prior restraint is government action that prohibits speech or other
expression before the speech happens. Prior restraint typically happens in a few ways.
It may be a statute or regulation that requires a speaker to acquire a permit or license
before speaking. Prior restraint can also be a judicial injunction that prohibits certain
speech. There is a third way--discussed below--in which the government outright
prohibits a certain type of speech. Courts typically disfavor prior restraint and often
find it to be unconstitutional. 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.
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.
Three Types
1. Permits administered inappropriately.
2. Enjoining Speech by Law or Injunction
Near v Minnesota
- Courts may not issue injunctions against the publication of newspapers, magazines,
or other periodicals deemed to be “malicious, scandalous, and defamatory” as such a
court order would constitute a prior restraint on the freedom of the press protected
by the Fourteenth Amendment to the Constitution.
- Prior restraint on publication was found to violate freedom of the press as
protected under the First Amendment. This principle was applied to free
speech generally in subsequent jurisprudence.
- The objection has also been made that the principle as to immunity from previous
restraint is stated too broadly, if every such restraint is deemed to be prohibited.
That is undoubtedly true; the protection even as to previous restraint is not
unlimited. But the limitation has been recognized only in exceptional cases. 'When
a nation is at war many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men
fight and that no Court could regard them as protected by any constitutional
right.' (Schenck v. United States, 1919). No one would question but that a
government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops.
On similar grounds, the primary requirements of decency may be enforced
against obscene publications. The security of the community life may be protected
 against incitements to acts of violence and the overthrow by force of orderly
government.
- In that case the Court held prior restraints to be unconstitutional, except in
extremely limited circumstances such as national security issues.
- The Near decision was the first time that it was held that even alleged untruth or
malicious intent would not be sufficient reason to impose prior restraints.
- After the Near decision, newspapers had a clearly established freedom to criticize
public officials without fear of retribution, even when charges made by the papers
could not be proven in court. Newspapers could still be punished
through libel laws if they published material found to be untrue. The "Gag Law"
was unique in the United States at that time, and even in Minnesota had only
been used on two occasions. Indeed, the Court commented on the unusual nature
of the proceeding in its decision.
- The Court in Near left open the possibility of prior restraints for various
exceptional purposes, such as national security, control of obscenity, and the like.
- Any prior restraint on expression comes to this Court with a 'heavy presumption'
against its constitutional validity. To state this another way, the
government carries a heavy burden of showing justification for the imposition of
such a restraint.5
- Subsequent punishment for such abuses as may exist is the appropriate remedy,
consistent with constitutional privilege.
Watchtower v Stratton (Affirmed Constitutional Protection for Anonymous
Advocacy)
- The First Amendment prohibits municipalities from requiring registration and a
permit for door-to-door advocacy by groups engaging in religious proselytizing,
anonymous political speech, and the distribution of handbills.
- On June 17, 2002, the Court ruled in an 8–1 decision that the requirement of the
Village of Stratton's ordinance for solicitors to "register" before engaging in door-
to-door advocacy violated the First Amendment. The Court stated, "it is offensive,
not only to the values protected by the First Amendment, but to the very notion of
a free society, that in the context of everyday public discourse a citizen must first
inform the government of her desire to speak to her neighbors and then obtain a
permit to do so.".
- In his opinion for the Court, Justice Stevens held that the importance of the
affected speech so clearly outweighed the state’s interest in protecting
the privacy of citizens and preventing crime and fraud that no discussion was
needed of what First Amendment test applied. The ordinance both restricted
more religious and political speech than was necessary to accomplish the
government’s interests and failed to prevent fraud and crime. Moreover, it was an
abrupt departure from the tradition of spontaneous speech, limiting the right of
neighbors to talk with one another about political or religious issues. It also
interfered with the anonymity needed by those who might fear official reprisal or
social ostracism for their views.
Defamation
Public Figure- Engaged the public’s attention to influence an outcome on an issue of
public concern OR achieved fame or notoriety in the community.
- Defamatory comments might include false comments that a person committed a
particular crime or engaged in certain sexual activities. The hallmark of a
defamation claim is reputational harm. Former United States Supreme Court
 Justice Potter Stewart once wrote that the essence of a defamation claim is the
right to protect one’s good name. He explained in Rosenblatt v. Baer (1966) that
the tort of defamation “reflects no more than our basic concept of the essential
dignity and worth of every human being — a concept at the root of any decent
system of ordered liberty.” However, defamation suits can threaten and test the
vitality of First Amendment rights. If a person fears that she can be sued for
defamation for publishing or uttering a statement, he or she may avoid uttering
the expression – even if such speech should be protected by the First
Amendment.
- This “chilling effect” on speech is one reason why there has been a proliferation
of so-called “Anti-SLAPP” suits to allow individuals a way to fight back against
these baseless lawsuits that are designed to silence expression. Professors
George Pring and Penelope Canaan famously referred to them as Strategic
Lawsuits Against Public Participation or SLAPP suits. Because of the chilling
effect of defamation suits, Justices William O. Douglas, Hugo Black, and Arthur
Goldberg argued for absolute protection at least for speech about matters of
public concern or speech about public officials. Most of the Court never went this
far and instead attempted to balance or establish an accommodation between
protecting reputations and ensuring “breathing space” for First Amendment
freedoms. If the press could be punished for every error, a chilling effect would
freeze publications on any controversial subject. This standard means that a
private person does not have to show that a defendant acted with actual malice to
prevail in a defamation suit. The private plaintiff usually must show simply that
the defendant was negligent, or at fault. However, the high court also ruled that
private defamation plaintiffs could not recover punitive damages unless they
showed evidence of actual malice. In its opinion, the Court also determined that
certain persons could be classified as limited-purpose public figures with respect
to a certain controversy. The Court noted that full-fledged public figures achieve
“pervasive fame or notoriety.” However, the court noted that sometimes an
individual “injects himself or is drawn into a particular public controversy and
thereby becomes a public figure for a limited range of issues.” Importantly, these
limited-purpose public figures also have to meet the actual-malice standard.
These cases show that perhaps the most important legal issue in a defamation
case is determining the status of the plaintiff. If the plaintiff is a public official,
public figure or limited-purpose public figure, the plaintiff must establish that the
defendant acted with actual malice with clear and convincing evidence. However,
as Judge Robert Sack wrote in his treatise on Defamation law: “Determining who
is a ‘public’ figure raises more difficult questions.” (Sack, §1.5). In several
defamation cases, the Court found that individuals were private figures instead of
public officials. For example, the Court ruled that a scientist who had received a
research grant from the federal government was a private figure in Hutchinson v.
Proxmire (1979). Similarly, in Time v. Firestone (1976), the Court held that the
wife of a wealthy industrialist was a private figure.
- If the plaintiff is merely a private person, the plaintiff must usually only show that
the defendant acted negligently. If the private person wants to recover punitive
damages, he or she must show evidence of actual malice.
- If the plaintiff is merely a private person, the plaintiff must usually only
show that the defendant acted negligently. If the private person wants to
recover punitive damages, he or she must show evidence of actual
malice.
Beauharnais
- Libelous speech against a particular racial group or other defined class of persons is
not protected under the First Amendment.
- It upheld an Illinois law making it illegal to publish or exhibit any writing or
picture portraying the "depravity, criminality, unchastity, or lack of virtue of a
class of citizens of any race, color, creed or religion". It is most known for giving a
legal basis to some degree that forms of hate speech that may be deemed to
breach US libel law are not protected by the First Amendment.
- Writing for the majority, Justice Felix Frankfurter upheld the conviction. His
review of U.S. libel laws revealed that criminal libel prosecutions had been
permitted in the past, and he pointed to race riots and other acts in Illinois
related to racial hatred to indicate that such libel of groups could lead to breaches
of the peace.
- According to Frankfurter, states had the right under the due-process clause of the
14th Amendment (which he found had not “incorporated” all the provisions of
the Bill of Rights) to experiment with laws that might tamp down such violence by
restricting the publications that fed them. He clarified, however, that the decision
was not based on the “wisdom” or “efficacy” of the legislation.
NYT v Sullivan
- If a plaintiff is a public official or is running for public office, he or she can recover
damages for defamation only by proving with clear and convincing evidence the
falsity of the defamatory statements and the presence of actual malice in the speaker,
meaning the defendant either knew the statement was false or recklessly
disregarded whether it might be false.
- The Court said that besides proving "actual malice", the First Amendment's
protections also imposed two other limitations on libel laws. First, a public official
seeking damages must prove that the defendant's defamatory statement was
about the official individually, not about government policy generally. Second,
unlike in traditional common law defamation lawsuits where the defendant had
the burden to prove that his or her statement was true, in defamation suits
involving American public officials the officials must prove that the defendant's
statement was false.
- The Court said libel could claim no talismanic immunity from constitutional
limitations, and the standards for proving defamation must satisfy the First
Amendment.2 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.3 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.4
- Prior interpretations had established that the First Amendment contained no
exception for any test of truth.5 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.6 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.7
- 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.12 But the Court appeared to expand the
concept of public official to take on overtones of anyone holding public elective or
appointive office.13 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.
- For the first time, the Supreme Court ruled that “libel can claim no talismanic
immunity from constitutional limitations,” but must “be measured by standards
that satisfy the First Amendment.”
- Thus, we consider this 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.
- The Court reasoned that “erroneous statement is inevitable in free debate” and
that punishing critics of public officials for any factual errors would chill speech
about matters of public interest. The high court also established what has come to
be known as “the actual malice rule.” This means that public officials suing for
libel must prove by clear and convincing evidence that the speaker made the false
statement with “actual malice” — defined as “knowledge that it was false or with
reckless disregard of whether it was false or not.”
Gertz
- The actual-malice standard does not apply to private individuals.
- The Court held that, so long as they do not impose liability without
fault, states are free to establish their own standards of liability for defamatory
statements made about private individuals. However, the Court also ruled that if
the state standard is lower than actual malice, the standard applying to public
figures, then only actual damages may be awarded
- The consequence is that strict liability for defamation is unconstitutional in the
United States; the plaintiff must be able to show that the defendant
acted negligently or with an even higher level of mens rea.
- 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.
- 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,27 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).
- 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.
The Court sided with Gertz on this question and found a difference between public
figures and private persons.
The court noted two differences:
- Public officials and public figures have greater access to the media in order to
counter defamatory statements; and
- Public officials and public figures to a certain extent seek out public acclaim and
assume the risk of greater public scrutiny.
- We hold that, so long as they do not impose liability without fault, the States may
define for themselves the appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood injurious to a private individual.
- This standard means that a private person does not have to show that a defendant
acted with actual malice to prevail in a defamation suit. The private plaintiff
usually must show simply that the defendant was negligent, or at fault. However,
the high court also ruled that private defamation plaintiffs could not recover
punitive damages unless they showed evidence of actual malice.
Dun and Bradstreet
- A court may permit recovery of presumed and punitive damages in a defamation case
absent a showing of actual malice when the defamatory statements do not involve
matters of public concern.
- A credit reporting agency could be liable in defamation if it carelessly relayed (i.e.
published) false information that a business had declared bankruptcy when in fact
it had not.
- The court found that First Amendment interests were less controlling in matters
of a purely private concern than matters which are a public interest. The Supreme
Court did not overturn Vermont state law allowing awards of presumed and
punitive damages absent a showing of "actual malice".
- Nonmedia distributors of information, such as credit agencies, do not enjoy First
Amendment protections as defendants in libel lawsuits.
- The lingering question was whether the Gertz standard protected nonmedia
distributors of information about people, like credit bureaus.
- In Dun and Bradstreet, the Court answered that question in the negative, holding
that the First Amendment protects speech “on matters of public concern,” not
speech related to purely private concerns, as in this case.
Privacy
Florida Star
- Information about a matter of public significance lawfully obtained by, and published
by, a newspaper enjoys First Amendment protection, absent a need to further a state
interest of the highest order.
- The Supreme Court ruled the imposition of damages for truthfully publishing
public information violates the First Amendment.
 - First, the law made no effort to punish any party who disseminated the name of a
rape victim except an "instrument of mass communication" which the law did not
define. This meant that the most vicious gossip who spread the details around was
not subject to the law, but supposedly a newspaper was. Second, the law basically
punishes a newspaper which truthfully prints information which it had
legitimately obtained from a government agency. While a newspaper could be
punished for truthfully reporting facts which were not public knowledge or which
it unlawfully obtained (the Court referred back to prior cases where it gave
examples of material a newspaper might legally be punished for publishing, such
as the dates and times of troop ship movements during war), it is unconstitutional
for a government agency to impose punishment upon a newspaper for truthfully
publishing information that the government had in fact released publicly.
- The Court did not consider protection of a rape victim’s identity to be a “state
interest of the highest order,” and it found the statute that the newspaper
violated to be underinclusive because it punished instruments of mass
communication — but no other entity — for disseminating a rape victim’s identity.
It also questioned the fairness of the strict liability standard of the Florida law for
disclosure of a victim’s identity and expressed concern that affirming the
judgment would beget media self-censorship. Marshall stressed that the holding
was limited, leaving open the possibility that a state interest could be identified to
meet the “highest order” threshold, thereby subjecting a newspaper to a
“narrowly tailored” punishment for publishing truthful information.
Broadcast Media
Bartnicki
- The First Amendment prohibits liability for publishers who lawfully obtain and
publish the contents of an intercepted private conversation, even when the initial
interception was unlawfully made by an independent third party.
- A broadcaster cannot be held civilly liable for publishing documents or tapes
illegally procured by a third-party.
- The Court held the radio station not liable because the radio station itself had
done nothing illegal to obtain the tape. The case is often used to stand for the
proposition that media defendants are not liable for broadcast material even if a
third party violated the law to obtain it.
- The First Amendment protects speech that discloses the contents of an illegally
intercepted communication.
Copyrighted Materials
Zacchini
- The First Amendment doesn't immunize the news media from liability under a state
right to publicity when the media broadcasts a performer's entire act as part of a
news program without consent.
- The Court held that the First and Fourteenth Amendments do not immunize the
news media from civil liability when they broadcast a performer's entire act
without his consent, and the Constitution does not prevent a state from requiring
broadcasters to compensate performers. It was the first time (and so far the only
time) the Supreme Court heard a case on rights of publicity.
 - While a state government may pass a law shielding the press from liability for
broadcasting performers' acts, the First and Fourteenth amendments do not
require the states to do so.
Obscenity
Federal obscenity law in the U.S. is unusual in that there is no uniform national
standard.
Obscenity refers to a narrow category of pornography that violates contemporary
community standards and has no serious literary, artistic, political, or scientific value.
For adults at least, most pornography — material of a sexual nature that arouses many
readers and viewers — receives constitutional protection. However, two types of
pornography receive no First Amendment protection: obscenity and child pornography.
In Miller, the Court reasoned that individuals could not be convicted of obscenity
charges unless the materials depict “patently offensive hard core sexual conduct.”
Under that reasoning, many sexually explicit materials — pornographic magazines,
books, and movies — are not legally obscene. Ironically, Justice Brennan dissented
in Miller and Paris Adult Theatre I v. Slaton (1973), changing his position on obscenity.
He determined that obscenity laws were too vague and could not be applied without
“jeopardizing fundamental First Amendment values.”
Exceptions
1. Child Porn
2. Miller Test
3. Zoning
Paris Adult Theatre I v Salon
- Obscene material has no protection under the First Amendment, and states have a
legitimate interest in regulating commerce in obscene material and in regulating
exhibition of obscene material in places of public accommodation.
- In the opinion for the Court, Chief Justice Warren E. Burger emphasized that
obscenity is not protected speech and that the right to privacy does not apply to
films exhibited in public. He added that states have a legitimate interest in
regulating commerce in obscene materials to prevent crime and improve the
community. He also reasoned that the state was not obliged to offer conclusive
proof of a connection between obscene materials and social harm.
Miller v California
- Modifying its definition of obscenity from that of "utterly without socially
redeeming value" to that which lacks "serious literary, artistic, political, or
scientific value".[1] It is now referred to as the three-prong standard or the Miller
test.[2]
- In determining whether material is obscene, the trier of fact must consider three
guiding principles: (1) whether the average person, applying contemporary
community standards would find that the work, taken as a whole, appeals to the
prurient interest; (2) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law; and (3) whether
the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- The question before the court was whether the sale and distribution of obscene
material was protected under the First Amendment's guarantee of Freedom of
Speech. The Court ruled that it was not. It indicated that "obscene material is not
protected by the First Amendment," especially that of hardcore pornography,
 thereby reaffirming part of Roth. However, the Court acknowledged "the inherent
dangers of undertaking to regulate any form of expression," and said that "State
statutes designed to regulate obscene materials must be carefully limited." [15] The
Court, in an attempt to set such limits, devised a set of three criteria which must
be met for a work to be legitimately subject to state regulation:
1. Whether the average person, applying contemporary "community standards,"
would find that the work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in an offensive way, sexual conduct or
excretory functions, as specifically defined by applicable state law (the syllabus
of the case mentions only sexual conduct, but excretory functions are explicitly
mentioned on page 25 of the majority opinion); and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value.

- The first two prongs of the Miller test are held to the standards of the community,
and the last prong is held to what is reasonable to a person of the United States
as a whole. The national reasonable person standard of the third prong acts as a
check on the community standard of the first two prongs, allowing protection for
works that in a certain community might be considered obscene but on a national
level might have redeeming value.
- Burger rejected the notion that the First Amendment requires a national
community standard, writing: “It is neither realistic nor constitutionally sound to
read the First Amendment as requiring that the people of Maine or Mississippi
accept public depiction of conduct found tolerable in Las Vegas, or New York
City.” He did note that only materials that “depict or describe patently offensive
‘hard core’ sexual conduct specifically defined by the regulating state law”
constituted obscenity.
Jenkins v Georgia
- Material that does not depict sexual conduct in a patently offensive way is not outside
the protections of the First and Fourteenth Amendments due to obscenity.
- Nudity, by itself, does not make a work obscene.
- The Court’s decision affirmed two fundamental principles of obscenity law: the
First Amendment allows states great latitude in how they define “contemporary
community standards,” and material with nudity and sexual themes alone is not
obscenity.
Speech Integral to Criminal Conduct
Ashcroft v The Free Speech Coalition
- Legislation that proscribes a significant volume of speech that is not obscene
under Miller v. California, 413 U.S. 15 (1973), and not child pornography under New
York v. Ferber, 458 U.S. 747 (1982), is unconstitutional.
- Struck down two overbroad provisions of the Child Pornography Prevention Act of
1996 because they abridged "the freedom to engage in a substantial amount of
lawful speech".
- Kennedy wrote that the Child Pornography Prevention Act was overbroad because
it banned a “significant universe of speech that is neither obscene
under Miller nor child pornography under Ferber.”
- He explained that “in contrast to Ferber, CPPA prohibits speech that records no
crime and creates no victims by its production.” Indeed, Kennedy noted that the
majority in Ferber reasoned that young-looking adults could be used if necessary
for scientific and artistic purposes. As for the argument that virtual child
pornography could be used by pedophiles to seduce children into sexual activity,
 Kennedy countered those other enticements, such as cartoons and candy, could
just as easily be used.
- In passing the Child Pornography Prevention Act of 1996, Congress added the two
categories of speech challenged in this case to its definition of child pornography.
The first prohibited "any visual depiction, including
any photograph, film, video, picture, or computer or computer-generated
image or picture" that "is, or appears to be, of a minor engaging in sexually
explicit conduct". The Court observed that this provision "captures a range of
depictions, sometimes called 'virtual child pornography', which include computer-
generated images, as well as images produced by more traditional means". The
second prohibited "any sexually explicit image that was advertised, promoted,
presented, described, or distributed in such a manner that conveys the impression
it depicts a minor engaging in sexually explicit conduct".
- The great difficulty with the two provisions of the CPPA at issue in this case was
that they included categories of speech other than obscenity and child
pornography, and thus were overbroad.
- The Court concluded that the "CPPA prohibits speech despite its serious literary,
artistic, political, or scientific value." In particular, it prohibits the visual depiction
of teenagers engaged in sexual activity, a "fact of modern society and has been a
theme in art and literature throughout the ages." Such depictions include
performances of Romeo and Juliet, by William Shakespeare; the 1996 film William
Shakespeare's Romeo + Juliet, directed by Baz Luhrmann; and the Academy
Award winning movies Traffic and American Beauty. "If these films, or hundreds
of others of lesser note that explore those subjects, contain a single graphic
depiction of sexual activity within the statutory definition, the possessor of the
film would be subject to severe punishment without inquiry into the work's
redeeming value. This is inconsistent with an essential First Amendment rule: The
artistic merit of a work does not depend on the presence of a single explicit
scene."
- In Ferber, the U.S. Supreme Court ruled that child pornography need not be legally obscene in order to
be outlawed. The Court ruled that in contrast to the types of images considered in Miller, images that
depicted underlying harm to children need not appeal to "the prurient interest of the average person", portray
sexual conduct in "a patently offensive manner", nor be considered holistically, in order to be proscribed.
- Ferber did not hold that child pornography is "by definition without value", but
that it is illegal because of the harm that making and distributing it necessarily
inflicts upon children. Ferber expressly allowed virtual child pornography as an
alternative that could preserve whatever value child pornography might have
while at the same time mitigating the harm caused by making it. The CPPA would
eliminate this distinction and punish people for engaging in what had heretofore
been a legal alternative.
- Although the CPPA's objective was to prohibit illegal conduct, it went well beyond
that goal by restricting speech available to law-abiding adults. If the goal was to
eliminate the market for all child pornography, the Court ruled that the
government could not accomplish that goal by eliminating lawful speech in the
process. The burden should not, however, fall on the speaker to prove that his
speech is lawful, instead of on the government to prove that it is not.
Furthermore, such an affirmative defense is "incomplete on its own terms"
because it "allows persons to be convicted in some instances where they can
prove children were not exploited in the production."
US v Williams
 - A key provision of PROTECT prohibits anyone from advertising, promoting,
presenting, or distributing child pornography even if the underlying material does
not actually constitute child pornography. It was called the pandering provision in
the litigation.
