FREEDOM OF EXPRESSION—SPEECH AND PRESS
Adoption and the Common Law Background
Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”376 The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.”377 In this form it went to the Senate, which rewrote it to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.”378 Subsequently, the religion clauses and these clauses were combined by the Senate.379 The final language was agreed upon in conference.
Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause, and there is no record of debate in the Senate.380 In the course of debate, Madison warned against the dangers that would arise “from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.”381 That the “simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language.
Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.”382
Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment,383 it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act384 and the use by the Adams Administration of the Act to prosecute its political opponents,385 something of a libertarian theory of freedom of speech and press,386 which, however much the Jeffersonians may have departed from it upon assuming power,387 was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I.388 Thus, in 1907, Justice Holmes could observe that, even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment, “still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is ‘to prevent all such previous restraints upon publications as had been practiced by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.”389 But as Justice Holmes also observed, “[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.”390
But, in Schenck v. United States,391 the first of the post-World War I cases to reach the Court, Justice Holmes, in his opinion for the Court upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as on prior restraint. “It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . . The question in every case is whether the words used are used in 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.”
Justice Holmes, along with Justice Brandeis, soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech that offered no threat to organized institutions.392 But it was with the Court’s assumption that the Fourteenth Amendment restrained the power of the states to suppress speech and press that the doctrines developed.393 At first, Holmes and Brandeis remained in dissent, but, in Fiske v. Kansas,394 the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California,395 voided a state statute on grounds of its interference with free speech.396 State common law was also voided, with the Court in an opinion by Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law.397
Development over the years since has been uneven, but by 1964 the Court could say with unanimity: “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.”398 And, in 1969, the Court said that the cases “have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”399 This development and its myriad applications are elaborated in the following sections.
The First Amendment by its terms applies only to laws enacted by Congress and not to the actions of private persons.400 As such, the First Amendment is subject to a “state action” (or “governmental action”) limitation similar to that applicable to the Fifth and Fourteenth Amendments.401 The limitation has seldom been litigated in the First Amendment context, but there appears to be no obvious reason why the analysis should differ markedly from Fifth or Fourteenth Amendment governmental action analysis.402 Both contexts require “cautious analysis of the quality and degree of Government relationship to the particular acts in question.”403 In holding that the National Railroad Passenger Corporation (Amtrak) is a governmental entity for purposes of the First Amendment, the Court declared that “[t]he Constitution constrains governmental action ‘by whatever instruments or in whatever modes that action may be taken’ . . . [a]nd under whatever congressional label.”404
Freedom of Expression: The Philosophical Basis
Probably no other provision of the Constitution has given rise to so many different views with respect to its underlying philosophical foundations, and hence proper interpretive framework, as has the guanantee of freedom of expression.405 The argument has been fought out among the commentators. “The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases.”406 Some commentators argue on behalf of a complex of values, none of which by itself is sufficient to support a broad-based protection of freedom of expression.407 Others would limit the basis of the First Amendment to only one among a constellation of possible values and would therefore limit the coverage or the degree of protection of the speech and press clauses.
For example, one school of thought believes that, because of the constitutional commitment to free self-government, only political speech is within the core protected area,408 although some commentators tend to define more broadly the concept of “political” than one might suppose from the word alone. Others recur to the writings of Milton and Mill and argue that protecting speech, even speech in error, is necessary for the eventual ascertainment of the truth through the conflict of ideas in the marketplace—a view skeptical of our ability ever to know the truth.409 A broader-grounded view is expounded by scholars who argue that freedom of expression is necessary to promote individual self-fulfillment—that, when speech is freely chosen by the speaker to persuade others, it defines and expresses the speaker ’s “self ” and promotes his liberty410 and “self-realization” by enabling him to develop his powers and abilities and to make and influence decisions regarding his destiny.411 The literature is enormous and no doubt the Justices as well as the larger society are influenced by it, and yet the decisions, probably in large part because they are the collective determination of nine individuals, seldom clearly reflect a principled and consistent acceptance of any philosophy.
Freedom of Expression: Is There a Difference Between Speech and Press?
Use of the single word “expression” to reach speech, press, petition, association, and the like, raises the question of whether the free speech clause and the free press clause are coextensive, or whether one reaches where the other does not. It has been much debated, for example, whether the “institutional press” is entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Stewart has argued: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.”412 But, as Chief Justice Burger wrote: “The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.”413
Several Court holdings do firmly point to the conclusion that the press clause does not confer on the press the power to compel government to furnish information or otherwise give the press access to information that the public generally does not have.414 Nor, in many respects, is the press entitled to treatment different in kind from the treatment to which any other member of the public may be subjected.415 “Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects.”416 Yet, it does seem clear that, to some extent, the press, because of its role in disseminating news and information, is entitled to deference that others are not entitled to—that its role constitutionally entitles it to governmental “sensitivity,” to use Justice Stewart’s word.417 What difference such “sensitivity” might make in deciding cases is difficult to say.
The most interesting possibility lies in the First Amendment protection of good-faith defamation.418 Justice Stewart argued that the Sullivan privilege is exclusively a free press right, denying that the “constitutional theory of free speech gives an individual any immunity from liability for libel or slander.”419 To be sure, in all the cases to date that the Supreme Court has resolved, the defendant has been, in some manner, of the press,420 but the Court’s decision in First National Bank of Boston v. Bellotti that corporations are entitled to assert First Amendment speech guarantees against federal and, through the Fourteenth Amendment, state, regulations causes the evaporation of the supposed “conflict” between speech clause protection of individuals only and press clause protection of press corporations as well as of press individuals.421 The issue, the Court wrote in Bellotti, was not what constitutional rights corporations have but whether the speech that is being restricted is protected by the First Amendment because of its societal significance. Because the speech in Bellotti concerned the enunciation of views on the conduct of governmental affairs, it was protected regardless of its source; while the First Amendment protects and fosters individual self-expression as a worthy goal, it also and as importantly affords the public access to discussion, debate, and the dissemination of information and ideas. Despite Bellotti’s emphasis upon the political nature of the contested speech, it is clear that the same principle—the right of the public to receive information—governs nonpolitical, corporate speech.422
With some qualifications, therefore, the speech and press clauses may be analyzed under an umbrella “expression” standard, with little, if any, hazard of missing significant doctrinal differences.
The Doctrine of Prior Restraint
“[L]iberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.”423 “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”424 Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.”425 Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities. The great struggle for liberty of the press was for the right to publish without a license what for a long time could be published only with a license.426
The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson,
427 in which a five-to-four majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an “obscene, lewd and lascivious” or a “malicious, scandalous and defamatory” issue. An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters. Although the dissenters maintained that the injunction constituted no prior restraint, because that doctrine applied to prohibitions of publication without advance approval of an executive official,428 the majority deemed it “the essence of censorship” that, in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge.429 Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the Court. “[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.”430 The Court did not explore the kinds of restrictions to which the term “prior restraint” would apply, nor do more than assert that only in “exceptional cases” would prior restraint be permissible.431
Nor did subsequent cases substantially illuminate the murky interior of the doctrine. The doctrine of prior restraint was called upon by the Court as it struck down restrictions on First Amendment rights, including a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them.432 The doctrine that generally emerged was that permit systems and prior licensing are constitutionally valid so long as the discretion of the issuing official was limited to questions of time, place, and manner.433 “[O]nly content-based injunctions are subject to prior restraint analysis.”434
The most recent Court encounter with the doctrine in the national security area occurred when the government attempted to enjoin press publication of classified documents pertaining to the Vietnam War435 and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that, in some circumstances, prior restraint of publication would be constitutional.436 But no cohesive doctrine relating to the subject, its applications, and its exceptions has emerged.
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.”437 The prohibition on prior restraint, thus, is essentially a limitation on restraints until a final judicial determination that the restricted speech is not protected by the First Amendment. It is a limitation, for example, against temporary restraining orders and preliminary injunctions pending final judgment, not against permanent injunctions after a final judgment is made that the restricted speech is not protected by the First Amendment.438
The Supreme Court has also written “that traditional prior restraint doctrine may not apply to [commercial speech],”439 and “[t]he vast majority of [federal] circuits . . . do not apply the doctrine of prior restraint to commercial speech.”440 “Some circuits [however] have explicitly indicated that the requirement of procedural safeguards in the context of a prior restraint indeed applies to commercial speech.”441 In addition, prior restraint is generally permitted, even in the form of preliminary injunctions, in intellectual property cases, such as those for infringements of copyright or trademark.442
Injunctions and the Press in Fair Trial Cases.
Confront-ing a claimed conflict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant.443 Though agreed as to the result, the Justices were divided as to whether “gag orders” were ever permissible and if so what the standards for imposing them were. The Court used the Learned Hand formulation of the “clear and present danger” test444 and considered as factors in any decision on the imposition of a restraint upon press reporters “(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.”445 Though the Court found that one seeking a restraining order must meet “the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied,” it refused to “rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.”446 Justice Brennan’s concurring opinion flatly took the position that such restraining orders were never permissible. Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would have held, and secrecy can do so much harm “that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained.”447 The only circumstance in which prior restraint of protected speech might be permissible is when publication would cause “virtually certain, direct, and immediate” national harm, Justice Brennan continued, but “the harm to a fair trial that might otherwise eventuate from publications which are suppressed . . . must inherently remain speculative.”448 Although the result in the case does not foreclose the possibility of future “gag orders,” it does lessen the number to be expected and shifts the focus to other alternatives for protecting trial rights.449 On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart,450 the Court determined that such orders protecting parties from abuses of discovery require “no heightened First Amendment scrutiny.”451
Obscenity and Prior Restraint.
Only in the obscenity area has there emerged a substantial consideration of the doctrine of prior restraint, and the doctrine’s use there may be based upon the fact that obscenity is not a protected form of expression.452 In Kingsley Books v. Brown,453 the Court upheld a state statute that, though it embodied some features of prior restraint, was seen as having little more restraining effect than an ordinary criminal statute; that is, the law’s penalties applied only after publication. But, in Times Film Corp. v. City of Chicago,454 a divided Court specifically affirmed that, at least in the case of motion pictures, the First Amendment did not proscribe a licensing system under which a board of censors could refuse to license for public exhibition films that it found obscene. Books and periodicals may also be subjected to some forms of prior restraint,455 but the thrust of the Court’s opinions in this area with regard to all forms of communication has been to establish strict standards of procedural protections to ensure that the censoring agency bears the burden of proof on obscenity, that only a judicial order can restrain exhibition, and that a prompt final judicial decision is assured.456
Subsequent Punishment: Clear and Present Danger and Other Tests
Granted that the controversy over freedom of expression at the time of the ratification of the First Amendment was limited almost exclusively to the problem of prior restraint, nevertheless the words speak of laws “abridging” the freedom of speech and press, and the modern cases have been largely fought over subsequent punishment. “[T]he mere exemption from previous restraints cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications . . . .”
“[The purpose of the speech and press clause] has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. . . . The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.”457 A rule of law permitting criminal or civil liability to be imposed upon those who speak or write on public issues would lead to self-censorship, which would not be relieved by permitting a defense of truth. “Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so . . . . The rule thus dampens the vigor and limits the variety of public debate.”458
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”459 “Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law— the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”460
“But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral.”461 The fixing of a standard is necessary, by which to determine what degree of evil is “sufficiently substantial to justify resort to abridgment of speech and press and assembly as a means of protection” and how clear and imminent and likely the danger is.462 That standard has fluctuated over the years, as the cases discussed below demonstrate.
Clear and Present Danger.
Certain expression, oral or writ-ten, may incite, urge, counsel, advocate, or importune the commission of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of “symbolic” action, may either counsel the commission of criminal conduct or itself constitute criminal conduct. Leaving aside for the moment the problem of “speech-plus” communication, it becomes necessary to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. At first, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, the advocacy of or promotion of the conduct could be made criminal.463 Then, in Schenck v. United States,464 in which the defendants had been convicted of seeking to disrupt recruitment of military personnel by disseminating leaflets, Justice Holmes formulated the “clear and present danger” test that has ever since been the starting point of argument. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”465 The convictions were unanimously affirmed. One week later, the Court again unanimously affirmed convictions under the same act with Justice Holmes writing, “we think it necessary to add to what has been said in Schenck v. United States only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.”466 And, in Debs v. United States,467 Justice Holmes upheld a conviction because “the natural and intended effect” and the “reasonably probable effect” of the speech for which the defendant was prosecuted was to obstruct military recruiting.
In Abrams v. United States,468 however, Justices Holmes and Brandeis dissented upon affirmance of the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with the United States’ participation in World War I. The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the government had made no showing of a clear and present danger. Another affirmance by the Court of a conviction, the majority simply saying that “[t]he tendency of the articles and their efficacy were enough for the offense,” drew a similar dissent.469 Moreover, in Gitlow v. New York,470 a conviction for distributing a manifesto in violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it created any immediate threat to the security of the state. In so doing, the Court discarded Holmes’ test. “It is clear that the question in such cases [as this] is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results. . . . In such cases it has been held that the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent. . . . And the general statement in the Schenck Case . . . was manifestly intended . . . to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character.”471 Thus, a state legislative determination “that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power” was almost conclusive to the Court.472 It is not clear what test, if any, the majority would have used, although the “bad tendency” test has usually been associated with the case. In Whitney v. California,473 the Court affirmed a conviction under a criminal syndicalism statute based on the defendant’s association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves “danger to the public peace and the security of the State” was entitled to almost conclusive weight. In a technical concurrence, which was in fact a dissent from the opinion of the Court, Justice Brandeis restated the “clear and present danger” test. “[E]ven advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy fails short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. . . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”474
The Adoption of Clear and Present Danger.
The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,475 it held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the “class struggle” language of the constitution of the organization to which he belonged. A conviction for violating a “red flag” law was voided because the statute was found unconstitutionally vague.476 Neither case mentioned clear and present danger. An “incitement” test seemed to underlie the opinion in DeJonge v. Oregon,477 upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry,478 the Court narrowly rejected the contention that the standard of guilt could be made the “dangerous tendency” of one’s words, and indicated that the power of a state to abridge speech “even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.”
Finally, in Thornhill v. Alabama,479 a state anti-picketing law was invalidated because “no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.” During the same term, the Court reversed the breach of the peace conviction of a Jehovah’s Witness who had played an inflammatory phonograph record to persons on the street, the Court discerning no clear and present danger of disorder.480
The stormiest fact situation the Court faced in applying the clear and present danger test occurred in Terminiello v. City of Chicago,481 in which a five-to-four majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” “A function of free speech under our system of government,” wrote Justice Douglas for the majority, “is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”482 The dissenters focused on the disorders that had actually occurred as a result of Terminiello’s speech, Justice Jackson saying: “Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish . . . . In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate.”483 The Jackson position was soon adopted in Feiner v. New York,484 in which Chief Justice Vinson said that “[t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.”
Contempt of Court and Clear and Present Danger.
The period during which clear and present danger was the standard by which to determine the constitutionality of governmental suppression of or punishment for expression was a brief one, extending roughly from Thornhill to Dennis.485 But in one area it was vigorously, though not without dispute, applied to enlarge freedom of utterance and it is in this area that it remains viable. In early contempt-of-court cases in which criticism of courts had been punished as contempt, the Court generally took the position that, even if freedom of speech and press was protected against governmental abridgment, a publication tending to obstruct the administration of justice was punishable, irrespective of its truth.486 In Bridges v. California,487 however, in which contempt citations had been brought against a newspaper and a labor leader for statements made about pending judicial proceedings, Justice Black, for a five-to-four majority, began by applying the clear and present danger test, which he interpreted to require that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.”488 He noted that “[t]he substantive evil here sought to be averted . . . appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice.” As for the first evil, Justice Black rejected “[t]he assumption that respect for the judiciary can be won by shielding judges from published criticism . . . .”489 As for “[t]he other evil feared, disorderly and unfair administration of justice, [it] is more plausibly associated with restricting publications which touch upon pending litigation.” But the “degree of likelihood” of the evil being accomplished was not “sufficient to justify summary punishment.”490 In dissent, Justice Frankfurter accepted the application of the clear and present danger, but he interpreted it as meaning no more than a “reasonable tendency” test. “Comment however forthright is one thing. Intimidation with respect to specific matters still in judicial suspense, quite another. . . . A publication intended to teach the judge a lesson, or to vent spleen, or to discredit him, or to influence him in his future conduct, would not justify exercise of the contempt power. . . . It must refer to a matter under consideration and constitute in effect a threat to its impartial disposition. It must be calculated to create an atmospheric pressure incompatible with rational, impartial adjudication. But to interfere with justice it need not succeed. As with other offenses, the state should be able to proscribe attempts that fail because of the danger that attempts may succeed.”491
A unanimous Court next struck down the contempt conviction arising out of newspaper criticism of judicial action already taken, although one case was pending after a second indictment. Specifically alluding to clear and present danger, while seeming to regard it as stringent a test as Justice Black had in the prior case, Justice Reed wrote that the danger sought to be averted, a “threat to the impartial and orderly administration of justice,” “has not the clearness and immediacy necessary to close the door of permissible public comment.”492 Divided again, the Court a year later set aside contempt convictions based on publication, while a motion for a new trial was pending, of inaccurate and unfair accounts and an editorial concerning the trial of a civil case. “The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, and not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.”493
In Wood v. Georgia,494 the Court again divided, applying clear and present danger to upset the contempt conviction of a sheriff who had been cited for criticizing the recommendation of a county court that a grand jury look into African-American bloc voting, vote buying, and other alleged election irregularities. No showing had been made, said Chief Justice Warren, of “a substantive evil actually designed to impede the course of justice.” The case presented no situation in which someone was on trial, there was no judicial proceeding pending that might be prejudiced, and the dispute was more political than judicial.495 A unanimous Court in 1972 apparently applied the standard to set aside a contempt conviction of a defendant who, arguing his own case, alleged before the jury that the trial judge by his bias had prejudiced his trial and that he was a political prisoner. Though the defendant’s remarks may have been disrespectful of the court, the Supreme Court noted that “[t]here is no indication . . . that petitioner’s statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding” and quoted its previous language about the imminence of the threat necessary to constitute contempt.496
Clear and Present Danger Revised: Dennis.
In Dennis v. United States,497 the Court sustained the constitutionality of the Smith Act,
498 which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld convictions under it. Dennis’ importance here is in the rewriting of the clear and present danger test. For a plurality of four, Chief Justice Vinson acknowledged that the Court had in recent years relied on the Holmes-Brandeis formulation of clear and present danger without actually overruling the older cases that had rejected the test; but while clear and present danger was the proper constitutional test, that “shorthand phrase should [not] be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case.” It was a relative concept. Many of the cases in which it had been used to reverse convictions had turned “on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech.”499
Here, by contrast, “[o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech.”500 And in combating that threat, the government need not wait to act until the putsch is about to be executed and the plans are set for action. “If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the government is required.”501 Therefore, what does the phrase “clear and present danger” import for judgment? “Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: ‘In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.”502 The “gravity of the evil, discounted by its improbability” was found to justify the convictions.503
Clear and present danger as a test, it seems clear, was a pallid restriction on governmental power after Dennis, and it virtually disappeared from the Court’s language over the next twenty years.504 Its replacement for part of this period was the much disputed “balancing” test, which made its appearance the year before Dennis in American Communications Ass’n v. Douds.505 There the Court sustained a law barring from access to the NLRB any labor union if any of its officers failed to file annually an oath disclaiming membership in the Communist Party and belief in the violent overthrow of the government.506 Chief Justice Vinson, for the Court, rejected reliance on the clear and present danger test. “Government’s interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced. Its interest is in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. Section 9(h), in other words, does not interfere with speech because Congress fears the consequences of speech; it regulates harmful conduct which Congress has determined is carried on by persons who may be identified by their political affiliations and beliefs. The Board does not contend that political strikes, the substantive evil at which § 9(h) is aimed, are the present or impending products of advocacy of the doctrines of Communism or the expression of belief in overthrow of the Government by force. On the contrary, it points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy or persuasion that seeks acceptance in the competition of the market.”507
The test, rather, must be one of balancing of interests. “When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.”508 As the interest in the restriction, the government’s right to prevent political strikes and the disruption of commerce, was much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute.509
Justice Frankfurter, in his concurring opinion in Dennis v. United States,510 rejected the applicability of clear and present danger and adopted a balancing test. “The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interest, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidian problems to be solved.”511 But the “careful weighing of conflicting interests”512 not only placed in the scale the disparately weighed interest of government in self-preservation and the interest of defendants in advocating illegal action, which alone would have determined the balance, it also involved the Justice’s philosophy of the “confines of the judicial process” within which the role of courts, in First Amendment litigation as in other, is severely limited. Thus, “[f]ull responsibility” may not be placed in the courts “to balance the relevant factors and ascertain which interest in the circumstances [is] to prevail.” “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.” Rather, “[p]rimary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress.”513 Therefore, after considering at some length the factors to be balanced, Justice Frankfurter concluded: “It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends.”514 Only if the balance struck by the legislature is “outside the pale of fair judgment”515 could the Court hold that Congress was deprived by the Constitution of the power it had exercised.516
Thereafter, during the 1950s and the early 1960s, the Court used the balancing test in a series of decisions in which the issues were not, as they were not in Douds and Dennis, matters of expression or advocacy as a threat but rather were governmental inquiries into associations and beliefs of persons or governmental regulation of associations of persons, based on the idea that beliefs and associations provided adequate standards for predicting future or intended conduct that was within the power of government to regulate or to prohibit. Thus, in the leading case on balancing, Konigsberg v. State Bar of California,517 the Court upheld the refusal of the state to certify an applicant for admission to the bar. Required to satisfy the Committee of Bar Examiners that he was of “good moral character,” Konigsberg testified that he did not believe in the violent overthrow of the government and that he had never knowingly been a member of any organization that advocated such action, but he declined to answer any question pertaining to membership in the Communist Party.
For the Court, Justice Harlan began by asserting that freedom of speech and association were not absolutes but were subject to various limitations. Among the limitations, “general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.”518 The governmental interest involved was the assurance that those admitted to the practice of law were committed to lawful change in society and it was proper for the state to believe that one possessed of “a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form” of government did not meet the standard of fitness.519 On the other hand, the First Amendment interest was limited because there was “minimal effect upon free association occasioned by compulsory disclosure” under the circumstances. “There is here no likelihood that deterrence of association may result from foreseeable private action . . . for bar committee interrogations such as this are conducted in private. . . . Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association . . . for a bar applicant’s exclusion by reason of Communist Party membership is subject to judicial review, including ultimate review by this Court, should it appear that such exclusion has rested on substantive or procedural factors that do not comport with the Federal Constitution.”520
Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations of subversion521 and to sustain proceedings against the Communist Party and its members.522 In certain other cases, involving state attempts to compel the production of membership lists of the National Association for the Advancement of Colored People and to investigate that organization, use of the balancing test resulted in a finding that speech and associational rights outweighed the governmental interest claimed.523 The Court used a balancing test in the late 1960s to protect the speech rights of a public employee who had criticized his employers.524 Balancing, however, was not used when the Court struck down restrictions on receipt of materials mailed from Communist countries,525 and it was not used in cases involving picketing, pamphleteering, and demonstrating in public places.526 But the only case in which it was specifically rejected involved a statutory regulation like those that had given rise to the test in the first place. United States v. Robel527 held invalid under the First Amendment a statute that made it unlawful for any member of an organization that the Subversive Activities Control Board had ordered to register to work in a defense establishment.528 Although Chief Justice Warren for the Court asserted that the vice of the law was that its proscription operated per se “without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it,”529 the rationale of the decision was not clear and present danger but the existence of less restrictive means by which the governmental interest could be accomplished.530 In a concluding footnote, the Court said: “It has been suggested that this case should be decided by ‘balancing’ the governmental interests . . . against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way ‘balanced’ those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict.”531
The “Absolutist” View of the First Amendment, With a Note on “Preferred Position”.
During much of this period, the opposi-tion to the balancing test was led by Justices Black and Douglas, who espoused what may be called an “absolutist” position, denying the government any power to abridge speech. But the beginnings of such a philosophy may be gleaned in much earlier cases in which a rule of decision based on a preference for First Amendment liberties was prescribed. Thus, Chief Justice Stone in his famous Carolene Products “footnote 4” suggested that the ordinary presumption of constitutionality that prevailed when economic regulation was in issue might be reversed when legislation is challenged that restricts “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” or that reflects “prejudice against discreet and insular minorities . . . tend[ing] seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”532 Then, in Murdock v. Pennsylvania,
533 in striking down a license tax on religious colporteurs, the Court remarked that “[f]reedom of press, freedom of speech, freedom of religion are in a preferred position.” Two years later the Court indicated that its decision with regard to the constitutionality of legislation regulating individuals is “delicate . . . [especially] where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions.”534 The “preferred-position” language was sharply attacked by Justice Frankfurter in Kovacs v. Cooper,535 and it dropped from the opinions, although its philosophy did not.
Justice Black expressed his position in many cases but his Konigsberg dissent contains one of the lengthiest and clearest expositions of it.536 That a particular governmental regulation abridged speech or deterred it was to him “sufficient to render the action of the State unconstitutional” because he did not subscribe “to the doctrine that permits constitutionally protected rights to be ‘balanced’ away whenever a majority of this Court thinks that a State might have an interest sufficient to justify abridgment of those freedoms . . . I believe that the First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.”537 As he wrote elsewhere: “First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government.”538 But the “First and Fourteenth Amendments . . . take away from government, state and federal, all power to restrict freedom of speech, press, and assembly where people have a right to be for such purposes. This does not mean, however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling, whether on publicly owned streets or on privately owned property.”539 Thus, in his last years on the Court, Justice Black, while maintaining an “absolutist” position, increasingly drew a line between “speech” and “conduct which involved communication.”540
Modern Tests and Standards: Vagueness, Overbreadth, Strict Scrutiny, Intermediate Scrutiny, and Effectiveness of Speech Restrictions.
Vagueness is a due process vice that can be brought into play with regard to any criminal and many civil statutes,541 but it has a special signficance when applied to governmental restrictions of speech: fear that a vague restriction may apply to one’s speech may deter constitutionally protected speech as well as constitutionally unprotected speech. Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,542 obscenity and indecency,543 and restrictions on public demonstrations.544 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;545 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.546
But, even in a First Amendment situation, the Court has written, “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. To ensure that these costs do now swallow the social benefits of declaring a law ‘overbroad,’ we have insisted that a law’s application to protected speech be ‘substantial,’ not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, before applying the ‘strong medicine’ of overbreadth invalidation. . . . Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).”547
Out of a concern that is closely related to that behind the overbreadth doctrine, the Court has insisted that when the government seeks to carry out a permissible goal and it has available a variety of effective means to do so, “[i]f the First Amendment means anything, it means that regulating speech must be a last—not first— resort.”548 Thus, the Court applies “strict scrutiny” to content-based regulations of fully protected speech; this means that it requires that such regulations “promote a compelling interest” and use “the least restrictive means to further the articulated interest.”549
With respect to most speech restrictions to which the Court does not apply strict scrutiny, the Court applies intermediate scrutiny; i.e., scrutiny that is “midway between the ‘strict scrutiny’ demanded for content-based regulation of speech and the ‘rational basis’ standard that is applied—under the Equal Protection Clause—to government regulation of nonspeech activities.”550 Intermediate scrutiny requires that the governmental interest be “significant” or “substantial” or “important” (but not necessarily “compelling”), and it requires that the restriction be narrowly tailored (but not necessarily the least restrictive means to advance the governmental interest). Speech restrictions to which the Court does not apply strict scrutiny include those that are not content-based (time, place, or manner restrictions; incidental restrictions) and those that restrict categories of speech to which the Court accords less than full First Amendment protection (campaign contributions; commercial speech).551 Note that restrictions on expression may be content-based, but will not receive strict scrutiny if they “are justified without reference to the content of the regulated speech.”552 Examples are bans on nude dancing, and zoning restrictions on pornographic theaters or bookstores, both of which, although content-based, receive intermediate scrutiny on the ground that they are “aimed at combating crime and other negative secondary effects,” and not at the content of speech.553
The Court uses tests closely related to one another in free speech cases in which it applies intermediate scrutiny. It has indicated that the test for determining the constitutionality of an incidental restriction on speech “in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions,”554 and that “the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context.”555
In addition, the Supreme Court generally requires—even when applying less than strict scrutiny—that, “[w]hen the government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply ‘posit the existence of the disease sought to be cured.’ . . . It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”556 The Court has held, however, that to sustain a denial of a statute denying minors access to sexually explicit material “requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.”557
In certain other contexts, the Court has relied on “common sense” rather than requiring the government to demonstrate that a recited harm was real and not merely conjectural. For example, it held that a rule prohibiting high school coaches from recruiting middle school athletes did not violate the First Amendment, finding that it needed “no empirical data to credit [the] common-sense conclusion that hard-sell [speech] tactics directed at middle school students could lead to exploitation . . . .”558 On the use of common sense in free speech cases, Justice Souter wrote: “It is not that common sense is always illegitimate in First Amendment demonstration. The need for independent proof varies with the point that has to be established . . . . But we must be careful about substituting common assumptions for evidence when the evidence is as readily available as public statistics and municipal property evaluations, lest we find out when the evidence is gathered that the assumptions are highly debatable.”559
Is There a Present Test?.
Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any single standard for determining the presence of First Amendment protection. For certain forms of expression for which protection is claimed, the Court engages in “definitional balancing” to determine that those forms are outside the range of protection.560 Balancing is in evidence to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises.561 Use of vagueness, overbreadth, and less intrusive means may very well operate to reduce the number of occasions when questions of protection must be answered squarely on the merits. What is observable, however, is the re-emergence, at least in a tentative fashion, of something like the clear and present danger standard in advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v. Ohio,562 a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that “mere” advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success.563 In Brandenburg, however, the Court reformulated these and other rulings to mean “that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”564 The Court has not revisited these issues since Brandenburg, so the long-term significance of the decision is yet to be determined.565
Freedom of Belief
The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses.566 “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”567 Speaking in the context of religious freedom, the Court said that, although the freedom to act on one’s beliefs could be limited, the freedom to believe what one will “is absolute.”568 But matters are not so simple.
Flag Salutes and Other Compelled Speech.
One question that has arisen is whether the government may compel a person to publicly declare or affirm a personal belief. In Minersville School District v. Gobitis,569 the Court had upheld the power of Pennsylvania to expel from its schools certain children—Jehovah’s Witnesses— who refused upon religious grounds to join in a flag salute ceremony and recite the pledge of allegiance. “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”570 But three years later, in West Virginia State Bd. of Educ. v. Barnette,571 a six-to-three majority of the Court overturned Gobitis.572 Justice Jackson, writing for the Court, chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted “a compulsion of students to declare a belief. . . . It requires the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks.”573 The power of a state to follow a policy that “requires affirmation of a belief and an attitude of mind,” however, is limited by the First Amendment, which, under the standard then prevailing, required the state to prove that for the students to remain passive during the ritual “creates a clear and present danger that would justify an effort even to muffle expression.”574
The rationale of Barnette became the basis for the Court’s decision in Wooley v. Maynard,575 which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto “Live Free or Die.”576 Acting on the complaint of a Jehovah’s Witness, the Court held that the plaintiff could not be compelled by the state to display a message making an ideological statement on his private property. In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment.577 Nor was there a constitutional violation where compulsory fees were used to subsidize the speech of others.578
Other governmental efforts to compel speech have also been held by the Supreme Court to violate the First Amendment; these include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations,579 a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers’ criticism and attacks on their records,580 an Ohio statute that prohibited the distribution of anonymous campaign literature,581 and a Massachusetts statute that required private citizens who organized a parade to include among the marchers a group imparting a message—in this case support for gay rights—that the organizers did not wish to convey.582
The principle of Barnette, however, does not extend so far as to bar a government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution.583 It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath.584
By contrast, the Supreme Court has found no First Amendment violation when government compels disclosures in commercial speech, or when it compels the labeling of foreign political propaganda. Regarding compelled disclosures in commercial speech, the Court held that an advertiser’s “constitutionally protected interest in not providing any particular factual information in his advertising is minimal. . . . [A]n advertiser’s rights are reasonably protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers. . . . The right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right.”585 Regarding compelled labeling of foreign political propaganda, the Court upheld a provision of the Foreign Agents Registration Act of 1938 that required that, when an agent of a foreign principal seeks to disseminate foreign “political propaganda,” he must label such material with certain information, including his identity, the principal’s identity, and the fact that he has registered with the Department of Justice. The Court found that “Congress did not prohibit, edit, or restrain the distribution of advocacy materials. . . . To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.”586
Imposition of Consequences for Holding Certain Beliefs.
Despite the Cantwell dictum that freedom of belief is absolute,587 government has been permitted to inquire into the holding of certain beliefs and to impose consequences on the believers, primarily with regard to its own employees and to licensing certain professions.588 It is not clear what precise limitations the Court has placed on these practices.
In its disposition of one of the first cases concerning the federal loyalty-security program, the Court of Appeals for the District of Columbia asserted broadly that “so far as the Constitution is concerned there is no prohibition against dismissal of Government employees because of their political beliefs, activities or affiliations.”589 On appeal, this decision was affirmed by an equally divided Court, its being impossible to determine whether this issue was one treated by the Justices.590 Thereafter, the Court dealt with the loyalty-security program in several narrow decisions not confronting the issue of denial or termination of employment because of beliefs or “beliefs plus.” But the same issue was also before the Court in related fields. In American Communications Ass’n v. Douds,591 the Court was again evenly divided over a requirement that, in order for a union to have access to the NLRB, each of its officers must file an affidavit that he neither believed in, nor belonged to an organization that believed in, the overthrow of government by force or by illegal means. Chief Justice Vinson thought the requirement reasonable because it did not prevent anyone from believing what he chose but only prevented certain people from being officers of unions, and because Congress could reasonably conclude that a person with such beliefs was likely to engage in political strikes and other conduct that Congress could prevent.592 Dissenting, Justice Frankfurter thought the provision too vague,593 Justice Jackson thought that Congress could impose no disqualification upon anyone for an opinion or belief that had not manifested itself in any overt act,594 and Justice Black thought that government had no power to penalize beliefs in any way.595 Finally, in Konigsberg v. State Bar of California,596 a majority of the Court supported dictum in Justice Harlan’s opinion in which he justified some inquiry into beliefs, saying that “[i]t would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country’s legal and political institutions.”
When the same issue returned to the Court years later, three five-to-four decisions left the principles involved unclear.597 Four Justices endorsed the view that beliefs could not be inquired into as a basis for determining qualifications for admission to the bar;598 four Justices endorsed the view that while mere beliefs might not be sufficient grounds to debar one from admission, the states were not precluded from inquiring into them for purposes of determining whether one was prepared to advocate violent overthrow of the government and to act on his beliefs.599 The decisive vote in each case was cast by a single Justice who would not permit denial of admission based on beliefs alone but would permit inquiry into those beliefs to an unspecified extent for purposes of determining that the required oath to uphold and defend the Constitution could be taken in good faith.600 Changes in Court personnel following this decision would seem to leave the questions presented open to further litigation.
Right of Association
“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”601 It appears from the Court’s opinions that the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition,602 although it has at times been referred to as an independent freedom protected by the First Amendment.603 The doctrine is a fairly recent construction, the problems associated with it having previously arisen primarily in the context of loyalty-security investigations of Communist Party membership, and these cases having been resolved without giving rise to any separate theory of association.604
Freedom of association as a concept thus grew out of a series of cases in the 1950s and 1960s in which certain states were attempting to curb the activities of the National Association for the Advancement of Colored People. In the first case, the Court unanimously set aside a contempt citation imposed after the organization refused to comply with a court order to produce a list of its members within the state. “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.”605 “[T]hese indispensable liberties, whether of speech, press, or association,”606 may be abridged by governmental action either directly or indirectly, wrote Justice Harlan, and the state had failed to demonstrate a need for the lists which would outweigh the harm to associational rights which disclosure would produce.
Applying the concept in subsequent cases, the Court, in Bates v. City of Little Rock,607 again held that the disclosure of membership lists, because of the harm to “the right of association,” could be compelled only upon a showing of a subordinating interest; ruled in Shelton v. Tucker608 that, though a state had a broad interest to inquire into the fitness of its school teachers, that interest did not justify a regulation requiring all teachers to list all organizations to which they had belonged within the previous five years; again struck down an effort to compel membership lists from the NAACP;609 and overturned a state court order barring the NAACP from doing any business within the state because of alleged improprieties.610 Certain of the activities condemned in the latter case, the Court said, were protected by the First Amendment and, though other actions might not have been, the state could not infringe on the “right of association” by ousting the organization altogether.611
A state order prohibiting the NAACP from urging persons to seek legal redress for alleged wrongs and from assisting and representing such persons in litigation opened up new avenues when the Court struck the order down as violating the First Amendment.612 “[A]bstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. . . . In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. . . .”
“We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”613 This decision was followed in three cases in which the Court held that labor unions enjoyed First Amendment protection in assisting their members in pursuing their legal remedies to recover for injuries and other actions. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys;614 in the second the union retained attorneys on a salaried basis to represent members;615 in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery.616 Justice Black wrote: “[T]he First Amendment guarantees of free speech, petition, and assembly give railroad workers the rights to cooperate in helping and advising one another in asserting their rights. . . .”617
Thus, a right to associate to further political and social views is protected against unreasonable burdening,618 but the evolution of this right in recent years has passed far beyond the relatively narrow contexts in which it was born.
Social contacts that do not occur in the context of an “organized association” may be unprotected, however. In holding that a state may restrict admission to certain licensed dance halls to persons between the ages of 14 and 18, the Court declared that there is no “generalized right of ‘social association’ that includes chance encounters in dance halls.”619
In a series of three decisions, the Court explored the extent to which associational rights may be burdened by nondiscrimination requirements. First, Roberts v. United States Jaycees620 upheld application of the Minnesota Human Rights Act to prohibit the United States Jaycees from excluding women from full membership. Three years later in Board of Directors of Rotary Int’l v. Rotary Club of Duarte,621 the Court applied Roberts in upholding application of a similar California law to prevent Rotary International from excluding women from membership. Then, in New York State Club Ass’n v. New York City,622 the Court upheld against facial challenge New York City’s Human Rights Law, which prohibits race, creed, sex, and other discrimination in places “of public accommodation, resort, or amusement,” and applies to clubs of more than 400 members providing regular meal service and supported by nonmembers for trade or business purposes. In Roberts, both the Jaycees’ nearly indiscriminate membership requirements and the state’s compelling interest in prohibiting discrimination against women were important to the Court’s analysis. The Court found that “the local chapters of the Jaycees are large and basically unselective groups,” age and sex being the only established membership criteria in organizations otherwise entirely open to public participation. The Jaycees, therefore, “lack the distinctive characteristics [e.g., small size, identifiable purpose, selectivity in membership, perhaps seclusion from the public eye] that might afford constitutional protection to the decision of its members to exclude women.”623 Similarly, the Court determined in Rotary International that Rotary Clubs, designed as community service organizations representing a cross section of business and professional occupations, also do not represent “the kind of intimate or private relation that warrants constitutional protection.”624 And, in New York City, the fact “that the antidiscrimination provisions of the Human Rights Law certainly could be constitutionally applied at least to some of the large clubs, under the Court’s decisions in Rotary and Roberts,” and the fact that the clubs were “ ‘commercial’ in nature,” helped to defeat the facial challenge.625
Some amount of First Amendment protection is still due such organizations; the Jaycees had taken public positions on a number of issues, and, the Court in Roberts noted, “regularly engage[d] in a variety of civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under the First Amendment. There is, however, no basis in the record for concluding that admission of women as full voting members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views.”626 Moreover, the state had a “compelling interest to prevent . . . acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages. . . .”627
Because of the near-public nature of the Jaycees and Rotary Clubs—the Court in Roberts likening the situation to a large business attempting to discriminate in hiring or in selection of customers— the cases may be limited in application, and should not be read as governing membership discrimination by private social clubs.628 In New York City, the Court noted that “opportunities for individual associations to contest the constitutionality of the Law as it may be applied against them are adequate to assure that any overbreadth . . . will be curable through case-by-case analysis of specific facts.”629
When application of a public accommodations law was viewed as impinging on an organization’s ability to present its message, the Court found a First Amendment violation. Massachusetts could not require the private organizers of Boston’s St. Patrick’s Day parade to allow a group of gays and lesbians to march as a unit proclaiming its members’ gay and lesbian identity, the Court held in Hurley v. Irish-American Gay Group.630 To do so would require parade organizers to promote a message they did not wish to promote. Roberts and New York City were distinguished as not involving “a trespass on the organization’s message itself.”631 Those cases stood for the proposition that the state could require equal access for individuals to what was considered the public benefit of organization membership. But even if individual access to the parade might similarly be mandated, the Court reasoned, the gay group “could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members.”632
In Boy Scouts of America v. Dale,633 the Court held that application of New Jersey’s public accommodations law to require the Boy Scouts of America to admit an avowed homosexual as an adult member violated the organization’s “First Amendment right of expressive association.”634 Citing Hurley, the Court held that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”635 The Boy Scouts, the Court found, engages in expressive activity in seeking to transmit a system of values, which include being “morally straight” and “clean.”636 The Court “accept[ed] the Boy Scouts’ assertion” that the organization teaches that homosexual conduct is not morally straight.637 The Court also gave “deference to [the] association’s view of what would impair its expression.”638 Allowing a gay rights activist to serve in the Scouts would “force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”639
The major expansion of the right of as-sociation has occurred in the area of political rights. “There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments. The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.”640 Usually in combination with an equal protection analysis, the Court since Williams v. Rhodes641 has passed on numerous state restrictions that limit the ability of individuals or groups to join one or the other of the major parties or to form and join an independent political party to further political, social, and economic goals.642 Of course, the right is not absolute. The Court has recognized that there must be substantial state regulation of the election process, which will necessarily burden the individual’s right to vote and to join with others for political purposes. The validity of governmental regulation must be determined by assessing the degree of infringement of the right of association against the legitimacy, strength, and necessity of the governmental interests and the means of implementing those interests.643 Many restrictions upon political association have survived this sometimes-exacting standard of review, in large measure upon the basis of some of the governmental interests having been found compelling.644
If people have a First Amendment right to associate with others to form a political party, then it follows that “[a] political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the State gives a party a role in the election process—as . . . by giving certain parties the right to have their candidates appear on the general-election ballot. Then, for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment. And then also the State acquires a legitimate governmental interest in assuring the fairness of the party’s nominating process, enabling it to prescribe what that process must be.”645
A political party’s First Amendment right to limit its membership as it wishes does not render invalid a state statute that allows a candidate to designate his party preference on a ballot, even when the candidate “is unaffiliated with, or even repugnant to, the party” he designates.646 This is because the statute in question “never refers to the candidates as nominees of any party, nor does it treat them as such”; it merely allows them to indicate their party preference.647 The Court acknowledged that “it is possible that voters will misinterpret the candidates’ party-preference designations as reflecting endorsement by the parties,” but “whether voters will be confused by the party-preference designations will depend in significant part on the form of the ballot.”648 If the form of the ballot used in a particular election is such as to confuse voters, then an as-applied challenge to the statute may be appropriate, but a facial challenge, the Court held, is not.649
A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited political patronage system. At first holding that a non-policymaking, nonconfidential government employee cannot be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs or affiliations,650 the Court subsequently held that “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”651 The Court thus abandoned the concept of policymaking, confidential positions, noting that some such positions would nonetheless be protected, whereas some people filling positions not reached by the description would not be.652 The Court’s opinion makes it difficult to evaluate the ramifications of the decision, but it seems clear that a majority of the Justices adhere to a doctrine of broad associational political freedom that will have substantial implications for governmental employment. Refusing to confine Elrod and Branti to their facts, the court in Rutan v. Republican Party of Illinois653 held that restrictions on patronage apply not only to dismissal or its substantial equivalent, but also to promotion, transfer, recall after layoffs, and hiring of low-level public employees. In 1996, the Court extended Elrod and Branti to protect independent government contractors.654
The protected right of association enables a political party to assert against some state regulation an overriding interest sufficient to overcome the legitimate interests of the governing body. Thus, a Wisconsin law that mandated an open primary election, with party delegates bound to support at the national convention the wishes of the voters expressed in that primary election, although legitimate and valid in and of itself, had to yield to a national party rule providing for the acceptance of delegates chosen only in an election limited to those voters who affiliated with the party.655
Provisions of the Federal Election Campaign Act requiring the reporting and disclosure of contributions and expenditures to and by political organizations, including the maintenance by such organizations of records of everyone contributing more than $10 and the reporting by individuals and groups that are not candidates or political committees who contribute or expend more than $100 a year for the purpose of advocating the election or defeat of an identified candidate, were sustained.656 “[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. . . . We long have recognized the significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. . . . We have required that the subordinating interests of the State must survive exacting scrutiny. We have also insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.”657 The governmental interests effectuated by these requirements—providing the electorate with information, deterring corruption and the appearance of corruption, and gathering data necessary to detect violations—were found to be of sufficient magnitude to be validated even though they might incidentally deter some persons from contributing.658 A claim that contributions to minor parties and independents should have a blanket exemption from disclosure was rejected inasmuch as an injury was highly speculative; but any such party making a showing of a reasonable probability that compelled disclosure of contributors’ names would subject them to threats or reprisals could obtain an exemption from the courts.659 The Buckley Court also narrowly construed the requirement of reporting independent contributions and expenditures in order to avoid constitutional problems.660
Conflict Between Organization and Members.
It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.661 But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations. For example, such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.662
Union shop agreements generally require, as a condition of employment, membership in the union on or after the thirtieth day following the beginning of employment. In Railway Employes’ Dep’t v. Hanson, the Supreme Court upheld the constitutionality of such agreements, noting that the record in the case did not indicate that union dues were being “used as a cover for forcing ideological conformity or other action in contravention of the First Amendment,” such as by being spent to support political candidates.663 In International Ass’n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.664
In Abood v. Detroit Bd. of Education,665 the Court found Hanson and Street applicable to the public employment context.666 Recognizing that any system of compelled support restricted employees’ right not to associate and not to support, the Court nonetheless found the governmental interests served by an “agency shop” agreement667 — the promotion of labor peace and stability of employer-employee relations—to be of overriding importance and to justify the impact upon employee freedom.668 But the Court drew a different balance when it considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union’s duties as collective-bargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.669 The remedy, however, was not to restrain the union from making non-collective-bargaining-related expenditures, but was to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions.670 Later, the Court further tightened the requirements. A proportionate refund is inadequate because “even then the union obtains an involuntary loan for purposes to which the employee objects”;671 an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union’s fee.672 Therefore, the union procedure must also “provide for a reasonably prompt decision by an impartial decisionmaker.”673
In Davenport v. Washington Education Ass’n,674 the Court noted that, although Chicago Teachers Union v. Hudson had “set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,”675 it “never suggested that the First Amendment is implicated whenever governments place limitations on a union’s entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as ‘outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirements under Abood.’ ”676 Thus, the Court held in Davenport that the State of Washington could prohibit “expenditure of a nonmember’s agency fees for election-related purposes unless the nonmember affirmatively consents.”677 The Court added that “Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely.”678
And then, in Knox v. Service Employees International Union,679 the Court did suggest constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt in system. The union in Knox had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for non-union employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic in the first place, and, then, charged that requiring non-union members to affirmatively opt out of contributing to political activities was “a remarkable boon for unions.” Continuing to call opt-out arrangements impingements on the First Amendment rights of non-union members, the majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed non-union employees to opt in rather than requiring them to opt out.680 Two concurring Justices, echoed by the dissenters, heavily criticized the majority for reaching “significant constitutional issues not contained in the questions presented, briefed, or argued.” Rather, the concurrence more narrowly found that unions may not collect special political assesments from non-union members who earlier objected to nonchargeable (i.e., political) expenses, and could only collect from nonobjecting nonmembers after giving notice and an opportunity to opt out.681
Doubts on the constitutionality of mandatory union dues in the public sector intensified in Harris v. Quinn.682 The Court openly expressed reservations on Abood‘s central holding that the collection of an agency fee from public employees withstood First Amendment scrutiny because of the desirability of “labor peace” and the problem of “free ridership.” Specifically, the Court questioned (1) the scope of the precedents (like Hanson and Street) that the Abood Court relied on; (2) Abood‘s failure to appreciate the distinctly political context of public sector unions; and (3) Abood‘s dismissal of the administrative difficulties in distinguishing between public union expenditures for collective bargaining and expenditures for political purposes.683 Notwithstanding these concerns about Abood‘s core holding, the Court in Harris declined to overturn Abood outright. Instead, the Court focused on the peculiar status of the employees at issue in the case before it: home health care assistants subsidized by Medicaid. These “partial-public employees” were under the direction and control of their individual clients and not the state, had little direct interaction with state agencies or employees, and derived only limited benefits from the union.684 As a consequence, the Court concluded that Abood‘s rationale—the labor peace and free rider concerns—did not justify compelling dissenting home health care assistants to subsidize union speech.685 The question that remains after Harris is whether the Court will, given its open criticism of Abood, overturn the 1977 ruling in the future, or whether the Court will continue to limit Abood to its facts.686
In Ysursa v. Pocatello Education Ass’n,687 the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union’s First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was “justified by the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics.”688
The Court has held that a labor relations body may not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.689
Maintenance of National Security and the First Amendment
Preservation of the security of the Nation from its enemies, foreign and domestic, is the obligation of government and one of the foremost reasons for government to exist. Pursuit of this goal may lead government officials at times to trespass in areas protected by the guarantees of speech and press and may require the balancing away of rights that might be preserved inviolate at other times. The drawing of the line is committed, not exclusively but finally, to the Supreme Court. In this section, we consider a number of areas in which the necessity to draw lines has arisen.
Punishment of Advocacy.
Criminal punishment for the ad-vocacy of illegal or of merely unpopular goals and ideas did not originate in the United States with the post-World War II concern with Communism. Enactment of and prosecutions under the Sedition Act of 1798690 and prosecutions under the federal espionage laws691 and state sedition and criminal syndicalism laws692 in the 1920s and early 1930s have been alluded to earlier.693 But it was in the 1950s and the 1960s that the Supreme Court confronted First Amendment concepts fully in determining the degree to which government could proceed against persons and organizations that it believed were plotting and conspiring both to advocate the overthrow of government and to accomplish that goal.
The Smith Act of 1940694 made it a criminal offense to knowingly or willfully to advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the government of the United States or of any state by force or violence, or to organize any association that teaches, advises, or encourages such an overthrow, or to become a member of or to affiliate with any such association. No case involving prosecution under this law was reviewed by the Supreme Court until, in Dennis v. United States,695 it considered the convictions of eleven Communist Party leaders on charges of conspiracy to violate the advocacy and organizing sections of the statute. Chief Justice Vinson’s plurality opinion applied a revised clear and present danger test696 and concluded that the evil sought to be prevented was serious enough to justify suppression of speech. “If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase ‘clear and present danger’ of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the government is required.”697 “The mere fact that from the period 1945 to 1948 petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score.”698
Justice Frankfurter in concurrence developed a balancing test, which, however, he deferred to the congressional judgment in applying, concluding that “there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security.”699 Justice Jackson’s concurrence was based on his reading of the case as involving “a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy.” Here the government was dealing with “permanently organized, well-financed, semi-secret, and highly disciplined organizations” plotting to overthrow the Government; under the First Amendment “it is not forbidden to put down force and violence, it is not forbidden to punish its teaching or advocacy, and the end being punishable, there is no doubt of the power to punish conspiracy for the purpose.”700 Justices Black and Douglas dissented separately, the former viewing the Smith Act as an invalid prior restraint and calling for reversal of the convictions for lack of a clear and present danger, the latter applying the Holmes-Brandeis formula of clear and present danger to conclude that “[t]o believe that petitioners and their following are placed in such critical positions as to endanger the Nation is to believe the incredible.”701
In Yates v. United States,702 the convictions of several second-string Communist Party leaders were set aside, a number ordered acquitted, and others remanded for retrial. The decision was based upon construction of the statute and appraisal of the evidence rather than on First Amendment claims, although each prong of the ruling seems to have been informed with First Amendment considerations. Thus, Justice Harlan for the Court wrote that the trial judge had given faulty instructions to the jury in advising that all advocacy and teaching of forcible overthrow was punishable, whether it was language of incitement or not, so long as it was done with an intent to accomplish that purpose. But the statute, the Justice continued, prohibited “advocacy of action,” not merely “advocacy in the realm of ideas.” “The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.”703 Second, the Court found the evidence insufficient to establish that the Communist Party had engaged in the required advocacy of action, requiring the Government to prove such advocacy in each instance rather than presenting evidence generally about the Party. Additionally, the Court found the evidence insufficient to link five of the defendants to advocacy of action, but sufficient with regard to the other nine.704
Compelled Registration of Communist Party.
The Inter-nal Security Act of 1950 provided for a comprehensive regulatory scheme by which “Communist-action organizations” and “Communist-front organizations” could be curbed.705 Organizations found to fall within one or the other of these designations were required to register and to provide for public inspection membership lists, accountings of all money received and expended, and listings of all printing presses and duplicating machines; members of organizations which failed to register were required to register and members were subject to comprehensive restrictions and criminal sanctions. After a lengthy series of proceedings, a challenge to the registration provisions reached the Supreme Court, which sustained the constitutionality of the section under the First Amendment, only Justice Black dissenting on this ground.706 Employing the balancing test, Justice Frankfurter for himself and four other Justices concluded that the threat to national security posed by the Communist conspiracy outweighed considerations of individual liberty, the impact of the registration provision in this area in any event being limited to whatever “public opprobrium and obloquy” might attach.707 Three Justices based their conclusion on findings that the Communist Party was an anti-democratic, secret organization that was subservient to a foreign power and that used more than speech in attempting to achieve its ends, and was therefore subject to extensive governmental regulation.708
Punishment for Membership in an Organization That Engages in Proscribed Advocacy.
The Smith Act provision mak-ing it a crime to organize or become a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence was used by the government against Communist Party members. In Scales v. United States,709 the Court affirmed a conviction under this section and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice Harlan wrote for the Court, was unprotected under Dennis, and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course, “[i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause . . . does not make criminal all association with an organization which has been shown to engage in illegal advocacy.”710 Only an “active” member of the Party— one who with knowledge of the proscribed advocacy intends to accomplish the aims of the organization—was to be punished, the Court said, not a “nominal, passive, inactive or purely technical” member.711
Disabilities Attaching to Membership in Proscribed Organizations.
The consequences of being or becoming a member of a proscribed organization can be severe. Aliens are subject to deportation for such membership.712 Congress made it unlawful for any member of an organization required to register as a “Communist-action” or a “Communist-front” organization to apply for a passport or to use a passport.713 A now-repealed statute required as a condition of access to NLRB processes by any union that each of its officers must file affidavits that he was not a member of the Communist Party or affiliated with it.714 The Court has sustained state bar associations in their efforts to probe into applicants’ membership in the Communist Party in order to determine whether there was knowing membership on the part of one sharing a specific intent to further the illegal goals of the organization.715 A section of the Communist Control Act of 1954 was designed to keep the Communist Party off the ballot in all elections.716 The most recent interpretation of this type of disability is United States v. Robel,717 in which the Court held unconstitutional under the First Amendment a section of the Internal Security Act that made it unlawful for any member of an organization compelled to register as a “Communist-action” or “Communist-front” organization to work in any defense facility. For the Court, Chief Justice Warren wrote that a statute that so infringed upon freedom of association must be much more narrowly drawn to take precise account of the evils at which it permissibly could be aimed. One could be disqualified from holding sensitive positions on the basis of active, knowing membership with a specific intent to further the unlawful goals of an organization, but that membership that was passive or inactive, or by a person unaware of the organization’s unlawful aims, or by one who disagreed with those aims, could not be grounds for disqualification, certainly not for a non-sensitive position.718
A somewhat different matter is disqualifying a person for public benefits of some sort because of membership in a proscribed organization or because of some other basis ascribable to doubts about his loyalty. The First Amendment was raised only in dissent when in Flemming v. Nestor719 the Court sustained a statute that required the termination of Social Security old-age benefits to an alien who was deported on grounds of membership in the Communist Party. Proceeding on the basis that no one was “entitled” to Social Security benefits, Justice Harlan for the Court concluded that a rational justification for the law might be the deportee’s inability to aid the domestic economy by spending the benefits locally, although a passage in the opinion could be read to suggest that termination was permissible because alien Communists are undeserving of benefits.720 Of considerable significance in First Amendment jurisprudence is Speiser v. Randall,721 in which the Court struck down a state scheme for denying veterans’ property tax exemptions to “disloyal” persons. The system, as interpreted by the state courts, denied the exemption only to persons who engaged in speech that could be criminally punished consistently with the First Amendment, but the Court found the vice of the provision to be that, after each claimant had executed an oath disclaiming his engagement in unlawful speech, the tax assessor could disbelieve the oath taker and deny the exemption, thereby placing on the claimant the burden of proving that he was loyal. “The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken fact-finding— inherent in all litigation—will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens . . . . In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.”722
Employment Restrictions and Loyalty Oaths.
An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates, unlawful or disloyal action. The Federal Government’s security investigation program has been tested numerous times and First Amendment issues raised, but the Supreme Court has never squarely confronted the substantive constitutional issues, and it has not dealt with the loyalty oath features of the federal program.723 The Court has, however, had a long running encounter with state loyalty oath programs.724
First encountered725 was a loyalty oath for candidates for public office rather than one for public employees. Accepting the state court construction that the law required each candidate to “make oath that he is not a person who is engaged ‘in one way or another in the attempt to overthrow the government by force or violence,’ and that he is not knowingly a member of an organization engaged in such an attempt,” the Court unanimously sustained the provision in a one-paragraph per curiam opinion.726 Less than two months later, the Court upheld a requirement that employees take an oath that they had not within a prescribed period advised, advocated, or taught the overthrow of government by unlawful means, nor been a member of an organization with similar objectives; every employee was also required to swear that he was not and had not been a member of the Communist Party.727 For the Court, Justice Clark perceived no problem with the inquiry into Communist Party membership but cautioned that no issue had been raised whether an employee who was or had been a member could be discharged merely for that reason.728 With regard to the oath, the Court did not discuss First Amendment considerations but stressed that it believed the appropriate authorities would not construe the oath adversely against persons who were innocent of an organization’s purpose during their affiliation, or persons who had severed their associations upon knowledge of an organization’s purposes, or persons who had been members of an organization at a time when it was not unlawfully engaged.729 Otherwise, the oath requirement was valid as “a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty” and as being “reasonably designed to protect the integrity and competency of the service.”730
In the following Term, the Court sustained a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations that so advocated; the statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification.731 Justice Minton observed that everyone had a right to assemble, speak, think, and believe as he pleased, but had no right to work for the state in its public school system except upon compliance with the state’s reasonable terms. “If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.”732 A state could deny employment based on a person’s advocacy of overthrow of the government by force or violence or based on unexplained membership in an organization so advocating with knowledge of the advocacy.733 With regard to the required list, the Justice observed that the state courts had interpreted the law to provide that a person could rebut the presumption attached to his mere membership.734
Invalidated the same year was an oath requirement, addressed to membership in the Communist Party and other proscribed organizations, which the state courts had interpreted to disqualify from employment “solely on the basis of organizational membership.” Stressing that membership might be innocent, that one might be unaware of an organization’s aims, or that he might have severed a relationship upon learning of its aims, the Court struck the law down; one must be or have been a member with knowledge of illegal aims.735 But subsequent cases firmly reiterated the power of governmental agencies to inquire into the associational relationships of their employees for purposes of determining fitness and upheld dismissals for refusal to answer relevant questions.736 In Shelton v. Tucker,737 however, a five-to-four majority held that, although a state could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the state’s interests, and had a considerable potential for abuse.