- Writing for the majority, Justice Antonin Scalia explained that “offers to engage in
illegal transactions are categorically excluded from First Amendment protection.”
He added that “offers to provide or requests to obtain child pornography are
[also] categorically excluded from the First Amendment.”
- An offer to exchange illegal materials is not speech protected by the First
Amendment.
- A federal statute prohibiting the "pandering" of child pornography[1] (offering or
requesting to transfer, sell, deliver, or trade the items) did not violate the First
Amendment to the United States Constitution, even if a person charged under the
code did in fact not possess child pornography with which to trade.
- A federal statute prohibiting the "pandering" of child pornography[1] (offering or
requesting to transfer, sell, deliver, or trade the items) did not violate the First
Amendment to the United States Constitution, even if a person charged under the
code did in fact not possess child pornography with which to trade.
- In keeping with Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002),[6] The
Court stated that "an offer to provide or request to receive virtual child
pornography is not prohibited by the statute. A crime is committed only when the
speaker believes or intends the listener to believe that the subject of the proposed
transaction depicts real children. It is simply not true that this means 'a protected
category of expression [will] inevitably be suppressed,' post, at 13. Simulated
child pornography will be as available as ever."
US v Stevens
- A federal law that seeks to ban visual and auditory depictions of animal cruelty is
overbroad in violation of the First Amendment. Depictions of animal cruelty are not
categorically unprotected by the First Amendment.
- Although the law seeks to ban “crush” videos and other similar content, it also
applies to depictions of hunting, an activity enjoyed by a large portion of the country.
The only thing standing between defendants who sell popular hunting videos and
possibly five years in federal prison is the statute’s exceptions clause. Section 48’s
exceptions clause exempts from the prohibition “any depiction that has serious
religious, political, scientific, educational, journalistic, historical, or artistic value.”
The Government argues that hunting can fall into one of these categories. However,
determining whether a particular depiction falls within one of the excepted
categories is too tenuous to withstand constitutional scrutiny. For example, what is
considered “educational” to one person may not be to another person. Although
there may be a broad societal consensus against cruelty to animals, there is
substantial disagreement on what types of conduct are properly regarded as cruel.
Because the statute is overbroad and applies to a considerable amount of protected
speech it violates the First Amendment. Nevertheless, the government states that it
will not prosecute an individual or group unless the depiction is of “extreme” cruelty.
The government’s statement strengthens the Court’s argument that § 48 is too vague
and ambiguous to discern what depictions would be banned and what would be
allowed.
- Writing for the Court, Chief Justice John G. Roberts, Jr. explained the odd
legislative history of the statute, which was originally designed to address the
interstate market of “crush videos” – videos of women in high heels crushing
small animals. The measure eventually morphed into a general law against
 depictions of animal cruelty. The government had argued that depictions of
animal cruelty should fall into an unprotected category of speech, like obscenity
or child pornography. The government analogized to New York v. Ferber (1982),
where the Court had created the unprotected category of child pornography.
Roberts resisted this in strong language, writing: “Our decisions in Ferber and
other cases cannot be taken as establishing a freewheeling authority to declare
new categories of speech outside the scope of the First Amendment.”
- Having rejected the attempt to create a new unprotected category of speech,
Roberts then addressed whether the law was substantially overbroad. He found
that the law was too broad and could apply to hunting videos and livestock
slaughter. He explained that certain types of hunting are lawful in some states
and unlawful in others and could lead to prosecutions of individuals for conduct
that was legal in certain jurisdictions. Roberts explained that the market for
dogfighting videos was “dwarfed by the market for other depictions, such as
hunting magazines and videos.” To Roberts, this was clear evidence that the
statute, as currently written, was substantially overbroad. He left open the
question of whether a narrowly drawn statute targeting only crush videos or
dogfighting videos would pass constitutional muster.
Brown v Entertainment Merchants Association
- A state law that seeks to prohibit the sale of violent video games to minors must be
narrowly tailored to serve a compelling government interest.
- Video games, like books, plays, and movies, communicate ideas and often social
messages through characters and plot. They also enjoy First Amendment protection.
The California law does not target adults; it solely targets children. Minors are
entitled to a significant measure of First Amendment protection and the government
can only bar materials to children by showing that the law is narrowly drawn to serve
a compelling government interest. While it is true that a state can use its power to
protect children from harm, it does not have free reign to restrict the ideas to which
children may be exposed.
- Here, California offered no significant evidence to link violent video games and
incidents of harm to minors. The only justification provided by the defendants is that
violent video games tend to make some minors more aggressive.
- Writing for the majority, Justice Antonin Scalia rejected the state’s argument that
violent video games could qualify as obscenity. “Our cases have been clear that
the obscenity exception to the First Amendment does not cover whatever a
legislature finds shocking, but only depictions of sexual conduct,” he wrote.
- He observed that minors enjoy a significant amount of First Amendment
protections. He also noted that there has been a long tradition of violent themes
in books. Scalia then subjected the law to strict scrutiny, finding that the state of
California had failed to show a connection between exposure to violent video
games and harmful impact on children. He also noted that the law was not
narrowly tailored in part because there was a voluntary rating system that
informs parents about the dangers of violent video games.
US v Playboy
- A content-based restriction on the freedom of speech must be the least restrictive
means for the government to achieve its related goal.
- Section 505 of the Telecommunications Act of 1996 violated the First Amendment
because it restricted speech based on content and there was a less speech-
restrictive alternative available to protect minors from harmful material on cable
television.
Ashcroft v ACLU I
 - The Child Online Protection Act’s use of community standards to identify material
that is harmful to minors does not violate the First Amendment.
Ashcroft v ACLU II
- In determining the constitutionality of content-based regulations of the internet, the
government must articulate a compelling purpose for the regulation and must show
that no less-restrictive alternatives exist for accomplishing that purpose.
- The Child Online Protection Act was too restrictive in its attempts to regulate
harmful material on the Internet, and this violates the First Amendment. Banning
protected material for adults under the guise of protection of minors is
unconstitutional.
- The court opined that using contemporary community standards to police the
Internet would cause more harm than good, due to differing opinions across
America about what was acceptable for children or consenting adults on the
Internet.
- The court also found that COPA did not pass the strict scrutiny test for
governmental speech regulations, because while preventing children from
accessing harmful material on the Internet was a compelling government interest,
the statute was not narrowly tailored enough to enable other uses, including
consenting adults, to access such material voluntarily, and (given the availability
of filtering software) the statute was not the least restrictive means of achieving
the government's goals.
- Did not pass the strict scrutiny test used to judge obscenity cases: It failed to
be narrowly tailored and to incorporate the less restrictive means — for example,
blocking and filtering software — of protecting children from otherwise
constitutionally protected speech.
- Justice Anthony M. Kennedy, who delivered the majority opinion, explained that
“[f]ilters are less restrictive than COPA. They impose selective restrictions on
speech at the receiving end, not universal restrictions at the source. . . . [T]he
Government failed to introduce specific evidence proving that existing filtering
technologies are less effective than the restrictions in COPA.”
American Booksellers v Hudnut
- Its law stated that any sexually explicit material that depicted women as sexual
objects — interpreted as appearing to enjoy pain or humiliation, domination, or
rape — and otherwise depicted them in sexually subordinate and humiliating roles
would be considered a civil rights violation.
- Obscene material is not protected by the First Amendment and so may be
proscribed. Pornographic material — so long as it fails to meet
the Miller requirements — is, however, protected by the First Amendment and
may not be banned. Because, according to the Court, the Indianapolis ordinance
sought to regulate sexually explicit material determined not to be obscene, it was
inconsistent with the Miller test.
- A municipal ordinance may not prohibit pornography on the ground that it
subordinates women, as doing so constitutes impermissible viewpoint discrimination
under the First Amendment.
- The ordinance did not refer to the prurient interest, as required
of obscenity statutes by the Supreme Court in Miller v. California, 413 U.S. 15
(1973).[6] Rather, the ordinance defined pornography by reference to its portrayal
of women, which the court held was unconstitutional, as "the First Amendment
means that government has no power to restrict expression because of its
message [or] its ideas."
Fighting Words and the Heckler’s Veto
Inflammatory words that are either injurious by themselves or might cause the hearer
to immediately retaliate or breach the peace. Spoken words directed to the person of
the hearer which would tend to cause acts of violence by the person to whom,
individually, the remark is addressed.
Cantwell
- Speech is not protected under the First Amendment if it represents a clear and
present danger to a substantial state interest.
- Justice Owen Roberts wrote in a unanimous opinion that "to condition the
solicitation of aid for the perpetuation of religious views or systems upon a
license, the grant of which rests in the exercise of a determination by state
authority as to what is a religious cause, is to lay a forbidden burden upon the
exercise of liberty protected by the Constitution."
- In the case at hand, Roberts believed that requiring a permit to canvass
constituted an unconstitutional prior restraint on publication. Acknowledging that
the state had the right to safeguard “against the perpetration of frauds under the
cloak of religion,” he believed the licensing requirement left too much discretion
in the hands of the official who would determine whether to grant permission.
Roberts also believed the breach of the peace statute to be too broad, finding no
evidence that Cantwell’s actions constituted a “clear and present danger of riot,
disorder, interference with traffic upon the public streets, or other immediate
threat to public safety, peace, or order.”
Chaplinsky (Fighting Words)
- “Fighting words” that incite others to violence are not protected by the First
Amendment from governmental regulation.
- There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or "fighting" words those which by their
very utterance inflict injury or tend to incite an immediate breach of the
peace. It has been well observed that 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.
- Justice Francis W. Murphy, writing for a unanimous court, held that certain
written or spoken words are exempt from First Amendment protection when they
instigate violent reactions by listeners.
- Although most speech falls under the protection of the First Amendment freedom
of speech, expressions that are “lewd and obscene, . . . profane, . . . libelous, and .
. . insulting or ‘fighting’ words” cannot claim constitutional protection. Murphy
argued that fighting words “by their very utterance inflict injury or tend to incite
an immediate breach of the peace.”
- He added that whenever such speech fails to “contribute to the expression of
ideas [or] possessed any ‘social value’ for the truth,” the right to utter that speech
can be limited by government when it seeks to promote the “social interest in
order and morality.”
Cohen
- Absent a particularized and compelling purpose, a state may not criminalize a public
display of a single four-letter expletive without violating the First and Fourteenth
Amendments.
- The First Amendment, as applied through the Fourteenth, prohibits states from
making the public display of a single four-letter expletive a criminal offense,
 without a more specific and compelling reason than a general tendency to disturb
the peace. The First Amendment places a heavy burden on the justification of
prior restraint to curtail free speech.
- The issue with which the Court was dealing consisted of "a conviction resting
solely upon 'speech', [citation], not upon any separately identifiable conduct".
Because the conviction was based on speech, Justice Harlan stated that the
defendant may be criminally punished only if his speech (the words on his jacket)
fell within a specific category of speech that is not protected by the First
Amendment.[24] The justice then outlined why the word "fuck" did not fall into one
of those categories.[25] As Justice Harlan said in the decision, "...while the
particular four-letter word being litigated here is perhaps more distasteful than
most others of its genre, it is nevertheless often true that one man's vulgarity is
another's lyric".
- He reasoned that Cohen’s display of profanity could not be classified as obscenity,
because it was not “erotic.” He also determined that the language could not be
considered fighting words — another unprotected form of expression — because it
was not directed at a particular recipient. “No individual actually or likely to be
present could reasonably have regarded the words on appellant’s jacket as a
direct personal insult,” he wrote. Rejecting the state’s argument that the
conviction was justified to protect the privacy interests of unwilling viewers,
including women and children, Harlan responded that they and others upset by
Cohen’s jacket “could effectively avoid further bombardment of their sensibilities
by averting their eyes.”
Snyder
- A church protesting a military funeral on public land in a peaceful manner is
considered public speech protected by the First Amendment.
- The Court reasoned that the highly offensive expression was speech on a matter
of public concern, uttered peacefully and lawfully on a public street. The
defendants’ speech touched on matters of public concern or importance. He also
emphasized that the protestors conducted themselves peacefully on public
streets pursuant to police directives.
- “Speech is powerful. It can stir people to action, move them to tears of both joy
and sorrow, and – as it did here – inflict great pain. On the facts before us, we
cannot react to that pain by punishing the speaker. As a Nation we have chosen a
different course – to protect even hurtful speech on public issues to ensure that
we do not stifle public debate.”
- Chief Justice John Roberts (as in the Stevens case) wrote the majority opinion
stating "What Westboro said, in the whole context of how and where it chose to
say it, is entitled to 'special protection' under the First Amendment and that
protection cannot be overcome by a jury finding that the picketing was
outrageous." The court's opinion also stated that the memorial service was not
disturbed, saying, "Westboro stayed well away from the memorial service, Snyder
could see no more than the tops of the picketers' signs, and there is no indication
that the picketing interfered with the funeral service itself."
- Speech on a matter of public concern, in a public place, cannot be the basis of
liability for a tort of emotional distress.
Houston v Hill
- An ordinance that criminalizes constitutionally protected speech and vests excessive
enforcement discretion with law enforcement officers is unconstitutionally overbroad.
- Found a city ordinance prohibiting verbal abuse of police officers to
be unconstitutionally overbroad and a criminalization of protected speech.
 - Justice William J. Brennan Jr., who authored the Court’s opinion, wrote that “the
First Amendment protects a significant amount of verbal criticism and challenge
directed at police officers.” He added that the “freedom of individuals verbally to
oppose or challenge police action without thereby risking arrest is one of the
principal characteristics by which we distinguish a free nation from a police
state.” He reasoned that the ordinance could not be read only to prohibit
disorderly conduct or fighting words.
Virginia v Black
- A statute is unconstitutional if it both bans cross burning done with the intent to
intimidate and states that the act of burning a cross is itself prima facie evidence of
the intent to intimidate.
- In essence, the Fourteenth Amendment prevents a jury instruction when that
instruction includes: a presumption, that shifts the burden of persuasion with
regards to an essential element of the crime away from the state and onto the
defendant, in a criminal trial. Thus, the Fourteenth Amendment was violated by
the text of the statute where the intent to intimidate was presumed from the
action of cross burning.
- However, the Court found the statute constitutional with regards to the language
limiting cross burning with the intent to intimidate as a valid conduct restriction
as the regulation was: within the constitutional power of the government, where
the conduct regulation furthers an important government interest and such
government interest is unrelated to the suppression of speech, and the incidental
burden (secondary effect) on speech is no greater than necessary. "'True threats'
encompass those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals," O'Connor wrote. "Intimidation in the
constitutionally proscribable sense of the word is 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. Respondents do not contest that some
cross burnings fit within this meaning of intimidating speech, and rightly so. As
noted ... the history of cross burning in this country shows that cross burning is
often intimidating, intended to create a pervasive fear in victims that they are a
target of violence.” To distinguish this case from R.A.V. v. St. Paul (1992), which
held that a local ordinance that banned cross burnings inspiring hatred based on
“race, color, creed, religion or gender” amounted to constitutionally
impermissible content discrimination, Justice O’Connor held that cross burning
was “a particularly virulent form of discrimination.” Therefore, it fell into an
exception established under R.A.V. that let states ban extreme forms of a given
type of proscribable speech without banning other, less severe forms.
- By structuring the language of the statute to restrict conduct only with the intent
to intimidate, the Virginia legislature satisfied all three prongs of the O'Brien test
(see United States v. O'Brien, 391 U.S. 367 (1968)). The limitation of the conduct
was within the constitutional power of the government based on the First
Amendment exception known as the "true threats" doctrine. The conduct
restriction furthered an important government interest that was unrelated to the
suppression of speech, because, "cross burning done with the intent to intimidate
has a long and pernicious history as a signal of impending violence." Virginia v.
Black, 538 U.S. 343, 123 S. Ct. 1536, 1539, 155 L. Ed. 2d 535 (2003). Finally, the
secondary effect on speech was no greater than necessary as it restricted the
conduct only when accompanied by the intent to intimidate.
R.A.V.
- Under the First Amendment, states may not regulate categories of unprotected
speech, such as “fighting words,” based on content.
- The St. Paul Bias-Motivated Crime Ordinance was struck down because the
regulation was "content-based," proscribing only activities which conveyed
messages concerning topics.
- Struck down a city ordinance that made it a crime to place a burning cross or
swastika anywhere “in an attempt to arouse anger or alarm on the basis of race,
color, creed, or religion.”
- The Court began its substantive analysis with a review of the principles of free
speech clause jurisprudence, beginning with the general rule that the First
Amendment prevents the government from proscribing speech,[8] or even
expressive conduct,[9] because of disapproval of the ideas expressed.[10] The Court
noted that while content-based regulations are presumptively invalid, society has
permitted restrictions upon the content of speech in a few limited areas, which
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." The Court then clarified language from previous free speech clause
cases, including Roth v. United States, Beauharnais v. Illinois,
and Chaplinsky that suggested that certain categories of expression are "not
within the area of constitutionally protected speech," and "must be taken in
context."[12] The Court's clarification stated that this meant that certain areas of
speech "can, consistently with the First Amendment, be regulated because of
their constitutionally proscribable content (obscenity, defamation, etc.)—not that
they are categories of speech entirely invisible to the Constitution, so that they
may be made the vehicles for content discrimination."[13] Thus, as one of the first
of a number of illustrations that Justice Scalia would use throughout the opinion,
the government may "proscribe libel, but it may not make the further content
discrimination of proscribing only libel critical of the government." The Court
recognized that while a particular utterance of speech can be proscribed on the
basis of one feature, the Constitution may prohibit proscribing it on the basis of
another feature.[15] Thus, while burning a flag in violation of an ordinance against
outdoor fires could be punishable, burning a flag in violation of an ordinance
against dishonoring the flag is not.[15] In addition, other reasonable "time, place,
or manner" restrictions were upheld, but only if they were "justified without
reference to the content of the regulated speech." The statute specifically applies
to fighting words that provoke violence “on the basis of race, color, creed, religion, or
gender.” Under these terms, fighting words are permissible as long as they do not
address one of the disfavored topics. This constitutes a prime example of
impermissible content discrimination, and even viewpoint discrimination, under the
First Amendment.
- The Court recognized two final principles of free speech jurisprudence. One of
these described that when "the entire basis for the content discrimination
consists entirely of the very reason the entire class of speech is proscribable, no
significant danger of idea or viewpoint discrimination exists." As examples, Justice
Scalia wrote, A State may choose to prohibit only that obscenity which is the most
patently offensive in its prurience — i.e., that which involves the most lascivious
displays of sexual activity. But it may not prohibit, for example, only that
obscenity which includes offensive political messages. And the Federal
Government can criminalize only those threats of violence that are directed
against the President, since the 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) have special force when applied to the person of the
President.[18] The other principle of free speech jurisprudence was recognized
when the Court wrote that a valid basis for according different treatment to a
content-defined subclass of proscribable speech is that the subclass "happens to
be associated with particular 'secondary effects' of the speech, so that 'the
regulation is justified without reference to the content of the ... speech'"[19] As an
example, the Court wrote that a State could permit all obscene live performances
except those involving minors.
- Although the phrase in the ordinance, "arouses anger, alarm or resentment in
others," has been limited by the Minnesota Supreme Court's construction to reach
only those symbols or displays that amount to "fighting words," the remaining,
unmodified terms make clear that the ordinance applies only to "fighting words"
that insult, or provoke violence, "on the basis of race, color, creed, religion or
gender." Displays containing abusive invective, no matter how vicious or severe,
are permissible unless they are addressed to one of the specified disfavored
topics. Those who wish to use "fighting words" in connection with other ideas—to
express hostility, for example, on the basis of political affiliation, union
membership, or homosexuality—are not covered. The First Amendment does not
permit St. Paul to impose special prohibitions on those speakers who express
views on disfavored subjects. The Court went on to explain that, in addition to
being an impermissible restriction based on content, the Ordinance was also
viewpoint- based discrimination.
- In the opinion for the unanimous Court, Justice Antonin Scalia noted that the St.
Paul statute was meant to prohibit only expressions that served to cause outrage,
alarm, or anger with respect to racial, gender, or religious intolerance. Other
expressions designed equally to arouse anger or outrage on other bases were not
prohibited. The ordinance therefore unconstitutionally singled out, content-based
viewpoints. Scalia also contended that it was not reasonable for St. Paul to assert
that content-specific discrimination was necessary to achieve a narrow and
compelling end. Even granting that the end was compelling, as the Minnesota
high court had, Scalia argued that it could be achieved with an ordinance that did
not address or prohibit only specific content.
Government as Speaker
- Under the government speech doctrine, the government has its own rights as
speaker, immune from free speech challenges. It can assert its own ideas and
messages without being subject to First Amendment claims of viewpoint
discrimination.
Matal
- The disparagement clause of the Lanham Act is unconstitutional because it violates
the free speech clause of the First Amendment.
- The provisions of the Lanham Act prohibiting registration of trademarks that may
"disparage" persons, institutions, beliefs, or national symbols with the United
States Patent and Trademark Office violated the First Amendment.
- Contrary to the Government’s contention, trademarks are private, not
government speech.
- A federal law prohibiting trademark names that disparage others was
unconstitutional because “speech may not be banned on the grounds that it
expresses ideas that offend.”
- Alito reasoned that the law was viewpoint discriminatory even though it applied
to all groups, because “[g]iving offense is a viewpoint.” Because the law
 discriminated on the basis of content and viewpoint, Alito then addressed whether
the Court should apply strict scrutiny or whether the law should be evaluated
under intermediate scrutiny as a regulation of commercial speech under Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm. of N.Y . (1980).
- Alito reasoned that the Court need not resolve whether the speech involved only
commercial speech or also political speech, because the federal law at issue could
not pass even the Central Hudson test. Under this test, the government must
show that it has a substantial interest, that its regulation directly and materially
advances the interest, and that the regulation is narrowly tailored. Alito reasoned
that the federal law fails this test. He wrote that the clause was “far too broad” to
be considered narrowly drawn.