The Court relied on vagueness when loyalty oaths aimed at “subversives” next came before it. In Cramp v. Board of Public Instruction,738 it unanimously held an oath too vague that required one to swear, inter alia, that “I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party.” Similarly, in Baggett v. Bullitt,739 the Court struck down two oaths, one requiring teachers to swear that they “will by precept and example promote respect for the flag and the institutions of the United States of America and the State of Washington, reverence for law and order and undivided allegiance to the government,” and the other requiring all state employees to swear, inter alia, that they would not “aid in the commission of any act intended to overthrow, destroy, or alter or assist in the overthrow, destruction, or alteration” of government. Although couched in vagueness terms, the Court’s opinion stressed that the vagueness was compounded by its effect on First Amendment rights and seemed to emphasize that the state could not deny employment to one simply because he unintentionally lent indirect aid to the cause of violent overthrow by engaging in lawful activities that he knew might add to the power of persons supporting illegal overthrow.740
More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell741 involved an oath that as supplemented would have been violated by one who “knowingly and willfully becomes or remains a member of the communist party . . . or any other organization having for its purposes the overthrow by force or violence of the government” with “knowledge of said unlawful purpose of said organization.” The law’s blanketing in of “knowing but guiltless” membership was invalid, wrote Justice Douglas for the Court, because one could be a knowing member but not subscribe to the illegal goals of the organization; moreover, it appeared that one must also have participated in the unlawful activities of the organization before public employment could be denied.742 Next, in Keyishian v. Board of Regents,743 the oath provisions sustained in Adler744 were declared unconstitutional. A number of provisions were voided as vague,745 but the Court held invalid a new provision making Communist Party membership prima facie evidence of disqualification for employment because the opportunity to rebut the presumption was too limited. It could be rebutted only by denying membership, denying knowledge of advocacy of illegal overthrow, or denying that the organization advocates illegal overthrow. But “legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations.”746 Similarly, in Whitehill v. Elkins,747 an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.
More recent cases do not illuminate whether membership changes in the Court presage a change in view with regard to the loyalty-oath question. In Connell v. Higginbotham748 an oath provision reading “that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence” was invalidated because the statute provided for summary dismissal of an employee refusing to take the oath, with no opportunity to explain that refusal. Cole v. Richardson749 upheld a clause in an oath “that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method” upon the construction that this clause was mere “repetition, whether for emphasis or cadence,” of the first part of the oath, which was a valid “uphold and defend” positive oath.
Legislative Investigations and the First Amendment.
The power of inquiry by congressional and state legislative committees in order to develop information as a basis for legislation750 is subject to some uncertain limitation when the power as exercised results in deterrence or penalization of protected beliefs, associations, and conduct. Although the Court initially indicated that it would scrutinize closely such inquiries in order to curb First Amendment infringement,751 later cases balanced the interests of the legislative bodies in inquiring about both protected and unprotected associations and conduct against what were perceived to be limited restraints upon the speech and association rights of witnesses, and upheld wide-ranging committee investigations.752 Later, the Court placed the balance somewhat differently and required that the investigating agency show “a subordinating interest which is compelling” to justify the restraint on First Amendment rights that the Court found would result from the inquiry.753 The issues in this field, thus, remain unsettled.
Interference With Vietnam War Effort.
Possibly the most cel-ebrated governmental action in response to dissent to the Vietnam War—the prosecution of Dr. Benjamin Spock and four others for conspiring to counsel, aid, and abet persons to evade the draft—failed to reach the Supreme Court.754 Aside from a comparatively minor case,755 the Court’s sole encounter with a Vietnam War protest allegedly involving protected “symbolic conduct” was United States v. O’Brien.756 That case affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O’Brien had publicly burned his draft card. “We cannot accept 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. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”757 Finding that the government’s interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than necessary to serve the interest, the Court upheld the statute. Subsequently, the Court upheld a “passive enforcement” policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others.758
Suppression of Communist Propaganda in the Mails.
A 1962 statute authorizing the Post Office Department to retain all mail from abroad that was determined to be “communist political propaganda” and to forward it to an addressee only upon his request was held unconstitutional in Lamont v. Postmaster General.759 The Court held that to require anyone to request receipt of mail determined to be undesirable by the government was certain to deter and inhibit the exercise of First Amendment rights to receive information.760 Distinguishing Lamont, the Court in 1987 upheld statutory classification as “political propaganda” of communications or expressions by or on behalf of foreign governments, foreign “principals,” or their agents, and reasonably adapted or intended to influence United States foreign policy.761 “The physical detention of materials, not their mere designation as ‘communist political propaganda,’ was the offending element of the statutory scheme [in Lamont].”762
Exclusion of Certain Aliens as a First Amendment Problem.
Although a nonresident alien might be able to present no claim, based on the First Amendment or on any other constitutional provision, to overcome a governmental decision to exclude him from the country, it was arguable that United States citizens who could assert a First Amendment interest in hearing the alien and receiving information from him, such as the right recognized in Lamont, could be able to contest such exclusion.763 But the Court declined to reach the First Amendment issue and to place it in balance when it found that a governmental refusal to waive a statutory exclusion764 was on facially legitimate and neutral grounds; the Court’s emphasis, however, upon the “plenary” power of Congress over admission or exclusion of aliens seemed to indicate where such a balance might be drawn.765
Material Support of Terrorist Organizations
Congress may bar supporting the legitimate activities of certain foreign terrorist organizations through speech made to, under the direction of, or in coordination with those groups. So held the Court in Holder v. Humanitarian Law Project,766 a case challenging an effective prohibition on giving training in peaceful dispute resolution, teaching how to petition the United Nations for relief, providing legal expertise in negotiating peace agreements, and the like.767 Without express reliance on wartime precedents, and yet also without extended discussion of plaintiffs’ free speech interests, the Court emphasized findings by the political branches that support meant to promote peaceful conduct can nevertheless further terrorism by designated groups in multiple ways. The Court also cited the narrowness of the proscription imposed. Only carefully defined activities done in concert with previously designated organizations were barred. Independent advocacy and mere membership were not restricted. Given the national security and foreign affairs concerns at stake, Congress had adequately balanced the competing interests of individual speech and government regulation, deference to the informed judgment of the political branches being due even absent an extensive record of concrete evidence.768
Particular Governmental Regulations That Restrict Expression
Government adopts and enforces many measures that are designed to further a valid interest but that may restrict freedom of expression. As an employer, government is interested in attaining and maintaining full production from its employees in a harmonious environment. As enforcer of the democratic method of carrying out the selection of public officials, it is interested in outlawing “corrupt practices” and promoting a fair and smoothly functioning electoral process. As regulator of economic affairs, its interests are extensive. As educator, it desires to impart knowledge and training to the young with as little distraction as possible. All these interests may be achieved with some restriction upon expression, but, if the regulation goes too far, then it will violate the First Amendment.769
Government as Employer: Political and Other Outside Activities.
Abolition of the “spoils system” in federal employment brought with it restrictions on political activities by federal employees. In 1876, federal employees were prohibited from requesting from, giving to, or receiving from any other federal employee money for political purposes, and the Civil Service Act of 1883 more broadly forbade civil service employees to use their official authority or influence to coerce political action of any person or to interfere with elections.770 By the Hatch Act, federal employees, and many state employees as well, are forbidden to “take any active part in political management or in political campaigns.”771 As applied through the regulations and rulings of the Office of Personnel Management, formerly the Civil Service Commission, the Act prevents employees from running for public office, distributing campaign literature, playing an active role at political meetings, circulating nomination petitions, attending a political convention except as a spectator, publishing a letter soliciting votes for a candidate, and all similar activity.772 The question is whether government, which may not prohibit citizens in general from engaging in these activities, may nonetheless so control the off-duty activities of its own employees.
In United Public Workers v. Mitchell,773 the Court answered in the affirmative. While the Court refused to consider the claims of persons who had not yet engaged in forbidden political activities, it ruled against a mechanical employee of the Mint who had done so. The Court’s opinion, by Justice Reed, recognized that the restrictions of political activities imposed by the Act did in some measure impair First Amendment and other constitutional rights,774 but it based its decision upon the established principle that no right is absolute. The standard by which the Court judged the validity of the permissible impairment of First Amendment rights was a due process standard of reasonableness.775 Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitchell.776 In Civil Service Commission v. National Association of Letter Carriers, however, a divided Court, reaffirming Mitchell, sustained the Act’s limitations upon political activity against a range of First Amendment challenges.777 The Court emphasized that the interest of the government in forbidding partisan political activities by its employees was so substantial that it overrode the rights of those employees to engage in political activities and association;778 therefore, a statute that barred in plain language a long list of activities would clearly be valid.779 The issue in Letter Carriers, however, was whether the language that Congress had enacted, forbidding employees to take “an active part in political management or in political campaigns,”780 was unconstitutional on its face, either because the statute was too imprecise to allow government employees to determine what was forbidden and what was permitted, or because the statute swept in under its coverage conduct that Congress could not forbid as well as conduct subject to prohibition or regulation. With respect to vagueness, plaintiffs contended and the lower court had held that the quoted proscription was inadequate to provide sufficient guidance and that the only further elucidation Congress had provided was in a section stating that the forbidden activities were the same activities that the Commission had as of 1940, and reaching back to 1883, “determined are at the time of the passage of this act prohibited on the part of employees . . . by the provisions of the civil-service rules. . . .”781 This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings it had made that were not available to employees and that were in any event mutually inconsistent and too broad.
The Court held, on the contrary, that Congress had intended to confine the Commission to the boundaries of its rulings as of 1940 but had further intended the Commission by a process of case-by-case adjudication to flesh out the prohibition and to give content to it. The Commission had done that. It had regularly summarized in understandable terms the rules that it applied, and it was authorized as well to issue advisory opinions to employees uncertain of the propriety of contemplated conduct. “[T]here are limitations in the English language with respect to being both specific and manageably brief,” said the Court, but it thought the prohibitions as elaborated in Commission regulations and rulings were “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interests.”782 There were conflicts, the Court conceded, between some of the things forbidden and some of the protected expressive activities, but these were at most marginal. Thus, some conduct arguably protected did under some circumstances so partake of partisan activities as to be properly proscribable. But the Court would not invalidate the entire statute for this degree of overbreadth.783 Subsequently, in Bush v. Lucas784 the Court held that the civil service laws and regulations constitute a sufficiently “elaborate, comprehensive scheme” to afford federal employees an adequate remedy for deprivation of First Amendment rights as a result of disciplinary actions by supervisors, and that therefore there is no need to create an additional judicial remedy for the constitutional violation.
The Hatch Act cases were distinguished in United States v. National Treasury Employees Union (NTEU),785 in which the Court struck down an honoraria ban as applied to lower-level employees of the Federal Government. The honoraria ban suppressed employees’ right to free expression while the Hatch Act sought to protect that right, and also there was no evidence of improprieties in acceptance of honoraria by members of the plaintiff class of federal employees.786 The Court emphasized further difficulties with the “crudely crafted” honoraria ban: it was limited to expressive activities and had no application to other sources of outside income, it applied when neither the subjects of speeches and articles nor the persons or groups paying for them bore any connection to the employee’s job responsibilities, and it exempted a “series” of speeches or articles without also exempting individual articles and speeches. These “anomalies” led the Court to conclude that the “speculative benefits” of the ban were insufficient to justify the burdens it imposed on expressive activities.787
Government as Employer: Free Expression Generally.
In recent decades, the Court has eliminated the “right-privilege” distinction with respect to public employees’ free speech rights. Application of that distinction to the public employment context was epitomized in the famous sentence of Justice Holmes’: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”788 The Supreme Court embraced this application in the early 1950s, first affirming a lower court decision by an evenly divided vote,789 and soon after applying the distinction itself. Upholding a prohibition on employment as teachers of persons who advocated the desirability of overthrowing the government, the Court declared that “[i]t is clear that such persons have the right under our law to assemble, speak, think and believe as they will. . . . It is equally clear that they have no right to work for the state in the school system on their own terms. They may work for the school system under reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.”790
The same year, however, the Court expressly rejected the right-privilege doctrine in another loyalty case. Voiding a loyalty oath requirement conditioned on mere membership in suspect organizations, the Court reasoned that the interest of public employees in being free of such an imposition was substantial. “There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. . . . [W]e need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.”791 The premise here—that there is a constitutional claim against dismissal or rejection—has faded in subsequent cases; the rationale now is that, although government may deny employment, or any benefit for that matter, for any number of reasons, it may not deny employment or other benefits on a basis that infringes a person’s constitutionally protected interests. “For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Such interference with constitutional rights is impermissible.”792
However, the fact that government does not have carte blanche in dealing with the constitutional rights of its employees does not mean that it has no power at all. “[I]t cannot be gainsaid,” the Court said in Pickering v. Board of Education, “that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”793 Pickering concerned the dismissal of a high school teacher who had written a critical letter to a local newspaper reflecting on the administration of the school system. The letter also contained several factual errors. “The problem in any case,” Justice Marshall wrote for the Court, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”794 The Court laid down no general standard, but undertook a suggestive analysis. Dismissal of a public employee for criticism of his superiors was improper, the Court indicated, where the relationship of employee to superior was not so close, such as day-to-day personal contact, that problems of discipline or of harmony among coworkers, or problems of personal loyalty and confidence, would arise.795 The school board had not shown that any harm had resulted from the false statements in the letter, and it could not proceed on the assumption that the false statements were per se harmful, inasmuch as the statements primarily reflected a difference of opinion between the teacher and the board about the allocation of funds. Moreover, the allocation of funds is a matter of important public concern about which teachers have informed and definite opinions that the community should be aware of. “In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”796
Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,797 sustained the constitutionality of a federal law that authorized the removal or suspension without pay of an employee “for such cause as will promote the efficiency of the service” when the “cause” cited concerned speech by the employee. He had charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, “is without doubt intended to authorize dismissal for speech as well as other conduct.” But, recurring to its Letter Carriers analysis,798 it noted that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statutory enactment all the myriad situations that arise in the course of employment, and inasmuch as the language used was informed by developed principles of agency adjudication coupled with a procedure for obtaining legal counsel from the agency on the interpretation of the law.
799 Nor was the language overbroad, continued the Court, because it “proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the government as an employer. . . . We hold that the language ‘such cause as will promote the efficiency of the service’ in the Act excludes constitutionally protected speech, and that the statute is therefore not over-broad.”800
Pickering was distinguished in Connick v. Myers,801 involving what the Court characterized in the main as an employee grievance rather than an effort to inform the public on a matter of public concern. The employee, an assistant district attorney involved in a dispute with her supervisor over transfer to a different section, was fired for insubordination after she circulated a questionnaire among her peers soliciting views on matters relating to employee morale. The Court found this firing permissible. “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”802 Whether an employee’s speech addresses a matter of public concern, the Court indicated, must be determined not only by its content, but also by its form and context.803 Because one aspect of the employee’s speech did raise matters of public concern, Connick also applied Pickering’s balancing test, holding that “a wide degree of deference is appropriate” when “close working relationships” between employer and employee are involved.804 The issue of public concern is not only a threshold inquiry, but, under Connick, still figures in the balancing of interests: “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression” and its importance to the public.805
On the other hand, the Court has indicated that an employee’s speech may be protected as relating to matters of public concern even in the absence of any effort or intent to inform the public.806 In Rankin v. McPherson807 the Court held protected an employee’s comment, made to a co-worker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the President’s policies, “If they go for him again, I hope they get him.” Indeed, the Court in McPherson emphasized the clerical employee’s lack of contact with the public in concluding that the employer’s interest in maintaining the efficient operation of the office (including public confidence and good will) was insufficient to outweigh the employee’s First Amendment rights.808
In City of San Diego v. Roe,809 the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer’s “expression does not qualify as a matter of public concern . . . and Pickering balancing does not come into play.”810 The Court also noted that the officer’s speech, unlike federal employees’ speech in United States v. National Treasury Employees Union (NTEU),811 “was linked to his official status as a police officer, and designed to exploit his employer’s image,” and therefore “was detrimental to the mission and functions of his employer.”812 The Court, therefore, had “little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i.e., Pickering or NTEU].”813 This leaves uncertain whether, had the officer’s expression not been linked to his official status, the Court would have overruled his firing under NTEU or would have upheld it under Pickering on the ground that his expression was not a matter of public concern.
In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government employees by holding that there is no protection—Pickering balancing is not to be applied—“when public employees make statements pursuant to their official duties,” even if those statements are about matters of public concern.814 In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that he was subjected to retaliatory employment actions, and he sued. The Supreme Court held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”815 The fact that the employee’s speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.816 Rather, the “controlling factor” was “that his expressions were made pursuant to his duties.”817 Therefore, another employee in the office, with different duties, might have had a First Amendment right to utter the speech in question, and the deputy district attorney himself might have had a First Amendment right to communicate the information that he had in a letter to the editor of a newspaper. In these two instances, a court would apply Pickering balancing.
In distinguishing between wholly unprotected “employee speech” and quasi-protected “citizen speech,” sworn testimony outside of the scope of a public employee’s ordinary job duties appears to be “citizen speech.” In Lane v. Franks,818 the director of a state government program for underprivileged youth was terminated from his job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator’s employment in the government program. The employee challenged the termination on First Amendment grounds. The Court held generally that testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen, subject to the Pickering-Connick balancing test.819 The Court noted that “[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court and society at large, to tell the truth.”820 In so holding, the Court confirmed that Garcetti‘s holding is limited to speech made in accordance with an employee’s official job duties and does not extend to speech that merely concerns information learned during that employment.
The Court in Lane ultimately found that the plaintiff ’s speech deserved protection under the Pickering-Connick balancing test because the speech was both a matter of public concern (the speech was testimony about misuse of public funds) and the testimony did not raise concerns for the government employer.821 After Lane, some question remains about the scope of protection for public employees, such as police officers or official representatives of an agency of government, who testify pursuant to their official job duties, and whether such speech falls within the scope of Garcetti.
The protections applicable to government employees have been extended to independent government contractors, the Court announcing that “the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of their protection.”822
In sum, although a public employer may not muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can,823 the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of “public concern,” then Connick applies and the employer is largely free of constitutional restraint.824 If the speech does relate to a matter of public concern, then, unless the speech was made by an employee pursuant to his duties, Pickering’s balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties825 balanced against the employee’s First Amendment rights. Although the general approach is easy to describe, it has proven difficult to apply.826 The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for “whistleblowers” add to the mix.827
Government as Educator.
Although the Court had previ-ously made clear that students in public schools are entitled to some constitutional protection,828 as are minors generally,829 its first attempt to establish standards of First Amendment expression guarantees against curtailment by school authorities came in Tinker v. Des Moines Independent Community School District.830 There, high school principals had banned the wearing of black armbands by students in school as a symbol of protest against United States’ actions in Vietnam. Reversing the refusal of lower courts to reinstate students who had been suspended for violating the ban, the Court set out the balance to be drawn. “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. . . . On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”831 Restriction on expression by school authorities is only permissible to prevent disruption of educational discipline. “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”832
The Court reaffimed Tinker in Healy v. James,833 in which it held that the withholding of recognition by a public college administration from a student organization violated the students’ right of association, which is implicit in the First Amendment. Denial of recognition, the Court held, was impermissible if it had been based on the local organization’s affiliation with the national SDS, or on disagreement with the organization’s philosophy, or on a fear of disruption with no evidentiary support. Furthermore, the Court wrote, “the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ . . . The college classroom with its surrounding environs is peculiarly the ‘market place of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.”834 A college administration may, however, impose a requirement “that a group seeking offical recognition affirm in advance its willingness to adhere to reasonable campus law.”835
Although a public college may not be required to open its facilities generally for use by student groups, once it has done so it must justify any discrimination and exclusions under applicable constitutional norms, such as those developed under the public forum doctrine. Thus, it was constitutionally impermissible for a college to close off its facilities, otherwise open, to students wishing to engage in religious speech.836
While it is unclear whether this holding would extend beyond the college level to students in high school or below who are more “impressionable” and perhaps less able to appreciate that equal access does not compromise a school’s neutrality toward religion,837 Congress has done so by statute.838 On the other hand, a public university that imposed an “accept-all-comers” policy on student groups as a condition of receiving the financial and other benefits of official school recognition did not impair a student religious group’s right to expressive association, because the school’s policy was reasonable and viewpoint neutral.839
When faced with another conflict between a school system’s obligation to inculcate community values in students and the free-speech rights of those students, the Court splintered badly, remanding for full trial a case challenging the authority of a school board to remove certain books from high school and junior high school libraries.840 In dispute were the school board’s reasons for removing the books—whether, as the board alleged, because of vulgarity and other content-neutral reasons, or whether also because of political disagreement with contents. The plurality conceded that school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.” At the same time, the plurality thought that students retained substantial free-speech protections and that among these was the right to receive information and ideas. Carefully limiting its discussion to the removal of books from a school library, and excluding the question of the acquisition of books as well as questions of school curricula, the plurality held a school board constitutionally disabled from removing library books in order to deny access to ideas with which it disagrees for political reasons.841 The four dissenters rejected the contention that school children have a right to receive information and ideas and thought that the proper role of education was to inculcate the community’s values, a function into which the federal courts could rarely intrude.842 The decision provides little guidance to school officials and to the lower courts and may necessitate a revisiting of the controversy by the Supreme Court.
The Court distinguished Tinker in Hazelwood School District v. Kuhlmeier,843 in which it relied on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need be only “reasonably related to legitimate pedagogical concerns.”844 “The question whether the First Amendment requires a school to tolerate particular student speech— the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.”845 The student newspaper had been created by school officials as a part of the school curriculum, and served “as a supervised learning experience for journalism students.”846 Because no public forum had been created, school officials could maintain editorial control subject only to a reasonableness standard. Thus, a principal’s decision to excise from the publication an article describing student pregnancy in a manner believed inappropriate for younger students, and another article on divorce critical of a named parent, were upheld.
The category of school-sponsored speech subject to Kuhlmeier analysis appears to be far broader than the category of student expression still governed by Tinker. School-sponsored activities, the Court indicated, can include “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. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”847 Because most primary, intermediate, and secondary school environments are tightly structured, with few opportunities for unsupervised student expression,848 Tinker apparently has limited applicability. It may be, for example, that students are protected for off-premises production of “underground” newspapers (but not necessarily for attempted distribution on school grounds) as well as for non-disruptive symbolic speech. For most student speech at public schools, however, Tinker’s tilt in favor of student expression, requiring school administrators to premise censorship on likely disruptive effects, has been replaced by Kuhlmeier’s tilt in favor of school administrators’ pedagogical discretion.849
In Morse v. Frederick,850 the Court held that a school could punish a pupil for displaying a banner that said, “BONG HiTS 4 JESUS,” because these words could reasonably be interpreted as “promoting illegal drug use.”851 The Court indicated that it might have reached a different result if the banner had addressed the issue of “the criminalization of drug use or possession.”852 Justice Alito, joined by Justice Kennedy, wrote a concurring opinion stating that they had joined the majority opinion “on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’ ”853 As Morse v. Frederick was a 5-to-4 decision, Justices Alito and Kennedy’s votes were necessary for a majority and therefore should be read as limiting the majority opinion with respect to future cases.
Governmental regulation of school and college administration can also implicate the First Amendment. But the Court dismissed as too attenuated a claim to a First Amendment-based academic freedom privilege to withhold peer review materials from EEOC subpoena in an investigation of a charge of sex discrimination in a faculty tenure decision.854
Government as Regulator of the Electoral Process: Elections and Referendums.
Government has increasingly regu-lated the electoral system by which candidates are nominated and elected, requiring disclosure of contributions and certain expenditures, limiting contributions and expenditures, and imposing other regulations.855 These regulations can restrict freedom of expression and association, which include the rights to join together for political purposes, to promote candidates and issues, and to participate in the political process.856 The Court is divided with respect to the constitutionality of many of these federal and state restrictions, but it has been consistent in not permitting the government to bar or penalize political speech directly. Thus, it held that the Minnesota Supreme Court could not prohibit candidates for judicial election from announcing their views on disputed legal and political issues.857 And, when Kentucky attempted to void an election on the ground that the winner’s campaign promise to serve at a lower salary than that affixed to the office violated a law prohibiting candidates from offering material benefits to voters in consideration for their votes, the Court ruled unanimously that the state’s action violated the First Amendment.858
Similarly, California could not prohibit official governing bodies of political parties from endorsing or opposing candidates in primary elections.859 Minnesota, however, could prohibit a candidate from appearing on the ballot as the candidate of more than one party.860 The Court wrote that election “[r]egulations imposing severe burdens on plaintiffs’ [associational] rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable nondiscriminatory restrictions.”861 Minnesota’s ban on “fusion” candidates was not severe, as a party that could not place another party’s candidate on the ballot was free to communicate its preference for that candidate by other means, and the ban served “valid state interests in ballot integrity and political stability.”862
In the Federal Election Campaign Act of 1971, as amended in 1974, Congress imposed new and stringent regulation of and limitations on contributions to and expenditures by political campaigns, as well as disclosure of most contributions and expenditures, setting the stage for the landmark case of Buckley v. Valeo.863 Acting in basic unanimity, the Court sustained the contribution and disclosure sections of the statute (although several Justices felt that the sustained provisions trenched on protected expression), but voided the limitations on expenditures.864 Although “contribution and expenditure limitations both implicate fundamental First Amendment interests,” the Court found, “expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do . . . limitations on financial contributions.”865
As to contribution limitations, the Court in Buckley recognized that political contributions “serve[ ] to affiliate a person with a candidate” and “enable[ ] like-minded persons to pool their resources in furtherance of common political goals.” Contribution ceilings, therefore, “limit one important means of associating with a candidate or committee. . . .”866 Yet “[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.”867
As to expenditure limitations, the Court wrote, “[a] restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”868 The expenditure of money in political campaigns may involve speech alone, conduct alone, or mixed speech-conduct, the Court noted, but all forms of it involve communication, and when governmental regulation is aimed directly at suppressing communication it does not matter how that communication is defined. As such, the regulation must be subjected to close scrutiny and justified by compelling governmental interests.