Iancu
- The Lanham Act’s prohibition on the registration of marks that consist of or comprise
immoral or scandalous matter violates the First Amendment.
- Invalidated a provision of federal trademark law that prohibited “immoral or
scandalous” marks. The Court viewed the provision as sanctioning viewpoint
discrimination and as substantially overbroad.
- In her majority opinion, Justice Elena Kagan determined that, like the ban on
disparaging marks invalidated in Matal v. Tam (2017), the “immoral or
scandalous" marks provision discriminated on the basis of viewpoint.
- Kagan recounted a long list of rejected marks to show the viewpoint
discriminatory application of the law. The government sought a narrower
construction, but Kagan wrote: “The statute as written does not draw the line at
lewd, sexually explicit, or profane marks.”
- She also determined the law was substantially overbroad: “There are a great
many immoral and scandalous ideas in the world (even more than there are
swearwords) and the Lanham Act covers them all. It therefore violates the First
Amendment.”
- It decided 6–3 that the provisions of the Lanham Act prohibiting registration of
trademarks of "immoral" or "scandalous" matter is unconstitutional by permitting
the United States Patent & Trademark Office to engage in viewpoint
discrimination, which violates the Free Speech Clause of the First Amendment.
- It is a settled principle of free-speech law that the government cannot discriminate
against speech based on the speaker’s viewpoint. In Matal v. Tam, 137 S. Ct. 1744
(2017), this Court held that if a trademark registration bar is viewpoint-based, that
bar is unconstitutional. Here, the Lanham Act’s immoral-or-scandalous bar is
viewpoint-based. The statutory terms “immoral” and “scandalous” necessarily
distinguish between ideas that are approved by society because they are consistent
with conventional moral standards and ideas that are deemed offensive and subject
to public condemnation because they defy conventional morality. The law’s facial
viewpoint bias has led the PTO to apply the statutory bar in viewpoint-discriminatory
ways, rejecting marks that are deemed offensive by conventional moral standards
and registering marks that align more closely with accepted societal views. Although
the PTO’s application of the bar has ultimately led to the rejection of marks that
people might legitimately find offensive, a law that disfavors offensive ideas still
violates the First Amendment.
Symbolic Speech
- Used to describe actions that purposefully and discernibly convey a particular
message or statement to those viewing it. Symbolic speech is distinguished
from pure speech, which is the communication of ideas through spoken or written
words or through conduct limited in form to that necessary to convey the idea.
O’Brien
- If conduct contains both speech and nonspeech elements, an important or substantial
governmental interest in regulating the nonspeech element may justify incidental
limitations on the protected speech if (1) the regulation is within the constitutional
power of the government, (2) the regulation furthers an important or substantial
governmental interest; (3) the governmental interest is unrelated to the suppression
of free expression, and (4) the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest.
- The test articulated in O'Brien has been subsequently used by the court to
analyze whether laws that have the effect of regulating speech, though are
ostensibly neutral towards the content of that speech, violate the First
Amendment.
- The UMTSA meets the four requirements for a valid government regulation.
Congress has the constitutional ability to classify individuals for military service and
establish a registration system. Legislation designed to ensure the availability of
registration certificates issued in aid of the system (e.g., the UMTSA) serves a
legitimate and substantial purpose in the system’s administration. Destroying or
mutilating the registration certificates would defeat the certificates' purpose by (1)
making it difficult to verify registration; (2) complicating communication between
registrants and their local boards; (3) eliminating reminders that registrants must
update their local boards with address or status changes; and (4) increasing the
difficulty of detecting abuses in the use of certificates, such as fraud, alteration, or
forgery. The government's interest is limited to preserving the functionality of the
draft system, by preventing the willful destruction or mutilation of registration
certificates to ensure that the certificates remain available. The government's
interest and the law therefore implicate only the noncommunicative aspect of
O'Brien's conduct, and it was for the noncommunicative impact of his conduct that
O'Brien was convicted.
- The Court ruled 7-1 (Justice Thurgood Marshall did not participate) that the law
did not violate the First Amendment because it furthered the government’s
important interests in a smoothly functioning draft selection system.
- For the majority, Chief Justice Earl Warren established a test for determining
whether laws that impact expressive conduct pass constitutional scrutiny.
Warren wrote, “We think it clear that 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.”
- After applying this test, Warren determined that Congress had the power to pass
the law. The law served many functions related to the efficient operation of the
draft system and was “limited to the noncommunicative aspect of O’Brien’s
conduct.” Further, Warren noted, “no alternative means that would more precisely
and narrowly assure the continued availability of issued” draft cards existed.
- Of more lasting importance to First Amendment jurisprudence, the Court
created the O’Brien test for determining whether expressive
conduct or symbolic speech merits First Amendment protection.
Johnson
- A state statute that criminalizes the burning of an American flag as a means of
political protest violates the First Amendment.
 - In the majority opinion, Brennan reiterated the Court's long-held recognition that
the First Amendment to the United States Constitution protects non-speech acts
as being symbolic speech, writing that the First Amendment's protection on
speech "does not end at the spoken or written word".
- In Spence v. Washington (1974), the Court rejected "the view that an apparently
limitless variety of conduct can be labeled 'speech' whenever the person engaging
in the conduct intends thereby to express an idea", but acknowledged that
conduct may be "sufficiently imbued with elements of communication to fall
within the scope of the First and Fourteenth Amendments."[23] To determine
whether a particular act possesses the elements of "speech" required to invoke
the First Amendment, the Court asked whether "an intent to convey a
particularized message was present, and [whether] the likelihood was great that
the message would be understood by those who viewed it." [20] The Court found,
based on Spence, that Johnson's burning of the flag "constituted expressive
conduct, permitting him to invoke the First Amendment."
- Expressive conduct is protected by the First Amendment, and that the
government’s interests in protecting the flag did not trump the right to engage in
political speech. Texas argued that the state was seeking to prevent breaches of
the peace and to preserve the flag as “a symbol of nationhood and national unity,”
but the Court rejected the application of the “fighting words” doctrine and the
governmental interest in protecting a symbol. Brennan argued that it “would be
odd . . . that the government may ban the expression of certain disagreeable ideas
on the unsupported presumption that their very disagreeableness will provoke
violence.” Brennan held that Johnson was charged and convicted for “his
expression of dissatisfaction with the policies of this country, expression situated
at the core of our First Amendment values.”
City of Erie
- A government ordinance prohibiting public nudity is permissible under the First
Amendment if it is content-neutral and targeted towards combating negative
secondary effects associated with adult establishments.
- The court held that an ordinance banning public nudity did not violate the
operator of a totally nude entertainment establishment's constitutional right to
free speech.
- Government restrictions on public nudity that ban all public nudity should be
evaluated under the framework set forth in United States v. O'Brien for content-
neutral restrictions on symbolic speech.
- While the doctrinal theories behind incidental burdens and secondary effects are,
of course, not identical, there is nothing objectionable about a city passing a
general ordinance to ban public nudity, even though such a ban may place
incidental burdens on some protected speech, and at the same time recognizing
that one specific occurrence of public nudity, nude erotic dancing, is particularly
problematic because it produces harmful secondary effects.
- The ordinance was content-neutral because it regulated conduct alone, did not
target nudity that contained an erotic message, and petitioner's interest in
preventing harmful secondary effects associated with adult entertainment
establishments was not related to the suppression of the exotic message conveyed
by nude dancing. The O'Brien test for evaluating restrictions on symbolic
speech therefore applied, and was successfully met.
- Did not violate the First Amendment free speech rights of nude dancers when the
city council enacted an ordinance banning public nudity. Erie’s ban was
permissible because it was not related to the suppression of nude dancing per se
 but rather public nudity in general. Erie’s intent was not to suppress a particular
message but rather an attempt to regulate the negative secondary effects of the
speech. Just as the O’Brien Court found the ban on burning draft cards was
related to maintaining the integrity of the selective service system and not
restraining anti-war speech, the plurality determined that Erie’s intent was to
negate the negative impact of nude dancing on public health and safety.
The Court found the following rules of law to apply:
- Being in a state of nudity is not an inherently expressive condition. Totally nude
erotic dancing is expressive conduct, although it falls only within the outer ambit
of the protection of the First Amendment to the United States Constitution.[1]
- Government restrictions on public nudity that ban all public nudity should be
evaluated under the framework set forth in United States v. O'Brien for content-
neutral restrictions on symbolic speech.[1]
- While the doctrinal theories behind incidental burdens and secondary effects are,
of course, not identical, there is nothing objectionable about a city passing a
general ordinance to ban public nudity, even though such a ban may place
incidental burdens on some protected speech, and at the same time recognizing
that one specific occurrence of public nudity, nude erotic dancing, is particularly
problematic because it produces harmful secondary effects.[1]
- For purposes of analysis under the First Amendment to the United States
Constitution, even if a regulation has an incidental effect on some speakers or
messages but not others, the regulation is content neutral if it can be justified
without reference to the content of the expression.

Commercial Speech
Speech promoting a commercial transaction OR related solely to the economic interests
of the speaker and its audience. The Court has historically extended less protection to
commercial speech than to political speech. Commercial speech has been viewed as of
lesser importance and subject to numerous restrictions in order to prevent fraud.
Commercial speech is speech or writing on behalf of a business with the intent of
earning revenue or a profit. It is economic in nature and usually attempts to
persuade consumers to purchase the business's product or service. In the United
States, commercial speech is "entitled to substantial First Amendment protection, albeit
less than political, ideological, or artistic speech”.
Central Hudson Test applies (Intermediate Scrutiny)
1. Whether the commercial speech concerns a lawful activity and is not
misleading
2. Whether the government interest asserted to justify the regulation is
"substantial"
3. Whether the regulation "directly advances" that government interest
4. Whether the regulation is no more extensive than necessary to serve that
interest
Virginia Pharmacy
- For the first time explicitly ruled that purely commercial speech deserves First
Amendment protection.
- The First Amendment protects commercial speech relating to the advertisement of
prescription drug prices.
- Blackmun reasoned that this case concerned not only commercial regulation, but
the free flow of information. This case was just as much about the consumers’
 right to receive information as it was about the pharmacists’ right to provide it,
and that the right to free speech is just as much about the “listener” as it is about
the “speaker”. “The particular consumer’s interest in the free flow of commercial
information . . . may be as keen, if not keener by far, than his interest in the day’s
most urgent political debate” and that “the free flow of commercial information is
indispensable.”
- This is especially true for the consumers in this case, as the poor, elderly, and
infirm needed access to such information to make informed decisions about how
to get their prescriptions filled inexpensively. For such people in need, Blackmun
reasoned, such information was more than simply a convenience. Furthermore, he
stressed the importance of price advertising in a free market economy, because
they serve to provide the underlying information for citizens to make private
economic decisions
- Blackmun concluded his opinion by explaining that states still retained the power
to regulate some commercial speech, via content-neutral time, place, and manner
regulations. Likewise, states retain the power to prohibit false or deceptive
advertisements. However, he held that the states could not suppress truthful
information about a lawful economic activity, simply out of fear of potential
consequences.
- Blackmun acknowledged the state’s interest in maintaining professionalism
among pharmacists but noted that “the advertising ban does not directly affect
professional standards one way or the other.” He also noted that the state’s
interest appeared to be paternalistically protecting consumers, writing in an oft-
quoted passage: “There is, of course, an alternative to this highly paternalistic
approach. That alternative is to assume that this information is not in itself
harmful, that people will perceive their own best interests if only they are well
enough informed, and that the best means to that end is to open the channels of
communication rather than to close them.”
Attorney Advising
- Under the First Amendment, a lawyer may not constitutionally be disciplined for
advertising routine legal services.
- A state bar association may not ban written advertisements that are not false,
deceptive, and do not concern unlawful activities unless in the furtherance of a
substantial government interest.
- A bar association rule prohibiting direct mail solicitation of accident victims within a
limited time period following the occurrence of an accident does not violate
constitutional protections of commercial speech.
National Institute of Family and Life Advocates (Compelled Commercial
Speech)
- Content-based restrictions on professional speech are subject to strict scrutiny.
- The California Reproductive FACT Act, which required crisis pregnancy centers to
alert clients about state-assisted abortions, likely violated the First Amendment to
the United States Constitution. The Court narrowly ruled 5-4 that those notices
amounted to content-based, compelled speech in violation of the First Amendment
or were an unduly burdensome disclosure requirement.
- Thomas identified that the FACT Act targeted the speaker of the language
demanded by the Act rather than the speech itself, which conflicted with the First
Amendment. He wrote that the FACT Act "imposes a government-scripted,
speaker-based disclosure requirement that is wholly disconnected from the
State’s informational interest", and because it only applied to a specific
 classification of facilities, it could be seen as compelled speech for those in the
CPCs that disagreed with the state's stance on abortion.
- Writing for the majority, Justice Clarence Thomas addressed the notice for
licensed clinics first. He categorized this notice as a content-based restriction on
speech subject to strict scrutiny. “By compelling individuals to speak a particular
message, such notices alter the content of speech,” he wrote.
- Thomas rejected the 9th Circuit’s approach of applying a lower level of scrutiny to
the compelled speech because it amounted to professional speech." This Court’s
precedents do not recognize such a tradition for a category called ‘professional
speech,’” he wrote. Thomas reasoned that professionals receive less protection in
two instances – when professionals have to disclose factual, noncontroversial
information in their commercial speech under Zauderer v. Office of Disciplinary
Counsel of Supreme Court of Ohio (1985) and when states regulate professional
conduct that only implicates speech. The FACT disclosure requirement for
licensed clinics did not fall into either of these two exceptions. Thomas reasoned
that Zauderer did not apply, because “[t]he notice in no way relates to the
services that licensed clinics provide.” He also reasoned that the disclosure
notice “is not an informed consent requirement or any other regulation of
professional conduct.” Thomas further warned that when the government
regulates professional speech, it could interfere with the marketplace of ideas and
discriminate against disfavored subjects. He further reasoned that the disclosure
requirement would not even pass intermediate scrutiny because it was “wildly
underinclusive.”
Central Hudson Gas (Established a four-part test for determining when commercial
speech can be regulated without violating the Constitution.)
- If commercial speech is neither misleading nor unlawful, the government may only
prohibit it if doing so advances a substantial government interest, and the limits on
expression are narrowly tailored to achieve that interest.
To make their argument, the Court established a four-step analysis for commercial
speech to the commission's arguments in support of its ban on promotional advertising:
1. Is the expression protected by the First Amendment? For speech to come
within that provision, it must concern lawful activity and not be misleading.
2. Is the asserted governmental interest substantial?
3. Does the regulation directly advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest?
a. There must be a "reasonable fit" between the government's ends and the
means for achieving those ends.
Part one flatly denies constitutional protection to “communication more likely to
deceive the public than to inform it” and to “commercial speech relating to illegal
activity.” This constitutes a threshold for identifying types of commercial speech that
merit First Amendment protection. The burden of proof resides with the communicator
to demonstrate that speech does not fall into one of these categories. Any commercial
speech that satisfies the threshold requirement is presumed to be protected, and the
burden of proof shifts to the state to justify regulation by satisfying parts two through
four.
44 Liquormart
- Under the First Amendment, a state may not constitutionally prohibit the advertising
of prices of alcoholic beverages.
- Stevens concluded that the Court's "early cases uniformly struck down several
broadly based bans on truthful, non misleading commercial speech, each of which
served ends unrelated to consumer protection."[7] He did note, however, that the
 Court has at the same time recognized that states may regulate commercial
advertising to a greater degree than non-commercial advertising.
- He stated that the Court has, in the past, been wary of the "dangers" of outright
content-based bans on commercial speech.
- Stevens argued, however, that Prong 4 was not satisfied because the state
interest in promoting temperance was not drawn narrowly enough to prevent
consumers from receiving lawful and truthful information about prices. Moreover,
Rhode Island had failed to show that the advertising ban would significantly
reduce alcohol consumption and that this total ban was more extensive than
necessary to secure the state’s goal.
- The decision continued the Court’s move toward providing commercial speech
First Amendment protection unless such communication is fraudulent or illegal.
Greater New Orleans Broadcasting
- Federal laws that ban vice advertising even in states where the vice involved is legal
violate the First Amendment.
- Continued its trend of providing strong protection for commercial speech by
striking down 18 U.S.C. 1304, a federal law prohibiting broadcasting
advertisements for gambling casinos, as a violation of the First Amendment.
Lorillard Tobacco v Reilly
- Supreme Court decided the degree to which state restrictions on tobacco
advertising had been preempted by the Federal Cigarette Labeling and
Advertising Act (FCLAA) and the degree to which those that had not been
preempted survived First Amendment scrutiny.
- State cigarette-advertising regulations are pre-empted by the Federal Cigarette
Labeling and Advertising Act, regardless of whether the state regulations are related
to content or location.
- Under the First Amendment, a state may not constitutionally prohibit commercial
speech, unless doing so withstands the four-part analysis outlined in Central Hudson
Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980).
- Massachusetts instituted a ban on tobacco ads and sales of tobacco within 1,000
feet (300 m) of schools and playgrounds. Lorillard argued that this was an
infringement on its First Amendment rights and that the regulation was more
extensive than necessary. Applying the Central Hudson Test, the U.S. Supreme
Court held that Massachusetts' ban on advertising and tobacco sales was
overbroad.
- The Court found that other state regulations were subject to the test the Court
developed for commercial speech in Central Hudson Gas and Electric Corp. v.
Public Service Commission (1980), which required governments to show that a
speech restriction directly and materially advances an asserted interest and that
there is a reasonable fit between the legislative ends and means chosen to
accomplish them. Although O’Connor found sufficient reason for the regulations,
she found that many did not meet the last part of the Central Hudson test. She
also found that the proposed restrictions on outdoor advertising would have
prevented advertising in many of Massachusetts’ main cities. Similarly, she
invalidated rules requiring that stores put cigarettes on shelves higher than five
feet from the floor. By contrast, she upheld provisions placing tobacco products
behind counters and prohibiting their sale through self-service machines as being
“narrowly tailored to prevent access to tobacco products by minors.” She
observed that such rules aimed specifically at regulating “conduct” rather than at
“the communication of ideas.”
Sorrell v IMS
 - Under the First Amendment, a content-based regulation of commercial speech must
directly advance a substantial state interest. Commercial speech that is regulated
based on its content is entitled to the same heighted scrutiny under the First
Amendment as other forms of speech. These constitutional requirements: (1) ensure
that the regulation of speech is proportional to the interest the state hopes to protect
and (2) prevent the state from suppressing speech based on disagreement with its
content.
- A Vermont statute that restricted the sale, disclosure, and use of records that
revealed the prescribing practices of individual doctors violated the First
Amendment.
- The first finding of the Court was that the law placed content and speaker-based
restrictions on speech. The second and final finding of the Court was that
Vermont did not meet its burden to justify its content-based law as consistent
with the First Amendment. According to Board of Trustees, State Univ. of N. Y. v.
Fox, Vermont must demonstrate that the law directly advances a substantial
government interest. The Court rejected Vermont's claims that the law was
necessary to protect medical privacy and achieve improved public healthcare.
- Justice Kennedy found that “[o]n its face, Vermont’s law enacts content and
speaker-based restrictions on the sale, disclosure, and use of prescriber-
identifying information.” In so doing, it disfavored marketing over other data
uses. It further “has the effect of preventing detailers — and only detailers — from
communicating with physicians in an effective and informative way.” Such laws
require heightened judicial scrutiny, even in cases involving commercial speech.
“While the burdened speech results from an economic motive, so too does a great
deal of vital expression.” He further sought to distinguish this case from the facts
in Los Angeles Police Dept. v. United Reporting Publishing Co . (1999). That case,
which had upheld restrictions on access to information, did not, like this, involve
limiting access to information in private hands. Moreover, this case involved a
challenge by individuals who claim that the law violates their own speech.
Kennedy further rejected the idea that the law was attempting to limit only
conduct rather than speech. He noted that “the creation and dissemination of
information are speech within the meaning of the First Amendment.”
- In this case, Vermont claimed to be protecting medical privacy as well as
improved public health and reduced healthcare costs. Kennedy rejected the first
claim on the basis that the state allowed use of this information for other
purposes. Although the law tried to improve health and reduce costs, it “does not
advance them in a permissible way.” Quoting from 44 Liquormart, Inc. v. Rhode
Island (1996), Kennedy wrote that the Court should be particularly wary of
attempts “to keep people in the dark for what the government perceives to be
their own good.” The state appears to be trying to prevent “detailing” precisely
because it has proven to be so persuasive and effective.
Barr
- Content-based restrictions on speech are subject to strict scrutiny.
- The Supreme Court, in a complex plurality decision, ruled on July 6, 2020, that
the 2015 amendment to the TCPA did unconstitutionally favor debt collection
speech over political speech and violated the First Amendment.
- U.S. Supreme Court invalidated a portion of a federal law that allowed robocalls
to collect government debts, such as student loans and mortgage debts.
- The Court reasoned by a tally of 6-3 that disallowing robocalls made for political
and other purposes but allowing robocalls to collect government debts amounted
to impermissible content discrimination under the First Amendment.
 - Justice Brett Kavanaugh, in his main opinion for the Court, reasoned that the
government-debt exception was a content-based restriction on speech. “The law
here focuses on whether the caller is speaking about a particular topic,” he
wrote. “In short, the robocall restriction with the government-debt exception is
content-based.” Kavanaugh then noted that the government-debt exception is
subject to strict scrutiny and that the exception does not pass that high
standard. He noted that the “Government concedes that it cannot satisfy strict
scrutiny to justify the government-debt exception.” However, Kavanaugh agreed
with the government that the invalidation of the government-debt exception does
not doom the entire restriction on robocalls. Instead, Kavanaugh agreed with the
government that the offending government-debt exception provision could be
severed from the rest of the law. “The Court’s power and preference to partially
invalidate a statute in that fashion has been firmly established since Marbury v.