Applying this strict scrutiny standard, the contribution limitations, with some construed exceptions, survived, but the expenditure limitation did not. The contribution limitation was seen as imposing only a marginal restriction upon the contributor’s ability to engage in free communication, inasmuch as the contribution shows merely a generalized expression of support for a candidate without communicating reasons for the support; “the size of the contribution provides a very rough index of the intensity of the contributors’ support for the candidate.”869 The political expression really occurs when the funds are spent by a candidate; only if the restrictions were set so low as to impede this communication would there arise a constitutional infringement. This incidental restraint upon expression may therefore be justified by Congress’s purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions.870
Of considerable importance to the contributions analysis, the Court voided a section restricting the aggregate expenditure anyone could make to advocate the election or defeat of a “clearly identified candidate” to $1,000 a year. Though the Court treated the restricted spending as purely an expenditure, the activity seems to partake equally of the nature of a contribution spent on behalf of a candidate (although not given to him or her directly). However, “[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.”871 The Court found that none of the justifications offered in support of a restriction on such expression was adequate; independent expenditures did not appear to pose the dangers of corruption that contributions did, and it was an impermissible purpose to attempt to equalize the ability of some individuals and groups to express themselves by restricting the speech of other individuals and groups.872
Similarly, limitations upon the amount of funds a candidate could spend out of his own resources or those of his immediate family were voided. A candidate, no less than any other person, has a First Amendment right to advocate.873 The limitations upon total expenditures by candidates seeking nomination or election to federal office could not be justified: the evil associated with dependence on large contributions was met by limitations on contributions, the purpose of equalizing candidate financial resources was impermissible, and the First Amendment did not permit government to determine that expenditures for advocacy were excessive or wasteful.874
The government not only may not limit the amount that a candidate may spend out of his own resources, but, if a candidate spends more than a particular amount, the government may not penalize the candidate by authorizing the candidate’s opponent to receive individual contributions at higher than the normal limit. In Davis v. Federal Election Commission, the Court struck down, as lacking a compelling governmental interest, a federal statute that provided that, if a “self-financing” candidate for the House of Representatives spends more than a specified amount, then his opponent may accept more individual contributions than otherwise permitted. The statute, the Court wrote, imposed “a special and potentially significant burden” on a candidate “who robustly exercises [his] First Amendment right.”875 Citing Buckley, the Court stated that a burden “on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption.” This is because “reliance on personal funds reduces the threat of corruption, and therefore . . . discouraging use of personal funds[ ] disserves the anticorruption interest.”876 Citing Buckley again, the Court added that the governmental interest in equalizing the financial resources of candidates does not provide a justification for restricting expenditures, and, in fact, to restrict expenditures “has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office. . . . Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to the outcome of an election.”877
A related question is whether the government violates the First Amendment rights of a candidate running a privately funded campaign when it provides public “equalization” funds to opposition candidates. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,878 the Court considered an Arizona voluntary public financing system which granted an initial allotment to the campaigns of candidates for state office who agreed to certain requirements and limitations.879 In addition, matching funds were made available to the campaign if the expenditures of a privately financed opposing candidate, combined with the expenditures of any independent groups supporting that opposing candidacy, exceeded the campaign’s initial allotment. Citing Davis, the Court found the scheme unconstitutional because it forced the privately financed candidate to “shoulder a special and potentially significant burden” in choosing to exercise his First Amendment right to spend funds on behalf of his candidacy.880 Although the dissent argued that the provision of benefits to one speaker had not previously been considered by the Court as a significant burden to another,881 the majority distinguished those cases as not having involved the provision of subsidies to directly counter the triggering speech.882
It was mentioned above that the Court in Buckley upheld the disclosure requirements of the Federal Election Campaign Act. The Court found that, although compelled disclosure “cannot be justified by a mere showing of some legitimate governmental interest,” the governmental interests in the disclosure that the statute in Buckley mandated were “sufficiently important to outweigh the possibility of infringement” of the First Amendment.883 Disclosure, the Court found, “provides the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate’ ”; it deters “actual corruption and the appearance of corruption”; and it is “an essential means of gathering the data necessary to detect violations of the contribution limitations” that the statute imposed.884
The Court indicated, however that, under some circumstances, the First Amendment might require exemption for minor parties that were able to show “a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.”885 This standard was applied both to disclosure of contributors’ names and to disclosure of recipients of campaign expenditures in Brown v. Socialist Workers ’74 Campaign Committee,886 in which the Court held that the minor party had established the requisite showing of likely reprisals through proof of past governmental and private hostility and harassment. Disclosure of recipients of campaign expenditures, the Court reasoned, could not only dissuade supporters and workers who might receive reimbursement for expenses, but could also dissuade various entities from performing routine commercial services for the party and thereby “cripple a minor party’s ability to operate effectively.”887
The Court has apparently extended the reasoning of these cases to include not just disclosure related to political contributions, but also to disclosure related to legally “qualifying” a measure for the ballot. In Doe v. Reed,888 the Court found that signing a petition to initiate a referendum was a protected form of political expression,889 and that a state requirement to disclose the names and addresses on those petitions to the public would be subjected to “exacting scrutiny.”890 The Court upheld the disclosure requirement on its face, finding that it furthered the state’s interest in detecting fraud and mistake in the petitioning process, while also providing for transparency and accountability. The case was remanded, however, to ascertain whether in this particular instance (a referendum to overturn a law conferring rights to gay couples) there was a “reasonable probability” that the compelled disclosures would subject the signatories to threats, harassment, or reprisals from either Government officials or private parties.891
In Nixon v. Shrink Missouri Government PAC,892 the Court held that Buckley v. Valeo “is authority for state limits on contributions to state political candidates,” but state limits “need not be pegged to Buckley’s dollars.”893 The Court in Nixon justified the limits on contributions on the same grounds that it had in Buckley: “preventing corruption and the appearance of it that flows from munificent campaign contributions.”894 Further, Nixon did “not present a close call requiring further definition of whatever the State’s evidentiary obligation may be” to justify the contribution limits, as “there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters.”895 As for the amount of the contribution limits, Missouri’s fluctuated in accordance with the consumer price index, and, when suit was filed, ranged from $275 to $1,075, depending on the state office or size of constituency. The Court upheld these limits, writing that, in Buckley, it had “rejected the contention that $1,000, or any other amount, was a constitutional minimum below which legislatures could not regulate.”896 The relevant inquiry, rather, was “whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.”897
In McCutcheon v. FEC,898 however, a plurality of the Court899 appeared to signal an intent to scrutinize limits on contributions more closely to ensure a “fit” between governmental objective and the means utilized.900 Considering aggregate limits on individual contributions—that is, the limits on the amount an individual can give in one campaign cycle901 —the plurality opinion distinguished between the government interest in avoiding even the appearance of quid pro quo corruption and the government interest in avoiding potential “ ‘influence over or access to’ elected officials of political parties” as the result of large contributions; only the interest in preventing actual or apparent quid pro quo corruption constituted a legitimate objective sufficient to satisfy the First Amendment.902 Given the more narrow interest of the government, the McCutcheon Court struck down the limits on aggregate contributions by an individual donor. The plurality opinion viewed the provision in question as impermissibly restricting an individual’s participation in the political process by limiting the number of candidates and organizations to which the individual could contribute (once that individual had reached the aggregate limit).903 Moreover, the plurality opinion held that the aggregate limits on individual contributions were not narrowly tailored to prevent quid pro quo corruption, as the limits prevent any contributions (regardless of size) to any individual or organization once the limits are reached.904 The plurality likewise rejected the argument that the restriction prevented circumvention of a separate restriction on base contributions to individual candidates, as such circumvention was either illegal (because of various anti-circumvention rules) or simply improbable.905 Collectively, the Court concluded that the aggregate limits violate the First Amendment because of the poor “fit” between the interests proffered by the government and the means by which the limits attempt to serve those interests.906
Outside the context of contributions to candidates, however, the Court has not been convinced of the justifications for limiting such uses of money for political purposes. Thus, a municipal ordinance regulating the maximum amount that could be contributed to or accepted by an association formed to take part in a city referendum was invalidated.907 Although Buckley had sustained limits on contributions as a prophylactic measure to prevent corruption or its appearance, no risk of corruption was found in giving or receiving funds in connection with a referendum. Similarly, the Court invalidated a criminal prohibition on payment of persons to circulate petitions for a ballot initiative.908
Venturing into the area of the constitutional validity of governmental limits upon political activities by corporations, a closely divided Court struck down a state law that prohibited corporations from expending funds to influence referendum votes on any measure save proposals that materially affected corporate business, property, or assets. In First National Bank of Boston v. Bellotti, the Court held that the free discussion of governmental affairs “is the type of speech indispensable to decisionmaking in a democracy,” and that “this is no less true because the speech comes from a corporation rather than an individual.”909 The Court held that it is the nature of the speech, not the status of the speaker, that is relevant for First Amendment analysis, thus allowing it to pass by the question of the rights a corporate person may have. The “materially affecting” requirement was found to be an impermissible proscription of speech based on the content of the speech and the identity of the interests that the speaker represented. The “exacting scrutiny” that restrictions on speech must pass was not satisfied by any of the justifications offered and the Court in any event found some of them impermissible.
Bellotti called into some question the constitutionality of the federal law that makes it unlawful for any corporation or labor union “to make a contribution or expenditure in connection with any election” for federal office or “in connection with any primary election or political convention or caucus held to select candidates” for such office.910 The Court had previously passed on several opportunities to assess this restriction,911 and one of the dissents in Bellotti noted the potential conflict.912 While the dissent’s concerns were ultimately realized in Citizens United v. FEC,913 it was only after many years of the Court either distinguishing Bellotti or applying it narrowly.
During that interim, the Court first considered challenges to different aspects of the federal statute and to related state statutes, upholding some restrictions on corporate electoral activities, but limiting others. In FEC v. National Right to Work Committee,914 the Court considered the operation of “separate segregated funds” (in common parlance, a Political Action Committee or “PAC”), through which, according to federal law, corporations can engage in specified political activities. The Court unanimously upheld a prohibition on a corporation soliciting money from other corporations for a PAC in order to make contributions or expenditures in relation to federal elections. Relying on Bellotti for the proposition that the government may act to prevent “both actual corruption and the appearance of corruption of elected representatives,” the Court saw no reason that Congress could not, in its legislative judgment, treat unions, corporations, and similar organizations differently from individuals.915
However, an exception to this general principle was recognized by a divided Court in FEC v. Massachusetts Citizens for Life, Inc.,916 holding the section’s requirement that independent expenditures be financed by voluntary contributions to a PAC unconstitutional as applied to a corporation organized to promote political ideas, having no stockholders, and not serving as a front for a “business corporation” or union. The Court found that one of the rationales for the special rules on corporate participation in elections— elimination of “the potential for unfair deployment of [corporate] wealth for political purposes”—had no applicability to a corporation “formed to disseminate political ideas, not to amass capital.”917 The other principal rationale—protection of corporate shareholders and other contributors from having their money used to support political candidates to whom they may be opposed—was also deemed inapplicable. The Court distinguished National Right to Work Committee because “restrictions on contributions require less compelling justification than restrictions on independent spending,” and also explained that, “given a contributor’s awareness of the political activity of [MCFL], as well as the readily available remedy of refusing further donations, the interest protecting contributors is simply insufficient to support § 441b’s restriction on . . . independent spending.”918 What the Court did not address directly was whether the same analysis could have led to a different result in National Right to Work Committee.919
Clarification of Massachusetts Citizens for Life was provided by Austin v. Michigan State Chamber of Commerce,920 in which the Court upheld application to a nonprofit corporation of Michigan’s restrictions on independent expenditures by corporations. The Michigan law, like federal law, prohibited such expenditures from corporate treasury funds, but allowed them to be made from a corporation’s PAC funds. This arrangement, the Court decided, serves the state’s compelling interest in ensuring that expenditure of corporate wealth, accumulated with the help of special advantages conferred by state law, does not “distort” the election process.921 The law was sufficiently “narrowly tailored” because it permits corporations to make independent political expenditures through segregated funds that “accurately reflect contributors’ support for the corporation’s political views.”922 Also, the Court concluded that the Chamber of Commerce was unlike the MCFL in each of the three distinguishing features that had justified an exemption from operation of the federal law. Unlike MCFL, the Chamber was not organized solely to promote political ideas; although it had no stockholders, the Chamber’s members had similar disincentives to forgo benefits of membership in order to protest the Chamber’s political expression; and, by accepting corporate contributions, the Chamber could serve as a conduit for corporations to circumvent prohibitions on direct corporate contributions and expenditures.923
In FEC v. Beaumont,924 the Court held that the federal law that bars corporations from contributing directly to candidates for federal office, but allows contributions though PACs, may constitutionally be applied to nonprofit advocacy corporations. The Court in Beaumont wrote that, in National Right to Work, it had “specifically rejected the argument . . . that deference to congressional judgments about proper limits on corporate contributions turns on details of corporate form or the affluence of particular corporations.”925 Though non-profit advocacy corporations, the Court held in Massachusetts Citizens for Life, have a First Amendment right to make independent expenditures, the same is not true for direct contributions to candidates.
In McConnell v. FEC,926 the Court upheld against facial constitutional challenges key provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA). A majority opinion coauthored by Justices Stevens and O’Connor upheld two major provisions of BCRA: (1) the prohibition on “national party committees and their agents from soliciting, receiving, directing, or spending any soft money,”927 which is money donated for the purpose of influencing state or local elections, or money for “mixed-purpose activities—including get-out-the-vote drives and generic party advertising,”928 and (2) the prohibition on corporations and labor unions’ using funds in their treasuries to finance “electioneering communications,”929 which BCRA defines as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal Office,” made within 60 days before a general election or 30 days before a primary election. Electioneering communications thus include both “express advocacy and so-called issue advocacy.”930
As for the soft-money prohibition on national party committees, the Court applied “the less rigorous scrutiny applicable to contribution limits”931 and found it “closely drawn to match a sufficiently important interest.”932 The Court’s decision to use less rigorous scrutiny, it wrote, “reflects more than the limited burdens they [i.e., the contribution restrictions] impose on First Amendment freedoms. It also reflects the importance of the interests that underlie contribution limits—interests in preventing ‘both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.’ ”933
As for the prohibition on corporations and labor unions’ using their general treasury funds to finance electioneering communications, the Court applied strict scrutiny, but found a compelling governmental interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideals.”934 These corrosive and distorting effects result both from express advocacy and from so-called issue advocacy. The Court also noted that, because corporations and unions “remain free to organize and administer segregated funds, or PACs,” for electioneering communications, the provision was not a complete ban on expression.935 In response to the argument that the justifications for a ban on express advocacy did not apply to issue advocacy, the Court found that the “argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy.”936
The limitations on electioneering communication, however, soon faced renewed examination by the Court. In Wisconsin Right to Life, Inc. v. Federal Election Comm’n (WRTL I),937 the Court vacated a lower court decision that had denied plaintiffs the opportunity to bring an as-applied challenge to BCRA’s regulation of electioneering communications. Subsequently, in Federal Election Commission v. Wisconsin Right to Life (WRTL II),938 the Court considered what standard should be used for such a challenge. Chief Justice Roberts, in the controlling opinion,939 rejected the suggestion that an issue ad broadcast during the specified periods before elections should be considered the “functional equivalent” of express advocacy if the “intent and effect” of the ad was to influence the voter’s decision in an election.940 Rather, Chief Justice Roberts’ opinion held that an issue ad is the functional equivalent of express advocacy only if the ad is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”941
Then came the case of Citizens United v. FEC,942 which significantly altered the Supreme Court’s jurisprudence on corporations and election law. In Citizens United, a non-profit corporation released a film critical of then-Senator Hillary Clinton, a candidate in the Democratic Party’s 2008 Presidential primary elections, and sought to make it available to cable television subscribers within 30 days of that primary. The case began as another as-applied challenge to BCRA, but the Court asked for reargument, and, in a 5–4 decision, not only struck down the limitations on electioneering communication on its face (overruling McConnell) but also rejected the use of the antidistortion rationale (overruling Austin).
In Citizens United, the Court argued that there was a tension between the right of corporations to engage in political speech, as articulated in Bellotti and its progeny, and the limitations on such speech allowed in Austin to avoid the disproportionate economic power of corporations. Reasoning that the Court had rejected similar attempts to level the playing field among differing voices with disparate economic resources,943 the Court held that the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity of necessity prevents distinctions based on wealth.944 In particular, the Court noted that media corporations, although statutorily exempted from these restrictions, do not receive special constitutional protection under the First Amendment,945 and thus would be constitutionally vulnerable under an antidistortion rationale.
The Court also held that the ability of a corporation to form a PAC neither allowed that corporation to speak directly, nor did it provide a sufficient alternative method of speech. The Court, found that PACs are burdensome alternatives that are “expensive to administer and are subject to extensive regulation.”946 The Court noted that the difficulty in establishing a PAC might explain why fewer than 2,000 of the millions of corporations in the country have PACs. Further, the Court argued that even if a corporation did want to establish a PAC to speak to an urgent issue, that such corporation might not be able to establish one in time to address issues in a current campaign.
While the holding of Citizens United would appear to diminish the need for corporations to create PACs in order to engage in political speech, it is not clear what level of regulation will now be allowed over speech made directly by a corporation.947 The Court did uphold the requirements under BCRA that electioneering communications funded by anyone other than a candidate must include a disclaimer regarding who is responsible for the content of the communication, and that the person making the expenditure must disclose to the FEC the amount of the expenditure and the names of certain contributors. The Court held that these requirements could be justified based on a governmental interest in “provid[ing] the electorate with information” about the sources of election-related spending, helping citizens “make informed choices in the political marketplace,” and facilitate the ability of shareholders to hold corporations accountable for such political speech.948
In Randall v. Sorrell, a plurality of the Court struck down a Vermont campaign finance statute’s limitations on both expenditures and contributions.949 As for the statute’s expenditure limitations, the plurality found Buckley to control and saw no reason to overrule it and no adequate basis upon which to distinguish it. As for the statute’s contribution limitations, the plurality, following Buckley, considered whether the “contribution limits prevent candidates from ‘amassing the resources necessary for effective [campaign] advocacy’; whether they magnify the advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too low and too strict to survive First Amendment scrutiny.”950 The plurality found that they were.951 Vermont’s limit of $200 per gubernatorial election “(with significantly lower limits for contributions to candidates for State Senate and House of Representatives) . . . are well below the limits this Court upheld in Buckley,” and “are the lowest in the Nation.”952 But the plurality struck down Vermont’s contribution limits “based not merely on the low dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on volunteer activity in Vermont elections.”953
Government as Regulator of the Electoral Process: Lobbying.
Legislators may depend upon representations made to them and information supplied to them by interested parties, and therefore may desire to know what the real interests of those parties are, what groups or persons they represent, and other such information. But everyone is constitutionally entitled to write his congressman or his state legislator, to cause others to write or otherwise contact legislators, and to make speeches and publish articles designed to influence legislators. Conflict is inherent. In the Federal Regulation of Lobbying Act,954 Congress, by broadly phrased and ambiguous language, seemed to require detailed reporting and registration by all persons who solicited, received, or expended funds for purposes of lobbying; that is, to influence congressional action directly or indirectly. In United States v. Harriss,955 the Court, stating that it was construing the Act to avoid constitutional doubts,956 interpreted covered lobbying as meaning only direct attempts to influence legislation through direct communication with members of Congress.957 So construed, the Act was constitutional; Congress had “merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose,” and this was simply a measure of “self-protection.”958
Other statutes and governmental programs affect lobbying and lobbying activities. It is not impermissible for the Federal Government to deny a business expense tax deduction for money spent to defeat legislation that would adversely affect one’s business.959 But the antitrust laws may not be applied to a concert of business enterprises that have joined to lobby the legislative branch to pass and the executive branch to enforce laws that would have a detrimental effect upon competitors, even if the lobbying was conducted unethically.960 On the other hand, allegations that competitors combined to harass and deter others from having free and unlimited access to agencies and courts by resisting before those bodies all petitions of competitors for purposes of injury to competition are sufficient to implicate antitrust principles.961
Government as Regulator of Labor Relations.
Numerous problems may arise in this area,962 but the issue here considered is the balance to be drawn between the free speech rights of an employer and the statutory rights of his employees to engage or not engage in concerted activities free of employer coercion, which may well include threats or promises or other oral or written communications. The Court has upheld prohibitions against employer interference with union activity through speech so long as the speech is coercive,963 and that holding has been reduced to statutory form.964 Nonetheless, there is a First Amendment tension in this area, with its myriad variations of speech forms that may be denominated “predictions,” especially because determination whether particular utterances have an impermissible impact on workers is vested with an agency with no particular expertise in the protection of freedom of expression.965
Government as Investigator: Reporter’s Privilege.
News or-ganizations have claimed that the First Amendment compels a recognition by government of an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.966 The argument for a limited exemption to permit reporters to conceal their sources and to keep confidential certain information they obtain and choose at least for the moment not to publish was rejected in Branzburg v. Hayes967 by a closely divided Court. “Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering which is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”968 Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice White for the Court, but the conditional nature of the privilege claimed might not mitigate the deterrent effect, leading to claims for an absolute privilege. Confidentiality could be protected by the secrecy of grand jury proceedings and by the experience of law enforcement officials in themselves dealing with informers. Difficulties would arise as well in identifying who should have the privilege and who should not. But the principal basis of the holding was that the investigation and exposure of criminal conduct was a governmental function of such importance that it overrode the interest of reporters in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries.969
The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters.970 Although efforts in Congress have failed, 49 states have done so—33 (plus the District of Columbia) by statute and 16 by court decision, with Wyoming the sole holdout.971 As for federal courts, Federal Rule of Evidence 501 provides that “the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”972 The federal courts have not resolved whether the common law provides a journalists’ privilege.973
Nor does the status of an entity as a newspaper (or any other form of news medium) protect it from issuance and execution on probable cause of a search warrant for evidence or other material properly sought in a criminal investigation.974 The press had argued that to permit searches of newsrooms would threaten the ability to gather, analyze, and disseminate news, because searches would be disruptive, confidential sources would be deterred from coming forward with information because of fear of exposure, reporters would decline to put in writing their information, and internal editorial deliberations would be exposed. The Court thought that First Amendment interests were involved, but it seemed to doubt that the consequences alleged would occur, and it observed that the built-in protections of the warrant clause would adequately protect those interests and noted that magistrates could guard against abuses when warrants were sought to search newsrooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches.975
Government and the Conduct of Trials.
Conflict between constitutional rights is not uncommon. One of the most difficult to resolve is the conflict between a criminal defendant’s Fifth and Sixth Amendment rights to a fair trial and the First Amendment’s protection of the rights to obtain and publish information about defendants and trials. Convictions obtained in the context of prejudicial pre-trial publicity976 and during trials that were media “spectaculars”977 have been reversed, but the prevention of such occurrences is of paramount importance to the governmental and public interest in the finality of criminal trials and the successful prosecution of criminals. However, the imposition of “gag orders” on press publication of information directly confronts the First Amendment’s bar on prior restraints,978 although the courts have a good deal more discretion in preventing the information from becoming public in the first place.979 Perhaps the most profound debate that has arisen in recent years concerns the right of access of the public and the press to trial and pre-trial proceedings, and the Court has addressed the issue.
When the Court held that the Sixth Amendment right to a public trial did not guarantee access of the public and the press to pre-trial suppression hearings,980 a major debate flowered concerning the extent to which, if at all, the speech and press clauses protected the public and the press in seeking to attend trials.981 The right of access to criminal trials against the wishes of the defendant was held protected in Richmond Newspapers v. Virginia,982 but the Justices could not agree upon a majority rationale that would permit principled application of the holding to other areas in which access is sought.
Chief Justice Burger pronounced the judgment of the Court, but his opinion was joined by only two other Justices (and one of them in a separate concurrence drew conclusions probably going beyond the Chief Justice’s opinion).983 Basic to the Chief Justice’s view was an historical treatment that demonstrated that trials were traditionally open. This openness, moreover, was no “quirk of history” but “an indispensable attribute of an Anglo-American trial.” This characteristic flowed from the public interest in seeing fairness and proper conduct in the administration of criminal trials; the “therapeutic value” to the public of seeing its criminal laws in operation, purging the society of the outrage felt at the commission of many crimes, convincingly demonstrated why the tradition had developed and been maintained. Thus, “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” The presumption has more than custom to command it. “[I]n the context of trials . . . the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted.”984
Justice Brennan, joined by Justice Marshall, followed a significantly different route to the same conclusion. In his view, “the First Amendment . . . has a structural role to play in securing and fostering our republican system of self-government. Implicit in this structural role is not only ‘the principle that debate on public issues should be uninhibited, robust, and wide-open,’ but the antecedent assumption that valuable public debate—as well as other civic behavior— must be informed. The structural model links the First Amendment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself but also for the indispensable conditions of meaningful communication.”985
The trial court in Richmond Newspapers had made no findings of necessity for closure, and neither Chief Justice Burger nor Justice Brennan found the need to articulate a standard for determining when the government’s or the defendant’s interests could outweigh the public right of access. That standard was developed two years later. Globe Newspaper Co. v. Superior Court986 involved a statute, unique to one state, that mandated the exclusion of the public and the press from trials during the testimony of a sex-crime victim under the age of 18. For the Court, Justice Brennan wrote that the First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness987 and because public scrutiny of a criminal trial serves the valuable functions of enhancing the quality and safeguards of the integrity of the factfinding process, of fostering the appearance of fairness, and of permitting public participation in the judicial process. The right is not absolute, but in order to close all or part of a trial government must show that “the denial is necessitated by a compelling governmental interest, and [that it] is narrowly tailored to serve that interest.”988 The Court was explicit that the right of access was to criminal trials,989 so that the question of the openness of civil trials remains.
The Court next applied and extended the right of access in several other areas, striking down state efforts to exclude the public from voir dire proceedings, from a suppression hearing, and from a preliminary hearing. The Court determined in Press-Enterprise I990 that historically voir dire had been open to the public, and that “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”991 No such findings had been made by the state court, which had ordered closed, in the interest of protecting the privacy interests of some prospective jurors, 41 of the 44 days of voir dire in a rape-murder case. The trial court also had not considered the possibility of less restrictive alternatives, e.g., in camera consideration of jurors’ requests for protection from publicity. In Waller v. Georgia,992 the Court held that “under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press Enterprise,”993 and noted that the need for openness at suppression hearings “may be particularly strong” because the conduct of police and prosecutor is often at issue.994 And, in Press Enterprise II,995 the Court held that there is a similar First Amendment right of the public to access to most criminal proceedings (here a preliminary hearing) even when the accused requests that the proceedings be closed. Thus, an accused’s Sixth Amendment-based request for closure must meet the same stringent test applied to governmental requests to close proceedings: there must be “specific findings . . . demonstrating that first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.”996 Openness of preliminary hearings was deemed important because, under California law, the hearings can be “the final and most important step in the criminal proceeding” and therefore may be “the sole occasion for public observation of the criminal justice system,” and also because the safeguard of a jury is unavailable at preliminary hearings.997
Government as Administrator of Prisons.
A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.998 The identifiable governmental interests at stake in administration of prisons are the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.999 In applying these general standards, the Court at first arrived at somewhat divergent points in assessing prison restrictions on mail and on face-to-face news interviews between reporters and prisoners. The Court’s more recent deferential approach to regulation of prisoners’ mail has lessened the differences.
First, in Procunier v. Martinez,1000 the Court invalidated mail censorship regulations that permitted authorities to hold back or to censor mail to and from prisoners whenever they thought that the letters “unduly complain,” express “inflammatory . . . views,” or were “defamatory” or “otherwise inappropriate.”1001 The Court based this ruling not on the rights of the prisoner, but instead on the outsider’s right to communicate with the prisoner either by sending or by receiving mail. Under this framework, the Court held, regulation of mail must further an important interest unrelated to the suppression of expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation; and regulation must not be used simply to censor opinions or other expressions. Further, a restriction must be no greater than is necessary to the protection of the particular government interest involved.
In Turner v. Safley,1002 however, the Court made clear that a standard that is more deferential to the government is applicable when the free speech rights only of inmates are at stake. In upholding a Missouri restriction on correspondence between inmates at different institutions, while striking down a prohibition on inmate marriages absent a compelling reason such as pregnancy or birth of a child, the Court announced the appropriate standard: “[W]hen a regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”1003 Four factors “are relevant in determining the reasonableness of a regulation at issue.”1004 “First, is there a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it? Second, are there alternative means of exercising the right that remain open to prison inmates? Third, what impact will accommodation of the asserted constitutional right . . . have on guards and other inmates, and on the allocation of prison resources generally? And, fourth, are ready alternatives for furthering the governmental interest available?”1005 Two years after Turner v. Safley, in Thornburgh v. Abbott, the Court restricted Procunier v. Martinez to the regulation of outgoing correspondence, finding that the needs of prison security justify a more deferential standard for prison regulations restricting incoming material, whether those incoming materials are correspondence from other prisoners, correspondence from nonprisoners, or outside publications.1006
In Beard v. Banks, a plurality of the Supreme Court upheld “a Pennsylvania prison policy that ‘denies newspapers, magazines, and photographs’ to a group of specially dangerous and recalcitrant inmates.”1007 These inmates were housed in Pennsylvania’s Long Term Segregation Unit and one of the prison’s penological rationales for its policy, which the plurality found to satisfy the four Turner factors, was to motivate better behavior on the part of the prisoners by providing them with an incentive to move back to the regular prison population.1008 Applying the four Turner factors to this rationale, the plurality found that (1) there was a logical connection between depriving inmates of newspapers and magazines and providing an incentive to improve behavior; (2) the Policy provided no alternatives to the deprivation of newspapers and magazines, but this was “not ‘conclusive’ of the reasonableness of the Policy”; (3) the impact of accommodating the asserted constitutional right would be negative; and (4) no alternative would “fully accommodate the prisoner’s rights at de minimis cost to valid penological interests.”1009 The plurality believed that its “real task in this case is not balancing these factors, but rather determining whether the Secretary shows more than simply a logical relation, that is, whether he shows a reasonable relation” between the Policy and legitimate penological objections, as Turner requires.1010 The plurality concluded that he had. Justices Thomas and Scalia concurred in the result but would do away with the Turner factors because they believe that “States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivation—provided only that those deprivations are consistent with the Eighth Amendment.”1011
Neither prisoners nor reporters have any affirmative First Amendment right to face-to-face interviews, when general public access to prisons is restricted and when there are alternatives by which the news media can obtain information respecting prison policies and conditions.1012 Prison restrictions on such interviews do indeed implicate the First Amendment rights of prisoners, the Court held, but such rights must be balanced against “the legitimate penological objectives of the corrections system” and “internal security within the corrections facilities,” taking into account available alternative means of communications, such as mail and “limited visits from members of [prisoners’] families, the clergy, their attorneys, and friends of prior acquaintance.”1013
While agreeing with a previous affirmation that “news gathering is not without its First Amendment protections,”1014 the Court denied that the First Amendment imposed upon the government any affirmative obligation to the press. “The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.”1015 Pell and Saxbe did not delineate whether the “equal access” rule applied only in cases in which there was public access, so that a different rule for the press might follow when general access was denied; nor did they purport to define what the rules of equal access are. No greater specificity emerged from Houchins v. KQED,1016 in which a broadcaster had sued for access to a prison from which public and press alike were barred and as to which there was considerable controversy over conditions of incarceration. Following initiation of the suit, the administrator of the prison authorized limited public tours. The tours were open to the press, but cameras and recording devices were not permitted, there was no opportunity to talk to inmates, and the tours did not include the maximum security area about which much of the controversy centered. The Supreme Court overturned the injunction obtained in the lower courts, the plurality reiterating that “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control. . . . [U]ntil the political branches decree otherwise, as they are free to do, the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.”1017 Justice Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have approved an injunction more narrowly drawn to protect the press’s right to use cameras and recorders so as to enlarge public access to the information.1018 Thus, any question of special press access appears settled by the decision; yet the questions raised above remain: May everyone be barred from access and, if access is accorded, does the Constitution necessitate any limitation on the discretion of prison administrators?1019
Government and the Power of the Purse.
In exercise of the spending power, Congress may refuse to subsidize the exercise of First Amendment rights, but may not deny benefits solely on the basis of the exercise of such rights. The distinction between these two closely related principles seemed, initially at least, to hinge on the severity and pervasiveness of the restriction placed on exercise of First Amendment rights. What has emerged is the principle that Congress may condition the receipt of federal funds on acceptance of speech limitations on persons working for the project receiving the federal funding—even if the project also receives non-federal funds—provided that the speech limitations do not extend to the use of non-federal funds outside of the federally funded project. In Regan v. Taxation With Representation,1020 the Court held that Congress could constitutionally limit tax-exempt status under § 501(c)(3) of the Internal Revenue Code to charitable organizations that do not engage in lobbying. “Congress has merely refused to pay for the lobbying out of public moneys,” the Court concluded.1021 The effect of the ruling on the organization’s lobbying activities was minimal, however, since it could continue to receive tax-deductible contributions by creating a separate affiliate to conduct the lobbying.
In FCC v. League of Women Voters,1022 by contrast, the Court held that the First Amendment rights of public broadcasting stations were abridged by a prohibition on all editorializing by any recipient of public funds. There was no alternative means, as there had been in Taxation With Representation, by which the stations could continue to receive public funding and create an affiliate to engage in the prohibited speech. The Court rejected dissenting Justice Rehnquist’s argument that the general principles of Taxation With Representation and Oklahoma v. Civil Service Comm’n1023 should be controlling.1024 In Rust v. Sullivan, however, Chief Justice Rehnquist asserted for the Court that restrictions on abortion counseling and referral imposed on recipients of family planning funding under the Public Health Service Act did not constitute discrimination on the basis of viewpoint, but instead represented government’s decision “to fund one activity to the exclusion of the other.”1025 In addition, the Court noted, the “regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project. . . . The regulations govern the scope of the Title X project’s activities, and leave the grantee unfettered in its other activities.”1026 It remains to be seen what application this decision will have outside the contentious area of abortion regulation.1027
In National Endowment for the Arts v. Finley, the Supreme Court upheld the constitutionality of a federal statute requiring the NEA, in awarding grants, to “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”1028 The Court acknowledged that, if the statute were “applied in a manner that raises concern about the suppression of disfavored viewpoints,”1029 then such application might be unconstitutional. The statute on its face, however, is constitutional because it “imposes no categorical requirement,” being merely “advisory.”1030 “Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding. . . . The ‘very assumption’ of the NEA is that grants will be awarded according to the ‘artistic worth of competing applications,’ and absolute neutrality is simply ‘inconceivable.’ ”1031 The Court also found that the terms of the statute, “if they appeared in a criminal statute or regulatory scheme, . . . could raise substantial vagueness concerns. . . . But when the government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.”1032
In contrast, in Agency for Int’l Dev. v. All. for Open Soc’y Int’l,1033 the Court found that the federal government could not explicitly require a federal grantee to adopt a public policy position as a condition of receiving federal funds. In All. for Open Soc’y Int’l, organizations that received federal dollars to combat HIV/AIDS internationally were required (1) to ensure that such funds were not being used “to promote or advocate the legalization or practice of prostitution or sex trafficking” and (2) to have a policy “explicitly opposing prostitution.”1034 While the first condition legitimately ensured that the government was not funding speech which conflicted with the purposes of the grant, the second requirement, in the view of the Court, improperly affected the recipient’s protected conduct outside of the federal program.1035 Further, the Court concluded that the organization could not, as in previous cases, avoid the requirement by establishing an affiliate to engage in opposing advocacy because of the “evident hypocrisy” that would entail.1036
In Legal Services Corp. v. Valazquez,1037 the Court struck down a provision of the Legal Services Corporation Act that prohibited recipients of Legal Services Corporation (LSC) funds (i.e., legal-aid organizations that provide lawyers to the poor in civil matters) from representing a client who seeks “to amend or otherwise challenge existing [welfare] law.” This meant that, even with non-federal funds, a recipient of federal funds could not argue that a state welfare statute violated a federal statute or that a state or federal welfare law violated the Constitution. If a case was underway when such a challenge became apparent, the attorney had to withdraw. The Court distinguished this situation from that in Rust v. Sullivan on the ground “that the counseling activities of the doctors under Title X amounted to governmental speech,” whereas “an LSC-funded attorney speaks on behalf of the client in a claim against the government for welfare benefits.”1038 Furthermore, the restriction in this case “distorts the legal system” by prohibiting “speech and expression upon which courts must depend for the proper exercise of the judicial power,” and thereby is “inconsistent with accepted separation-of-powers principles.”1039
In United States v. American Library Association, Inc., a four-Justice plurality of the Supreme Court upheld the Children’s Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.”1040 The plurality considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance by requiring public libraries (public schools were not involved in the case) to limit their freedom of speech if they accept federal funds. The plurality, citing Rust v. Sullivan, found that, assuming that government entities have First Amendment rights (it did not decide the question), CIPA does not infringe them. This is because CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute “simply insist[s] that public funds be spent for the purposes for which they were authorized.”1041 The plurality distinguished Legal Services Corporation v. Velazquez on the ground that public libraries have no role comparable to that of legal aid attorneys “that pits them against the Government, and there is no comparable assumption that they must be free of any conditions that their benefactors might attach to the use of donated funds or other assistance.”1042
In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Supreme Court upheld the Solomon Amendment, which provides, in the Court’s summary, “that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds.”1043 FAIR, the group that challenged the Solomon Amendment, is an association of law schools that barred military recruiting on their campuses because of the military’s discrimination against homosexuals. FAIR challenged the Solomon Amendment as violating the First Amendment because it forced schools to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive specified federal funding. The Court concluded: “Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.”1044 The Court found that “[t]he Solomon Amendment neither limits what law schools may say nor requires them to say anything. . . . It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”1045 The law schools’ conduct in barring military recruiters, the Court found, “is not inherently expressive,” and, therefore, unlike flag burning, for example, is not “symbolic speech.”1046 Applying the O’Brien test for restrictions on conduct that have an incidental effect on speech, the Court found that the Solomon Amendment clearly “promotes a substantial government interest that would be achieved less effectively absent the regulation.”1047
The Court also found that the Solomon Amendment did not unconstitutionally compel schools to speak, or even to host or accommodate the government’s message. As for compelling speech, law schools must “send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. . . . This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. . . . [It] is plainly incidental to the Solomon Amendment’s regulation of conduct.”1048 As for forcing one speaker to host or accommodate another, “[t]he compelled-speech violation in each of our prior cases . . . resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate.”1049 By contrast, the Court wrote, “Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”1050 Finally, the Court found that the Solomon Amendment was not analogous to the New Jersey law that had required the Boy Scouts to accept a homosexual scoutmaster, and that the Supreme Court struck down as violating the Boy Scouts’ “right of expressive association.”1051 Recruiters, unlike the scoutmaster, are “outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association.”1052
The Government Speech Doctrine.
As an outgrowth of the government subsidy cases, such as Rust v. Sullivan,1053 the Court has established the “government speech doctrine” that recognizes that a government entity “is entitled to say what it wishes”1054 and to select the views that it wants to express.1055 In this vein, when the government speaks, the government is not barred by the Free Speech Clause of the First Amendment from determining the content of what it says and can engage in viewpoint discrimination.1056 The underlying rationale for the government speech doctrine is that the government could not “function” if the government could not favor or disfavor points of view in enforcing a program.1057 And the Supreme Court has recognized that the government speech doctrine even extends to when the government receives private assistance in helping deliver a government controlled message.1058 As a consequence, the Court, relying on the government speech doctrine, has rejected First Amendment challenges to (1) regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion;1059 (2) disciplinary actions taken as a result of statements made by public employees pursuant to their official duties;1060 (3) mandatory assessments made against cattle merchants when used to fund advertisements whose message was controlled by the government;1061 (4) a city’s decision to reject a monument for placement in a public park;1062 and (5) a state’s decision to reject a design for a specialty license plate for an automobile.1063
A central issue prompted by the government speech doctrine is determining when speech is that of the government, which can be difficult when the government utilizes or relies on private parties to relay a particular message. In Johanns v. Livestock Marketing Association, the Court held that the First Amendment did not prohibit the compelled subsidization of advertisements promoting the sale of beef because the underlying message of the advertisements was “effectively controlled” by the government.1064 Four years later, in Pleasant Grove City v. Summum, the Court shifted from an exclusive focus on the “effective control” test in holding that “permanent monuments displayed on public property,” even when provided by private parties, generally “represent government speech.”1065 In so concluding, the Court relied not only on the fact that a government, in selecting monuments for display in a park, generally exercises “effective control” and has “final approval authority” over the monument, but also on (1) the government’s long history of “us- [ing] monuments to speak for the public”; and (2) the public’s common understanding as to monuments and their role in conveying a message from the government.1066 In Walker v. Texas Division, Sons of Confederate Veterans, the Court relied on the same analysis used in Pleasant Grove City to conclude that the State of Texas, in approving privately crafted designs for specialty license plates, could reject designs the state found offensive without running afoul of the Free Speech Clause.1067 Specifically, the Walker Court held that license plate designs amounted to government speech because (1) states historically used license plates to convey government messages; (2) the public closely identifies license plate designs with the state; and (3) the State of Texas maintained effective control over the messages conveyed on its specialty license plates.1068
More recently, in Matal v. Tam, the Supreme Court held that trademarks do not constitute government speech, concluding that it is “far-fetched to suggest that the content of a registered mark is government speech.”1069 The Court distinguished trademarks from the license plates at issue in Walker, a case the Court stated “likely marks the outer bounds of the government-speech doctrine.”1070 First, the Court noted that, unlike license plates, trademarks do not have a history of use to convey messages by the government1071 . Second, the Court further reasoned that the government does not maintain direct control over the messages conveyed in trademarks—indeed, “[t]he Federal Government does not dream up these marks, and it does not edit marks submitted for registration.”1072 And third, the public, according to the Tam Court, does not closely identify trademarks with the government.1073 Thus, while Tam demonstrates the Court’s continuing reliance on the multi-factor test for determining government speech from Walker and Summum, that test is not so flexible as to allow for expression like trademarks to be deemed the speech of the government.
Governmental Regulation of Communications Industries
As in the previous section, the governmental regulations here considered may have only the most indirect relation to freedom of expression, or may clearly implicate that freedom even though the purpose of the particular regulation is not to reach the content of the message. First, however, the judicially formulated doctrine distinguishing commercial expression from other forms is briefly considered.
Starting in the 1970s, the Court’s treat-ment of “commercial speech” underwent a transformation from total nonprotection under the First Amendment to qualified protection. The conclusion that a communication proposing a commercial transaction is a different order of speech underserving of First Amendment protection was arrived at almost casually in 1942 in Valentine v. Chrestensen.1074 In Chrestensen, the Court upheld a city ordinance prohibiting distribution on the street of “commercial and business advertising matter,” as applied to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city’s refusal of certain docking facilities. The doctrine was in any event limited to promotion of commercial activities; the fact that expression was disseminated for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free.1075 The doctrine lasted in this form for more than twenty years.
The Court later modified this position so that commercial speech is protected “from unwarranted governmental regulation,” although its nature makes it subject to greater limitations than may be imposed on expression not solely related to the economic interests of the speaker and its audience.1076 The change to its earlier holdings was accomplished within a brief span of time in which the Justices haltingly but then decisively moved to a new position. Applying the doctrine in a narrow five-to-four decision, the Court sustained the application of a city’s ban on employment discrimination to bar sex-designated employment advertising in a newspaper.1077 Suggesting that speech does not lose its constitutional protection simply because it appears in a commercial context, Justice Powell, for the Court, did find the placing of want-ads in newspapers to be “classic examples of commercial speech,” devoid of expressions of opinions with respect to issues of social policy; so the “did no more than propose a commercial transaction.” But the Justice also noted that employment discrimination, which was facilitated by the advertisements, was itself illegal.1078
Next, the Court overturned a conviction under a state statute that made it illegal, by sale or circulation of any publication, to encourage or prompt the procuring of an abortion. The Court held the statute unconstitutional as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another state and detailing the assistance that would be provided state residents in obtaining abortions in the other state.1079 The Court discerned that the advertisements conveyed information of other than a purely commercial nature, that they related to services that were legal in the other jurisdiction, and that the state could not prevent its residents from obtaining abortions in the other state or punish them for doing so.
Then, the Court swept all these distinctions away as it voided a statute that declared it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs.1080 In a suit brought by consumers to protect their right to receive information, the Court held that speech that does no more than propose a commercial transaction is nonetheless of such social value as to be entitled to protection. Consumers’ interests in receiving factual information about prices may even be of greater value than political debate, but in any event price competition and access to information about it is in the public interest. State interests asserted in support of the ban—protection of professionalism and the quality of prescription goods—were found either badly served or not served by the statute.
Turning from the interests of consumers to receive information to the asserted right of advertisers to communicate, the Court voided several restrictions. The Court voided a municipal ordinance that barred the display of “For sale” and “Sold” signs on residential lawns, purportedly so as to limit “white flight” resulting from a “fear psychology” that developed among white residents following sale of homes to nonwhites. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event may not be achieved by restricting the free flow of truthful information.1082 Similarly, deciding a question it had reserved in the Virginia Pharmacy case, the Court held that a state could not forbid lawyers from advertising the prices they charged for the performance of routine legal services.1083 None of the proffered state justifications for the ban was deemed sufficient to overcome the private and societal interest in the free exchange of this form of speech.1084 Nor may a state categorically prohibit attorney advertising through mailings that target persons known to face particular legal problems,1085 or prohibit an attorney from holding himself out as a certified civil trial specialist,1086 or prohibit a certified public accountant from holding herself out as a certified financial planner.1087
More recently, the Court has distinguished between laws that regulate the conduct of sellers versus those that regulate a seller’s speech. In Expressions Hair Design v. Schneiderman, the Court held that a New York State statute that prohibits businesses from displaying a cash price alongside a surcharge for credit card purchases burdens speech.1088 Relying on Supreme Court precedent suggesting that “price regulation alone regulates conduct, not speech,” the lower court held that the statute was constitutional.1089 The Supreme Court disagreed, stating “[w]hat the law does regulate is how sellers may communicate their prices,” and “[i]n regulating the communication of prices rather than prices themselves, [the statute] regulates speech.”1090 The Court, however, remanded the case to the lower court to determine in the first instance whether the law survives First Amendment scrutiny.1091
However, a state has been held to have a much greater countervailing interest in regulating person-to-person solicitation of clients by attorneys; therefore, especially because in-person solicitation is “a business transaction in which speech is an essential but subordinate component,” the state interest need only be important rather than compelling.1092 Similarly, the Court upheld a rule prohibiting high school coaches from recruiting middle school athletes, finding that “the dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader.”1093 The Court later refused, however, to extend this principle to in-person solicitation by certified public accountants, explaining that CPAs, unlike attorneys, are not professionally “trained in the art of persuasion,” and that the typical business executive client of a CPA is “far less susceptible to manipulation” than was the accident victim in Ohralik.1094 A ban on personal solicitation is “justified only in situations ‘inherently conducive to overreaching and other forms of misconduct.’ ”1095 To allow enforcement of such a broad prophylactic rule absent identification of a serious problem such as ambulance chasing, the Court explained, would dilute commercial speech protection “almost to nothing.”1096
Moreover, a statute prohibiting the practice of optometry under a trade name was sustained because there was “a significant possibility” that the public might be misled through deceptive use of the same or similar trade names.1097 But a state regulatory commission prohibition of utility advertisements “intended to stimulate the purchase of utility services” was held unjustified by the asserted interests in energy consumption and avoidance of subsidization of additional energy costs by all consumers.1098
Although commercial speech is entitled to First Amendment protection, the Court has clearly held that it is different from other forms of expression; it has remarked on the commonsense differences between speech that does no more than propose a commercial transaction and other varieties.1099 The Court has developed the four-pronged Central Hudson test to measure the validity of restraints upon commercial expression.1100
Under the first prong of the test, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if an advertisement does not accurately inform the public about lawful activity, it can be suppressed.1101
Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The state must assert a substantial interest to be achieved by restrictions on commercial speech.1102
Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose.1103 Instead, the regulation must “directly advance” the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.1104
Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive.1105 The Court has rejected the idea that a “least restrictive means” test is required. Instead, what is now required is a reasonable “fit” between means and ends, with the means “narrowly tailored to achieve the desired objective.”1106 The Court, however, does “not equate this test with the less rigorous obstacles of rational basis review; . . . the existence of ‘numerous and obvious less-burdensome alternatives to the restriction on commercial speech . . . is certainly a relevant consideration in determining whether the ‘between ends and means is reasonable.’ ”1107
The “reasonable fit” standard has some teeth, the Court made clear in City of Cincinnati v. Discovery Network, Inc.,1108 striking down a city’s prohibition on distribution of “commercial handbills” through freestanding newsracks located on city property. The city’s aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited “commercial” publications and permitted “newspapers” bore “no relationship whatsoever” to this legitimate interest.1109 The city could not, the Court ruled, single out commercial speech to bear the full onus when “all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault.”1110 By contrast, the Court upheld a federal law that prohibited broadcast of lottery advertisements by a broadcaster in a state that prohibits lotteries, while allowing broadcast of such ads by stations in states that sponsor lotteries. There was a “reasonable fit” between the restriction and the asserted federal interest in supporting state anti-gambling policies without unduly interfering with policies of neighboring states that promote lotteries.1111 The prohibition “directly served” the congressional interest, and could be applied to a broadcaster whose principal audience was in an adjoining lottery state, and who sought to run ads for that state’s lottery.1112
In 1999, the Court struck down a provision of the same statute as applied to advertisements for private casino gambling that are broadcast by radio and television stations located in a state where such gambling is legal.1113 The Court emphasized the interrelatedness of the four parts of the Central Hudson test: “Each [part] raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three.”1114 For example, although the government has a substantial interest in reducing the social costs of gambling, the fact that the Congress has simultaneously encouraged gambling, because of its economic benefits, makes it more difficult for the government to demonstrate that its restriction on commercial speech materially advances its asserted interest and constitutes a reasonable “fit.”1115 In this case, “[t]he operation of [18 U.S.C.] § 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it.”1116 Moreoever, “the regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all.”1117
In Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, the Court asserted that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.”1118 Subsequently, however, the Court eschewed reliance on Posadas,1119 and it seems doubtful that the Court would again embrace the broad principle that government may ban all advertising of an activity that it permits but has power to prohibit. Indeed, the Court’s very holding in 44 Liquormart, Inc. v. Rhode Island,1120 striking down the state’s ban on advertisements that provide truthful information about liquor prices, is inconsistent with the general proposition. A Court plurality in 44 Liquormart squarely rejected Posadas, calling it “erroneous,” declining to give force to its “highly deferential approach,” and proclaiming that a state “does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate.”1121 Four other Justices concluded that Posadas was inconsistent with the “closer look” that the Court has since required in applying the principles of Central Hudson.1122
The “different degree of protection” accorded commercial speech has a number of consequences as regards other First Amendment doctrine. For instance, somewhat broader times, places, and manner regulations are to be tolerated,1123 and the rule against prior restraints may be inapplicable.1124 Further, disseminators of commercial speech are not protected by the overbreadth doctrine.1125 On the other hand, there are circumstances in which the nature of the restriction placed on commercial speech may alter the First Amendment analysis, and even result in the application of a heightened level of scrutiny.
For instance, in Sorrell v. IMS Health, Inc.,1126 the Court struck down state restrictions on pharmacies and “data-miners” selling or leasing information on the prescribing behavior of doctors for marketing purposes and related restrictions limiting the use of that information by pharmaceutical companies.1127 These prohibitions, however, were subject to a number of exceptions, including provisions allowing such prescriber-identifying information to be used for health care research. Because the restrictions only applied to the use of this information for marketing and because they principally applied to pharmaceutical manufacturers of non-generic drugs, the Court found that these restrictions were content-based and speaker-based limits and thus subject to heightened scrutiny.1128
Different degrees of protection may also be discerned among different categories of commercial speech. The first prong of the Central Hudson test means that false, deceptive, or misleading advertisements need not be permitted; government may require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent deception.1129 But even truthful, non-misleading commercial speech may be regulated, and the validity of such regulation is tested by application of the remaining prongs of the Central Hudson test. The test itself does not make further distinctions based on the content of the commercial message or the nature of the governmental interest (that interest need only be “substantial”). Recent decisions suggest, however, that further distinctions may exist. Measures aimed at preserving “a fair bargaining process” between consumer and advertiser1130 may be more likely to pass the test1131 than are regulations designed to implement general health, safety, or moral concerns.1132 As the governmental interest becomes further removed from protecting a fair bargaining process, it may become more difficult to establish the absence of less burdensome regulatory alternatives and the presence of a “reasonable fit” between the commercial speech restriction and the governmental interest.1133
Disclaiming any intimation “that the owners of news-papers are immune from any of the ordinary forms of taxation for support of the government,” the Court voided a state two-percent tax on the gross receipts of advertising in newspapers with a circulation exceeding 20,000 copies a week.1134 In the Court’s view, the tax was analogous to the 18th-century English practice of imposing advertising and stamp taxes on newspapers for the express purpose of pricing the opposition penny press beyond the means of the mass of the population.1135 The tax at issue focused exclusively upon newspapers, it imposed a serious burden on the distribution of news to the public, and it appeared to be a discriminatorily selective tax aimed almost solely at the opposition to the state administration.1136 Combined with the standard that government may not impose a tax directly upon the exercise of a constitutional right itself,1137 these tests seem to permit general business taxes upon receipts of businesses engaged in communicating protected expression without raising any First Amendment issues.1138
Ordinarily, a tax singling out the press for differential treatment is highly suspect, and creates a heavy burden of justification on the state. This is so, the Court explained in 1983, because such “a powerful weapon” to single out a small group carries with it a lessened political constraint than do those measures affecting a broader based constituency, and because “differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression.”1139 The state’s interest in raising revenue is not sufficient justification for differential treatment of the press. Moreover, the Court refused to adopt a rule permitting analysis of the “effective burden” imposed by a differential tax; even if the current effective tax burden could be measured and upheld, the threat of increasing the burden on the press might have “censorial effects,” and “courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation.”1140
Also difficult to justify is taxation that targets specific subgroups within a segment of the press for differential treatment. An Arkansas sales tax exemption for newspapers and for “religious, professional, trade, and sports journals” published within the state was struck down as an invalid content-based regulation of the press.1141 Entirely as a result of content, some magazines were treated less favorably than others. The general interest in raising revenue was again rejected as a “compelling” justification for such treatment, and the measure was viewed as not narrowly tailored to achieve other asserted state interests in encouraging “fledgling” publishers and in fostering communications.
The Court seemed to change course somewhat in 1991, upholding a state tax that discriminated among different components of the communications media, and proclaiming that “differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas.”1142
The general principle that government may not impose a financial burden based on the content of speech underlay the Court’s invalidation of New York’s “Son of Sam” law, which provided that a criminal’s income from publications describing his crime was to be placed in escrow and made available to victims of the crime.1143 Although the Court recognized a compelling state interest in ensuring that criminals do not profit from their crimes, and in compensating crime victims, it found that the statute was not narrowly tailored to those ends. The statute applied only to income derived from speech, not to income from other sources, and it was significantly overinclusive because it reached a wide range of literature (e.g., the Confessions of Saint Augustine and Thoreau’s Civil Disobedience) “that did not enable a criminal to profit from his crime while a victim remains uncompensated”1144
Just as newspapers and other communica-tions businesses are subject to nondiscriminatory taxation, they are entitled to no immunity from the application of general laws regulating their relations with their employees and prescribing wage and hour standards. In Associated Press v. NLRB,1145 the application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem. “The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. . . . The regulation here in question has no relation whatever to the impartial distribution of news.” Similarly, the Court has found no problem with requiring newspapers to pay minimum wages and observe maximum hours.1146
Resort to the antitrust laws to break up re-straints on competition in the newsgathering and publishing field was found not only to present no First Amendment problem, but to comport with the government’s obligation under that Amendment. Justice Black wrote: “It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.”1147
Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of possibility of antitrust law attack,1148 even if such activities might promote speech.1149
Broadcast Radio and Television.
Because there are a lim-ited number of broadcast frequencies for radio and non-cable television use, the Federal Government licenses access to these frequencies, permitting some applicants to use them and denying the greater number of applicants such permission. Even though this licensing system is in form a variety of prior restraint, the Court has held that it does not present a First Amendment issue because of the unique characteristic of scarcity.1150 Thus, the Federal Communications Commission has broad authority to determine the right of access to broadcasting,1151 although, of course, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.1152
In certain respects, however, governmental regulation does implicate First Amendment values, and, in Red Lion Broadcasting Co. v. FCC, the Court upheld an FCC regulation that required broadcasters to afford persons an opportunity to reply if they were attacked on the air on the basis of their “honesty, character, integrity or like personal qualities,” or if they were legally qualified candidates and a broadcast editorial endorsed their opponent or opposed them.1153 In Red Lion, Justice White explained that “differences in the characteristics of [various] media justify differences in First Amendment standards applied to them.”1154 Thus, although everyone has a right to speak, write, or publish as he will, subject to very few limitations, there is no comparable right of everyone to broadcast. The frequencies are limited and some few must be given the privilege over others. The particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. Qualification by censorship of content is impermissible, but the First Amendment does not prevent a governmental insistence that a licensee “conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.”1155 Furthermore, said Justice White, “[b]e-cause of the scarcity of radio frequencies, the government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”1156 The broadcasters had argued that, if they were required to provide equal time at their expense to persons attacked and to points of view different from those expressed on the air, expression would be curbed through self-censorship, for fear of controversy and economic loss. Justice White thought this possibility “at best speculative,” but if it should materialize “the Commission is not powerless to insist that they give adequate and fair attention to public issues.”1157
In Columbia Broadcasting System v. Democratic National Committee,1158 the Court rejected claims of political groups that the broadcast networks were constitutionally required to sell them broadcasting time for the presentation of views on controversial issues. The ruling terminated a broad drive to obtain that result, but the fragmented nature of the Court’s multiple opinions precluded a satisfactory evaluation of the constitutional implications of the case. However, in CBS v. FCC,1159 the Court held that Congress had conferred on candidates seeking federal elective office an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations, to be administered through FCC control over license revocations, and held such right of access to be within Congress’s power to grant, the First Amendment notwithstanding. The constitutional analysis was brief and merely restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.
In FCC v. League of Women Voters,1160 the Court took the same general approach to governmental regulation of broadcasting, but struck down a total ban on editorializing by stations receiving public funding. In summarizing the principles guiding analysis in this area, the Court reaffirmed that Congress may regulate in ways that would be impermissible in other contexts, but indicated that broadcasters are entitled to greater protection than may have been suggested by Red Lion. “[A]lthough the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. . . . [T]hese restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest.”1161 However, the earlier cases were distinguished. “[I]n sharp contrast to the restrictions upheld in Red Lion or in [CBS v. FCC], which left room for editorial discretion and simply required broadcast editors to grant others access to the microphone, § 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner.”1162 The ban on all editorializing was deemed too severe and restrictive a means of accomplishing the governmental purposes—protecting public broadcasting stations from being coerced, through threat or fear of withdrawal of public funding, into becoming “vehicles for governmental propagandizing,” and also keeping the stations “from becoming convenient targets for capture by private interest groups wishing to express their own partisan viewpoints.”1163 Expression of editorial opinion was described as a “form of speech . . . that lies at the heart of First Amendment protection,”1164 and the ban was said to be “defined solely on the basis of . . . content,” the assumption being that editorial speech is speech directed at “controversial issues of public importance.”1165 Moreover, the ban on editorializing was both overinclusive, applying to commentary on local issues of no likely interest to Congress, and underinclusive, not applying at all to expression of controversial opinion in the context of regular programming. Therefore, the Court concluded, the restriction was not narrowly enough tailored to fulfill the government’s purposes.
Sustaining FCC discipline of a broadcaster who aired a record containing a series of repeated “barnyard” words, considered “indecent” but not obscene, the Court posited a new theory to explain why the broadcast industry is less entitled to full constitutional protection than are other communications entities.1166 “First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizens, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. . . . Second, broadcasting is uniquely accessible to children, even those too young to read. . . . The ease with which children may obtain access to broadcast material . . . amply justif[ies] special treatment of indecent broadcasting.”1167 The Court emphasized the “narrowness” of its holding, which “requires consideration of a host of variables.”1168 The use of more than “an occasional expletive,” the time of day of the broadcast, the likely audience, “and differences between radio, television, and perhaps closed-circuit transmissions” were all relevant in the Court’s view.1169
Governmentally Compelled Right of Reply to Newspapers.