Madison,” he explained. Kavanaugh explained that “[w]ith the government-debt
exception severed, the remainder of the law is capable of functioning
independently and thus would be fully operative as a law.” He applied what he
termed “traditional severability principles” and left in place the rest of the
robocall restriction which he wrote did not constitute unequal treatment.
False Statements of Facts
In United States constitutional law, false statements of fact are assertions, which are
ostensibly facts, that are false. Such statements are not always protected by the First
Amendment. Often, this is due to laws against defamation, that is making statements
that harm the reputation of another. In those cases, freedom of speech comes into
conflict with the right to privacy. Because it is almost impossible for someone to be
absolutely sure that what they say (in public) is true, a party who makes a false claim
isn't always liable. Whether such speech is protected depends on the situation. The
standards of such protection have evolved over time from a body of Supreme
Court rulings.
One of the landmark cases that established such standards was New York Times Co. v.
Sullivan (1964). In that case, the court ruled that statements about public officials must
be given more protection in order to avoid squelching public debate. Similar protections
were later expanded to statements about public figures (not just officials), and matters
of "public concern" (including those involving private parties). Other examples of false
statements of fact that do not receive First Amendment protection include false
advertising, as in Lexmark International, Inc. v. Static Control Components, Inc. (2014)
and POM Wonderful LLC v. Coca-Cola Co. (2014), and commercial speech that
includes misleading statements as in Central Hudson Gas & Electric Corp. v. Public
Service Commission (1980).
Alvarez
- There is no general First Amendment exception for false statements.
- Held that the prohibition against making false statements of having been awarded
a military medal under the Stolen Valor Act of 2005 violated the First
Amendment.
- Justice Anthony Kennedy rejected the government’s argument that false
speech should fall into an unprotected category. Kennedy reasoned that
sometimes-false speech is protected as a way to ensure healthy protection for
other expression. Kennedy then noted that the law was a content-based
restriction on speech. Such laws are constitutional only if they pass strict or
exacting scrutiny. The government asserted that it had a compelling interest in
protecting the integrity of the Medal of Honor. Kennedy agreed this was a
 compelling interest. However, Kennedy reasoned that the law was not narrowly
tailored enough to address the alleged harms associated with false claims of
winning military honors. He noted that there was a less speech-restrictive
alternative — a government-created database that lists the actual military medal-
winners. He explained that the better remedy was through the counterspeech
doctrine – counter negative speech with positive speech first articulated
by Justice Louis Brandeis in his concurring opinion in Whitney v.
California (1927). “The remedy for speech that is false is speech that is true,”
wrote Kennedy. “This is the ordinary response in a free society.”
- Although the falsity of statements can be relevant to a court’s analysis of a First
Amendment issue (e.g., defamation or fraud), the falsity is not determinative. To pass
constitutional muster, a content-based restriction on free speech must be necessary
to further a compelling governmental interest. In this case, the Act “targets falsity
and nothing more.” The Court rejects the government’s comparison to other,
constitutional restrictions on false statements, including false statements made to a
government official, perjury, and a false representation that someone is speaking as a
government official. Each of these restrictions on falsity is particular and carries with
it a higher purpose than a general restriction on false statements. The government
has not demonstrated that a false statement about military decorations reaches this
level. Indeed, the Act is impermissibly broad, suppressing false statements about
military decorations regardless of the context (e.g., whether the statement was made
for material gain) and when, where, or to whom the statements are made.
Time, Place and Manner (Content Neutral Restrictions)
Time, place, and manner restrictions are intended to allow convenience and order to
prevail.
The burden of such regulations is still fairly high, requiring the government to show
that their restrictions on speech are (1) content neutral (that the government does not
outlaw content specific viewpoints), (2) narrowly tailored (3) to serve a significant
governmental interest (i.e., cannot be overly broad to regulate more than what is
necessary to achieve government interest like, for example, public safety), and (4)
ample alternative means to express ideas.
Limited AKA Designated Public Forum- “Although a state is not required to indefinitely
retain the open character of the facility, as long as it does so it is bound by the same
standards as apply in a traditional public forum,” White explained. “Reasonable time,
place, and manner regulations are permissible, and a content-based prohibition must be
narrowly drawn to effectuate a compelling state interest.”
To survive First Amendment constitutional challenges, such restrictions must satisfy a
three-prong test outlined by the Supreme Court in Ward v. Rock Against Racism (1989).
1. The regulation must be content neutral.
2. It must be narrowly tailored to serve a significant governmental interest.
3. It must leave open ample alternative channels for communicating the speaker’s
message.
- The first prong, requiring content neutrality, will be violated by any regulation
that describes permissible expression in terms of its subject matter. Speech
restrictions will be deemed content neutral, even if they impinge more severely
on a particular speaker or message, so long as the government can credibly
justify its regulation as serving purposes that have nothing to do with the content
of speech.
- The second prong of Ward’s three-prong test requires that the regulation must be
narrowly tailored to serve a significant governmental interest. This narrow
 tailoring requirement is not nearly as stringent as its language would suggest.
The Supreme Court has stressed that this prong does not require time, place, and
manner restrictions to be the least restrictive or least intrusive means of
achieving the government’s end. Instead, according to Ward, the requirement of
narrow tailoring is satisfied “so long as the . . . regulation promotes a substantial
government interest that would be achieved less effectively absent the
regulation.” This relaxed conception of narrow tailoring is vividly reflected in the
case law. Regulations that fail this test invariably feature broad restraints on
traditional forms of expressive activity — imposing, for example, sweeping
prohibitions on parades, demonstrations, residential picketing, door-to-door
leafleting, or public hand billing. The narrow tailoring requirement will certainly
be violated by a categorical ban on any of the foregoing methods of expressive
conduct. So, for example, an ordinance would violate the narrow tailoring
requirement by banning parades anywhere within a city’s central business district
on all workdays because it would allow parades only when the downtown streets
were bereft of onlookers. Absent a categorical or substantial ban on a traditional
method of expressive activity, courts routinely uphold time, place, and manner
restrictions as satisfying the requirement of narrow tailoring.
- Under Ward’s third prong, the regulation must leave open ample alternative
channels for communicating the speaker’s message. Two different themes run
through the cases that construe this requirement. First, the Supreme Court has
shown a “special solicitude” for inexpensive methods of communication.
Accordingly, a speech restriction may run afoul of this requirement if it precludes
forms of expression that are much less expensive than feasible alternatives.
Second, the ample alternative channels requirement most commonly arises when
a speaker identifies one particular place as uniquely suited to conveying a
message, but the government insists that the speaker take up position in an
alternative location. The basic test for gauging the sufficiency of alternative
channels is whether the speaker is afforded a forum that is accessible and where
the intended audience is expected to pass. In performing this analysis, a court
should take account of the speaker’s intended audience and the extent to which
the chosen location contributes to his or her message. A speech restriction
does not leave open ample alternative channels if the speaker is left unable to
reach the intended audience.
- Judicial injunctions that impose content-neutral time, place, and manner
restrictions are subject to a heightened form of intermediate scrutiny. Observing
that “[i]njunctions . . . carry greater risks of censorship and discriminatory
application than do general ordinances,” the Supreme Court held in Madsen v.
Women’s Health Center, Inc. (1994) that appellate courts should subject content-
neutral injunctions to more “stringent” First Amendment scrutiny than
comparable legislation — that “when evaluating a content-neutral injunction, we
think that our standard time, place, and manner analysis is not sufficiently
rigorous.” Announcing a new standard of review for judicially imposed time,
place, and manner restrictions, the Court wrote,“[w]e must ask instead whether
the challenged provisions of the injunction burden no more speech than necessary
to serve a significant government interest.” This effectively converts the second
prong of Ward into a least restrictive means requirement.
Public Forum
1. Streets and Parks, and any place the government has opened for easement.
2. Limited Public Forums-Schools (Government has greater deference).
Schneider
 - Struck down on First Amendment grounds city ordinances limiting the
distribution of handbills. Recognized the rights of municipalities to keep streets
open to traffic and other reasonable restrictions but added that localities must
recognize that the freedoms of speech and press are “fundamental personal
rights” that lie “at the foundation of free government by free men.” The cities had
attempted to distinguish their ordinances from these and similar cases on the
basis that they were attempting to address the problem of littering. Roberts
asserted that there were less intrusive ways to accomplish this goal, including
fining individuals who littered.
- While municipalities may impose reasonable restrictions and time requirements for
soliciting and canvassing on public property, the First Amendment does not permit
them to restrict these activities entirely in public places.
- The Court held that the purpose of the ordinances (to keep the streets clean and
of good appearance) was insufficient to justify prohibiting defendants from
handing out literature to other persons willing to receive it.
- The purpose of the ordinances to keep the streets clean and of good appearance
was insufficient to justify prohibiting defendants from handing out literature to
other persons willing to receive it. Any burden imposed upon the city authorities
in cleaning and caring for the streets as an indirect consequence of such
distribution resulted from the constitutional protection of the freedom of speech
and press. Concerning the distribution of materials from house to house without a
permit, the ordinance was void.
- This right is not absolute, however. Municipalities may lawfully regulate the
conduct of those using the streets, for the purpose of keeping them open and
available for movement of people and property, so long as legislation to this end
does not abridge the constitutional liberty of one rightfully upon the street to
impart information through speech or the distribution of literature.
Frisby
- Voted 6-3 to uphold a city ordinance that banned picketing in residential
neighborhoods. Writing for the majority, Justice Sandra Day O’Connor interpreted
the phrase “before or about any residence or dwelling” as applying to a single
residence or dwelling. O’Connor did not accept the lower courts’ reading of the
ordinance as overly broad. In fact, she held that the ordinance did not prohibit
picketers from alternative free speech activities such as distributing pamphlets in
the community, mailing information to residents of the neighborhood, and going
door-to-door to talk with residents about the issue. O’Connor also interpreted the
ordinance as permitting picketers to march through residential areas and
assemble in public streets so long as they did not congregate around one
particular house. She argued that governments had the authority to protect
unwilling listeners from unwanted speech when in the privacy of their homes and
thus ensure residential tranquility. In this case, Justice O’Connor argued, the
picketers were not simply trying to express their views to the public; rather, they
were trying to intrude on the doctor’s privacy and pressure him to stop
performing abortions. In summary, the majority ruled that the ordinance
was narrowly tailored to target picketing that intruded upon individual
residential privacy and therefore was constitutional.
- The government is permitted to protect individuals’ right to keep unwanted speech
from entering their homes so long as the regulation is narrowly tailored to protect
only unwilling recipients of the speech and leaves open alternative channels of
communication.
 - The ordinance was constitutionally valid because it was narrowly tailored to meet
a "substantial and justifiable" interest in the state; left open "ample alternative
channels of communication"; and was content-neutral.
- The majority held that public streets are a "traditional public forum" for purposes
of forum analysis, even though the residential streets specifically at issue here
were physically narrow. The Court thus acknowledged that "the anti picketing
ordinance operates at the core of the First Amendment."[1] Nevertheless, the
majority held that the ordinance prohibiting the protest of residential houses did
not violate the First Amendment because it is "content neutral," "leaves open
ample alternative channels of communication," and serves a "significant
government interest."[1] With respect to alternative channels of communication,
the Court noted that the Brookfield ordinance did not prohibit protestors from
entering residential neighborhoods, marching, canvassing, leafleting, or
telephoning.
- The Court also found that the government had a significant interest in "the
protection of residential privacy." Citing cases such as Rowan v. United States
Post Office Department, FCC v. Pacifica Foundation, and Kovacs v. Cooper, the
Court found that "a special benefit of the privacy all citizens enjoy within their
own walls, which the State may legislate to protect, is an ability to avoid
intrusions."[1] The Court distinguished its prior decisions invalidating "complete
bans on expressive activity" in residential areas, such as Schneider v. New
Jersey and Martin v. City of Struthers, stating that in these cases, "we have been
careful to acknowledge that unwilling listeners may be protected when within
their own homes."[1] The Court also found that the ordinance was narrowly
tailored at the specific problem it intended to address: situations in which "[t]he
resident is figuratively, and perhaps literally, trapped within the home, and,
because of the unique and subtle impact of such picketing, is left with no ready
means of avoiding the unwanted speech."
Capitol Square Review
- Private religious expression does not violate the Establishment Clause when it occurs
in a traditional public forum open to all on equal terms.
- Although the state has the right to make content-based restrictions on speech, the
board's denial of the Klan's application to display the cross on the statehouse
square was not justified on the grounds of the establishment clause. Traditionally,
the square had been recognized as a public forum by the general population and
because the display of religion was purely private it could not violate the
Establishment Clause.[5] The Advisory Board was still responsible for the content
displayed on the square, but they could not intentionally block a religious display
from being set up.
Madsen
- Provisions of an injunction imposing limitations upon the exercise of free speech are
unconstitutional if they are more restrictive than necessary to promote a substantial
government interest.
- The Court’s 6-3 ruling, announced by Chief Justice William H. Rehnquist, held
that the injunction was content neutral and applied to all persons engaged in
clinic protests, regardless of their message. The court asked whether the burden
imposed by the order was greater than that required to further an important
government end. Applying this standard, it upheld the 36-foot buffer zone around
the clinic entrances and driveway to preserve access to and from the clinic and to
allow street traffic. It also allowed the noise restrictions. The court also found,
however, that the restrictions imposed on private property at the back and side of
 the clinic and those forbidding protestors to show images to clients were
unjustified because they imposed a greater burden on speech than was necessary.
Similarly, the 300-feet zone around the clinic and at staff residences was too
broad to allow the protestors to express their views peacefully and burdened their
speech beyond the permissible limits of the government’s interest in ensuring
access to the clinic and preventing intimidation of the patients and staff.
McCullen
- A Massachusetts law prohibiting individuals from standing in a public sidewalk
within 35 feet of an abortion facility was unconstitutional. The majority opinion
agreed that the law was neither content nor viewpoint based and, therefore, was
not subject to strict scrutiny, but found it unconstitutional because it was
not narrowly tailored. Roberts observed that public walkways and sidewalks were
traditional public fora, where individuals could expect to encounter speech with
which they might disagree. Although such fora were still subject to reasonable
time, place, and manner restrictions, they were subject to greater scrutiny than
had they taken place in less public settings. Roberts rejected arguments that the
buffer zones discriminated against abortion-related speech or that they favored
one viewpoint over another, which meant that they were not subject to strict
scrutiny. Although applying the law only to abortion-related clinics may have a
disproportionate impact on such speech, the law was directed to past cases of
“crowding, obstruction, and even violence outside such clinics.” Similarly, the
majority did not think it was problematic to exempt employees or agents of the
clinic from such regulations. lthough the majority viewed the law as content
neutral, it did not think that it was “’narrowly tailored’ to serve a significant
governmental interest.” Buffer zones impose serious burdens on speech.
Evidence clearly showed that it had made it more difficult for individuals who
wanted to dissuade women from getting abortion from engaging in direct
conversations with clinic patients. Although the law would still allow for
“protests” outside of protected zones, it made one-on-one counseling quite
difficult. No other state had adopted laws with similar fixed
boundaries. Moreover, there were many other laws in place that the state could
utilize if it were concerned with criminal conduct or even congestion. The state’s
claim that it had tried other approaches was not credible because it had not
pursued such criminal prosecutions and that it had been years since it had issued
injunctions. Moreover, there was little evidence that the problem existed except
on Saturday mornings outside the Boston clinic. While fixed buffers would
undoubtedly make such efforts easier, “the prime objective of the First
Amendment is not efficiency.”
- A law that serves purposes unrelated to the content of expression is content-neutral,
even if it has a disproportionate incidental effect on some speakers or messages.
- The provisions of the Reproductive Health Care Facilities Act limiting protesting
within 35 feet of an abortion clinic violate the Free Speech Clause of the First
Amendment.
- "The buffer zones burden substantially more speech than necessary to achieve
[Massachusetts'] asserted interests."[3] He stated that there were alternatives
available to Massachusetts that "appear capable of serving its interests, without
excluding individuals from areas historically open for speech and debate".
- Roberts evaluated the law on the basis that it was content-neutral and did not
discriminate based on viewpoint.[6] The Court maintained the intermediate
scrutiny standard, as laid out in Hill v. Colorado, for content- and viewpoint-
neutral regulations.
 - In public fora, the government can impose reasonable, content-neutral restrictions
on the time, place, or manner of speech. Even then, such a restriction must be
narrowly tailored to serve a legitimate governmental interest. By this standard, the
restriction cannot burden more speech than is necessary to serve the stated interest.
In this case, the law is overbroad because it is not narrowly tailored to serve a
legitimate governmental interest. While the law inevitably will restrict abortion-
related speech more than other speech, that is merely an ancillary effect of the law’s
main purpose, which is to keep the public safe and ensure access to healthcare. The
law regulates all speech equally within the buffer zones, for purposes unrelated to
the content of the speech. The law is thus content-neutral and is not subject to strict
scrutiny. However, even a content-neutral restriction must be narrowly tailored to
serve a legitimate governmental interest. There is no dispute that public safety and
access to healthcare are legitimate public interests, but the law is not narrowly
tailored to meet those interests.
Non-Public Forum (Reasonableness)
Adderley
- No violation of federal law or of the First Amendment in the arrest of students
demonstrating against segregation at a county jail in Florida and against the
arrest of other protestors. Black also determined there to have been no violation
of the First Amendment because no evidence pointed to the sheriff objecting to
what was being sung or said by the demonstrators or his disagreeing with the
objectives of their protest. In the Court’s opinion, the sheriff only sought to
ensure the continued security and functioning of the jail. Black concluded by
making it clear that governments had the power to preserve property under their
control for their lawful purposes.
- A state may control the use of its own property by preventing protesting activities if it
applies content-neutral regulations even-handedly and does so for a non-
discriminatory purpose.
- Because a jail facility is not a public forum and a state may regulate the use of its
property, the First Amendment rights of the protesters were not violated.
International Society v Lee
- Supreme Court held that a regulation prohibiting solicitation of funds in an
airport was constitutional. Chief Justice William H. Rehnquist, writing for the
majority, agreed with the circuit court in arguing that airports are not “traditional
public fora,” because they have not typically been used for speech, and are not
“designated public fora,” because the regulations show that airport authorities
oppose speech there. Thus, he concluded that airports are nonpublic fora, and
regulations of speech there must only be reasonable and content neutral. The
Port Authority’s regulations of solicitation were reasonable, he said, because the
terminal’s function — transportation — can be disrupted by such solicitation
causing congestion, time delays, and the risk of fraud.
- An airport terminal is a nonpublic forum, and thus any regulations of speech within
terminals are only evaluated for their reasonableness.
- A traditional public forum has as “a principal purpose . . . the free exchange of ideas.”
The government must intentionally create public forums. Finally, the location of a
property matters in its characterization, as traditional public forums are typically not
secluded or segregated from the public. Based on these precedents, airport terminals
are not public forums. They have never been traditionally held out for use by the
public for expressive purposes. the tradition of airport activity does not demonstrate
that airports have historically been made available for speech activity. Additionally,
airport owners and operators have not intentionally opened airports to such activity.
 Rather, they have frequently litigated the issue due to their opposition to this activity.
The argument that this type of expressive activity has been permitted at other
transportation terminals such as rail and bus stations is insufficient to justify
extending protection for these activities to airport terminals. Few airports have
expanded their purposes beyond the provision of efficient air travel. Thus, airports
cannot be categorized as public forums, and any regulations of speech in airports
must only pass a reasonableness standard.
Lee v International Society
- A ban on the distribution of literature in airport-terminal buildings is an
unconstitutional restriction of speech. The right to distribute literature is one of the
liberties protected by the First Amendment’s guarantees of free speech and a free
press. In a non-public forum like an airport terminal, a challenged governmental
restriction on speech will be upheld if the restriction is reasonable. In analyzing
reasonableness, the court considers the forum’s characteristics and purpose, as well
as the surrounding circumstances. A restriction on speech will be found reasonable if
the restriction is consistent with the government’s legitimate interest in preserving
the forum for its dedicated use. Here, considering the terminals’ purpose and the
surrounding circumstances, the distribution ban is an unreasonable restriction on
speech. The airport terminals are large, multipurpose environments that enable air
travel while providing the stores and amenities of a commercial shopping mall.
Nothing about the distribution of literature is inconsistent with the terminals’
multifunctional nature. Unlike with face-to-face solicitations—which this Court has
now held may be prohibited inside airport terminals—terminal visitors are not
required to read, think about, or discuss the literature being distributed to receive
the speaker’s message. Rather, visitors can simply take the literature from the
distributor and read it later. The Port Authority may be able to set appropriate
restrictions on the time, place, and way literature may be distributed. However, the
Port Authority’s complete ban on distribution in the terminals is unconstitutional.
- O’Connor wrote that speech restrictions must be reasonable and “not an effort to
suppress expression merely because public officials oppose the speaker’s view.”
O’Connor viewed the airport as a “multipurpose environment” because it
contained shopping, restaurants, banks, and so on, in addition to facilitating air
travel, and did not see leafleting as incompatible with such an environment.
Minnesota Voters Alliance
- A Minnesota law prohibiting the wearing of political apparel at polling places
violates the First Amendment. The Court majority reasoned that the reach of the
law was not reasonable even though states had strong interests in protecting
voters at the polls. Writing for the majority, Chief Justice John G. Roberts, Jr. first
acknowledged that the polling place is a nonpublic forum, a place in which a state
can make content-based distinctions on speech so long as the restrictions are
viewpoint-neutral and reasonable. Roberts reasoned that the “political apparel
ban” was viewpoint neutral and, thus, the question boiled down to whether the
provision was reasonable. Roberts wrote that the law was not reasonable, in part
because the provision failed to define the term “political” and too much confusion
existed as to what types of political apparel were allowable and which were
proscribable. “A rule whose fair enforcement requires an election judge to
maintain a mental index of the platforms and positions of every candidate and
party on the ballot is not reasonable,” he wrote. Roberts also questioned the
state’s written materials saying that the “political apparel ban” applied to any
item “promoting a group with recognizable political views.” Roberts wrote that
there was too much uncertainty as to what groups would be covered by this
 interpretation. Those election judges at the polls should have some discretion, but
“that discretion must be guided by objective, workable standards.”