However divided it may have been in dealing with access to the broadcast media, the Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper.1170 Granting that the number of newspapers had declined over the years, that ownership had become concentrated, and that new entries were prohibitively expensive, the Court agreed with proponents of the law that the problem of newspaper responsibility was a great one. But press responsibility, although desirable, “is not mandated by the Constitution,” whereas freedom is. The compulsion exerted by government on a newspaper to print what it would not otherwise print, “a compulsion to publish that which ‘reason tells them should not be published,’ ” runs afoul of the free press clause.1171
The Court has recognized that cable television “implicates First Amendment interests,” because a cable operator communicates ideas through selection of original programming and through exercise of editorial discretion in determining which stations to include in its offering.1172 Moreover, “settled principles of . . . First Amendment jurisprudence” govern review of cable regulation; cable is not limited by “scarce” broadcast frequencies and does not require the same less rigorous standard of review that the Court applies to regulation of broadcasting.1173 Cable does, however, have unique characteristics that justify regulations that single out cable for special treatment.1174 The Court in Turner Broadcasting System v. FCC1175 upheld federal statutory requirements that cable systems carry local commercial and public television stations. Although these “must-carry” requirements “distinguish between speakers in the television programming market,” they do so based on the manner of transmission and not on the content the messages conveyed, and hence are content-neutral.1176 The regulations could therefore be measured by the “intermediate level of scrutiny” set forth in United States v. O’Brien.1177 Two years later, however, a splintered Court could not agree on what standard of review to apply to content-based restrictions of cable broadcasts. Striking down a requirement that cable operators must, in order to protect children, segregate and block programs with patently offensive sexual material, a Court majority in Denver Area Educational Telecommunications Consortium v. FCC,1178 found it unnecessary to determine whether strict scrutiny or some lesser standard applies, because it deemed the restriction invalid under any of the alternative tests. There was no opinion of the Court on the other two holdings in the case,1179 and a plurality1180 rejected assertions that public forum analysis,1181 or a rule giving cable operators’ editorial rights “general primacy” over the rights of programmers and viewers,1182 should govern.
Subsequently, in United States v. Playboy Entertainment Group, Inc.,1183 the Supreme Court made clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based speech restrictions on cable television. The Court struck down a federal statute designed to “shield children from hearing or seeing images resulting from signal bleed,” which refers to blurred images or sounds that come through to non-subscribers.1184 The statute required cable operators, on channels primarily dedicated to sexually oriented programming, either to scramble fully or otherwise fully block such channels, or to not provide such programming when a significant number of children are likely to be viewing it, which, under an FCC regulation meant to transmit the programming only from 10 p.m. to 6 a.m. The Court found that, even without “discount[ing] the possibility that a graphic image could have a negative impact on a young child,” it could not conclude that Congress had used “the least restrictive means for addressing the problem.”1185 Congress in fact had enacted another provision that was less restrictive and that served the government’s purpose. This other provision requires that, upon request by a cable subscriber, a cable operator, without charge, fully scramble or otherwise fully block any channel to which a subscriber does not subscribe.1186
Government Restraint of Content of Expression
As a general matter, government may not regulate speech “because of its message, its ideas, its subject matter, or its content.”1187 “It is rare that a regulation restricting speech because of its content will ever be permissible.”1188 The constitutionality of content-based regulation is determined by a compelling interest test derived from equal protection analysis: the government “must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.”1189 Narrow tailoring in the case of fully protected speech requires that the government “choose[ ] the least restrictive means to further the articulated interest.”1190 Application of this test ordinarily results in invalidation of the regulation.1191
The Court has recognized two central ways in which a law can impose content-based restrictions, which include not only restrictions on particular viewpoints, but also prohibitions on public discussions of an entire topic.1192 First, a government regulation of speech is content-based if the regulation on its face draws distinctions based on the message a speaker conveys.1193 For example, in Boos v. Barry, the Court held that a Washington D.C. ordinance prohibiting the display of signs near any foreign embassy that brought a foreign government into “public odiom” or “public disrepute” drew a content-based distinction on its face.1194 Second, the Court has recognized that facially content-neutral laws can be considered content-based regulations of speech if a law cannot be “justified without reference to the content of speech” or was adopted “because of disagreement with the message [the speech] conveys.”1195 As a result, in an example provided in Sorrell v. IMS Health, the Court noted that if a government “bent on frustrating an impending demonstration” passed a law demanding two years’ notice before the issuance of parade permits, such a law, while facially content-neutral, would be content-based because its purpose was to suppress speech on a particular topic.1196
Importantly, for a law that falls within the first category of recognized content-based regulations—those laws that are content-based on their face—the government’s justifications or purposes for enacting that law are irrelevant to determine whether the law is subject to strict scrutiny.1197 Put another way, for laws that facially draw distinctions based on the subject matter of the underlying speech, there is no need for a court to look into the purpose of the underlying law being challenged under the First Amendment; instead, that law is automatically subject to strict scrutiny.1198 As such, in Reed v. Town of Gilbert, the Court, in invalidating provisions of a municipality’s sign code that imposed more stringent restrictions on signs directing the public to an event than on signs conveying political or ideological messages, determined the sign code to be content-based and subject to strict scrutiny, notwithstanding the town’s “benign,” non-speech related motives for enacting the code.1199 In so holding, the Court reasoned that the First Amendment, by targeting the “abridgement of speech,” is centrally concerned with the operations of laws and not the motivations of those who enacted the laws.1200 In this vein, the Court concluded that the “vice” of content-based legislation is not that it will “always” be used for invidious purposes, but rather that content-based restrictions necessarily lend themselves to such purposes.1201
Nonetheless, as discussed below, the Supreme Court has recognized that the First Amendment permits restrictions upon the content of speech in a “few limited areas,” including obscenity, defamation, fraud, incitement, fighting words, and speech integral to criminal conduct.1202 This “two-tier” approach to content-based regulations of speech derives from Chaplinsky v. New Hampshire, wherein the Court opined that there exist “certain well-defined and narrowly limited classes of speech [that] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth” such that the government may prevent those utterances and punish those uttering them without raising any constitutional issues.1203 As the Court has generally applied Chaplinsky over the past several decades, if speech fell within one of the “well-defined and narrowly limited” categories, it was unprotected, regardless of its effect. If it did not, it was covered by the First Amendment, and the speech was protected unless the restraint was justified by some test relating to harm, such as the clear and present danger test or the more modern approach of balancing the presumptively protected expression against a compelling governmental interest. In more recent decades, the cases reflect a fairly consistent and sustained movement by the Court toward eliminating or severely narrowing the “two-tier” doctrine. As a result, expression that before would have been held absolutely unprotected (e.g., seditious speech and seditious libel, fighting words, defamation, and obscenity) received protection. While the movement was temporarily deflected by a shift in position with respect to obscenity and by the recognition of a new category of non-obscene child pornography,1204 the most recent decisions of the Court reflect a reluctance to add any new categories of excepted speech and to interpret narrowly the excepted categories of speech that have long-established roots in First Amendment law.1205
Even if a category of speech is unprotected by the First Amendment, regulation of that speech on the basis of viewpoint may be impermissible. In R.A.V. v. City of St. Paul,1206 the Court struck down a hate crimes ordinance that the state courts had construed to apply only to the use of “fighting words.” The difficulty, the Court found, was that the ordinance discriminated further, proscribing only those fighting words that “arouse[ ] anger, alarm or resentment in others . . . on the basis of race, color, creed, religion or gender.”1207 This amounted to “special prohibitions on those speakers who express views on disfavored subjects.”1208 The fact that the government may proscribe areas of speech such as obscenity, defamation, or fighting words does not mean that these areas “may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.”1209
Seditious Speech and Seditious Libel.
Opposition to gov-ernment through speech alone has been subject to punishment throughout much of history under laws proscribing “seditious” utterances. In this country, the Sedition Act of 1798 made criminal, inter alia, malicious writings that defamed, brought into contempt or disrepute, or excited the hatred of the people against the government, the President, or the Congress, or that stirred people to sedition.1210 In New York Times Co. v. Sullivan,1211 the Court surveyed the controversy surrounding the enactment and enforcement of the Sedition Act and concluded that debate “first crystallized a national awareness of the central meaning of the First Amendment. . . . Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history . . . . [That history] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” The “central meaning” discerned by the Court, quoting Madison’s comment that in a republican government “the censorial power is in the people over the Government, and not in the Government over the people,” is that “[t]he right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”
Little opportunity to apply this concept of the “central meaning” of the First Amendment in the context of sedition and criminal syndicalism laws has been presented to the Court. In Dombrowski v. Pfister1212 the Court, after expanding on First Amendment considerations the discretion of federal courts to enjoin state court proceedings, struck down as vague and as lacking due process procedural protections certain features of a state “Subversive Activities and Communist Control Law.” In Brandenburg v. Ohio,1213 a state criminal syndicalism statute was held unconstitutional because its condemnation of advocacy of crime, violence, or unlawful methods of terrorism swept within its terms both mere advocacy as well as incitement to imminent lawless action. A seizure of books, pamphlets, and other documents under a search warrant pursuant to a state subversives suppression law was struck down under the Fourth Amendment in an opinion heavy with First Amendment overtones.1214
Fighting Words and Other Threats to the Peace.
In Chaplinsky v. New Hampshire,1215 the Court unanimously sustained a conviction under a statute proscribing “any offensive, derisive or annoying word” addressed to any person in a public place under the state court’s interpretation of the statute as being limited to “fighting words”—i.e., to words that “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” The statute was sustained as “narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.”1216 The case is best known for Justice Murphy’s famous dictum. “[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. 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.”1217
Chaplinsky still remains viable for the principle that “the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”1218 But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains formally alive but of little vitality.1219
On the obverse side, the “hostile audience” situation, the Court once sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders.1220 But this case has been significantly limited by cases that hold protected the peaceful expression of views that stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that breach of the peace and disorderly conduct statutes may not be used to curb such expression.
The cases are not clear as to what extent the police must go in protecting the speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder will entitle the authorities to terminate the speech or other expressive conduct.1221 Nor, in the absence of incitement to illegal action, may government punish mere expression or proscribe ideas,1222 regardless of the trifling or annoying caliber of the expression.1223
Threats of Violence Against Individuals.
The Supreme Court has cited three “reasons why threats of violence are outside the First Amendment”: “protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.”1224 In Watts v. United States, however, the Court held that only “true” threats are outside the First Amendment.1225 The defendant in Watts, at a public rally at which he was expressing his opposition to the military draft, said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.”1226 He was convicted of violating a federal statute that prohibited “any threat to take the life of or to inflict bodily harm upon the President of the United States.” The Supreme Court reversed. Interpreting the statute “with the commands of the First Amendment clearly in mind,”1227 it found that the defendant had not made a “true ‘threat,’ ” but had indulged in mere “political hyperbole.”1228
In NAACP v. Claiborne Hardware Co., white merchants in Claiborne County, Mississippi, sued the NAACP to recover losses caused by a boycott by black citizens of their businesses, and to enjoin future boycott activity.1229 During the course of the boycott, NAACP Field Secretary Charles Evers had told an audience of “black people that any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.”1230 The Court acknowledged that this language “might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence . . . .”1231 Yet, no violence had followed directly from Evers’ speeches, and the Court found that Evers’ “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg. . . . An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”1232 Although it held that, under Brandenburg, Evers’ speech did not constitute unprotected incitement of lawless action,1233 the Court also cited Watts, thereby implying that Evers’ speech also did not constitute a “true threat.”1234
In Planned Parenthood v. American Coalition of Life Activists, the en banc Ninth Circuit, by a 6-to-5 vote, upheld a damage award in favor of four physicians and two health clinics that provided medical services, including abortions, to women.1235 The plaintiffs had sued under a federal statute that gives aggrieved persons a right of action against whoever by “threat of force . . . intentionally . . . intimidates any person because the person is or has been . . . providing reproductive health services.” The defendants had published “WANTED,” “unWANTED,” and “GUILTY” posters with the names, photographs, addresses, and other personal information about abortion doctors, three of whom were subsequently murdered by abortion opponents. The defendants also operated a “Nuremberg Files” website that listed approximately 200 people under the label “ABORTIONIST,” with the legend: “Black font (working); Greyed-out Name (wounded); Strikethrough (fatality).”1236 The posters and the website contained no language that literally constituted a threat, but, the court found, “they connote something they do not literally say,” namely “You’re Wanted or You’re Guilty; You’ll be shot or killed,”1237 and the defendants knew that the posters caused abortion doctors to “quit out of fear for their lives.”1238
The Ninth Circuit concluded that a “true threat” is “a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person.”1239 “It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.”1240
Judge Alex Kozinski, in one of three dissenting opinions, agreed with the majority’s definition of a true threat, but believed that the majority had failed to apply it, because the speech in this case had not been “communicated as a serious expression of intent to inflict bodily harm. . . .”1241 “The difference between a true threat and protected expression,” Judge Kozinski wrote, “is this: A true threat warns of violence or other harm that the speaker controls. . . . Yet the opinion points to no evidence that defendants who prepared the posters would have been understood by a reasonable listener as saying that they will cause the harm. . . . Given this lack of evidence, the posters can be viewed, at most, as a call to arms for other abortion protesters to harm plaintiffs. However, the Supreme Court made it clear that under Brandenburg, encouragement or even advocacy of violence is protected by the First Amendment. . . .”1242 Moreover, the Court held in Claiborne that “[t]he mere fact the statements could be understood ‘as intending to create a fear of violence’ was insufficient to make them ‘true threats’ under Watts.”1243
Group Libel, Hate Speech.
In Beauharnais v. Illinois,1244 relying on dicta in past cases,1245 the Court upheld a state group libel law that made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, part of which was in the form of a petition to his city government, taking a hard-line white-supremacy position, and calling for action to keep African Americans out of white neighborhoods. Justice Frankfurter for the Court sustained the statute along the following reasoning. Libel of an individual, he established, was a common-law crime and was now made criminal by statute in every state in the Union. These laws raise no constitutional difficulty because libel is within that class of speech that is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, then no good reason appears to deny a state the power to punish the same utterances when they are directed at a defined group, “unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.”1246 The Justice then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably have feared substantial evils from unrestrained racial utterances. Nor did the Constitution require the state to accept a defense of truth, because historically a defendant had to show not only truth but publication with good motives and for justifiable ends.1247 “Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary . . . to consider the issues behind the phrase ‘clear and present danger.’ ”1248
Beauharnais has little continuing vitality as precedent. Its holding, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been substantially undercut by subsequent developments, not the least of which are the Court’s subjection of defamation law to First Amendment challenge and its ringing endorsement of “uninhibited, robust, and wide-open” debate on public issues in New York Times Co. v. Sullivan.1249 In R.A.V. v. City of St. Paul, the Court, in an opinion by Justice Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not “entirely invisible to the Constitution,” even though they “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.”1250 Content discrimination unrelated to that “distinctively proscribable content,” however, runs afoul of the First Amendment.1251 Therefore, the city’s bias-motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality, was invalidated for its content discrimination. “The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.”1252
In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.1253 Such a prohibition does not discriminate on the basis of a defendant’s beliefs: “as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. . . . The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages. . . .”1254
Legislation intended to prevent offense of individuals and groups of people has also been struck down as unconstitutional. For example, in Matal v. Tam, the Supreme Court considered a federal law prohibiting the registration of trademarks that “may disparage . . . or bring . . . into contempt[ ] or disrepute” any “persons, living or dead.”1255 In Tam, the Patent and Trademark Office rejected a trademark application for THE SLANTS for an Asian-American dance-rock band because it found the mark may be disparaging to Asian Americans.1256 The Court held that the disparagement provision violates the Free Speech Clause as “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”1257
One of the most seminal shifts in constitutional jurisprudence occurred in 1964 with the Court’s decision in New York Times Co. v. Sullivan.1258 The Times had published a paid advertisement by a civil rights organization criticizing the response of a Southern community to demonstrations led by Dr. Martin Luther King, and containing several factual errors. The plaintiff, a city commissioner in charge of the police department, claimed that the advertisement had libeled him even though he was not referred to by name or title and even though several of the incidents described had occurred prior to his assumption of office. Unanimously, the Court reversed the lower court’s judgment for the plaintiff. To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be foreclosed by the “label” attached to something. “Like . . . the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.”1259 “The general proposition,” the Court continued, “that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions . . . . [W]e 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.”1260 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.”1261
Erroneous statement is protected, the Court asserted, there being no exception “for any test of truth.” Error is inevitable in any free debate and to place liability upon that score, and especially to place on the speaker the burden of proving truth, would introduce self-censorship and stifle the free expression which the First Amendment protects.1262 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.”1263 That neither factual error nor defamatory content could penetrate the protective circle of the First Amendment was the “lesson” to be drawn from the great debate over the Sedition Act of 1798, which the Court reviewed in some detail to discern the “central meaning of the First Amendment.”1264 Thus, it appears, the libel law under consideration failed the test of constitutionality because of its kinship with seditious libel, which violated the “central meaning of the First Amendment.” “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”1265
In the wake of the Times ruling, the Court decided two cases involving the type of criminal libel statute upon which Justice Frankfurter had relied in analogy to uphold the group libel law in Beauharnais.1266 In neither case did the Court apply the concept of Times to void them altogether. Garrison v. Louisiana1267 held that a statute that did not incorporate the Times rule of “actual malice” was invalid, while in Ashton v. Kentucky1268 a common-law definition of criminal libel as “any writing calculated to create disturbances of the peace, corrupt the public morals or lead to any act, which, when done, is indictable” was too vague to be constitutional.
The teaching of Times and the cases following it is that expression on matters of public interest is protected by the First Amendment. Within that area of protection is commentary about the public actions of individuals. The fact that expression contains falsehoods does not deprive it of protection, because otherwise such expression in the public interest would be deterred by monetary judgments and self-censorship imposed for fear of judgments. But, over the years, the Court has developed an increasingly complex set of standards governing who is protected to what degree with respect to which matters of public and private interest.
Individuals to whom the Times rule applies presented one of the first issues for determination. At times, the Court has keyed it to the importance of the position held. “There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the ‘public official’ designation applies 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.”1269 But this focus seems to have become diffused and the concept of “public official” has appeared to take on overtones of anyone holding public elective or appointive office.1270 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.1271
Thus, a wide range of reporting about both public officials and candidates is protected. Certainly, the conduct of official duties by public officials is subject to the widest scrutiny and criticism.1272 But the Court has held as well that criticism that reflects generally upon an official’s integrity and honesty is protected.1273 Candidates for public office, the Court has said, place their whole lives before the public, and it is difficult to see what criticisms could not be related to their fitness.1274
For a time, the Court’s decisional process threatened to expand the Times privilege so as to obliterate the distinction between private and public figures. First, the Court created a subcategory of “public figure,” which included those otherwise private individuals who have attained some prominence, either through their own efforts or because it was thrust upon them, with respect to a matter of public interest, or, in Chief Justice Warren’s words, those persons who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”1275 Later, the Court curtailed the definition of “public figure” by playing down the matter of public interest and emphasizing the voluntariness of the assumption of a role in public affairs that will make of one a “public figure.”1276
Second, in a fragmented ruling, the Court applied the Times standard to private citizens who had simply been involved in events of public interest, usually, though not invariably, not through their own choosing.1277 But, in Gertz v. Robert Welch, Inc.1278 the Court set off on a new path of limiting recovery for defamation by private persons. Henceforth, 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’s opinion by Justice Powell established competing constitutional considerations. On the one hand, imposition upon the press of liability for every misstatement would deter not only false speech but much truth as well; the possibility that the press might have to prove everything it prints would lead to self-censorship and the consequent deprivation of the public of access to information. On the other hand, there is a legitimate state interest in compensating individuals for the harm inflicted on them by defamatory falsehoods. An individual’s right to the protection of his own good name is, at bottom, but a reflection of our society’s concept of the worth of the individual. Therefore, an accommodation must be reached. The Times rule had been a proper accommodation when public officials or public figures were concerned, inasmuch as by their own efforts they had brought themselves into the public eye, had created a need in the public for information about them, and had at the same time attained an ability to counter defamatory falsehoods published about them. Private individuals are not in the same position and need greater protection. “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.”1279 Thus, some degree of fault must be shown.
Generally, juries may award substantial damages in tort for presumed injury to reputation merely upon a showing of publication. But this discretion of juries had the potential to inhibit the exercise of freedom of the press, and moreover permitted juries to penalize unpopular opinion through the awarding of damages. Therefore, defamation plaintiffs who do not prove actual malice—that is, knowledge of falsity or reckless disregard for the truth—will be limited to compensation for actual provable injuries, such as out-of-pocket loss, impairment of reputation and standing, personal humiliation, and mental anguish and suffering. A plaintiff who proves actual malice will be entitled as well to collect punitive damages.1280
Subsequent cases have revealed a trend toward narrowing the scope of the “public figure” concept. A socially prominent litigant in a particularly messy divorce controversy was held not to be such a person,1281 and a person convicted years before of contempt after failing to appear before a grand jury was similarly not a public figure even as to commentary with respect to his conviction.1282 Also not a public figure for purposes of allegedly defamatory comment about the value of his research was a scientist who sought and received federal grants for research, the results of which were published in scientific journals.1283 Public figures, the Court reiterated, are those who (1) occupy positions of such persuasive power and influence that they are deemed public figures for all purposes or (2) have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved, and are public figures with respect to comment on those issues.1284
Commentary about matters of “public interest” when it defames someone is apparently, after Firestone1285 and Gertz, to be protected to the degree that the person defamed is a public official or candidate for public office, public figure, or private figure. That there is a controversy, that there are matters that may be of “public interest,” is insufficient to make a private person a “public figure” for purposes of the standard of protection in defamation actions.
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—the Gertz situation, in other words—the burden is on the plaintiff to establish the falsity of the information. Thus, the Court held in Philadelphia Newspapers v. Hepps,1286 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 pointed out, that a Gertz plaintiff must establish falsity in addition to establishing some degree of fault (e.g., negligence).1287 On the other hand, the Court held in Dun & Bradstreet v. Greenmoss Builders that the Gertz standard limiting award of presumed and punitive damages applies only in cases involving matters of public concern, and that the sale of credit reporting information to subscribers is not such a matter of public concern.1288 What significance, if any, is to be attributed to the fact that a media defendant rather than a private defendant has been sued is left unclear. The plurality in Dun & Bradstreet declined to follow the lower court’s rationale that Gertz protections are unavailable to nonmedia defendants, and a majority of Justices agreed on that point.1289 In Philadelphia Newspapers, however, the Court expressly reserved the issue of “what standards would apply if the plaintiff sues a nonmedia defendant.”1290
Other issues besides who is covered by the Times privilege are of considerable importance. The use of the expression “actual malice” has been confusing in many respects, because it is in fact a concept distinct from the common law meaning of malice or the meanings common understanding might give to it.1291 Constitutional “actual malice” means that the defamation was published with knowledge that it was false or with reckless disregard of whether it was false.1292 Reckless disregard is not simply negligent behavior, but publication with serious doubts as to the truth of what is uttered.1293 A defamation plaintiff under the Times or Gertz standard has the burden of proving by “clear and convincing” evidence, not merely by the preponderance of evidence standard ordinarily borne in civil cases, that the defendant acted with knowledge of falsity or with reckless disregard.1294 Moreover, the Court has held, a Gertz plaintiff has the burden of proving the actual falsity of the defamatory publication.1295 A plaintiff suing the press1296 for defamation under the Times or Gertz standards is not limited to attempting to prove his case without resort to discovery of the defendant’s editorial processes in the establishment of “actual malice.”1297 The state of mind of the defendant may be inquired into and the thoughts, opinions, and conclusions with respect to the material gathered and its review and handling are proper subjects of discovery. As with other areas of protection or qualified protection under the First Amendment (as well as some other constitutional provisions), appellate courts, and ultimately the Supreme Court, must independently review the findings below to ascertain that constitutional standards were met.1298
There had been some indications that statements of opinion, unlike assertions of fact, are absolutely protected,1299 but the Court held in Milkovich v. Lorain Journal Co.1300 that there is no constitutional distinction between fact and opinion, hence no “wholesale defamation exemption” for any statement that can be labeled “opinion.”1301 The issue instead is whether, regardless of the context in which a statement is uttered, it is sufficiently factual to be susceptible of being proved true or false. Thus, if statements of opinion may “reasonably be interpreted as stating actual facts about an individual,”1302 then the truthfulness of the factual assertions may be tested in a defamation action. There are sufficient protections for free public discourse already available in defamation law, the Court concluded, without creating “an artificial dichotomy between ‘opinion’ and fact.”1303
Substantial meaning is also the key to determining whether inexact quotations are defamatory. Journalistic conventions allow some alterations to correct grammar and syntax, but the Court in Mas-son v. New Yorker Magazine1304 refused to draw a distinction on that narrow basis. Instead, “a deliberate alteration of words [in a quotation] does not equate with knowledge of falsity for purposes of [New York Times] unless the alteration results in a material change in the meaning conveyed by the statement.”1305
As defamatory false statements can lead to legal liability, so can false statements in other contexts run afoul of legal prohibitions. For instance, more than 100 federal criminal statutes punish false statements in areas of concern to federal courts or agencies,1306 and the Court has often noted the limited First Amendment value of such speech.1307 The Court, however, has declined to find that all false statements fall outside of First Amendment protection. In United States v. Alvarez,1308 the Court overturned the Stolen Valor Act of 2005,1309 which imposed criminal penalties for falsely representing oneself to have been awarded a military decoration or medal. In an opinion by Justice Kennedy, four Justices distinguished false statement statutes that threaten the integrity of governmental processes or that further criminal activity, and evaluated the Act under a strict scrutiny standard.1310
Noting that the Stolen Valor Act applied to false statements made “at any time, in any place, to any person,”1311 Justice Kennedy suggested that upholding this law would leave the government with the power to punish any false discourse without a clear limiting principle. Justice Breyer, in a separate opinion joined by Justice Kagan, concurred in judgment, but did so only after evaluating the prohibition under an intermediate scrutiny standard. While Justice Breyer was also concerned about the breadth of the act, his opinion went on to suggest that a similar statute, more finely tailored to situations where a specific harm is likely to occur, could withstand legal challenge.1312
Invasion of Privacy.
Governmental power to protect the pri-vacy interests of its citizens by penalizing publication or authorizing causes of action for publication implicates directly First Amendment rights. Privacy is a concept composed of several aspects.1313 As a tort concept, it embraces at least four branches of protected interests: protection from unreasonable intrusion upon one’s seclusion, from appropriation of one’s name or likeness, from unreasonable publicity given to one’s private life, and from publicity which unreasonably places one in a false light before the public.1314
Although the Court has variously recognized valid governmental interests in extending protection to privacy,1315 it has nevertheless interposed substantial free expression interests in the balance. Thus, in Time, Inc. v. Hill,1316 the Times privilege was held to preclude recovery under a state privacy statute that permitted recovery for harm caused by exposure to public attention in any publication which contained factual inaccuracies, although not necessarily defamatory inaccuracies, in communications on matters of public interest. Since Gertz held that the Times privilege did not limit the recovery of compensatory damages for defamation by private persons, the question arose whether Hill applies to all “false-light” cases or only such cases involving public officials or public figures.1317 And, more important, Gertz left unresolved the issue “whether the State may ever define and protect an area of privacy free from unwanted publicity in the press.”1318
In Cox Broadcasting, the Court declined to pass on the broad question, holding instead that the accurate publication of information obtained from public records is absolutely privileged. Thus, the state could not permit a civil recovery for invasion of privacy occasioned by the reporting of the name of a rape victim obtained from court records and from a proceeding in open court.1319 Nevertheless, the Court in appearing to retreat from what had seemed to be settled principle, that truth is a constitutionally required defense in any defamation action, whether plaintiff be a public official, public figure, or private individual, may have preserved for itself the discretion to recognize a constitutionally permissible tort of invasion of privacy through publication of truthful information.1320 But in recognition of the conflicting interests—in expression and in privacy—it is evident that the judicial process in this area will be cautious.
Continuing to adhere to “limited principles that sweep no more broadly than the appropriate context of the instant case,” the Court invalidated an award of damages against a newspaper for printing the name of a sexual assault victim lawfully obtained from a sheriff ’s department press release. The state was unable to demonstrate that imposing liability served a “need” to further a state interest of the highest order, since the same interest could have been served by the more limited means of self regulation by the police, since the particular per se negligence statute precluded inquiry into the extent of privacy invasion (e.g., inquiry into whether the victim’s identity was already widely known), and since the statute singled out “mass communications” media for liability rather than applying evenhandedly to anyone disclosing a victim’s identity.1321
Emotional Distress Tort Actions.
In Hustler Magazine, Inc. v. Falwell,1322 the Court applied the New York Times v. Sullivan standard to recovery of damages by public officials and public figures for the tort of intentional infliction of emotional distress. The case involved an advertisement “parody” portraying the plaintiff, described by the Court as a “nationally known minister who has been active as a commentator on politics and public affairs,” as stating that he lost his virginity “during a drunken incestuous rendezvous with his mother in an outhouse.”1323 Affirming liability in this case, the Court believed, would subject “political cartoonists and satirists . . . to damage awards without any showing that their work falsely defamed its subject.”1324 A proffered “outrageousness” standard for distinguishing such parodies from more traditional political cartoons was rejected; although not doubting that “the caricature of respondent . . . is at best a distant cousin of [some] political cartoons . . . and a rather poor relation at that,” the Court explained that “ ‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views. . . .”1325 Therefore, proof of intent to cause injury, “the gravamen of the tort,” is insufficient “in the area of public debate about public figures.” Additional proof that the publication contained a false statement of fact made with actual malice was necessary, the Court concluded, in order “to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.”1326
The Court next considered whether an intentional infliction of emotional distress action could be brought by a father against public protestors who picketed the military funeral of his son, where the plaintiff was neither a public official nor a public figure. Based on the reasoning of Hustler Magazine, one might presume that the Times privilege would not extend to the intentional infliction of emotional distress upon a private citizen. However, in Snyder v. Phelps,1327 the Court avoided addressing this issue, finding that where public protesters are addressing issues of public concern, the fact that such protests occurred in a setting likely to upset private individuals did not reduce the First Amendment protection of that speech. In Phelps, the congregation of the Westboro Baptist Church, based on the belief that God punishes the United States for its tolerance of homosexuality, particularly in America’s armed forces, had engaged in nearly 600 protests at funerals, mostly military. While it was admitted that the plaintiff had suffered emotional distress after a protest at his son’s funeral, the Court declined to characterize the protests as directed at the father personally.1328 Rather, considering the “content, form, and context” of that speech,1329 the Court found that the dominant themes of the protest went to public concerns, and thus could not serve as the basis for a tort suit.1330
“Right of Publicity” Tort Actions.