- A content-based restriction on wearing expressive apparel in a nonpublic forum
violates the First Amendment if the restriction’s scope is vague and indeterminate.
- Minnesota’s ban on political apparel at polling places violates the First
Amendment’s free speech clause.
- Roberts found that the Minnesota law is not "capable of reasoned application" of
deciding what type of political speech they can prevent, as the term "political"
used in the statute may be up for inconsistent interpretation, as demonstrated
from past applications of the law and in the case's arguments. [3] While Roberts
agreed with the state with the need to upheld decorum in polling places, and that
"some forms of advocacy should be excluded from the polling place", the existing
Minnesota law failed to "articulate some sensible basis for distinguishing what
may come in from what must stay out".
Arkansas Educational
- Under the First Amendment, public television broadcasters may constitutionally
exclude political candidates from televised debates if the debates are designed to be
non-public forums and the exclusion is a reasonable, viewpoint-neutral exercise of
editorial discretion.
- Justice Anthony M. Kennedy wrote that the First Amendment did not bar “the
legislative imposition of neutral rules for access to public broadcasting” and that
the amendment, by itself, did not compel “public broadcasters to allow third
parties access to their programming.” Kennedy asserted that candidate debates
generally lend themselves to public forum analysis and identified three areas —
traditional public fora, designated governmental fora, and nonpublic fora sites.
Kennedy placed the televised debate in the nonpublic forum category. Indeed, he
thought it likely that classifying debates as public fora would be more likely to
discourage speech than to encourage it since “faced with the prospect of
cacophony, on the one hand, and First Amendment liability, on the other, a public
television broadcaster might choose not to air candidates’ views at all.” The fact
that candidate debates fell into the category of a non-public forum did not give
the AETC “unfettered discretion.” It still had no power to practice “viewpoint
discrimination,” and its regulations must be “reasonable in light of the purpose of
the property.” Kennedy believed the exclusion in this case was based on lack of
public support for the candidate and thus constituted “a reasonable, viewpoint-
neutral exercise of journalistic discretion consistent with the First Amendment.”
Speech on Private Premises
The Supreme Court generally has rejected arguments that the First Amendment
requires private property owners to accommodate speech by others. Under the “state
action doctrine,” the Constitution is understood to draw a line between governmental
entities, which are bound by constitutional limitations, and private citizens, who instead
possess liberty interests and do not have public constitutional obligations.
Content-Neutral Restrictions
City of Ladue
- City officials could not flatly prohibit homeowners from displaying political signs
on their own property. The ordinance, he wrote, has “almost completely
foreclosed a venerable means of communication that is both unique and
important. It has totally foreclosed that medium to political, religious, or personal
messages.” The Court’s decision upheld a ruling by the Eighth Circuit Court of
Appeals, but used different analyses. Noting that the ordinance forbade most
signs but allowed others, such as “For Sale” signs, the circuit court ruled the law
 unconstitutional because it failed to be content neutral; it favored commercial
speech over noncommercial speech. The Court found that the Ladue ordinance
eliminated a “cheap and convenient form of communication.” “Even for the
affluent,” Stevens wrote, “the added costs in money or time of taking out a
newspaper advertisement, handing out leaflets on the street, or standing in front
of one’s house with a hand-held sign may make the difference between
participating and not participating in some public debate.”
- A statute restricting speech may be unconstitutional as underinclusive if it permits
exceptions for certain other speech.
- A municipal ordinance aiming to reduce visual clutter through the regulation of
signs in the yards of private homes that prohibits protected speech may violate
the First Amendment if the ordinance cannot pass strict scrutiny.
- Expressed the Court's suspicion of regulations eliminating an entire form of
communication, in this case signs. While Ladue alleged that this regulation was
permissible as a restriction on "time, place, and manner" since residents could
express themselves via other means, the Court found that there were no means
that would be adequate substitutes. Ladue had also argued that its regulation was
content neutral, but this did not satisfy the Court, which still found that the
regulation prevented too much speech that is protected.
- Although Ladue has a concededly valid interest in minimizing visual clutter, it has
almost completely foreclosed an important and distinct medium of expression to
political, religious, or personal messages. Prohibitions foreclosing entire media
may be completely free of content or viewpoint discrimination, but such measures
can suppress too much speech by eliminating a common means of speaking.
Packingham
- Unanimously invalidated a North Carolina law that prohibited sex offenders from
accessing social media websites. The Court explained that social media users,
including sex offenders, access websites covered under the law for a wide range
of lawful activities. In the opinion for the Court, Justice Anthony
Kennedy emphasized that the law barred many legitimate uses of websites and
threatened free speech in cyberspace, which he analogized to a traditional public
forum. Kennedy said that even if the North Carolina was content neutral, it failed
intermediate scrutiny because the law was far from narrowly tailored. “Even
convicted criminals – and in some instances especially convicted criminals – might
receive legitimate benefits from these means for access to the world of ideas, in
particular if they seek to reform and to pursue lawful and rewarding lives,” he
wrote. Kennedy concluded that the North Carolina law was a “complete bar to the
exercise of First Amendment rights on websites integral to the fabric of our
modern society and culture.”
- The First Amendment protects the right to access internet websites.
- A statute prohibiting registered sex offenders from accessing social
media websites impermissibly restricts lawful speech in violation of the First
Amendment.
- Social Media is a protected place under the First Amendment.
- The Court offered that North Carolina could protect children through less
restrictive means, such as prohibiting "conduct that often presages a sexual
crime, like contacting a minor or using a website to gather information about a
minor"
- "A fundamental principle of the First Amendment is that all persons have access
to places where they can speak and listen, and then, after reflection, speak and
listen once more." He continued that "By prohibiting sex offenders from using
 those websites, North Carolina with one broad stroke bars access to what for
many are the principal sources for knowing current events, checking ads for
employment, speaking and listening in the modern public square, and otherwise
exploring the vast realms of human thought and knowledge." Citing Ashcroft v.
Free Speech Coalition, Kennedy also wrote: "It is well established that, as a
general rule, the Government 'may not suppress lawful speech as the means to
suppress unlawful speech'."
Obscenity
Alameda Books
- Los Angeles could rely on a six-year-old study on the negative impact of adult
businesses to justify an ordinance prohibiting more than one adult business from
operating under the same roof. A narrow majority of the Court reasoned that the
ordinance banning multiple-use adult businesses furthered the city’s interest in
combating the harmful secondary effects of such businesses.
- In demonstrating that an ordinance was designed to serve a substantial government
interest, a municipality may rely on evidence that the municipality reasonably
believes to be relevant. Plaintiff has the burden of proving government rationale.
- Los Angeles may reasonably rely on its 1977 study to demonstrate that its present
ban on multiple use adult establishments serves its interest in reducing crime.
Commercial Speech
Consolidated Edison Co.
- First Amendment protects a government-regulated utility’s expression of opinion
on issues of public policy through inserts in customer billing statements. The
utility had an inherent right to speak on critical public matters despite being a
government-regulated monopoly. He observed that the New York Court of
Appeals’ concern about the infringement of a customer’s right to privacy could be
cured “by transferring the bill insert from the envelope to wastebasket.”
- The First Amendment’s protection of content-based speech extends not only to
restrictions on viewpoints, but also to prohibition of public discussion of an entire
topic.
- The First Amendment, as applied through the Fourteenth, protects the right of
utility companies to include inserts on matters of controversial public policy with
billing statements.
Content-Based Restrictions
Reed
- Invalidated an ordinance that treated signs differently based on their
content. Reaffirmed the vitality of the content-discrimination principle as an
animating principle of First Amendment law. The Court first determined that
the sign code was content-based, not content-neutral. In his majority
opinion, Justice Clarence Thomas reasoned that the law was content-based on its
face, because it treated signs differently. “The restrictions in the Sign Code that
apply to any given sign thus depend entirely on the communicative content of the
sign,” Thomas explained. He rejected the Ninth Circuit’s reasoning that the law
was content-neutral because there was no purpose to discriminate against
particular messages. “In other words, an innocuous justification cannot transform
a facially content-based law into one that is content-neutral.” Thomas also
reiterated a message the Court articulated in Chicago Police Dept. v.
Mosley (1972) – that laws are content-based when they restrict speech based on
subject matter. He also explained that laws can be content-based even if they are
viewpoint neutral. In other words, viewpoint discrimination merely is a subset of
content discrimination. Because the ordinance was content-based, Thomas
 evaluated the ordinance under strict scrutiny. The town had offered two
justifications for its law: aesthetics and traffic safety. Thomas assumed that the
ordinance furthered these compelling governmental interests, but said that the
ordinance was “hopelessly underinclusive” because all types of signs can cause
visual clutter and impact traffic safety. “The Town has offered no reason to
believe that directional signs pose a greater threat to safety than do ideological or
political signs,” Thomas wrote. “If anything, a sharply worded ideological sign
seems more likely to distract a driver than a sign directing the public to a nearby
church meeting.”
- A restriction on speech that is content based on its face is subject to strict scrutiny
regardless of the government’s benign motive or justification.
- A municipal ordinance that placed stricter limitations on the size and placement
of religious signs than other types of signs was an unconstitutional content-based
restriction on free speech.
- Because the church's signs were "treated differently from signs conveying other
types of ideas", there was "no need to consider the government’s justifications or
purposes for enacting the Code to determine whether it is subject to strict
scrutiny".[37] Justice Thomas rejected the Ninth Circuit's conclusion that the
ordinance was content-neutral because the regulations were not based on
"disagree[ment] with the message conveyed" and the reasons for regulating the
various categories of signs were "unrelated to the content of the sign[s]".
[38]
Rather, he emphasized that "[a] law that is content-based on its face 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".[39][A] Justice Thomas explained that "innocent motives" do not eliminate
the danger of censorship, because governments may one day use content-based
laws to regulate "disfavored speech".
- Justice Thomas clarified that a statute is content-based if it singles out a specific
subject, even though it may not target ideas or viewpoints within that subject
matter.[42] Furthermore, he also rejected the Ninth Circuit's conclusion that the
ordinance was content-neutral because it targeted specific classes of speakers,
rather than the content of their speech.
City of Austin
- In a 6–3 ruling, the Court ruled that the Austin regulation against off-premise
digital signs was content-neutral and thus should be reviewed as a facial
challenge rather than a strict scrutiny following from the reasoning in Reed v.
Town of Gilbert.
- The distinction between on-premises signs and off-premises signs in the city of
Austin’s sign code is facially content-neutral under the First Amendment.
- Sotomayor pointed out that American localities have been regulating outdoor
advertising for more than a century. Such regulations proliferated after the
adoption of the Highway Beautification Act of 1965. Many jurisdictions have
distinguished, as Austin did, between on- and off-premises advertising. Although
Austin grandfathered in existing off-premise signs, it subjected new signs to
uniform regulations designed to enhance the aesthetic value of the city. In this
case, it had refused to allow new digital signs or digitization of existing off-
premises signs. Court precedents acknowledge a regulation is content based if it
“applies to particular speech because of the topic discussed or the idea or
message expressed,” Sotomayor observed. A content-based restriction on speech
is presumptively unconstitutional and subject to strict scrutiny, the highest form
of judicial review, whereas content-neutral laws generally must survive only
 intermediate scrutiny. Sotomayor thought that it would be “too extreme an
interpretation of this Court’s precedent” to say that Austin’s regulation was
content-based simply because someone had to determine whether a sign did or
did not relate to a good or service being offered on the premises.
- While the sign regulation at issue in the Supreme Court’s ruling in Reed v. Town
of Gilbert (2015) had required the city to distinguish among ideological signs,
political signs, and temporary directional signs, the Austin regulations did not
require such precise classification or treat them differently. The Austin
regulations more resembled the regulations upheld by the Supreme Court
in Heffron v. International Society For Krishna Consciousness, Inc. (1981),
Sotomayor wrote. In Heffron, city authorities simply had to decide whether or not
individuals were or were not soliciting donations. “Underlying these cases and
others is a rejection of the view that any (city) examination of speech or
expression inherently triggers heightened First Amendment concern. Rather,
content-based regulations are those that discriminate based on ‘the topic
discussed or the idea or message expressed,'’’ Sotomayor wrote. Although the
ruling found that the regulations did not involve improper content discrimination
and should be given only intermediate, rather than strict, scrutiny, the parties
had not litigated the issue as to whether there might be “an impermissible
purpose or justification” behind an otherwise facially content-neutral restriction.”
The court accordingly remanded the case back to the lower courts for such a
determination.
Speech in Public Schools
Tinker (Substantial Disruption Test)
- Public school officials cannot censor student expression unless they can
reasonably forecast that the speech will substantially disrupt school activities or
invade the rights of others. The decision firmly established that public school
students possess First Amendments rights. Tinker remains the seminal decision
on student speech. Writing for the majority, Justice Abe Fortas stated that it “can
hardly be argued that either students or teachers shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate.” He focused on the
fact that school officials could point to no evidence that the armbands would
disrupt school activities. He noted that an “official memorandum prepared after
the suspension that listed the reasons for the ban on wearing the armbands made
no reference to the anticipation of such disruption.” Fortas also noted that school
officials had selectively chosen only one symbol to ban. He reasoned that this
indicated that school officials sought to single out “the prohibition of expression
of one particular opinion.” Citing Burnside v. Byars (5th Cir. 1966), Fortas
articulated what has come to be known as the Tinker standard—school officials
cannot censor student expression unless they can reasonably predict that the
expression will create a substantial disruption or material interference in school
activities or invade the rights of others.
- In a public-school setting, prohibiting an expression of an opinion is unconstitutional
unless there is a specific showing that engaging in the forbidden conduct would
materially and substantially interfere with appropriate discipline in the operation of
the school or the rights of others.
- The Court held that for school officials to justify censoring speech, they "must be
able to show that [their] action was caused by something more than a mere desire
to avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint," that the conduct that would "materially and substantially interfere
with the requirements of appropriate discipline in the operation of the
 school."[7] The Court found that the actions of the Tinkers in wearing armbands
did not cause disruption and held that their activity represented constitutionally
protected symbolic speech. The Court ruled that First Amendment rights were not
absolute and could be withheld if there was a “carefully restricted circumstance.”
Student speech that has the potential to cause disruption is not protected
by Tinker.
Bethel
- Public school officials can prohibit student speech that is vulgar, lewd, or plainly
offensive. The Court sided with school officials. Burger noted a “marked
distinction” between the political speech in Tinker and Fraser’s sexual speech.
“The undoubted freedom to advocate unpopular and controversial views in
schools and classrooms must be balanced against the society’s countervailing
interest in teaching students the boundaries of socially appropriate behavior,”
Burger wrote. “Surely it is a highly appropriate function of public-school
education to prohibit the use of vulgar and offensive terms in public discourse.”
- Under the First Amendment, school officials may properly punish student speech
with suspension if they determine that speech to be lewd, offensive, or disruptive to
the school’s basic educational mission.
- Fraser limits the scope Tinker, by prohibiting certain styles of expression that are
sexually vulgar.
Pico
- Under the First Amendment, a public school cannot intentionally deprive students
access to ideas with which the school disagrees.
- The First Amendment limits the power of local school boards to
remove library books from junior high schools and high schools.
- Brennan also reasoned that the First Amendment protects not only the right to
express ideas but also the right to receive them.[11] The First Amendment, in this
case, included the right to read library books of the student's choosing.
- Brennan concluded the plurality opinion by noting that the court's holding was
narrowly limited to the extent of the school board's authority to remove books
from the school library.
- Justice Brennan’s opinion reaffirmed that though “local school boards have broad
discretion in the management of school affairs,” that discretion “must be
exercised in a manner that comports with the transcendent imperatives of the
First Amendment.” On the principle that “the Constitution protects the right to
receive information and ideas,” he concluded that the removal of books from the
shelves of a school library implicates students’ First Amendment rights in part
because of “the special characteristics of the school library.” Justice Brennan then
concluded that school officials may not exercise their discretion to remove books
from a school library based on “narrowly partisan or political” grounds, because
doing so would amount to an “official suppression of ideas.”
Hazelwood
- Schools may restrict what is published in student newspapers if the papers have
not been established as public forums. The Court also decided that the schools
may limit the First Amendment rights of students if the student speech is
inconsistent with the schools’ basic educational mission. Writing for the Court,
Justice Byron R. White noted that First Amendment rights of students in the
public schools “are not automatically coextensive with the rights of adults in other
settings.” Those rights, he argued, must be “applied in light of the special
characteristics of the school environment,” and schools do not need to tolerate
student speech that is inconsistent with their “basic educational mission.” In
 examining whether the Spectrum was a forum for public expression, White
concluded that school facilities were public forums only if administrators had “by
policy or practice” opened those facilities for “indiscriminate use by the general
public.” The Court showed evidence that the paper had not “by policy or practice”
been operating as a public forum. Hazelwood created a new standard for school-
sponsored student speech as opposed to student-initiated speech. Educators,
White said, do not violate student First Amendment rights “by exercising editorial
control over the style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably related to legitimate
pedagogical concerns.” However, White also said students should go to court to
protect their constitutional rights “when the decision to censor a school-
sponsored publication, theatrical production, or other vehicle of student
expression has no valid educational purpose.” The Court also stated that a school
acting as a publisher of a student newspaper or as a producer of a school play
could disassociate itself from speech that would “substantially interfere with its
work or impinge upon the rights of other students” and from speech that was
“ungrammatical, poorly written, inadequately researched, biased or prejudiced,
vulgar or profane, or unsuitable for immature audiences.” White argued that a
school “must be able to take into account the emotional maturity of the intended
audience” when determining whether content was appropriate for the readers.
- Under the First Amendment, educators may exercise editorial control over the style
and content of student speech in school-sponsored expressive activities so long as
their actions are reasonably related to legitimate pedagogical concerns.
- Public school curricular student newspapers that have not been established
as forums for student expression are subject to a lower level of First
Amendment protection than independent student expression or newspapers
established (by policy or practice) as forums for student expression.
- School administrators could exercise prior restraint of school-sponsored
expression, such as curriculum-based student newspapers and assembly
speeches, if the censorship is “reasonably related to legitimate pedagogical
concerns.” School-sponsored student newspapers will not be presumed to be
operating as public forums for student expression absent evidence indicating
otherwise.
- The court established that the student publication could be regulated by school
officials, and that they “reserved the forum for its intended purpose, as a
supervised learning experience for journalism students”.
- The decision overrode the precedent set in the Tinker case, which had permitted
censorship of student speech only if it violated the rights of other students or
threatened to cause a campus disruption. The majority opinion in Hazelwood held
that this case was different.[22][8] The majority opinion said that school
administrators are not required to tolerate speech that is contrary to the school’s
academic mission.
- The question [of] whether the First Amendment requires a school to tolerate
student speech—the question we addressed in Tinker—is different from the
question whether the First Amendment requires a school affirmatively to promote
particular student speech. The former question addresses educators’ ability to
silence students’ personal expression that happens to occur on the school
premises. The latter question concerns educators’ authority over school
sponsored publications, theatrical productions, and other expressive activities
that students, parents, and members of the public might reasonably perceive to
bear the imprimatur of the school.
 - The case established the standard that school personnel must meet to limit
students’ freedom of expression in secondary schools.[12] As representatives of the
state, school administrators can censor, restrain, or refuse to publish school-
sponsored student expression if it interferes with the requirements of school
discipline, interferes with students’ rights, interferes with academic propriety,
generates health or welfare concerns, or is deemed obscene or vulgar.[8] This
extends to theatrical productions, public speeches in an assembly environment,
and publications produced as part of curricular activity, such as a student
newspaper.[8] The Supreme Court majority termed these reasons “legitimate
pedagogical concerns”.
- This standard does not, however, apply to personal or non-school-sponsored
communication, such as off-campus publications, unless that communication
interferes with school discipline or the rights of others.[8] The Hazelwood case
established student newspapers as “limited public forums”.[12] This means schools
may exercise prior restraint regarding the “style and content” of a student
newspaper so long as their action is “not unreasonable”, whereas there previously
had to be compelling evidence to warrant censorship.[14] Separate cases also
established what constituted school activities, such as in-class parties and art
created by students at the behest of teachers.
Morse
- Writing for the majority, Chief Justice John G. Roberts Jr. reasoned that school
officials have the power to prevent students from advocating drug use, stating
that “schools may take steps to safeguard those entrusted to their care from
speech that can reasonably be regarded as encouraging illegal drug use.” Roberts
first dismissed the argument that the case was not a student speech case at all.
He noted that the torch relay was an “approved social event” at which many
students participated. “There is some uncertainty at the outer boundaries as to
when courts should apply school-speech precedents, but not on these facts,” he
wrote. Roberts then created an exception to the Tinker standard for speech that
celebrates illegal drug use, which, he wrote, “poses a particular challenge for
school officials working to protect those entrusted to their care from the dangers
of drug abuse.” Roberts did reject the school officials’ arguments that
the Kuhlmeier school-sponsored student-speech precedent controlled the analysis
because Frederick’s banner was not school sponsored. He also rejected the
argument that the Fraser precedent enabled school officials to prohibit any
student expression they find “plainly offensive,” stating, “After all much political
and religious speech might be perceived as offensive to some.”
- Under the First Amendment, school officials may prohibit student speech that can
reasonably be interpreted as promoting illegal drug use.
- Because schools may take steps to safeguard those entrusted to their care from
speech that can be regarded as encouraging illegal drug use, the school officials
in this case did not violate the First Amendment by confiscating the pro-drug
banner and suspending Frederick.
- Made three legal determinations: first, that "school speech" doctrine should apply
because Frederick's speech occurred "at a school event"; second, that the speech
was "reasonably viewed as promoting illegal drug use"; and third, that a principal
may legally restrict that speech—based on the three existing First Amendment
school speech precedents, other constitutional jurisprudence relating to schools
and a school's "important, indeed, perhaps compelling interest" in deterring drug
use by students.