In Zacchini v. Scripps-Howard Broadcasting Co.,1331 the Court held unprotected by the First Amendment a broadcast of a video tape of the “entire act” of a “human cannonball” in the context of the performer’s suit for damages against the company for having “appropriated” his act, thereby injuring his right to the publicity value of his performance. The Court emphasized two differences between the legal action permitted here and the legal actions found unprotected or not fully protected in defamation and other privacy-type suits. First, the interest sought to be protected was, rather than a party’s right to his reputation and freedom from mental distress, the right of the performer to remuneration for putting on his act. Second, the other torts if permitted decreased the information that would be made available to the public, whereas permitting this tort action would have an impact only on “who gets to do the publishing.”1332 In both respects, the tort action was analogous to patent and copyright laws in that both provide an economic incentive to persons to make the investment required to produce a performance of interest to the public.1333
Publication of Legally Confidential Information.
Although a state may have valid interests in assuring the confidentiality of certain information, it may not enforce this confidentiality by criminally prosecuting nonparticipant third parties, including the press, who disclose or publish the information.1334 The case that made this point arose in the context of the investigation of a state judge by an official disciplinary body; both by state constitutional provision and by statute, the body’s proceedings were required to be confidential and the statute made the divulging of information about the proceeding a misdemeanor. For publishing an accurate report about an investigation of a sitting judge, the newspaper was indicted and convicted of violating the statute, which the state courts construed to apply to nonparticipants. Although the Court recognized the importance of confidentiality to the effectiveness of such a proceeding, it held that the publication here “lies near the core of the First Amendment” because the free discussion of public affairs, including the operation of the judicial system, is primary and the state’s interests were simply insufficient to justify the encroachment on freedom of speech and of the press.1335 The scope of the privilege thus conferred by this decision on the press and on individuals is, however, somewhat unclear, because the Court appeared to reserve consideration of broader questions than those presented by the facts of the case.1336 It does appear, however, that government would find it difficult to punish the publication of almost any information by a nonparticipant to the process in which the information was developed to the same degree as it would be foreclosed from obtaining prior restraint of such publication.1337 There are also limits on the extent to which government may punish disclosures by participants in the criminal process, the Court having invalidated a restriction on a grand jury witness’s disclosure of his own testimony after the grand jury had been discharged.1338
Although public discussion of political affairs is at the core of the First Amendment, the guarantees of speech and press are broader. “We do not accede to appellee’s suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right.”1339 The right to impart and to receive “information and ideas, regardless of their social worth . . . is fundamental to our free society.”1340 Indeed, it is primarily with regard to the entertaining function of expression that the law of obscenity is concerned, as the Court has rejected any concept of “ideological” obscenity.1341 However, this function is not the reason that obscenity is outside the protection of the First Amendment, although the Court has never really been clear about what that reason is.
Adjudication over the constitutional law of obscenity began in Roth v. United States,1342 in which the Court in an opinion by Justice Brennan settled in the negative the “dispositive question” “whether obscenity is utterance within the area of protected speech and press.”1343 The Court then undertook a brief historical survey to demonstrate that “the unconditional phrasing of the First Amendment was not intended to protect every utterance.” All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. It was this history that had caused the Court in Beauharnais to conclude that “libelous utterances are not within the area of constitutionally protected speech,” and this history was deemed to demonstrate that “obscenity, too, was outside the protection intended for speech and press.”1344 “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people . . . . All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”1345 It was objected that obscenity legislation punishes because of incitation to impure thoughts and without proof that obscene materials create a clear and present danger of antisocial conduct. But because obscenity was not protected at all, such tests as clear and present danger were irrelevant.1346
“However,” Justice Brennan continued, “sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.”1347 The standard that the Court thereupon adopted for the designation of material as unprotected obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”1348 The Court defined material appealing to prurient interest as “material having a tendency to excite lustful thoughts,” and defined prurient interest as “a shameful or morbid interest in nudity, sex, or excretion.”1349
In the years after Roth, the Court struggled with many obscenity cases with varying degrees of success. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children,1350 unwilling adult recipients,1351 and procedure,1352 these cases are best explicated chronologically.
Manual Enterprises v. Day1353 upset a Post Office ban upon the mailing of certain magazines addressed to homosexual audiences, but resulted in no majority opinion of the Court. Nor did a majority opinion emerge in Jacobellis v. Ohio, which reversed a conviction for exhibiting a motion picture.1354 Chief Justice Warren’s concurrence in Roth1355 was adopted by a majority in Ginzburg v. United States,1356 in which Justice Brennan for the Court held that in “close” cases borderline materials could be determined to be obscene if the seller “pandered” them in a way that indicated he was catering to prurient interests. The same five-Justice majority, with Justice Harlan concurring, the same day affirmed a state conviction of a distributor of books addressed to a sado-masochistic audience, applying the “pandering” test and concluding that material could be held legally obscene if it appealed to the prurient interests of the deviate group to which it was directed.1357 Unanimity was shattered, however, when on the same day the Court held that Fanny Hill, a novel at that point 277 years old, was not legally obscene.1358 The prevailing opinion again restated the Roth tests that, to be considered obscene, material must (1) have a dominant theme in the work considered as a whole that appeals to prurient interest, (2) be patently offensive because it goes beyond contemporary community standards, and (3) be utterly without redeeming social value.1359
After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by per curiam dispositions of nearly three dozen cases, in all but one of which it reversed convictions or civil determinations of obscenity. The initial case was Redrup v. New York,1360 in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juveniles, protection of unwilling adult recipients, or proscription of pandering,1361 the Court succinctly summarized the varying positions of the seven Justices in the majority and said: “[w]hichever of the constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand . . . .”1362 And so things went for several years.1363
Changing membership on the Court raised increasing speculation about the continuing vitality of Roth; it seemed unlikely the Court would long continue its Redrup approach.1364 The change when it occurred strengthened the powers of government, federal, state, and local, to outlaw or restrictively regulate the sale and dissemination of materials found objectionable, and developed new standards for determining which objectionable materials are legally obscene.
At the end of the October 1971 Term, the Court requested argument on the question whether the display of sexually oriented films or of sexually oriented pictorial magazines, when surrounded by notice to the public of their nature and by reasonable protection against exposure to juveniles, was constitutionally protected.1365 By a five-to-four vote the following Term, the Court in Paris Adult Theatre I v. Slaton adhered to the principle established in Roth that obscene material is not protected by the First and Fourteenth Amendments even if access is limited to consenting adults.1366 Chief Justice Burger for the Court observed that the states have wider interests than protecting juveniles and unwilling adults from exposure to pornography; legitimate state interests, effectuated through the exercise of the police power, exist in protecting and improving the quality of life and the total community environment, in improving the tone of commerce in the cities, and in protecting public safety. It does not matter that the states may be acting on the basis of unverifiable assumptions in arriving at the decision to suppress the trade in pornography; the Constitution does not require in the context of the trade in ideas that governmental courses of action be subject to empirical verification any more than it does in other fields. Nor does the Constitution embody any concept of laissez faire, or of privacy, or of Millsean “free will,” that curbs governmental efforts to suppress pornography.1367
In Miller v. California,1368 the Court prescribed standards by which unprotected pornographic materials were to be identified. Because of the inherent dangers in undertaking to regulate any form of expression, laws to regulate pornography must be carefully limited; their scope is to be confined to materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.”1369 The law “must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”1370 The standard that a work must be “utterly without redeeming social value” before it may be suppressed was disavowed and discarded. In determining whether material appeals to a prurient interest or is patently offensive, the trier of fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the local community standard where the trier of fact sits.1371 Prurient interest and patent offensiveness, the Court indicated, “are essentially questions of fact.”1372 By contrast, the third or “value” prong of the Miller test is not subject to a community standards test; instead, the appropriate standard is “whether a reasonable person would find [literary, artistic, political, or scientific] value in the material, taken as a whole.”1373
The Court in Miller reiterated that it was not permitting an unlimited degree of suppression of materials. Only “hard core” materials were to be deemed without the protection of the First Amendment, and the Court’s idea of the content of “hard core” pornography was revealed in its examples: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”1374 Subsequently, the Court held that a publication was not obscene if it “provoked only normal, healthy sexual desires.” To be obscene it must appeal to “a shameful or morbid interest in nudity, sex, or excretion.”1375 The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed.1376
First Amendment values, the Court stressed in Miller, “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.”1377 But the Court had conferred on juries as triers of fact the determination, based upon their understanding of community standards, whether material was “patently offensive.” Did not this virtually immunize these questions from appellate review? In Jenkins v. Georgia,1378 the Court, while adhering to the Miller standards, stated that “juries [do not] have unbridled discretion in determining what is ‘patently offensive.’ ” Miller was intended to make clear that only “hard-core” materials could be suppressed and this concept and the Court’s descriptive itemization of some types of hardcore materials were “intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination.” The Court’s own viewing of the motion picture in question convinced it that “[n]othing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the ‘patently offensive’ element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment.”1379 But, in a companion case, the Court found that a jury determination of obscenity “was supported by the evidence and consistent with” the standards.1380
The decisions from the Paris Adult Theatre and Miller era were rendered by narrow majorities,1381 but nonetheless have guided the Court since. In addition, the Court’s willingness to allow some regulation of non-obscene but sexually explicit or “indecent” expression reduces the importance (outside the criminal area) of whether material is classified as obscene.
Even as to materials falling within the constitutional definition of obscene, the Court has recognized a limited private, protected interest in possession within the home,1382 unless those materials constitute child pornography. Stanley v. Georgia was an appeal from a state conviction for possession of obscene films discovered in appellant’s home by police officers armed with a search warrant for other items which were not found. The Court reversed, holding that the mere private possession of obscene materials in the home cannot be made a criminal offense. The Constitution protects the right to receive information and ideas, the Court said, regardless of their social value, and “that right takes on an added dimension” in the context of a prosecution for possession of something in one’s own home. “For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.”1383 Despite the unqualified assertion in Roth that obscenity was not protected by the First Amendment, the Court observed, it and the cases following were concerned with the governmental interest in regulating commercial distribution of obscene materials. Roth and the cases following that decision are not impaired by today’s decision, the Court insisted,1384 but in its rejection of each of the state contentions made in support of the conviction the Court appeared to be rejecting much of the basis of Roth. First, there is no governmental interest in protecting an individual’s mind from the effect of obscenity. Second, the absence of ideological content in the films was irrelevant, since the Court will not draw a line between transmission of ideas and entertainment. Third, there is no empirical evidence to support a contention that exposure to obscene materials may incite a person to antisocial conduct; even if there were such evidence, enforcement of laws proscribing the offensive conduct is the answer. Fourth, punishment of mere possession is not necessary to punishment of distribution. Fifth, there was little danger that private possession would give rise to the objections underlying a proscription upon public dissemination, exposure to children and unwilling adults.1385
Stanley’s broad rationale has been given a restrictive reading, and the holding has been confined to its facts. Any possible implication that Stanley was applicable outside the home and recognized a right to obtain pornography or a right in someone to supply it was soon dispelled.1386 The Court has consistently rejected Stanley’s theoretical underpinnings, upholding morality-based regulation of the behavior of consenting adults.1387 Also, Stanley has been held inapplicable to possession of child pornography in the home, the Court determining that the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves.1388 Apparently for this reason, a state’s conclusion that punishment of mere possession is a necessary or desirable means of reducing production of child pornography will not be closely scrutinized.1389
In New York v. Ferber,1390 the Court recognized another category of expression that is outside the coverage of the First Amendment: the visual depiction of children in films or still photographs in a variety of sexual activities or exposures of the genitals. The reason that such depictions may be prohibited was the governmental interest in protecting the physical and psychological well-being of children, whose participation in the production of these materials would subject them to exploitation and harm. The state may go beyond a mere prohibition of the use of children, because it is not possible to protect children adequately without prohibiting the exhibition and dissemination of the materials and advertising about them. Thus, “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.”1391 But, because expression is involved, the government must carefully define what conduct is to be prohibited and may reach only “works that visually depict sexual conduct by children below a specified age.”1392
The reach of the state may even extend to private possession of child pornography in the home. In Osborne v. Ohio1393 the Court upheld a state law criminalizing the possession or viewing of child pornography as applied to someone who possessed such materials in his home. Distinguishing Stanley v. Georgia, the Court ruled that Ohio’s interest in preventing exploitation of children far exceeded what it characterized as Georgia’s “paternalistic interest” in protecting the minds of adult viewers of pornography.1394 Because of the greater importance of the state interest involved, the Court saw less need to require states to demonstrate a strong necessity for regulating private possession as well as commercial distribution and sale.
In Ashcroft v. Free Speech Coalition, the Court held unconstitutional the federal Child Pornography Prevention Act (CPPA) to the extent that it prohibited pictures that were not produced with actual minors.1395 Prohibited pictures included computer-generated (“virtual”) child pornography, and photographs of adult actors who appeared to be minors, as well as “a Renaissance painting depicting a scene from classical mythology.”1396 The Court observed that statutes that prohibit child pornography that use real children are constitutional because they target “[t]he production of the work, not the content.”1397 The CPPA, by contrast, targeted the content, not the means of production. The government’s rationales for the CPPA included that “[p]edophiles might use the materials to encourage children to participate in sexual activity” and might “whet their own sexual appetites” with it, “thereby increasing . . . the sexual abuse and exploitation of actual children.”1398 The Court found these rationales inadequate because the government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts” and “may not prohibit speech because it increases the chance an unlawful act will be committed ‘at some indefinite future time.’ ”1399 The government had also argued that the existence of “virtual” child pornography “can make it harder to prosecute pornographers who do use real minors,” because, “[a]s imaging technology improves . . . , it becomes more difficult to prove that a particular picture was produced using actual children.”1400 This rationale, the Court found, “turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech.”1401
In United States v. Williams,1402 the Supreme Court upheld a federal statute that prohibits knowingly advertising, promoting, presenting, distributing, or soliciting material “in a manner that reflects the belief, or that is intended to cause another to believe, that the material” is child pornography that is obscene or that depicts an actual minor (i.e., is child pornography that is not constitutionally protected).1403 Under the provision, in other words, “an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.”1404 The Court found that these activities are not constitutionally protected because “[o]ffers to engage in illegal transactions [as opposed to abstract advocacy of illegality] are categorically excluded from First Amendment protection,” even “when the offeror is mistaken about the factual predicate of his offer,” such as when the child pornography that one offers to buy or sell does not exist or is constitutionally protected.1405
Non-obscene But Sexually Explicit and Indecent Expression.
There is expression, consisting of words or pictures, that some find offensive but that does not constitute obscenity and is protected by the First Amendment. Nudity portrayed in films or stills cannot be presumed obscene;1406 nor can offensive language ordinarily be punished simply because it offends someone.1407 Nonetheless, government may regulate sexually explicit but non-obscene expression in a variety of ways. Legitimate governmental interests may be furthered by appropriately narrow regulation, and the Court’s view of how narrow regulation must be is apparently influenced not only by its view of the strength of the government’s interest in regulation, but also by its view of the importance of the expression itself. In other words, sexually explicit expression does not receive the same degree of protection afforded purely political speech.1408
Government has a “compelling” interest in the protection of children from seeing or hearing indecent material, but total bans applicable to adults and children alike are constitutionally suspect.1409 In Reno v. American Civil Liberties Union,1410 the Court struck down two provisions of the Communications Decency Act of 1996 (CDA), one of which would have prohibited use of an “interactive computer service” to display indecent material “in a manner available to a person under 18 years of age.”1411 This prohibition would, in effect, have banned indecent material from all Internet sites except those accessible by only by adults. Although intended “to deny minors access to potentially harmful speech . . . , [the CDA’s] burden on adult speech,” the Court wrote, “is unacceptable if less restrictive alternatives would be at least as effective . . . . [T]he Government may not ‘reduc[e] the adult population . . . to . . . only what is fit for children.’ ”1412
In Reno, the Court distinguished FCC v. Pacifica Foundation,1413 in which it had upheld the FCC’s restrictions on indecent radio and television broadcasts, because (1) “[t]he CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet,” (2) the CDA imposes criminal penalties, and the Court has never decided whether indecent broadcasts “would justify a criminal prosecution,” and (3) radio and television, unlike the Internet, have, “as a matter of history . . . ‘received the most limited First Amendment protection,’ . . . in large part because warnings could not adequately protect the listener from unexpected program content. . . . [On the Internet], the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.”1414
After the Supreme Court struck down the CDA, Congress enacted the Child Online Protection Act (COPA), which banned “material that is harmful to minors” on Web sites that have the objective of earning a profit.1415 The Third Circuit upheld a preliminary injunction against enforcement of the statute on the ground that, “because the standard by which COPA gauges whether material is ‘harmful to minors’ is based on identifying ‘contemporary community standards[,]’ the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.”1416 This is because it results in communications available to a nationwide audience being judged by the standards of the community most likely to be offended. The Supreme Court vacated and remanded, holding “that COPA’s reliance on community standards to identify ‘material that is harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment.”1417
Upon remand, the Third Circuit again upheld the preliminary injunction, and the Supreme Court affirmed and remanded the case for trial. The Supreme Court found that the district court had not abused its discretion in granting the preliminary injunction, because the government had failed to show that proposed alternatives to COPA would not be as effective in accomplishing its goal. The primary alternative to COPA, the Court noted, is blocking and filtering software. Filters are less restrictive than COPA because “[t]hey impose selective restrictions on speech at the receiving end, not universal restriction at the source.”1418 Subsequently, the district court found COPA to violate the First Amendment and issued a permanent injunction against its enforcement; the Third Circuit affirmed, and the Supreme Court denied certioriari.1419
In United States v. American Library Association, Inc., a four-Justice plurality of the Supreme Court upheld the Children’s Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.”1420 The plurality asked “whether libraries would violate the First Amendment by employing the filtering software that CIPA requires.”1421 Does CIPA, in other words, effectively violate library patrons’ rights? The plurality concluded that it does not, after finding that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum,” and that it therefore would not be appropriate to apply strict scrutiny to determine whether the filtering requirements are constitutional.1422
The plurality acknowledged “the tendency of filtering software to ‘overblock’—that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block.”1423 It found, however, that, “[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled.”1424
The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance—in other words, does it violate public libraries’ rights by requiring them to limit their freedom of speech if they accept federal funds? The plurality found that, assuming that government entities have First Amendment rights (it did not decide the question), “CIPA does not ‘penalize’ libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress’s decision not to subsidize their doing so.”1425
The government may also take notice of objective conditions attributable to the commercialization of sexually explicit but non-obscene materials. Thus, the Court recognized a municipality’s authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that “adult theaters” showing motion pictures that depicted “specified sexual activities” or “specified anatomical areas” could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area.1426 Similarly, an adult bookstore was subject to closure as a public nuisance where it was being used as a place for prostitution and illegal sexual activities, because the closure “was directed at unlawful conduct having nothing to do with books or other expressive activity.”1427 However, a city was held constitutionally powerless to prohibit drive-in motion picture theaters from showing films containing nudity where the screen is visible from a public street or place.1428 Also, the FCC was unable to justify a ban on transmission of “indecent” but not obscene telephone messages.1429
The Court has held, however, that “live” productions containing nudity may be regulated to a greater extent than may films or publications. Whether this represents a distinction between live performances and other entertainment media, or whether it signals a more permissive approach overall to governmental regulation of non-obscene but sexually explicit material, remains to be seen. In Barnes v. Glen Theatre, Inc.,1430 the Court upheld application of Indiana’s public indecency statute to require that dancers in public performances of nude, non-obscene erotic dancing wear “pasties” and a “G-string” rather than appear totally nude. There was no opinion of the Court, three Justices viewing the statute as a permissible regulation of “societal order and morality,”1431 one viewing it as a permissible means of regulating supposed secondary effects of prostitution and other criminal activity,1432 and a fifth Justice seeing no need for special First Amendment protection from a law of general applicability directed at conduct rather than expression.1433 All but one of the Justices agreed that nude dancing is entitled to some First Amendment protection,1434 but the result of Barnes was a bare minimum of protection. Numerous questions remain unanswered. In addition to the uncertainty over applicability of Barnes to regulation of the content of films or other shows in “adult” theaters,1435 there is also the issue of its applicability to nudity in operas or theatrical productions not normally associated with commercial exploitation of sex.1436 But broad implications for First Amendment doctrine are probably unwarranted.1437 The Indiana statute was not limited in application to barrooms; had it been, then the Twenty-first Amendment would have afforded additional authority to regulate the erotic dancing.
In Erie v. Pap’s A.M.,1438 the Supreme Court again upheld the application of a statute prohibiting public nudity to an “adult” entertainment establishment. Although there was again only a plurality opinion, parts of that opinion were joined by five justices. These five adopted Justice Souter’s position in Barnes, that the statute satisfied the O’Brien test because it was intended “to combat harmful secondary effects,” such as “prostitution and other criminal activity.”1439 Justice Souter, however, although joining the plurality opinion, also dissented in part. He continued to believe that secondary effects were an adequate justification for banning nude dancing, but did not believe “that the city has made a sufficient evidentiary showing to sustain its regulation,” and therefore would have remanded the case for further proceedings.1440 He acknowledged his “mistake” in Barnes in failing to make the same demand for evidence.1441
The plurality opinion found that Erie’s public nudity ban “regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis,” because Erie allowed dancers to perform wearing only pasties and G-strings.1442 It may follow that “requiring dancers to wear pasties and G-strings may not greatly reduce . . . secondary effects, but O’Brien requires only that the regulation further the interest of combating such effects,” not that it further it to a particular extent.1443 The plurality opinion did not address the question of whether statutes prohibiting public nudity could be applied to serious theater, but its reliance on secondary effects suggests that they could not.
Speech Plus—The Constitutional Law of Leafleting, Picketing, and Demonstrating
Communication of political, economic, social, and other views is not accomplished solely by face-to-face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also “expressive conduct,” which includes picketing and marching, distribution of leaflets and pamphlets, addresses to publicly assembled audiences, door-to-door solicitation, and sit-ins. There is also a class of conduct, now only vaguely defined, that has been denominated “symbolic conduct,” which includes such actions as flag desecration and draft-card burnings. Because all these ways of expressing oneself involve conduct rather than mere speech, they are all much more subject to regulation and restriction than is simple speech. Some of them may be forbidden altogether. But, to the degree that these actions are intended to communicate a point of view, the First Amendment is relevant and protects some of them to a great extent. Sorting out the conflicting lines of principle and doctrine is the point of this section.
The Public Forum.
In 1895, while on the highest court of Mas-sachusetts, future Justice Oliver Wendell Holmes rejected a contention that public property was by right open to the public as a place where the right of speech could be recognized,1444 and on review the United States Supreme Court endorsed Holmes’ view.1445 Years later, beginning with Hague v. CIO,1446 the Court reconsidered the issue. Justice Roberts wrote in Hague: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” Although this opinion was not itself joined by a majority of the Justices, the Court subsequently endorsed the view in several opinions.1447
The Roberts view was called into question in the 1960s, however, when the Court seemed to leave the issue open,1448 and when a majority endorsed an opinion by Justice Black asserting his own narrower view of speech rights in public places.1449 Later decisions restated and quoted the Roberts language from Hague, and that is now the position of the Court.1450 Public streets and parks,1451 including those adjacent to courthouses1452 and foreign embassies,1453 as well as public libraries1454 and the grounds of legislative bodies,1455 are open to public demonstrations, although the uses to which public areas are dedicated may shape the range of permissible expression and conduct that may occur there.1456 Moreover, not all public properties are public forums. “[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government.”1457 “The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.”1458 Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.
1459 But if government does open non-traditional forums for expressive activities, it may not discriminate on the basis of content or viewpoint in according access.1460 The Court, however, remains divided with respect to the reach of the public forum doctrine.1461
Speech in public forums is subject to time, place, and manner regulations that take into account such matters as control of traffic in the streets, the scheduling of two meetings or demonstrations at the same time and place, the preventing of blockages of building entrances, and the like.1462 Such regulations are closely scrutinized in order to protect free expression, and, to be valid, must be justified without reference to the content or subject matter of speech,1463 must serve a significant governmental interest,1464 and must leave open ample alternative channels for communication of the information.1465 The Court has written that a time, place, or manner regulation “must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied . . . [s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest . . . .”1466 A content-neutral time, place, and manner regulation of the use of a public forum must also “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.”1467 Unlike a content-based licensing scheme, however, it need not “adhere to the procedural requirements set forth in Freedman.”1468 These requirements include that the “burden of proving that the film [or other speech] is unprotected expression must rest on the censor,” and that the censor must, “within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.”1469
A corollary to the rule forbidding regulation based on content is the principle—a merging of free expression and equal protection standards—that government may not discriminate between different kinds of messages in affording access.1470 In order to ensure against covert forms of discrimination against expression and between different kinds of content, the Court has insisted that licensing systems be constructed as free as possible of the opportunity for arbitrary administration.1471 The Court has also applied its general strictures against prior restraints in the contexts of permit systems and judicial restraint of expression.1472
It appears that government may not deny access to the public forum for demonstrators on the ground that the past meetings of these demonstrators resulted in violence,1473 and may not vary a demonstration licensing fee based on an estimate of the amount of hostility likely to be engendered,1474 but the Court’s position with regard to the “heckler’s veto,” the governmental termination of a speech or demonstration because of hostile crowd reaction, remains unclear.1475
The Court has defined three categories of public property for public forum analysis. First, there is the traditional public forum— places such as streets and parks that have traditionally been used for public assembly and debate, where the government may not prohibit all communicative activity and must justify content-neutral time, place, and manner restrictions as narrowly tailored to serve a legitimate interest.1476 Second, there is the designated public forum, where the government opens property for communicative activity and thereby creates a public forum. Such a forum may be limited—hence the expression “limited public forum”—for “use by certain groups, e.g., Widmar v. Vincent (student groups), or for discussion of certain subjects, e.g., City of Madison Joint School District v. Wisconsin PERC (school board business),”1477 but, within the framework of such legitimate limitations, “a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.”1478 Third, with respect to “[p]ublic property which is not by tradition or designation a forum for public communication,” the government “may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on [sic] speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”1479 The distinction between the first and second categories, on the one hand, and third category, on the other, can therefore determine the outcome of a case, because speakers may be excluded from the first and second categories only for a “compelling” governmental interest, whereas exclusion from the third category need only be “reasonable.”
The Court held that a school system did not create a limited public forum by opening an interschool mail system to use by selected civic groups “that engage in activities of interest and educational relevance to students,” and that, in any event, if a limited public forum had thereby been created a teachers union rivaling the exclusive bargaining representative could still be excluded as not being “of a similar character” to the civic groups.1480 Less problematic was the Court’s conclusion that utility poles and other municipal property did not constitute a public forum for the posting of signs.1481 More problematic was the Court’s conclusion that the Combined Federal Campaign, the Federal Government’s forum for coordinated charitable solicitation of federal employees, is not a limited public forum. Exclusion of various advocacy groups from participation in the Campaign was upheld as furthering “reasonable” governmental interests in offering a forum to “traditional health and welfare charities,” avoiding the appearance of governmental favoritism of particular groups or viewpoints, and avoiding disruption of the federal workplace by controversy.1482 The Court pinpointed the government’s intention as the key to whether a public forum has been created: “The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse.”1483 Under this categorical approach, the government has wide discretion in maintaining the nonpublic character of its forums, and may regulate in ways that would be impermissible were it to designate a limited public forum.1484
Application of these principles continues to raise often difficult questions. In United States v. Kokinda, a majority of Justices, who ultimately upheld a ban on soliciting contributions on postal premises under the “reasonableness” review governing nonpublic fora, could not agree on the public forum status of a sidewalk located entirely on postal service property.1485 Two years later, in International Society for Krishna Consciousness, Inc. v. Lee, the Court similarly divided as to whether non-secured areas of airport terminals, including shops and restaurants, constitute public fora.1486 A five-Justice majority held that airport terminals are not public fora and upheld regulations banning the repetitive solicitation of money within the terminals.1487
A decade later, the Court considered the public forum status of the Internet. In United States v. American Library Association, Inc., a four-Justice plurality held that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum.”1488 The plurality therefore did not apply strict scrutiny in upholding the Children’s Internet Protection Act, which provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.”1489
More recently, in Packingham v. North Carolina, the Court appeared to equate the Internet to traditional public fora like a street or public park. Specifically, Justice Kennedy, writing for the Court, observed that, “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.”1490 Consequently, the Court struck down a North Carolina law making it a felony for registered sex offenders to use commercial social networking websites that allow minor children to be members, such as Facebook. Applying strict scrutiny, the Court held that the North Carolina law impermissibly restricted lawful speech as it was not narrowly tailored to serve the government’s interest in protecting minors from registered sex offenders because it “foreclose[d] access to social media altogether,” thereby “prevent- [ing] the user from engaging in the legitimate exercise of First Amendment rights.”1491
Nevertheless, although Internet access in public libraries is not a public forum, and particular Web sites, like particular newspapers, would not constitute public forums, the Internet as a whole might be viewed as a public forum, despite its lack of a historic tradition. The Supreme Court has not explicitly held that the Internet as a whole is a public forum, but, in Reno v. ACLU, which struck down a prohibition in the Communications Decency Act of 1996 on “indecent” material on the Internet, the Court noted that the Internet “constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can ‘publish’ information.”1492
The First Amendment precludes gov-ernment restraint of expression and it does not require individuals to turn over their homes, businesses, or other property to those wishing to communicate about a particular topic.1493 But it may be that in some instances private property is so functionally akin to public property that private owners may not forbid expression upon it. In Marsh v. Alabama,1494 the Court held that the private owner of a company town could not forbid distribution of religious materials by a Jehovah’s Witness on a street in the town’s business district. The town, wholly owned by a private corporation, had all the attributes of any American municipality, aside from its ownership, and was functionally like any other town. In those circumstances, the Court reasoned, “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”1495 This precedent lay unused for some twenty years until the Court first indicated a substantial expansion of it, and then withdrew to a narrow interpretation.
First, in Food Employees Union v. Logan Valley Plaza,1496 the Court held constitutionally protected the picketing of a store located in a shopping center by a union objecting to the store’s employment of nonunion labor. Finding that the shopping center was the functional equivalent of the business district involved in Marsh, the Court announced there was “no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the ‘business district’ is not under the same ownership.”1497 “[T]he State,” said Justice Marshall, “may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.”1498 The Court observed that it would have been hazardous to attempt to distribute literature at the entrances to the center and it reserved for future decision “whether respondents’ property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.”1499
Four years later, the Court answered the reserved question in the negative.1500 Several members of an antiwar group had attempted to distribute leaflets on the mall of a large shopping center, calling on the public to attend a protest meeting. Center guards invoked a trespass law against them, and the Court held that they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it had invited the public in specifically to carry on business with those stores located in the center. Plaintiffs’ leafleting, not directed to any store or to the customers qua customers of any of the stores, was unrelated to any activity in the center. Unlike the situation in Logan Valley Plaza, there were reasonable alternatives by which plaintiffs could reach those who used the center. Thus, in the absence of a relationship between the purpose of the expressive activity and the business of the shopping center, the property rights of the center owner will overbalance the expressive rights to persons who would use their property to communicate.
Then, the Court formally overruled Logan Valley Plaza, holding that shopping centers are not functionally equivalent to the company town involved in Marsh.1501 Suburban malls may be the “new town squares” in the view of sociologists, but they are private property in the eye of the law. The ruling came in a case in which a union of employees engaged in an economic strike against one store in a shopping center was barred from picketing the store within the mall. The rights of employees in such a situation are generally to be governed by federal labor laws1502 rather than the First Amendment, although there is also the possibility that state constitutional provisions may be interpreted more expansively by state courts to protect some kinds of public issue picketing in shopping centers and similar places.1503 Henceforth, only when private property “ ‘has taken on all the attributes of a town’ ” is it to be treated as a public forum.1504
Picketing and Boycotts by Labor Unions.
Though “logi-cally relevant” to what might be called “public issue” picketing, the cases dealing with application of economic pressures by labor unions are set apart by different “economic and social interests,”1505 and consequently are dealt with separately here.
It was in a labor case that the Court first held picketing to be entitled to First Amendment protection.1506 Striking down a flat prohibition on picketing to influence or induce someone to do something, the Court said: “In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution. . . .”1507 The Court further reasoned that “the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion.”1508
The Court soon recognized several caveats. Peaceful picketing may be enjoined if it is associated with violence and intimidation.1509 Although initially the Court continued to find picketing protected in the absence of violence,1510 it soon decided a series of cases recognizing a potentially far-reaching exception: injunctions against peaceful picketing in the course of a labor controversy may be enjoined when such picketing is counter to valid state policies in a domain open to state regulation.1511 These cases proceeded upon a distinction drawn by Justice Douglas. “Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulations.”1512 The apparent culmination of this course of decision was the Vogt case, in which Justice Frankfurter broadly rationalized all the cases and derived the rule that “a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.”1513 Although the Court has not disavowed this broad language, the Vogt exception has apparently not swallowed the entire Thornhill rule.1514 The Court has indicated that “a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.”1515
Public Issue Picketing and Parading.
The early cases held that picketing and parading were forms of expression entitled to some First Amendment protection.1516 Those early cases did not, however, explicate the difference in application of First Amendment principles that the difference between mere expression and speech-plus would entail. Many of these cases concerned disruptions or feared disruptions of the public peace occasioned by the expressive activity and the ramifications of this on otherwise protected activity.1517 A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and expanded the procedural guarantees that must accompany a permissible licensing system.1518 In one case, however, the Court applied the rules developed with regard to labor picketing to uphold an injunction against the picketing of a grocery chain by a black group to compel the chain to adopt a quota-hiring system for blacks. The Supreme Court affirmed the state court’s ruling that, although no law prevented the chain from hiring blacks on a quota basis, picketing to coerce the adoption of racially discriminatory hiring was contrary to state public policy.1519
A series of civil rights picketing and parading cases led the Court to formulate standards much like those it has established in the labor field, but more protective of expressive activity. The process began with Edwards v. South Carolina,1520 in which the Court reversed a breach of the peace conviction of several blacks for their refusal to disperse as ordered by police. The statute was so vague, the Court concluded, that demonstrators could be convicted simply because their presence “disturbed” people. Describing the demonstration upon the grounds of the legislative building in South Carolina’s capital, Justice Stewart observed that “[t]he circumstances in this case reflect an exercise of these basic [First Amendment] constitutional rights in their most pristine and classic form.”1521 In subsequent cases, the Court observed: “We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as those amendments afford to those who communicate ideas by pure speech.”1522 “The conduct which is the subject to this statute—picketing and parading—is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited.”1523
The Court must determine, of course, whether the regulation is aimed primarily at conduct, as is the case with time, place, and manner regulations, or whether instead the aim is to regulate the content of speech. In a series of decisions, the Court refused to permit restrictions on parades and demonstrations, and reversed convictions imposed for breach of the peace and similar offenses, when, in the Court’s view, disturbance had resulted from opposition to the messages being uttered by demonstrators.1524 Subsequently, however, the Court upheld a ban on residential picketing in Frisby v. Shultz,1525 finding that the city ordinance was narrowly tailored to serve the “significant” governmental interest in protecting residential privacy. As interpreted, the ordinance banned only picketing that targeted a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing.1526
In 1982, the Justices confronted a case, that, like Hughes v. Superior Court,1527 involved a state court injunction on picketing, although this one also involved a damage award. NAACP v. Claiborne Hardware Co.1528 may join in terms of importance such cases as New York Times Co. v. Sullivan1529 in requiring the states to observe enhanced constitutional standards before they may impose liability upon persons for engaging in expressive conduct that implicates the First Amendment. The case arose in the context of a protest against racial conditions by black citizens of Claiborne County, Mississippi. Listing demands that included desegregation of public facilities, hiring of black policemen, hiring of more black employees by local stores, and ending of verbal abuse by police, a group of several hundred blacks unanimously voted to boycott the area’s white merchants. The boycott was carried out through speeches and nonviolent picketing and solicitation of others to cease doing business with the merchants. Individuals were designated to watch stores and identify blacks patronizing the stores; their names were then announced at meetings and published. Persuasion of others included social pressures and threats of social ostracism. Acts of violence did occur from time to time, directed in the main at blacks who did not observe the boycott.
The state Supreme Court imposed joint and several liability upon leaders and participants in the boycott, and upon the NAACP, for all of the merchants’ lost earnings during a seven-year period on the basis of the common law tort of malicious interference with the merchants’ business, holding that the existence of acts of physical force and violence and the use of force, violence, and threats to achieve the ends of the boycott deprived it of any First Amendment protection.
Reversing, the Court observed that the goals of the boycotters were legal and that most of their means were constitutionally protected; although violence was not protected, its existence alone did not deprive the other activities of First Amendment coverage. Thus, speeches and nonviolent picketing, both to inform the merchants of grievances and to encourage other blacks to join the boycott, were protected activities, and association for those purposes was also protected.1530 That some members of the group might have engaged in violence or might have advocated violence did not result in loss of protection for association, absent a showing that those associating had joined with intent to further the unprotected activities.1531 Nor was protection to be denied because nonparticipants had been urged to join by speech, by picketing, by identification, by threats of social ostracism, and by other expressive acts: “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.”1532 The boycott had a disruptive effect upon local economic conditions and resulted in loss of business for the merchants, but these consequences did not justify suppression of the boycott. Government may certainly regulate certain economic activities having an incidental effect upon speech (e.g., labor picketing or business conspiracies to restrain competition),1533 but that power of government does not extend to suppression of picketing and other boycott activities involving, as this case did, speech upon matters of public affairs with the intent of affecting governmental action and motivating private actions to achieve racial equality.1534
The critical issue, however, had been the occurrence of violent acts and the lower court’s conclusion that they deprived otherwise protected conduct of protection. “The First Amendment does not protect violence . . . . No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence. When such conduct occurs in the context of constitutionally protected activity, however, ‘precision of regulation’ is demanded . . . . Specifically, the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability and on the persons who may be held accountable for those damages.”1535 In other words, the states may impose damages for the consequences of violent conduct, but they may not award compensation for the consequences of nonviolent, protected activity.1536 Thus, the state courts had to compute, upon proof by the merchants, what damages had been the result of violence, and could not include losses suffered as a result of all the other activities comprising the boycott. And only those nonviolent persons who associated with others with an awareness of violence and an intent to further it could similarly be held liable.1537 Because most of the acts of violence had occurred early on, in 1966, there was no way constitutionally that much if any of the later losses of the merchants could be recovered in damages.1538 As to the field secretary of the local NAACP, the Court refused to permit imposition of damages based upon speeches that could be read as advocating violence, because any violent acts that occurred were some time after the speeches, and a “clear and present danger” analysis of the speeches would not find them punishable.1539 The award against the NAACP fell with the denial of damages against its local head, and, in any event, the protected right of association required a rule that would immunize the NAACP without a finding that it “authorized— either actually or apparently—or ratified unlawful conduct.”1540
Claiborne Hardware is, thus, a seminal decision in the Court’s effort to formulate standards governing state power to regulate or to restrict expressive conduct that comes close to or crosses over the line to encompass some violent activities; it requires great specificity and the drawing of fine discriminations by government so as to reach only that portion of the activity that does involve violence or the threat of violence, and forecloses the kind of “public policy” limit on demonstrations that was approved in Hughes v. Superior Court.1541
More recently, disputes arising from anti-abortion protests outside abortion clinics have occasioned another look at principles distinguishing lawful public demonstrations from proscribable conduct. In Madsen v. Women’s Health Center,1542 the Court refined principles governing issuance of “content-neutral” injunctions that restrict expressive activity.1543 The appropriate test, the Court stated, is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant governmental interest.”1544 Regular time, place, and manner analysis (requiring that regulation be narrowly tailored to serve a significant governmental interest) “is not sufficiently rigorous,” the Court explained, “because injunctions create greater risk of censorship and discriminatory application, and because of the established principle that an injunction should be no broader than necessary to achieve its desired goals.”1545 Applying its new test, the Court upheld an injunction prohibiting protesters from congregating, picketing, patrolling, demonstrating, or entering any portion of the public right-of-way within 36 feet of an abortion clinic. Similarly upheld were noise restrictions designed to ensure the health and well-being of clinic patients. Other aspects of the injunction, however, did not pass the test. Inclusion of private property within the 36-foot buffer was not adequately justified, nor was inclusion in the noise restriction of a ban on “images observable” by clinic patients. A ban on physically approaching any person within 300 feet of the clinic unless that person indicated a desire to communicate burdened more speech than necessary. Also, a ban on demonstrating within 300 feet of the residences of clinic staff was not sufficiently justified, the restriction covering a much larger zone than an earlier residential picketing ban that the Court had upheld.1546
In Schenck v. Pro-Choice Network of Western New York,1547 the Court applied Madsen to another injunction that placed restrictions on demonstrating outside an abortion clinic. The Court upheld the portion of the injunction that banned “demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities” what the Court called “fixed buffer zones.”1548 It struck down a prohibition against demonstrating “within fifteen feet of any person or vehicles seeking access to or leaving such facilities” what it called “floating buffer zones.”1549 The Court cited “public safety and order”1550 in upholding the fixed buffer zones, but it found that the floating buffer zones “burden more speech than is necessary to serve the relevant governmental interests”1551 because they make it “quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction.”1552 The Court also upheld a “provision, specifying that once sidewalk counselors who had entered the buffer zones were required to ‘cease and desist’ their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones.”1553
In Hill v. Colorado,1554 the Court upheld a Colorado statute that made it unlawful, within 100 feet of the entrance to any health care facility, to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”1555 This decision is notable because it upheld a statute, and not, as in Madsen and Schenck, merely an injunction directed to particular parties. The Court found the statute to be a content-neutral time, place, and manner regulation of speech that “reflects an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners . . . .”1556 The restrictions were content-neutral because they regulated only the places where some speech may occur, and because they applied equally to all demonstrators, regardless of viewpoint. Although the restrictions did not apply to all speech, the “kind of cursory examination” that might be required to distinguish casual conversation from protest, education, or counseling is not “problematic.”1557 The law was narrowly tailored to achieve the state’s interests. The eight-foot restriction did not significantly impair the ability to convey messages by signs, and ordinarily allowed speakers to come within a normal conversational distance of their targets. Because the statute allowed the speaker to remain in one place, persons who wished to hand out leaflets could position themselves beside entrances near the path of oncoming pedestrians, and consequently were not deprived of the opportunity to get the attention of persons entering a clinic.
In McCullen v. Coakley, the Court retained a content-neutral analysis similar to that in Hill, but nonetheless struck down a statutory 35-foot buffer zone at entrances and driveways of abortion facilities.1558 The Court concluded that the buffer zone was not narrowly tailored to serve governmental interests in maintaining public safety and preserving access to reproductive healthcare facilities, the concerns claimed by Massachusetts to underlie the law.1559 The opinion cited several alternatives to the buffer zone that would not curtail the use of public sidewalks as traditional public fora for speech, nor significantly burden the ability of those wishing to provide “sidewalk counseling” to women approaching abortion clinics. Specifically, the Court held that, to preserve First Amendment rights, targeted measures, such as injunctions, enforcement of anti-harassment ordinances, and use of general crowd control authority, as needed, are preferable to broad, prophylactic measures.1560
Different types of issues were presented by Hurley v. Irish-American Gay Group,1561 in which the Court held that a state’s public accommodations law could not be applied to compel private organizers of a St. Patrick’s Day parade to accept in the parade a unit that would proclaim a message that the organizers did not wish to promote. Each participating unit affects the message conveyed by the parade organizers, the Court observed, and application of the public accommodations law to the content of the organizers’ message contravened the “fundamental rule . . . that a speaker has the autonomy to choose the content of his own message.”1562
Leafleting, Handbilling, and the Like.
In Lovell v. City of Griffin,1563 the Court struck down a permit system applying to the distribution of circulars, handbills, or literature of any kind. The First Amendment, the Court said, “necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.”1564 State courts, responding to what appeared to be a hint in Lovell that prevention of littering and other interests might be sufficient to sustain a flat ban on literature distribution,1565 upheld total prohibitions and were reversed. “Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions . . . . We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press.”1566 In Talley v. California,1567 the Court struck down an ordinance that banned all handbills that did not carry the name and address of the author, printer, and sponsor; conviction for violating the ordinance was set aside on behalf of one distributing leaflets urging boycotts against certain merchants because of their employment discrimination. The basis of the decision is not readily ascertainable. On the one hand, the Court celebrated anonymity. “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all . . . . [I]dentification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance.”1568 On the other hand, responding to the city’s defense that the ordinance was aimed at providing a means to identify those responsible for fraud, false advertising, and the like, the Court noted that “the ordinance is in no manner so limited . . . .Therefore we do not pass on the validity of an ordinance limited to these or any other supposed evils.”1569
Talley’s anonymity rationale was strengthened in McIntyre v. Ohio Elections Comm’n,1570 invalidating Ohio’s prohibition on the distribution of anonymous campaign literature. There is a “respected tradition of anonymity in the advocacy of political causes,” the Court noted, and neither of the interests asserted by Ohio justified the limitation. The state’s interest in informing the electorate was “plainly insufficient,” and, although the more weighty interest in preventing fraud in the electoral process may be accomplished by a direct prohibition, it may not be accomplished indirectly by an indiscriminate ban on a whole category of speech. Ohio could not apply the prohibition, therefore, to punish anonymous distribution of pamphlets opposing a referendum on school taxes.1571
The handbilling cases were distinguished in City Council v. Taxpayers for Vincent,1572 in which the Court held that a city may prohibit altogether the use of utility poles for posting of signs. Although a city’s concern over visual blight could be addressed by an anti-littering ordinance not restricting the expressive activity of distributing handbills, in the case of utility pole signs “it is the medium of expression itself ” that creates the visual blight. Hence, the city’s prohibition, unlike a prohibition on distributing handbills, was narrowly tailored to curtail no more speech than necessary to accomplish the city’s legitimate purpose.1573 Ten years later, however, the Court unanimously invalidated a town’s broad ban on residential signs that permitted only residential identification signs, “for sale” signs, and signs warning of safety hazards.1574 Prohibiting homeowners from displaying political, religious, or personal messages on their own property entirely foreclosed “a venerable means of communication that is unique and important,” and that is “an unusually cheap form of communication” without viable alternatives for many residents.1575 The ban was thus reminiscent of total bans on leafleting, distribution of literature, and door-to-door solicitation that the Court had struck down in the 1930s and 1940s. The prohibition in Vincent was distinguished as not removing a “uniquely valuable or important mode of communication,” and as not impairing citizens’ ability to communicate.1576
Sound Trucks, Noise.
Physical disruption may occur by other means than the presence of large numbers of demonstrators. For example, the use of sound trucks to convey a message on the streets may disrupt the public peace and may disturb the privacy of persons off the streets. The cases, however, afford little basis for a general statement of constitutional principle. Saia v. New York,1577 while it spoke of “loud-speakers as today indispensable instruments of effective public speech,” held only that a particular prior licensing system was void. A five-to-four majority upheld a statute in Kovacs v. Cooper,1578 which was ambiguous with regard to whether all sound trucks were banned or only “loud and raucous” trucks and which the state court had interpreted as having the latter meaning. In another case, the Court upheld an antinoise ordinance which the state courts had interpreted narrowly to bar only noise that actually or immediately threatened to disrupt normal school activity during school hours.1579 But the Court was careful to tie its ruling to the principle that the particular requirements of education necessitated observance of rules designed to preserve the school environment.1580 More recently, reaffirming that government has “a substantial interest in protecting its citizens from unwelcome noise,” the Court applied time, place, and manner analysis to uphold New York City’s sound amplification guidelines designed to prevent excessive noise and assure sound quality at outdoor concerts in Central Park.1581
Door-to-Door Solicitation and Charitable Solicitation.
In one of the Jehovah’s Witness cases, the Court struck down an ordinance forbidding solicitors or distributors of literature from knocking on residential doors in a community, the aims of the ordinance being to protect privacy, to protect the sleep of many who worked night shifts, and to protect against burglars posing as canvassers. The five-to-four majority concluded that on balance “[t]he dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.”1582
Later, although striking down an ordinance because of vagueness, the Court observed that it “has consistently recognized a municipality’s power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officers the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.”1583 The Court indicated that its precedents supported measures that would require some form of notice to officials and the obtaining of identification in order that persons could canvas house-to-house for charitable or political purposes.
However, an ordinance that limited solicitation of contributions door-to-door by charitable organizations to those that use at least 75% of their receipts directly for charitable purposes, defined so as to exclude the expenses of solicitation, salaries, overhead, and other administrative expenses, was invalidated as overbroad.1584 A privacy rationale was rejected, as just as much intrusion was likely by permitted as by non-permitted solicitors. A rationale of prevention of fraud was unavailing, as it could not be said that all associations that spent more than 25% of their receipts on overhead were actually engaged in a profit-making enterprise, and, in any event, more narrowly drawn regulations, such as disclosure requirements, could serve this governmental interest.
Schaumburg was extended in Secretary of State v. Joseph H. Munson Co.,1585 and Riley v. National Federation of the Blind.1586 In Munson, the Court invalidated a Maryland statute limiting professional fundraisers to 25% of the amount collected plus certain costs, and allowing waiver of this limitation if it would effectively prevent the charity from raising contributions. In Riley, the Court invalidated a North Carolina fee structure containing even more flexibility.1587 The Court saw “no nexus between the percentage of funds retained by the fundraiser and the likelihood that the solicitation is fraudulent,” and was similarly hostile to any scheme that shifts the burden to the fundraiser to show that a fee structure is reasonable.1588 Moreover, a requirement that fundraisers disclose to potential donors the percentage of donated funds previously used for charity was also invalidated in Riley, the Court indicating that the “more benign and narrowly tailored” alternative of disclosure to the state (accompanied by state publishing of disclosed percentages) could make the information publicly available without so threatening the effectiveness of solicitation.1589
In Watchtower Bible & Tract Soc’y v. Village of Stratton, the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy—religious, political, or commercial— without first registering with the mayor and receiving a permit.1590 “It is offensive to the very notion of a free society,” the Court wrote, “that a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.”1591 The ordinance violated the right to anonymity, burdened the freedom of speech of those who hold “religious or patriotic views” that prevent them from applying for a license, and effectively banned “a significant amount of spontaneous speech” that might be engaged in on a holiday or weekend when it was not possible to obtain a permit.1592
The Problem of “Symbolic Speech”.
Very little expression is “mere” speech. If it is oral, it may be noisy enough to be disturbing,1593 and, if it is written, it may be litter;1594 in either case, it may amount to conduct that is prohibitable in specific circumstances.1595 Moving beyond these simple examples, one may see as well that conduct may have a communicative content, intended to express a point of view. Expressive conduct may consist in flying a particular flag as a symbol1596 or in refusing to salute a flag as a symbol.1597 Sit-ins and stand-ins may effectively express a protest about certain things.1598
Justice Jackson wrote: “There is no doubt that, in connection with the pledge, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind.”1599 When conduct or action has a communicative content to it, governmental regulation or prohibition implicates the First Amendment, but this does not mean that such conduct or action is necessarily immune from governmental process. Thus, although the Court has had few opportunities to formulate First Amendment standards in this area, in upholding a congressional prohibition on draft-card burnings, it has stated the generally applicable rule. “[A] government regulation is sufficiently justified if it is within the constitutional power of 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 freedom is no greater than is essential to the furtherance of that government interest.”1600 The Court has suggested that this standard is virtually identical to that applied to time, place, or manner restrictions on expression.1601
Although almost unanimous in formulating and applying the test in O’Brien, the Court splintered when it had to deal with one of the more popular forms of “symbolic” conduct of the late 1960s and early 1970s—flag burning and other forms of flag desecration. No unifying theory capable of application to a wide range of possible flag abuse actions emerged from the early cases. Thus, in Street v. New York,1602 the defendant had been convicted under a statute punishing desecration “by words or act” upon evidence that when he burned the flag he had uttered contemptuous words. The conviction was set aside because it might have been premised on his words alone or on his words and the act together, and no valid governmental interest supported penalizing verbal contempt for the flag.1603
A few years later the Court reversed two other flag desecration convictions, one on due process/vagueness grounds, the other under the First Amendment. These cases were decided by the Court in a manner that indicated an effort to begin to resolve the standards of First Amendment protection of “symbolic conduct.” In Smith v. Goguen,1604 a statute punishing anyone who “publicly . . . treats contemptuously the flag of the United States” was held unconstitutionally vague, and a conviction for wearing trousers with a small United States flag sewn to the seat was overturned. The language subjected the defendant to criminal liability under a standard “so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.”1605
The First Amendment was the basis for reversal in Spence v. Washington,1606 which set aside a conviction under a statute punishing the display of a United States flag to which something is attached or superimposed; Spence had hung his flag from his apartment window upside down with a peace symbol taped to the front and back. The act, the Court thought, was a form of communication, and because of the nature of the act, and the factual context and environment in which it was undertaken, the Court held it to be protected. The context included the fact that the flag was privately owned, that it was displayed on private property, and that there was no danger of breach of the peace. The nature of the act was that it was intended to express an idea and it did so without damaging the flag. The Court assumed that the state had a valid interest in preserving the flag as a national symbol, but left unclear whether that interest extended beyond protecting the physical integrity of the flag.1607
The underlying assumption that flag burning could be prohibited as a means of protecting the flag’s symbolic value was later rejected. Twice, in 1989 and again in 1990, the Court held that prosecutions for flag burning at a public demonstration violated the First Amendment. First, in Texas v. Johnson1608 the Court rejected a state desecration statute designed to protect the flag’s symbolic value, and then in United States v. Eichman1609 rejected a more limited federal statute purporting to protect only the flag’s physical integrity. Both cases were decided by 5-to-4 votes, with Justice Brennan writing the Court’s opinions.1610 The Texas statute invalidated in Johnson defined the prohibited act of “desecration” as any physical mistreatment of the flag that the actor knew would seriously offend other persons. This emphasis on causing offense to others meant that the law was not “unrelated to the suppression of free expression” and that consequently the deferential standard of United States v. O’Brien was inapplicable. Applying strict scrutiny, the Court ruled that the state’s prosecution of someone who burned a flag at a political protest was not justified under the state’s asserted interest in preserving the flag as a symbol of nationhood and national unity. The Court’s opinion left little doubt that the existing federal statute, 18 U.S.C. § 700, and the flag desecration laws of 47 other states would suffer a similar fate in a similar case. Doubt remained, however, as to whether the Court would uphold a “content-neutral” statute protecting the physical integrity of the flag.
Immediately following Johnson, Congress enacted a new flag protection statute providing punishment for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.”1611 The law was designed to be content-neutral and to protect the “physical integrity” of the flag.1612 Nonetheless, in overturning convictions of flag burners, the Court found that the law suffered from “the same fundamental flaw” as the Texas law in Johnson. The government’s underlying interest, characterized by the Court as resting upon “a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals,”1613 still related to the suppression of free expression. Support for this interpretation was found in the fact that most of the prohibited acts are usually associated with disrespectful treatment of the flag; this suggested to the Court “a focus on those acts likely to damage the flag’s symbolic value.”1614 As in Johnson, such a law could not withstand “most exacting scrutiny” analysis.
The Court’s ruling in Eichman rekindled congressional efforts, postponed with enactment of the Flag Protection Act, to amend the Constitution to authorize flag desecration legislation at the federal and state levels. In both the House and the Senate these measures failed to receive the necessary two-thirds vote.1615
- 1 ANNALS OF CONGRESS 434 (1789). Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Id. at 435. Although passed by the House, the amendment was defeated by the Senate. See “Amendments to the Constitution, Bill of Rights and the States,” supra.
- Id. at 731 (August 15, 1789).
- THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1148–49 (B. Schwartz ed. 1971).
- Id. at 1153.
- The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 ANNALS OF CONGRESS 731–749 (August 15, 1789). There are no records of debates in the states on ratification.
- Id. at 738.
- 4 W. BLACKSTONE ’ S COMMENTARIES ON THE LAWS OF ENGLAND 151–52 (T. Cooley, 2d rev. ed. 1872). See 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1874–86 (1833). The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY (1960), which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.
- It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of “[c]ertain self-created societies,” by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. BRANT, JAMES MADISON: FATHER OF THE CONSTITUTION 1787–1800 at 416–20 (1950). “If we advert to the nature of republican government,” Madison told the House, “we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 ANNALS OF CONGRESS 934 (1794). On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 PAPERS OF JAMES MADISON 147, 161–62, 190–92 (W. Hutchinson & W. Rachal, eds., 1962). There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: “A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 PAPERS OF THOMAS JEFFERSON 442 (J. Boyd ed., 1955). Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 PAPERS, supra, at 367.
- The Act, 1 Stat. 596 (1798), punished anyone who would “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.” See J. SMITH, FREEDOM ’ S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES (1956).
- Id. at 159 et seq.
- L. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY ch. 6 (1960); New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964). But compare L. LEVY, EMERGENCE OF A FREE PRESS (1985), a revised and enlarged edition of LEGACY OF EXPRESSION, in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts.
- L. LEVY, JEFFERSON AND CIVIL LIBERTIES: THE DARKER SIDE (1963). Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: “The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.” 9 WORKS OF THOMAS JEFFERSON 449 (P. Ford ed., 1905).
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a crystallization of “a national awareness of the central meaning of the First Amendment,” id. at 273, which is that the “right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.” Id. at 275. This “central meaning” proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” Id. at 276. Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 WRITINGS OF JAMES MADISON, 341–406 (G. Hunt ed., 1908).
- Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis in original, citation omitted). Justice Frankfurter had similar views in 1951: “The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ Robertson v. Baldwin, 165 U.S. 275, 281. That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.” Dennis v. United States, 341 U.S. 494, 521–522, 524 (1951) (concurring opinion).
- Patterson v. Colorado, 205 U.S. 454, 461 (1907).
- 249 U.S. 47, 51–52 (1919) (citations omitted).