Mahanoy
 - Although public schools might have special interests in regulating some off-campus
student speech, the First Amendment protects students’ off-campus speech in some
circumstances.
- The majority opinion was written by Justice Breyer, and overruled some of the
Third Circuit's majority opinion in relationship to Tinker in that it was too broad
towards off-campus speech, and that schools may have a legitimate interest to
restrict off-campus speech, such as in relation to harassment and bullying. [22]
[23]
However, the majority did not try to define the bounds when this applies: "We
do not now set forth a broad, highly general First Amendment rule stating just
what counts as 'off campus' speech and whether or how ordinary First
Amendment standards must give way off campus to a school’s special need to
prevent… substantial disruption of learning-related activities or the protection of
those who make up a school community."[24]
- Breyer identified three factors related to off-campus speech that should be
considered in future litigation: that off-campus speech is usually the responsibility
of the student's parents, that off-campus speech covers virtually any activity
outside of the school facility, and that the school has a responsibility to protect
unpopular ideas by students.[25] Of the latter point, Breyer said "The school itself
has an interest in protecting a student's unpopular expression, especially when
the expression takes place off campus," because "America's public schools are the
nurseries of democracy."[26]
- Turning specifically to Levy's case, Breyer wrote that while the school may have a
valid interest to control student speech off campus, the school district violated
Levy's First Amendment rights in reprimanding her for her post. Breyer stated
that if Levy had been an adult, her Snapchat post would have been protected by
the First Amendment, and that there was no evidence that her post created the
type of disruption that Tinker addressed.[25] Other aspects of Levy's case worked
in her favor, including the fact that her Snapchat message was sent to a private
circle of friends, and that it did not explicitly name the school or target any
individuals.[22] Breyer wrote: "It might be tempting to dismiss (the student's)
words as unworthy of the robust First Amendment protections discussed herein.
But sometimes it is necessary to protect the superfluous in order to preserve the
necessary."
The school district appealed to the U.S. Supreme Court. Writing for the
majority, Justice Stephen Breyer reasoned that a school’s regulatory interests are
lessened when a student engages in off-campus social media speech. He identified
“three features” of social media speech that dictated such an approach.
- Regarding off-campus speech by students, school officials rarely stand in loco
parentis. “Geographically speaking, off-campus speech will normally fall within
the zone of parental, rather than school-related, responsibility.”
- Courts should be skeptical of school officials’ regulatory interest in policing
student social media speech, given that such speech could take place anytime
during a 24-hour day.
- Schools have an interest in protecting even unpopular student speech, because
“America’s public schools are the nurseries of democracy.”
Government as Speaker
Government Grants and Subsidies
Rust
- Upheld new government regulations that interpreted Section 1008 of Title X of
the Public Health Services Act as prohibiting any health or medical professional
 receiving Title X funding from providing any counseling or information about
abortion, thereby limiting the speech of those receiving government funding. The
majority held that the regulations did not so interfere with First Amendment
rights. According to the majority’s reasoning, abortion was beyond the scope of
the services the government intended to fund under Title X, and refusing to fund
speech that went beyond the scope of a program did not constitute the
suppression of a view.” When Congress established a National Endowment for
Democracy to encourage other countries to adopt democratic principles,” wrote
Chief Justice Rehnquist, “it was not constitutionally required to fund a program to
encourage competing lines of political philosophy such as Communism and
Fascism.”
- A federal law may, as a condition of receiving federal funds, constitutionally restrict
fund recipients from engaging in abortion-related activities.
- Health and Human Services regulations prohibiting recipients of government
funds from advocating, counseling, or referring patients for abortion were a
permissible construction of Title X of the Act, nor did they violate the First or
Fifth Amendments.
- The court ruled that "a doctor employed by the project may be prohibited in the
course of his project duties from counseling abortion or referring for abortion.
This is not a case of the government suppressing a dangerous idea, but of a
prohibition on a project grantee or its employees from engaging in activities
outside of its scope."
- The Doctors' argument, that if the Government chooses to subsidize one
viewpoint over a subject (here, abortion), then it must also balance that viewpoint
by subsidizing its opposite, had clearly been rejected by the Court.
- The regulations do not force the Title X grantee, or its employees, to give up
abortion-related speech; they merely require that such activities be kept separate
and distinct from the activities of the Title X project.
- The court's ruling was much broader than just abortion and family planning
services; if the government pays for a program, it can attach substantive
restrictions on speech by employees of the program.
- The case is important in First Amendment jurisprudence because in its decision
the Court articulated the government speech doctrine, which holds that the
government has its own First Amendment free speech rights — rights that often
protect it from First Amendment attack.
National Endowment
- An amendment that required standards of decency and respect to be taken into
consideration in funding decisions by the National Endowment of the Arts
(NEA) was constitutional on its face and did not interfere with artists’ First
Amendment rights to free speech. Writing for the majority, Justice Sandra Day
O’Connor supported this conclusion with a number of points. She wrote that the
congressional environment or history in which the “decency and respect”
amendment was passed did not support an interpretation of the amendment that
it compelled the NEA to deny funding on the basis of viewpoint-discriminatory
criteria. The guidelines were clear enough to not be impermissibly vague under
the First Amendment. The decency and respect clause was no more vague than
the NEA’s mandate to fund “artistic excellence.” The government’s guidelines did
not discriminate on the basis of viewpoint; they merely chose to fund one activity
to the exclusion of the other. Justice O’Connor added that when the government is
acting as a patron, a lack of precision in language is more acceptable than
normal.
 - In making determinations regarding recipients of government subsidies, the
government may consider content but must remain viewpoint neutral.
- Ruled that the National Foundation on the Arts and Humanities Act, as amended
in 1990, (20 U.S.C. § 954(d)(1)), was facially valid, as it neither inherently
interfered with First Amendment rights nor violated
constitutional vagueness principles. The act in question required the Chairperson
of the National Endowment for the Arts (NEA) to ensure that "artistic excellence
and artistic merit are the criteria by which [grant] applications are judged, taking
into consideration general standards of decency and respect for the diverse
beliefs and values of the American public".
- The Court found that decency does not certainly interfere with the First
Amendment right to free expression and it does not violate the Fifth Amendment’s
void for vagueness provision. The court found that 20 U.S.C. § 954(d)(1) merely
adds factors to the grant-making process. It does not state that all grants should
be denied to applications involving indecent or disrespectful artworks. Although
the statute does not state how much weight the Advisory Commission should give
these factors, the NEA has wide discretion in considering this provision.
- Also, the Court stated that Finley carried the burden of demonstrating that there
is a substantial risk that the application of the decency clause will lead to the
suppression of speech. However, the Court found that the provision on its face
was very clear in that the decency and respect provision is only a consideration; it
is not a provision that compels the Chairperson to require decency and respect in
every application. Because the very nature of the subject matter is open to
different interpretations, the Court determined that in the context of selected
artistic subsidies it is not possible at all times for Congress to legislate with
clarity and it is difficult to establish a precise criterion when granting subsidies.
- The fact that Congress passed the NFAHA to reform grant-awarding procedures and
not as a tool for precluding speech undercuts Finley’s argument that the NFAHA
inevitably would be utilized as a tool for invidious viewpoint discrimination. Any
content-based considerations that might be taken into account in the grant-awarding
process are merely a consequence of the nature of arts funding. This is because
funding is limited and the NEA has to deny grants for many projects with artistic
value. Thus, a natural and accepted part of the NEA funding process is consideration
of the content of art for the purpose of making value judgments and awarding funds
based on many criteria.
- If legislation does not infringe on other constitutionally protected rights, Congress
may choose to selectively fund a program to encourage certain activities it believes to
be in the public interest, without at the same time funding an alternative program
which seeks to address the public interest in another way. In doing so, the
government is not discriminating based on viewpoint but is merely choosing to fund
one activity to the exclusion of others.
Legal Services
- Violated the First Amendment’s free speech clause because it was a viewpoint-
based regulation of private speech, it interfered with the traditional role of
lawyers, and it restricted the access of indigent persons to the resources of the
legal system. The Court distinguished the case from Rust v. Sullivan (1991), in
which it upheld a regulation limiting the provision of federal family planning
funds to facilities that did not provide or discuss abortion-related services.
Subsequent cases have clarified that Rust stands for the principle that the
government may impose speech restrictions on private organizations that receive
government funds, intended to convey a certain message, as long as the
 restrictions serve to clarify the content of this message. This helps to ensure that
the public is not misinformed about elected representatives’ policies.
In Velazquez (who was the respondent), the Court concluded, restrictions were
not being placed on governmental speech. Writing for the Court, Justice Anthony
M. Kennedy said that the LSC program was “designed to facilitate private
speech” because when a lawyer is representing his or her client(s), he or she is
not “the government’s speaker.” The majority found a prohibition aimed at the
private speech of the legal profession to be troublesome for two reasons. First, it
“distorts the legal system by altering the traditional role of the attorneys.” By
restricting their ability to raise challenges to statutes during the course of
litigation, the law prevented LSC-funded attorneys from raising “all the
reasonable and well-grounded arguments” necessary to represent their clients
properly. Second, the 1996 law’s restriction on speech presented a fundamental
challenge to the separation of government powers. It required any LSC-funded
attorney to withdraw from ongoing litigation, at any stage, if the litigation raised
a question about the validity of welfare law. This, the Court observed, had the
effect of “insulat[ing] the Government’s laws from judicial inquiry,” a
consequence inconsistent with Chief Justice John Marshall’s famous statement
in Marbury v. Madison (1803) that “[i]t is emphatically the province and the duty
of the judicial department to say what the law is.”
- The First Amendment prohibits Congress from conditioning the receipt of federal
funding by restricting the speech of private actors.
- A restriction on advocacy by the Legal Services Corporation (LSC) seeking to
change welfare law is an unconstitutional viewpoint restriction even though the
LSC is a quasi-government entity.
- Because LSC facilitated "private" speech, that of its grantees, the restrictions did
not simply regulate government speech.
- Because the restrictions blocked attempts to change only a specific area of law,
the Court held, they could not be considered viewpoint-neutral, and the
government is prohibited from making such viewpoint-based restrictions of
private speech.
- It distinguished a 1991 Supreme Court case, Rust v. Sullivan, which upheld a
prohibition on federally funded family planning services from discussing abortion
with their patients. The majority reasoned that in Rust, the government was
attempting to use its funds to express its own message, but the purpose of the Act
was to promote a diversity of private views with its funding, not an attempt to
restrict any views.
- The Court said that the government can only issue "content-neutral" conditions on
such speech[3] and that the specific prohibition on welfare-reform litigation was
viewpoint-based by restricting only support for welfare reform advocacy. "If the
restriction on speech and legal advice were to stand, the result would be two tiers
of cases... there would be lingering doubt whether the truncated representation
had resulted in complete analysis of the case, full advice to the client, and proper
presentation to the court."
- The Court also criticized the fact that the restriction functionally barred attorneys
from participating in the courts.[16] Any attorney receiving LSC funding would not
be able to litigate welfare claims that challenged welfare rules, thereby
preventing certain cases from being filed.
- In later cases after Rust interpreting this holding, viewpoint-based funding decisions
could be sustained in instances in which the government is the “speaker.” However,
this wide constitutional latitude for governmental speech does not always apply to
 instances in which the government provides subsidies to private speakers. This is
particularly relevant as the LSC program is designed exclusively to facilitate private
speech rather than promote a government message. For example, when LSC-funded
attorneys spoke in suits for welfare benefits, they are speaking on behalf of their
private clients—indigent persons seeking welfare benefits—rather than the
government. Thus, the inherently private nature of the speech distinguishes the
present case from Rust. –
- Additionally, the government created a subsidy to further a specific purpose. The
LSC program provides funding to attorneys because it presumes that in representing
indigent clients in welfare suits, private, non-governmental speech is necessary. At
the same time, however, the government places a substantial limitation on this
speech by prohibiting LSC-funded lawyers from giving advice to clients regarding the
constitutional validity of federal welfare statutes.
Agency for International Development I
- Roberts observed that the decision in Rumsfeld v. Forum for Academic and
Institutional Rights, Inc. (2006) had established that “freedom of speech prohibits
the government from telling people what they must say.” The Spending Clause
grants Congress broad powers to tax and spend on behalf of the “general
welfare,” and includes “the authority to impose limits on the use of such funds to
ensure they are used in the manner Congress intends.” When organizations do
not agree with these conditions, they can decline accepting the funds. By the
same token, the Court has established that government “may not deny a benefit to
a person on a basis that infringes his constitutionally protected . . . freedom of
speech even if he has no entitlement to that benefit.”
- Acknowledging that the line between the two areas is far from clear, Roberts said
that the relevant distinction “is between conditions that define the limits of the
government spending program — those that specify the activities Congress wants
to subsidize — and conditions that seek to leverage funding to regulate speech
outside the contours of the program itself.”
- Rust v. Sullivan (1994) further allowed the government to restrict funds to groups
that agreed not to counsel abortion as part of family planning but ruled that
government could not limit the groups’ other programs. Roberts characterized
this distinction as one “between conditions that define the federal program and
those that reach outside it.” In this case, the Policy Requirements at issue were
an attempt at “compelling a grant recipient to adopt a particular belief as a
condition of funding.” Roberts believed such organizations should be able to
express whatever beliefs it chooses if it does so through affiliates that do not
spend governmental funds. Roberts further thought that the government had
failed to establish that organizations might use federal funds to achieve one
objective to free up funds to promote prostitution or sex trafficking.
- The First Amendment prohibits the government from conditioning federal funding to
an organization on the adoption of certain speech.
- The Policy Requirement violates the First Amendment by compelling as a
condition of federal funding the affirmation of a belief that by its nature cannot be
confined within the scope of the Government program.
- The government cannot force a private organization to publicly profess a
viewpoint that mirrors the government's view but is not held by the organization
itself. Such a requirement would be considered a form of "leveraging" and
violated the First Amendment protection of free speech.
- Congress may not use federal funding as leverage to create speech that is outside the
scope of the funding program’s intended purpose.
 - Here, the Leadership Act demands that an organization adopt and disseminate a
particular view on an issue of public concern. Thus, the Leadership Act is not simply
defining the activities to be funded, but rather is using federal funding to create
speech that an organization would not necessarily otherwise adopt. The government
argues that the guidelines for the program allow a funding recipient to work with
affiliate organizations that do not need to adopt the speech. However, the recipient is
still required to adopt the government’s speech and is unable to express the
recipient’s beliefs. Further, the condition is ongoing, such that federal funding to the
recipient can be terminated if at any point in the future the recipient adopts speech
that promotes or is neutral toward prostitution or sex trafficking. These facts support
the conclusion that the Leadership Act’s condition on funding is not a limitation on
activity but instead compels the recipient to adopt the government’s point of view on
an issue.
Agency for International Development II
- The Court held that compelled speech required as a condition for funding on
foreign non-governmental affiliates of U.S. non-government organizations does
not violate First Amendment rights.
- Because plaintiffs’ foreign affiliates possess no First Amendment rights, applying
the Policy Requirement to them is not unconstitutional.
- Kavanaugh wrote that two factors affect the Court's judgment. First, the foreign
affiliates are legally separate entities from the American NGOs, and secondly,
"because foreign organizations operating abroad do not possess constitutional
rights, those foreign organizations do not have a First Amendment right to
disregard the policy requirement."
Designated Public Forum
Rosenberger
- A public university that funds student-run publications cannot engage in
viewpoint discrimination by denying funding to select publications based on the
views expressed in those publications. Justice Anthony M. Kennedy, with Justices
Sandra Day O’Connor and Clarence Thomas concurring, wrote the opinion of the
Court. Kennedy began with the assertion that it is axiomatic that “government
may not regulate speech based on its content,” unless it is in the context of a
“limited forum” for the discussion of specifically named topics. In such instances,
“content discrimination may be permissible if it preserves the purposes of that
limited forum.” When however, the government attempts to regulate “particular
views taken by speakers on a subject, the violation of the First Amendment is all
the more blatant.” Kennedy explained that viewpoint discrimination was an
especially “egregious” form of content discrimination. Relying on the Court’s
decision in Lamb’s Chapel v. Center Moriches Union Free School District (1993),
Kennedy conceded that when the government decides to fund “private speakers
to transmit specific information pertaining to its own program,” it may
discriminate based on content. But the SAF program is designed “to encourage a
diversity of views from private speakers” through reimbursement of certain costs
incurred by student organizations. Because the university grants financial
benefits to certified student organizations, it must provide those benefits using a
procedure that is viewpoint neutral: “WAP did not seek a subsidy because of its
Christian editorial viewpoint; it sought funding as a student journal, which it is.”
- Under the Free Speech Clause and the Establishment Clause, a state university may
not provide funding to secular student publications but refuse to provide similar
funding to religious student publications based on viewpoint.
 - The University’s denying funds available to other student publications, but not to
a publication produced from a religious viewpoint, violates the First
Amendment’s guarantee of free speech. The University’s assertion that the
exclusion was necessary to avoid violating the Establishment Clause lacked merit
because the funds were apportioned neutrally to any group meeting certain
criteria that requested the funds.
- The Government may not discriminate against a given point of view in a limited
public forum, a government-created space wherein speech might occur according
to the government’s guidelines. “The necessities of confining a forum to the
limited and legitimate purposes for which it was created may justify the State in
reserving it for certain groups or for the discussion of certain topics.” Yet, under
the First Amendment interpretation posited in Perry Educational Association v.
Perry Local Educators’ Association,[6] said government guidelines may not
“regulate speech when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the restriction.”
- When the state creates a limited public forum, it may not discriminate on the basis of
viewpoint unless it has a limited purpose for doing so. Ultimately, content
discrimination by the state in the limited forum may be permissible if it preserves the
purposes of that limited forum, but viewpoint discrimination is presumed to be
always impermissible. By enacting a policy of providing funding for the printing costs
of student publications, UV creates a limited public forum for speech. Thus, it may
sometimes engage in content discrimination, but may never engage in viewpoint
discrimination. UV does not prohibit funding for all religious content, as it publishes
other student works dealing with religious topics. However, the UV chooses to deny
funding for a publication depicting one particular religious viewpoint i.e. Christianity.
This constitutes unconstitutional viewpoint discrimination in violation of the First
Amendment. It does not matter that the denied government benefit is only funding
and not access to facilities or meeting space (invalidated under Lamb’s Chapel v.
Center Moriches Free Sch. Dist., 508 U.S. 374 (1992)). A state university must
practice viewpoint neutrality in all decisions to provide funding to students groups,
regardless of its own opinions on the viewpoints of those groups. UV discriminates
against its Christian student based on religious viewpoint, and thus violates the Free
Speech Clause.
Christian Legal Society, Hastings
- The majority decision, written by Justice Ruth Bader Ginsburg, focused on a
stipulation stating that the University had applied this standard to all
groups. Ginsburg suggested that this was an appropriate situation to apply the
Court’s limited public forum precedents. She thought such analysis applied to
both the Christian Legal Society’s asserted associational and speech
rights. Moreover, she observed that past cases had “distinguished between
policies that require action and those that withhold benefits.” As she explained,
the University “is dangling the carrot of subsidy, not wielding the stick of
prohibition.” Ginsburg cited Healy v. James (1972) for the proposition that a
school could not restrict a group simply because it disagreed with its views
and Widmar v. Vincent (1981) and Rosenberger v. Rectors and Visitors of the
University of Virginia (1995) for the proposition that it could not single out
religious groups for special disadvantages.
- She further argued that First Amendment rights must be examined in light of the
school environment, which required a degree of deference to university decisions.
Ginsburg defended what she described as Hasting’s “all-comers requirement” by
citing its goals of providing educational opportunities to all students, promoting
 its non-discrimination policy, encouraging tolerance, and following state law. She
further noted that the law school continued to allow the Christian Legal Society
access to its buildings.
- Ginsburg distinguished the “permissibility” of Hastings’s policy from its
“advisability.” Although acknowledging that the policy had a disparate impact,
she thought that it was “nominally neutral.” She did not think that Hasting’s
policy was pre-textual but suggested that the Ninth Circuit Court might on
remand consider whether policies had been selectively enforced.
- A public university policy requiring Registered Student Organizations to accept all
comers is constitutionally reasonable and viewpoint neutral.
- The policy of Hastings, which requires student groups to accept all students
regardless of their status or beliefs to obtain official recognition, is a reasonable,
viewpoint-neutral condition on access to the forum; it therefore does not
transgress First Amendment limitations.
Shurtleff
- When the government opens up its property to the public for purely private
speech, it does not necessarily constitute government speech. Permitting private
religious expression on government property when that property is made a public
forum for comparable private expression does not violate the establishment
clause. Prohibiting the use of government property for private expression based
solely on its religious content while allowing comparable private speech
constitutes impermissible viewpoint discrimination and violates the First and
Fourteenth Amendments.
- Boston violated a private organization’s First Amendment religious free exercise
rights by refusing to allow them to temporarily raise a Christian flag on a flagpole
outside Boston City Hall, given that Boston had previously allowed various
organizations to temporarily raise secular flags on the same flagpole.
- The court’s ruling depended on its conclusion that, given Boston’s policies,
temporarily raising a flag on this flagpole outside Boston City Hall was an act of
private expression, not government speech.
- The court relied on three key considerations in determining whether an act of
expression counted as government speech:
o Who has been speaking historically during similar acts of expression,
o Who the public is likely to assume is speaking, and
o Who controls the means of expression.
- Justice Breyer relied on these same considerations in assessing whether
temporarily raising a flag on Boston’s third flagpole was government speech or
private expression. He claimed that this examination was part of a “holistic
inquiry” and that the assessment was “not mechanical.”
- Justice Breyer said that “the line between a forum for private expression and the
government’s own speech is important, but not always clear.” In this case, he
found that “some evidence favors Boston, and other evidence favors Shurtleff,”
but that on balance the evidence favored Shurtleff’s position that such flag
raisings were acts of private expression.
- He concluded that because the flag-raising was an act of private expression, not
government speech, Boston violated Shurtleff’s and Camp Constitution’s First
Amendment right to religious free exercise. This is because Boston’s denial of
Camp Constitution’s request amounted to constitutionally
impermissible viewpoint discrimination that violated the First Amendment’s
provision of freedom of speech.
Government as Speaker
Walker
- Specialty license plates were a form of government speech and, therefore,
immune from First Amendment scrutiny. Breyer analogized the specialty license
plate program to monuments in a public park, which the Court had declared a
form of government speech in Pleasant Grove v. Summum (2009). Breyer wrote
that license plates are a form of government identification and communicate
messages from the State. “Indeed, a person who displays a message on a Texas
license plate likely intends to convey to the public that the State has endorsed
that message,” Breyer wrote. “If not, the individual could simply display the
message in question in larger letters on a bumper sticker right next to the plate.”
Breyer also noted that, like the monuments in the public park in
the Summum decision, the state of Texas retained final approval authority over
the content of the specialty license plates.
- Generally, the First Amendment cannot be used to challenge government speech.
- License plates are government speech and are consequently more easily
regulated/subjected to content restrictions than private speech under the First
Amendment.
- Breyer wrote that the inclusion of a message on a state-issued license plate
implies government endorsement of that message, and that car owners "could
simply display the message in question in larger letters on a bumper sticker right
next to the plate."
- Governments are responsible for making policy choices, such as promoting
vaccinations or a recycling program. Requiring a government to discuss every
competing side of an issue each time it communicates something to its constituency
would be impractical. In this case, the designs approved on Texas’s specialty license
plates constitute government speech. Historically, state license plates have conveyed
messages from the state in addition to the state name and plate number. As a result
of this and a state’s name being prominently shown on its plates, the public closely
associates a state’s license plate with that state’s government. Further, a state’s
license plates are required by, produced by, and issued by that state. Indeed, the
state government even took ownership of the designs on specialty license plates in
Texas. Finally, as evidenced by this case in particular, states retain approval
authority for any speech appearing on their license plates. In sum, the designs
approved on Texas’s specialty license plates constitute government speech. As a
result, the Sons cannot challenge the DMV’s denial based on the First Amendment.
American Library Association
- Supreme Court upheld the constitutionality of the federal Children’s Internet
Protection Act (CIPA), finding that the act does not violate a library patron’s First
Amendment rights. Chief Justice William H. Rehnquist’s opinion for a plurality of
four justices analogized Internet filtering to book selection decisions. Because
decisions as to which books to have in a library’s collection were part of the
library’s traditional “mission of facilitating learning and cultural enrichment,”
such decisions were within the discretion of the library. The plurality also
rejected the unconstitutional conditions doctrine argument, concluding that
because libraries could simply refuse the federal funds, their free speech rights
were not being infringed.
- Congress may require public libraries receiving federal funds to install filters on their
computers because such a requirement does not induce libraries to engage in
unconstitutional violations of their patrons’ First Amendment rights.
- Congress has the authority to require libraries to censor internet content to
receive federal funding.
 - The court held that CIPA only required libraries to install software filters but not
to require all patrons to use them, while patrons could also request that the filters
be disabled. Thus, filters were not unacceptably restrictive.
- The Supreme Court also held that the public forum principles on which the
district court relied were "out of place in the context of this case" and that
Internet access in public libraries "is neither a 'traditional' nor a 'designated'
public forum" under the established public forum law.[7] A library does not acquire
Internet terminals in order to "create a public forum for Web publishers to
express themselves, any more than it collects books in order to provide a public
forum for the authors of books to speak." The Court explained that the Internet is
simply "another method for making information available in a school or library...
[and is] no more than a technological extension of the book stack."
Speech by Government Employees
- The Pickering Connick test refers to a longstanding test in First Amendment law
used by courts to determine whether a public employer violated an employee’s
free-expression rights. The test has two parts. The threshold part asks whether a
public employee spoke on a matter of public concern defined as a matter of larger
societal significance or importance. If a public employee was disciplined for
expression that is characterized as more of a private grievance, then the employer
prevails. If, however, a public employee spoke on a matter of public concern, then
the court proceeds to the second part of the test often called the balancing
prong. Under this prong, the court must balance the employee’s right to free
speech against the employer’s interests in an efficient, disruptive-free workplace.
Pickering
- The case established the principle that public employees do not relinquish their
right to speak out on matters of public importance, or public concern, simply
because they have accepted government employment.
- Justice Thurgood Marshall rejected the notion that public employees must
relinquish their constitutional rights on accepting government employment. He
wrote: “The problem in any case 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 employers.” Marshall continued that the subject
matter of Pickering’s letter — money spent by the school board on athletics and
academics — was a matter of public concern. He then balanced Pickering’s free
speech rights against the school board’s interests in a disruptive-free workplace.
Marshall noted that Pickering’s employment relationships with board members
“are not the kind of close working relationships for which it can persuasively be
claimed that personal loyalty and confidence are necessary to their proper
functioning.” Marshall concluded Pickering’s First Amendment rights had been
violated because the school board had not produced evidence that Pickering had
knowingly or recklessly made false statements in his letter. Justice Byron R.
White wrote a partial dissenting opinion, arguing that the Court should have
remanded the case to the state courts for further fact finding.
- Under the First Amendment, a teacher cannot be terminated for exercising the right
to comment on matters of public importance, absent proof that the teacher
knowingly or recklessly made false statements.
- If teacher’s expression did not impede Pickering’s proper performance of any of his
daily duties in the classroom or interfere with the regular operation of the schools as
a general matter.
 - The dismissal of a public-school teacher for public statements regarding issues of
public importance, without a showing that his statements were knowingly or
recklessly false, violated his First Amendment right to free speech.
- Justice Thurgood Marshall, writing for the majority, observed that the "problem in
any case 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."
Connick
- Clarified the level of First Amendment protection for public employees in the
workplace by explaining how courts should balance an employee’s right to speak
on matters of public importance against an employer’s interests in a disruptive-
free workplace. In applying the Pickering test to the New Orleans case, White
found that Myers in general was not speaking about matters of public concern,
because in the main, her questionnaire focused on internal office workings. White
determined, however, that at least one question — concerning whether Connick
forced office staff to perform political campaign work — should be considered of
public concern. Applying the balancing prong of the Pickering test, White
asserted that Myers’s questionnaire had the potential to hinder the efficient
operation of the district attorney’s office by questioning Connick’s authority. In
addition, because Myers circulated the survey as a reaction to receiving an
unfavorable assignment, White found that Connick had legitimate reasons to fire
her.
- When public employees’ expression does not relate to any matter of political, social,
or other public concern, it is generally not protected by the First Amendment and any
regulations of such expression by government officials are entitled to great deference
by the courts.
- Assistant district attorney's distribution of questionnaire on workplace
satisfaction following an unwanted transfer was largely a matter of personal
interest; her subsequent termination for that action did not violate her First
Amendment rights.
- Only involving matters of possible public concern within the workplace context.
Garcetti
- Public employees do not have a First Amendment protection for speech issued as
part of their official duties. Writing for the majority, Justice Anthony M.
Kennedy ruled 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.”
- Unlike speech by a government employee made as a private citizen, speech, even on
matters of public concern, is not protected under the First Amendment if it is made
while on the job and as part of his or her duties.
- Statements made by public employees pursuant to their official duties are not
protected by the First Amendment from employer discipline.
- Because his statements were made pursuant to his position as a public employee,
rather than as a private citizen, his speech had no First Amendment protection.
- Though the speech at issue concerned the subject matter of his employment, and
was expressed within his office rather than publicly, the Court did not consider
either fact dispositive, or noted that employees in either context may receive First
Amendment protection. The "controlling factor" was instead that his statements
were made pursuant to his duties as a deputy district attorney. Restricting such
 speech, which "owes its existence to a public employee's professional
responsibilities," did not in the Court's view violate any rights that the employee
had as a private citizen. Instead, the restrictions were simply the control an
employer exercised "over what the employer itself has commissioned or created."
- Barring First Amendment claims based on "government employees' work
product," as the Court characterized the speech at issue, would not prevent those
employees from participating in public debate.
Lane
- The First Amendment protected a public employee who was terminated by his
employer after he provided truthful court testimony pursuant to a subpoena.
Justice Sonia Sotomayor reasoned that public employees often are in the best
position to speak about issues of public importance, citing the Court’s seminal
public employee free-speech decision Pickering v. Board of
Education (1969). Sotomayor also reasoned that Garcetti did not bar Lane’s claim,
because providing court testimony was not a part of Lane’s regular job duties.
“Truthful testimony under oath by a public employee outside the scope of his
ordinary job duties is speech as a citizen for First Amendment purposes,” she
wrote. “That is so even when the testimony relates to his public employment or
concerns information learned during that employment.”
- The First Amendment protects a public employee who provides testimony, required
by a subpoena, outside the scope of his ordinary job duties.
- Government employee speech that is made during trial is protected citizen
speech, and the employee cannot be fired for comments made in that setting.
- “The critical question is whether the speech at issue itself is ordinarily within the
scope of an employee’s duties, not whether it merely concerns those duties.
Corruption in a public program and misuse of state funds involve matter of
significant public concern; the form and context of the speech, sworn testimony in
a judicial proceeding, fortify that conclusion.”
Heffernan
- An employer could be sued in a First Amendment retaliation action for violating
an employee’s free-speech rights even though the employer was mistaken in
thinking that the employee had exercised those rights. Breyer’s majority opinion
observed that decisions in Elrod v. Burns (1976) and Branti v.
Finkel (1980) generally prevented punishment of an employee because of the
employee’s political involvement. The major federal civil rights law, 42 U.S.C.
Section 1983, does not directly answer the question as to whether an employee
can sue in a case where retaliatory acts are based on false premises, but in a
somewhat similar case, Waters v. Churchill (1994), the Court had focused on the
employer’s motive. In Breyer’s judgment, “a discharge or demotion based upon an
employer’s belief that the employee has engaged in protected activity can cause
the same kind, and degree, of constitutional harm whether that belief does or
does not rest upon a factual mistake.” Breyer remanded the case, however, to the
lower courts to see if it was possible that Heffernan’s employers may have
punished him not for exercising his First Amendment rights but “pursuant to a
different and neutral policy prohibiting policy officers from overt involvement in
any political campaign.”
- Police department's demotion of detective in response to mistaken belief he was
supporting a challenger to the city's mayor in election violated his First
Amendment rights regardless of his actual purpose.
- The Court held that a public employee's constitutional rights might be violated
when an employer, believing that the employee was engaging in what would
 be protected speech, disciplines them because of that belief, even if the employee
did not exercise such a constitutional right.
- The department's belief was all that mattered, since the Court's precedent in this
area holds it is unconstitutional for a government agency to discipline an
employee (who does not work under a contract that explicitly permits such
discipline) for engaging in partisan political activity, as long as that activity is not
disruptive to the agency's operations. Even if Heffernan was not engaging in
protected speech, he wrote, the discipline against him sent a message to others to
avoid exercising their rights.
- The potential chilling effect on constitutionally protected speech still exists,
regardless of the factual basis of the employer's reasoning.[34] Because employees
thinking of engaging in protected activity will be equally dissuaded by an
incorrect dismissal as by a correct dismissal, both reasonings should be
considered in violation of the First Amendment.
United States Civil Service Commission
- A law prohibiting partisan political conduct by government employees is
constitutional.
- Upheld the constitutionality of the Hatch Act of 1939 and its amendments, ruling
that the act did not violate the First Amendment rights of federal workers. The
majority, in an opinion authored by Justice Byron L. White, rejected patronage and
stated that “federal service should depend upon meritorious performance rather
than political service, and that the political influence of federal employees on
others and the electoral process should be limited.” The basis of this claim rested
on the majority’s recounting of the nineteenth-century reforms directed against
spoils and in their agreement that “partisan political activities by federal
employees must be limited if the Government is to operate effectively and fairly.”
Political neutralization is essential to representative government; it must not be
eroded by the will of the party taking control of the government. Elsewhere in
their decision, the justices cited the need for efficiency and pointed to the
contribution of political neutrality to the good performance of administrative
duties as other reasons why the Hatch restrictions were reasonable restrictions
upon the First Amendment rights of federal workers.
National Treasury Employees Union
- Ruled in favor of a government employees union that contended that a
government act imposing on all government employees a prohibition on honoraria
was a violation of First Amendment rights.
- Writing for the Court, Justice John Paul Stevens noted that the honoraria ban did
curtail expressive behavior, but the government did not show how such a
curtailment would further its interest in providing impartial government
implementation of policy, especially for rank-and-file government employees. As
the act provided no support for establishing a nexus between the ban and the
nature of specific government jobs, the Court held the entire honoraria
prohibition unconstitutional. The majority emphasized that the government’s
burden was far greater in this case because it involved a sweeping statute that
impacted the free speech rights of countless employees, as opposed to an
“isolated disciplinary action.”
- A congressional law banning federal employees from accepting any compensation for
making speeches or writing articles, even when those expressive activities have
nothing to do with employees’ official duties, violates the First Amendment’s
guarantee of freedom of speech.
Rutan
- Extended the First Amendment rights of public employees to protect them from
patronage practices that adversely impacted their employment. In a closely
divided decision (5-4), the Supreme Court held that the government could not
constitutionally base promotion, transfer, recall, and hiring decisions of low-
level employees on one’s political party affiliation. Justice William J. Brennan Jr.,
writing for the majority, made it clear that the Court’s rulings in Elrod v.
Burns (1976) and Branti v. Finkel (1980), both of which found employee dismissal
based on patronage grounds unconstitutional, would be extended to the context of
government hiring, promotions, and the like. The Republican Party of Illinois
claimed two vital interests to be served by the practice of patronage: the hiring
and retention of effective employees, and the loyal implementation of policy
created by elected officials. Brennan rejected both contentions. With the former,
he responded that the government could dismiss nonperforming employees, no
matter their political party affiliation. With the latter, Brennan stated that if the
government wanted employees loyally to implement its policies, it could fulfill that
purpose by appointing and dismissing high-level appointees. Moreover, Brennan
stressed that with the hiring function, just because a person does not yet have a
particular government job does not mean the government may make receipt of
the job contingent on political party affiliation. Rather, the justice said that not
having access to such jobs because of one’s party affiliation violates freedom of
association guaranteed by the Constitution.
- Employment-related decisions involving low-level public employees may not be based
on party affiliation and support.
- Promotion, transfer, recall, and/or hiring decisions involving low-level public
employees may not be constitutionally based on party affiliation and support
pursuant to the First Amendment of the United States Constitution.
- A government agency cannot constitutionally base employment-related decisions
upon an employee or prospective employee's party affiliation.
- In Elrod v. Burns, the Court had reasoned that conditioning employment on
political activity pressures employees to pledge political allegiance to a party with
which they prefer not to associate, to work for the election of political candidates
they do not support, and to contribute money to be used to further policies with
which they do not agree. The latter, the plurality noted, had been recognized as
"tantamount to coerced belief."
- Patronage "can result in the entrenchment of one or a few parties to the exclusion
of others," and "is a very effective impediment to the associational and speech
freedoms which are essential to a meaningful system of democratic government."
- The Court further reasoned that employees who find themselves in dead-end
positions due to their political backgrounds would be adversely affected by the
Governor's order. They would feel a significant obligation to support political
positions held by their superiors, and to refrain from acting on the political views
they hold, in order to progress up the career ladder. Employees denied transfers
to workplaces reasonably close to their homes until they join and work for the
Republican Party would feel a daily pressure from their long commutes to do so.
And employees who have been laid off may well have felt compelled to engage in
whatever political activity was necessary to regain regular paychecks and
positions corresponding to their skill and experience. Employees who do not
compromise their beliefs stand to lose the considerable increases in pay and job
satisfaction attendant on promotions, the hours and maintenance expenses that
are consumed by long daily commutes, and even their jobs if they are not rehired
after a "temporary" layoff.
Kennedy
- The government, while following the Establishment Clause, may not suppress an
individual from engaging in personal religious observance, as doing so would
violate the Free Speech and Free Exercise Clauses of the First Amendment.
- The majority opinion from the Supreme Court found that the Establishment
Clause does not allow a government body to take a hostile view of religion in
considering personal rights under the Free Speech and Free Exercise Clauses,
ruling that the board acted improperly in not renewing Kennedy's contract.
- The Free Exercise and Free Speech Clauses of the First Amendment protect an
individual engaging in a personal religious observance from government reprisal;
the Constitution neither mandates nor permits the government to suppress such
religious expression.
- Justice Gorsuch wrote that the school's actions against Kennedy violated his
rights under both the Free Speech and Free Exercise Clauses of the First
Amendment. He further wrote "We are aware of no historically sound
understanding of the Establishment Clause that begins to '(make) it necessary for
government to be hostile to religion' in this way". [15] Gorsuch's opinion stated that
Kennedy "offered his prayers quietly while his students were otherwise occupied"
and that he made "short, private, personal prayer".
- Gorsuch rejected the school district’s argument that it could prohibit Kennedy’s
post-game prayers so that students did not feel compelled to join him in praying.
Gorsuch noted that "There is no indication in the record ... that anyone expressed
any coercion concerns to the District about the quiet, postgame prayers that Mr.
Kennedy asked to continue and that led to his suspension.” Gorsuch distinguished
this case from cases "in which this Court has found prayer involving public
schools to be problematically coercive". Gorsuch reasoned that unlike those
earlier cases, Kennedy’s prayers "were not publicly broadcast or recited to a
captive audience" and students “were not required or expected to participate".
Gorsuch concluded that the school district’s actions "rested on a mistaken view
that it had a duty to ferret out and suppress religious observances even as it
allows comparable secular speech", and that "The Constitution neither mandates
nor tolerates that kind of discrimination."
- Gorsuch thought that the argument that Kennedy remained on duty as a role
model went too far “by treating everything teachers and coaches say in the
workplace as government speech subject to government control.” By such logic,
he argued that government could “fire a Muslim teacher for wearing a headscarf
in the classroom or prohibit a Christian aide from praying quietly over her lunch
in the cafeteria.”
- In the face of opinions that sometimes stressed the tension among the clauses in
the First Amendment, Gorsuch chose to interpret them as "complementary"
rather than as “warring” provisions. By contrast, he believed that the lower courts
had created a “vice between the Establishment Clause on one side and the Free
Speech and Free Exercise Clauses on the other.” He associated such conflict with
the three-part Lemon test. That test says establishment clause violations are
found where laws:
 lacked a clear secular legislative purpose;
 had the primary effect of advancing or inhibiting religion; or
 promoted excessive entanglement between church and state.
- He also was critical of what he described as the Lemon's test “its endorsement
test offshoot” and with attempts to identify how a “reasonable observer” might
 interpret such actions. He thought such an approach resembled capitulation to a
“heckler’s veto” over any speech or action that others might find to be offensive.
- Citing the court’s opinion upholding prayer in Town of Greece v. Galloway, 572
U.S. ____ (2014), Gorsuch chose to interpret the establishment clause through
the lens of “original meaning and history.” He failed to find any evidence that
coach Kennedy had coerced anyone to join him. Moreover, he noted that Kennedy
had discontinued locker room prayers and post-game speeches with religious
content. Instead of taking offense, those who might have heard Kennedy pray on
the sidelines could learn to tolerate the speech and prayers of others.
- Gorsuch said that any rule forbidding teachers from engaging in any religious
speech would “be a sure sign that our Establishment Clause jurisprudence had
gone off the tracks,” and was suppressing religious liberty rather than protecting
it. He thus distinguished the case at hand from other cases involving prayer at
public school functions such as Lee v. Weisman, 505 U.S. 577 (1992) (public
prayer by clerics at school graduations), or Santa Fe Independent School District
v. Doe, 530 U.S. 290 (2000) (prayers broadcast over a school loud speaker system
at games).
Compelled Speech
-The compelled speech doctrine sets out the principle that the government cannot
force an individual or group to support certain expression. Thus, the First
Amendment not only limits the government from punishing a person for his
speech, it also prevents the government from punishing a person for refusing to
articulate, advocate, or adhere to the government’s approved messages.
Rumsfeld
- Unanimously ruled that the First Amendment rights of institutions of higher
education are not violated by a federal law that conditions federal funding on
granting military recruiters the same access to campus as other employers.
According to the Court, the Solomon Amendment does not unconstitutionally
compel speech. Although law schools may be required to send scheduling e-mails
for military recruiters, it “trivializes” the freedoms protected by the First
Amendment to compare this to forcing students to pledge allegiance. The Court
also ruled that requiring law schools to host military recruiters did not affect the
law schools’ speech. Nothing about recruiting suggests law schools agree with
any recruiter’s speech and nothing in the Solomon Amendment restricts what the
law school may say about the military’s policies. The law regulates conduct —
admitting military recruiters to campus — that is not inherently expressive,
unlike, for example, flag burning. The Court also rejected the law schools’ claim
that the Solomon Amendment violates their First Amendment expressive
association rights. The law requires schools to “interact” with military recruiters,
but their mere presence on campus does not make military recruiters members of
the schools’ expressive association. Students and faculty are still free to associate
to voice disapproval of the military’s policies. Finally, the Court ruled that the
Solomon Amendment does not impose unconstitutional conditions acceptance of
federal funding, since the requirement that law schools provide military recruiters
with equal access to campus could be constitutionally imposed directly on the
schools under Congress’s power to raise and support armies. The Solomon
Amendment regulates what law schools must do, not what they may or may not
say, and therefore does not violate the First Amendment.
- A federal law requiring law schools receiving federal funding to allow the military to
conduct recruiting activities on their campuses does not violate the First
Amendment’s protections of speech, conduct, or expressive association.
 - Because Congress could require law schools to provide equal access to military
recruiters without violating the schools’ freedoms of speech and association, the
Third Circuit erred in holding that the Solomon Amendment likely violates the
First Amendment.
- The court noted that the Solomon Amendment neither denies the institutions the
right to speak, nor requires them to say anything. The opinion also holds that
Congress, through the "raise and support Armies" clause, could even directly
force schools to allow recruiting without threatening the withholding of funds, if
they so desired, and that, as a result, no question of "unconstitutional conditions"
arises.
Compelled Subsidy of Other’s Speech
Keller
- Chief Justice William H. Rehnquist, delivering the opinion for a unanimous
Supreme Court, held that the state bar could fund such political causes if they
were “germane” to the association. Despite the state bar’s assertion and the
California Supreme Court’s finding to the contrary, the U.S. Supreme Court held
that for purposes of the First Amendment the state bar was not a state agency
entitled to protection under the “government speech doctrine.” It more closely
resembled a labor union, and the Court proceeded to analyze the case from that
perspective. Relying on an earlier opinion dealing with the spending of union
dues, Abood v. Detroit Board of Education (1977), the Court held that the state
bar could use the dues of dissenting members to fund political and ideological
activities “germane” to the purpose justifying the compelled association. It then
fell to the Court to provide a definition of “germane” activities. The Court turned
to Ellis v. Brotherhood of Railway, Airline and Steamship Clerks (1984) to frame
the proper test. It held that “the guiding standard must be whether the
challenged expenditures are necessarily or reasonably incurred for the purpose of
regulating” the legal profession or improving the quality of legal services in the
state. The Court acknowledged that drawing a precise line between acceptable
and unacceptable activities would not always be easy. But it found the extreme
ends of the spectrum to be clear.
- A non-governmental agency’s use of compulsory dues to finance political and
ideological activities that certain agency members do not agree with violates those
members’ free speech rights when the activities are not germane to the purpose for
which compelled association was justified.
- Attorneys may be required to be members of a state bar association, but
compulsory membership dues collected by the association may be used only to
regulate the legal profession or improve the quality of legal services in the state.
Janus
- Illinois law requiring non-union members to pay agency fees for the union to
engage in collective bargaining and related activities amounts to an
unconstitutional compulsion of speech in violation of the First
Amendment. However, the U.S. Supreme Court reversed in a majority opinion
authored by Justice Samuel A. Alito, Jr. who viewed the agency fee arrangements
as pure compulsion of speech. “Compelling individuals to mouth support for
views they find objectionable violates that cardinal constitutional command, and
in most contexts, any such effort would be universally condemned,” he wrote.
“Because the compelled subsidization of private speech seriously impinges on
First Amendment rights, it cannot be casually allowed.” The government argued
that Abood should control and that the law should be evaluated only under
rational basis review. Alito rejected the application of rational basis review,
 terming it “foreign to our free-speech jurisprudence.” Instead, he said that the
Illinois law violated either strict scrutiny or a form of “exacting scrutiny” used in
cases such as Knox v. Service Employees (2012) and Harris v. Quinn (2014).
- Alito recognized that achieved labor peace is a compelling government interest,
but that such can be achieved in ways that are significantly less restrictive of
First Amendment freedoms.
- Alito noted that federal law does not permit agency fees and many states have
laws that don’t allow agency fees – but they still achieve labor peace. Alito
rejected the government’s arguments that the agency fees were justified as a
form of employee speech under Garcetti v. Ceballos (2006) or Pickering v. Board
of Education (1968).
- He reasoned that Garcetti – which rejects employee First Amendment protections
for official, job-duty speech – does not apply because when an employee speaks
through a union, he is not speaking for the employer. He also determined that
the Pickering line of cases are not a good fit in this context,
because Pickering involves an individual employee’s speech and whether it
interferes with the employer’s operation not what happens when the government
compels or subsidizes speech in support of third parties. Alito then explained why
the principle of stare decisis should not save Abood, writing that the decision had
lost its factual and legal underpinnings. He described Abood as an “anomaly in
our First Amendment jurisprudence.”
- Compelled speech is subject to strict scrutiny.
- No public-sector employees who have refused membership in trade unions may be
compelled to pay union dues to said unions because of the benefits that they may
receive from their collective bargaining. When applied to public-sector workers,
"fair share" agreements violate the First Amendment protections of both free
association and free speech.
United Foods
- The government may not underwrite and sponsor speech with a certain viewpoint
using special subsidies exacted from a designated class of persons, some of whom
object to the idea being advanced.
- Mushroom producers could not be forced to subsidize generic advertising for
mushrooms. The Court reasoned that “First Amendment values are at serious risk
if the government can compel a particular citizen, or a discrete group of citizens,
to pay special subsidies for speech on the side that it favors.” In affirming the
circuit court ruling, the Supreme Court distinguished the case of mushroom
producer United Foods from its 1997 decision in Glickman v. Wileman Brothers &
Elliott, Inc., in which the Supreme Court upheld a series of agricultural marketing
orders for California tree fruits that included assessments for generic advertising
because they determined that the program was part of a larger plan of
collectivized economic regulation, not speech compulsion. In United Foods, the
Court noted that in Glickman “the mandated assessments for speech were
ancillary to a more comprehensive program restricting marketing autonomy.”
In United Foods, according to Justice Anthony M. Kennedy, who wrote for the
majority, “the advertising itself, far from being ancillary, is the principal object of
the regulatory scheme.” Kennedy viewed the forced advertising program for
mushroom producers as a clear case of compelling speech. The federal
government tried to argue that the forced mushroom advertising was a form of
government speech immune from First Amendment review. However, the Court
rejected this argument because it was not advanced in the lower courts. The
 government later successfully advanced the government-speech argument in the
beef advertising decision Johanns v. Livestock Marketing Association (2005).
Johanns
- Rejected a First Amendment challenge to a compelled advertising program for
beef producers; the Court based its decision on the government speech doctrine.
- Writing for the majority, Justice Antonin Scalia reasoned that the government had
a First Amendment right to promote its own message regarding beef. “The
message set out in the beef promotions is from beginning to end the message
established by the Federal Government,” he wrote. “When, as here, the
government sets the overall message to be communicated, and approves every
word that is disseminated, it is not precluded from relying on the government
speech doctrine merely because it solicits assistance from nongovernmental
sources in developing specific messages.” Scalia appeared to offer hope for
objecting beef producers when he wrote that if “individual beef advertisements
were attributed” to certain beef producers, they might have a valid as-applied
challenge.
- A mandatory assessment imposed by a government agency to fund generic
advertising to promote a product is not subject to First Amendment scrutiny.
- Check-offs fund government speech; the government cannot be sued under the
First Amendment.
- A beef producer could be compelled to contribute to beef industry advertising.
Compelled Speech
Pacific Gas and Electric Co.
- It established, with very few exceptions, the right of a corporation as a publisher
to refuse to print messages with which it does not agree. Based on First National
Bank of Boston v. Bellotti (1978), the majority affirmed that corporations as
individuals are entitled to free speech. This protection extends to the
corporation’s newsletter and the space in the billing envelope. The Court relied
on Miami Herald Publishing Co. v. Tornillo (1974), in which the Court decided
that compelling a private corporation to provide a forum for views with which it
disagreed infringed on the corporation’s free speech rights. Although the intent of
the California Public Utility Commission’s decision was to further free discussion,
its effect discriminated on the basis of the viewpoint of the speaker because only
those who disagreed with Pacific Gas and Electric were given access to the
envelope space. By mandating that the opposing views of TURN be given access,
the appellant was compelled to respond to TURN’s arguments. A forced response
is antithetical to free discussion under the First Amendment. Although the state
may have a compelling interest in utility regulations, the appellant’s rights cannot
be abridged by government restrictions that enhance the speech of its opponents.
The Supreme Court held that the California Public Utilities Commission’s decision
must be vacated and remanded the decision to the California Supreme Court.
- The First Amendment prohibits a state from requiring a speaker to carry messages
containing speech that the speaker would not otherwise make.
- A private publisher cannot be forced to carry messages inconsistent with its
views.
- Right to speak includes the right not to carry messages one disagrees with. This is
one of the cases which has essentially granted, with very limited exceptions, the
absolute right of a publisher to choose not to carry messages it does not agree
with.
Political Fundraising and Expenditures
Buckley v Valeo
- Statutory limits on campaign contributions were not violations of the First
Amendment freedom of expression but that statutory limits on campaign spending
were unconstitutional.
- Spending money to influence elections is a form of constitutionally protected speech
and federal limits on general campaign expenditures, independent expenditures to a
specific candidate, and expenditures by individual candidates from their own
personal funds are not permissible.
- Some federal limitations on campaign contributions are justified to counteract
corruption, but limitations on campaign expenditures are not justified to
counteract corruption. On the matter of limiting expenditures, section 608 of
the Federal Election Campaign Act of 1971 is unconstitutional because it violates
the First Amendment to the Constitution of the United States of America.
- In a per curiam (by the Court) opinion, they ruled that expenditure limits
contravene the First Amendment provision on freedom of speech because a
restriction on spending for political communication necessarily reduces the
quantity of expression.
- The Court upheld limits on contributions to candidates.
- The Court upheld limitations on volunteers' incidental expenses.
- The Court upheld the aggregate limit on an individual's total contributions to all
candidates and committees in a calendar year.
- The Court struck down limits on expenditures by candidates.
- The Court struck down limits on independent expenditures (i.e., expenditures by
other groups or individuals than candidates and political parties).
- The Court held that restrictions on "large campaign contributions" are justified by
the state's interest in "the prevention of corruption and the appearance of
corruption spawned by the real or imagined coercive influence of large financial
contributions on candidates' positions and on their actions if elected to office."
The Court further defined "corruption" to mean "large contributions ... given to
secure a political quid pro quo from current and potential office holders."
- The Court rejected the plaintiffs' claim that all "contribution limitations must be
invalidated because bribery laws and narrowly drawn disclosure requirements
constitute a less restrictive means of dealing with 'proven and suspected quid pro
quo arrangements.'"
- "We find that the governmental interest in preventing corruption and the
appearance of corruption is inadequate to justify s 608(e)(1)'s ceiling on
independent expenditures... First, assuming, arguendo, that large independent
expenditures pose the same dangers of actual or apparent quid pro quo
arrangements as do large contributions, Sec. 608(e)(1) does not provide an
answer that sufficiently relates to the elimination of those dangers. Unlike the
contribution limitations' total ban on the giving of large amounts of money to
candidates, Sec. 608(e)(1) prevents only some large expenditures. So long as
persons and groups eschew expenditures that in express terms advocate the
election or defeat of a clearly identified candidate, they are free to spend as much
as they want to promote the candidate and his views. The exacting interpretation
of the statutory language necessary to avoid unconstitutional vagueness thus
undermines the limitation's effectiveness as a loophole-closing provision by
facilitating circumvention by those seeking to exert improper influence upon a
candidate or officeholder."
- The Court rejected the notion that a "governmental interest in equalizing the
relative ability of individuals and groups to influence the outcome of elections
 serves to justify the limitation on express advocacy of the election or defeat of
candidates imposed by Sec. 608(e)(1)'s expenditure ceiling ... [T]he concept that
government may restrict the speech of some elements of our society in order to
enhance the relative voice of others is wholly foreign to the First Amendment,
which was designed 'to secure "the widest possible dissemination of information
from diverse and antagonistic sources,"' and '"to assure unfettered interchange of
ideas for the bringing about of political and social changes desired by the
people."'"
- Thus, the Court struck down limits on both candidate and independent spending
as unconstitutional.
McCutcheon
- Invalidated provisions of the Federal Election Campaign Act (FECA) and
the Bipartisan Campaign Reform Act (BCRA) that imposed aggregate, or total,
limits on contributions to political candidates and other contributions to party
committees. Writing for a plurality, Chief Justice John G. Roberts, Jr. reasoned
that the aggregate limits did not survive the exacting scrutiny required for
regulations that directly limited political speech. Roberts also believed that the
restrictions imposed a draconian restriction on pure political speech. “The
Government may no more restrict how many candidates or causes a donor may
support than it may tell a newspaper how many candidates it may endorse,” he
wrote. Roberts also questioned whether the aggregate limits served the valid
purpose of preventing quid pro quo corruption as opposed to general influence.
According to Roberts, Citizens United v. FEC (2010) stood for the principle that
the government’s campaign finance efforts must focus on quid pro quo corruption.
- A law restricting how much money a donor can contribute in total to all political
candidates or committees is unconstitutional under the First Amendment.
- Limitations on aggregate contributions to campaign finances violate the Free
Speech Clause of the First Amendment to the Constitution of the United States.
- "The government may no more restrict how many candidates or causes a donor
may support than it may tell a newspaper how many candidates it may endorse."
Citizens United
- Invalidated a provision of the Bipartisan Campaign Reform Act (BCRA) that
prohibited corporations and unions from using their general treasury funds
for express advocacy or electioneering communications. Writing for the
majority, Justice Anthony Kennedy struck down the ban on corporations and
unions from using their general treasury funds for electioneering communications
but upheld the disclaimer and disclosure requirements. Addressing the
electioneering ban, Kennedy noted that the restriction regulated political speech,
the type of speech that should be most protected by the First Amendment. He
noted that as a content-based restriction on political speech, the restriction must
be evaluated under strict scrutiny. Kennedy also rejected the idea that speech
rights should be limited because they are being advanced by corporations. “We
find no basis for the proposition that, in the context of political speech, the
Government may impose restrictions on certain disfavored speakers,” he wrote,
adding that “the First Amendment does not allow political speech restrictions
based on a speaker’s corporate identity.” The government argued that the ban
served its compelling interest in fighting corruption. But, Kennedy responded
that “the anticorruption interest is not sufficient to displace the speech here in
question.” He added that the traditional First Amendment rule is more speech,
not less. In his opinion, Kennedy invoked time-honored First Amendment
concepts, such as the counter speech and prior restraint.
 Regarding the disclaimer and disclosure requirements, Kennedy determined
those to be constitutional on their face. He noted that disclaimer and “disclosure
is a less restrictive alternative to more comprehensive regulations of speech.”
- Under the First Amendment, the government may not suppress political speech
based on the speaker’s corporate identity.
- The provisions of the Bipartisan Campaign Reform Act of 2002 restricting unions,
corporations, and profitable organizations from independent political spending
and prohibiting the broadcasting of political media funded by them within sixty
days of general elections or thirty days of primary elections violate the freedom of
speech that is protected by the First Amendment to the Constitution of the United
States.
- "If the First Amendment has any force, it prohibits Congress from fining or jailing
citizens, or associations of citizens, for simply engaging in political speech."
- Justice Kennedy's opinion also noted that because the First Amendment does not
distinguish between media and other corporations, the BCRA restrictions
improperly allowed Congress to suppress political speech in newspapers, books,
television, and blogs.
- The court's ruling effectively freed corporations and unions to spend money both
on "electioneering communications" and to directly advocate for the election or
defeat of candidates (although not to contribute directly to candidates or political
parties).
- The majority ruled that the Freedom of the Press clause of the First Amendment
protects associations of individuals in addition to individual speakers, and further
that the First Amendment does not allow prohibitions of speech based on the
identity of the speaker. Corporations, as associations of individuals, therefore
have free speech rights under the First Amendment. Because spending money is
essential to disseminating speech, as established in Buckley v. Valeo, limiting a
corporation's ability to spend money is unconstitutional, because it limits the
ability of its members to associate effectively and to speak on political issues.
- The majority argued that the First Amendment purposefully keeps the
government from interfering in the "marketplace of ideas" and "rationing" speech,
and it is not up to the legislatures or the courts to create a sense of "fairness" by
restricting speech.
- Rather, the majority argued that the government had no place in determining
whether large expenditures distorted an audience's perceptions, and that the type
of "corruption" that might justify government controls on spending for speech had
to relate to some form of "quid pro quo" transaction: "There is no such thing as
too much speech."[32] The public has a right to have access to all information and
to determine the reliability and importance of the information. Additionally, the
majority did not believe that reliable evidence substantiated the risk of corruption
or the appearance of corruption, and so this rationale did not satisfy strict
scrutiny.
- The majority argued that to grant Freedom of the Press protections to media
corporations, but not others, presented a host of problems; and so all
corporations should be equally protected from expenditure restrictions.
Arizona Free Enterprise
- A state law that financially hinders one political candidate in favor of an opposing
candidate in the absence of a compelling state interest burdens free speech and
violates the First Amendment.
- The First Amendment requires the Court to apply strict scrutiny to any legislative
measure that seeks to, or has the effect of, restricting political speech. Thus,
 Defendants are required to prove that the Act furthers some compelling state interest
and is narrowly tailored to achieve that interest. Plaintiffs argue that the speech of
privately funded candidates and groups is substantially burdened by the Act in the
same manner as it was in Davis v. Federal Election Comm’n, 554 U.S. 724 (2008).
In Davis, a federal law allowed one candidate running for Congress to receive three-
times the regular contribution amount of $2,300 after his opponent had spent
$350,000 of his personal funds in the campaign. Davis argued that the law burdened
his First Amendment right to make unlimited expenditures of his personal funds
because doing so had the effect of enabling his opponent to raise more money and to
use it to finance speech that countered his own. The Court agreed and struck down
the law. Here, the facts are strikingly similar. Under the Act’s matching funds
provision, the more money spent on a privately funded candidate’s behalf or in
opposition of that candidate, the more money the publicly funded candidate receives
from the State. Defendants argue that the Act results in more speech, not less, by
increasing debate. However, the burden imposed by the matching funds provision on
privately funded candidates and groups reduces their speech. Even if the provision
did result in more speech by publicly funded candidates, it would do so at the
expense of burdening privately funded candidates. Moreover, there is no compelling
state interest to justify the Act. Defendants differ about what state interest is served.
One group claims that the Act levels the financial playing field among the candidates.
However, the Court has held that leveling the playing field is an insufficient
justification. It is not legitimate for the State to attempt to equalize electoral
opportunities by burdening the free speech rights of one group. Another group
claims that the Act promotes the State’s attempt to curb political corruption.
Burdening a political candidate’s expenditure of his own funds does not further the
State’s anticorruption interest. The State’s matching scheme substantially burdens
protected political speech without serving a compelling state interest and thus
violates the First Amendment.
- Chief Justice John Roberts wrote the 5-to-4 majority opinion. He cited the decision
in Buckley v. Valeo (1976) to indicate that discussions of public issues are integral
to the operations of government. Laws burdening such speech thus required a
“compelling interest,” which is narrowly tailored to achieve this interest. Roberts
cited numerous precedents where the Court had invalidated laws that it thought
imposed such burdens, including its recent decision in Citizens United v.
FEC (2010), which had lifted the ban on corporate independent expenditures. The
Court had also upheld limits on individual contributions and disclosure
requirements. Petitioners claimed that their speech is burdened in a similar way
as a law that was struck down by the Court in Davis v. Federal Election
Commission (2008). In Davis, the Court struck down the so-called “Millionaire’s
Amendment,” which allowed opponents of those who spent more than $350,000 of
their own money on a campaign to accept higher contributions than were
otherwise permitted. Roberts agreed. As in Davis, Roberts found that the Arizona
law imposed a “penalty” on candidates who raised more money. Indeed, the
Arizona law is even more constitutionally problematic than the millionaires’
amendment because the state gave publicly funded candidates extra money
without them having to raise it. Moreover, privately funded expenditures might
result in matching funds for several opponents, thus having a “multiplier effect.”
Candidates about to trigger the law might decide to engage in less spending (and
thus less speech) rather than doing so. Roberts was unpersuaded by any of the
rationales that Arizona offered. Rather than increasing speech, the Arizona
subsidies simply increased the speech of publicly funded candidates, thus
 benefiting them at the expense of others. Unlike disclosure requirements, this law
results in “a cash windfall to his opponent.” Roberts indicated that the court
record contained examples of how this could curtail spending by privately funded
candidates. Arizona said that it was seeking to level the playing field, but this is
not a compelling state interest. Roberts quoted Davis to say that “(l)eveling
electoral opportunities means making and implementing judgments about which
strengths should be permitted to contributed to the election,” which he identified
as “a dangerous enterprise.” As to efforts to combat corruption or the appearance
of corruption, the state does not further this interest by reducing a candidate’s
expenditures, especially of his own money, which the Court has said does not
result in corruption. Roberts was not objecting to public funding per se but to a
system that seeks to equalize expenditures on behalf of all candidates.
Williams-Yulee
- Upheld a provision of the Florida Code of Judicial Conduct banning judicial
candidates from personally soliciting funds. The Court ruled 5-4 that the law
furthered the state’s compelling interests in preserving the integrity of its
judiciary and did not violate the First Amendment. This is one of the rare
decisions in which the Court upheld a regulation from free-speech challenge after
applying strict scrutiny. Writing for the majority, Chief Justice John G. Roberts,
Jr. acknowledged that the Florida anti-solicitation rule discriminated against
speech based on content and must be evaluated under strict scrutiny, as the
Court did in Republican Party of Minnesota V. White (2002). However, Roberts
determined that this was one of those “rare cases” where a content-based law
survived strict scrutiny. He reasoned that the state has an even stronger interest
in preserving the integrity of judicial elections even more so than legislative or
executive elections. Williams-Yulee acknowledged the state’s compelling interest,
but argued that the provision was not narrowly tailored, because the state
allowed a judge’s campaign committee to solicit funds. Roberts responded to this
under inclusiveness argument by writing that a “state need not address all
aspects of a problem in one fell swoop.” Roberts explained that the law was
narrowly tailored because it addressed “the conduct most likely to undermine
public confidence in the integrity of the judiciary: personal requests for money by
judges and judicial candidates.” Roberts also wrote that the law did not restrict
too much speech, because judicial candidates could still contact potential
supporters and promote their campaigns through different forms of media. He
added that the First Amendment requires the law to be narrowly tailored, but not
“perfectly tailored.”
- A state law prohibiting elected judges and judicial candidates from personally
soliciting funds for their campaigns does not violate the First Amendment’s
guarantee of freedom of speech.
- Held that the First Amendment did not prohibit states from barring judges and
judicial candidates from personally soliciting funds for their election campaigns
since that specific restriction on candidate's speech was deemed to be narrowly
tailored to serve the compelling interest of keeping the judiciary impartial. It is a
rare instance of a government regulation passing strict scrutiny.