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.

Footnotes

769
Highly relevant in this and subsequent sections dealing with governmental incidental restraints upon expression is the distinction the Court has drawn between content-based and content-neutral regulations—a distinction between regulations that serve legitimate governmental interests and those that are imposed because of disapproval of the content of particular expression. Compare Police Dep’t of Chicago v. Mosle, 408 U.S. 92 (1972); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); and Schacht v. United States, 398 U.S. 58 (1970), with Greer v. Spock, 424 U.S. 828 (1976); Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973); and United States v. O’Brien, 391 U.S. 367 (1968). Content-based regulations are subject to strict scrutiny, but content-neutral regulations are subject to lesser scrutiny. See “Modern Tests and Standards: Vagueness, Overbreadth, Strict Scrutiny, Intermediate Scrutiny, and Effectiveness of Speech Restrictions,” supra. [Back to text]
770
19 Stat. 143, § 6, 18 U.S.C. §§ 60203, sustained in Ex parte Curtis, 106 U.S. 371 (1882); 22 Stat. 403, as amended, 5 U.S.C. § 7323. [Back to text]
771
53 Stat. 1147 § 9(a), (1939), as amended, 5 U.S.C. § 7324(a)(2). By 54 Stat. 767 (1940), as amended, 5 U.S.C. §§ 150108, the restrictions on political activity were extended to state and local governmental employees working in programs financed in whole or in part with federal funds. This provision was sustained against federalism challenges in Oklahoma v. Civil Service Comm’n, 330 U.S. 127 (1947). All the states have adopted laws patterned on the Hatch Act. See Broadrick v. Oklahoma, 413 U.S. 601, 604 (1973). [Back to text]
772
The Commission on Political Activity of Government Personnel, Findings and Recommendations 11, 19–24 (Washington: 1968). [Back to text]
773
330 U.S. 75, 94–104 (1947). The decision was 4-to-3, with Justice Frankfurter joining the Court on the merits only after arguing that the Court lacked jurisdiction. [Back to text]
774
330 U.S. at 94–95. [Back to text]
775
330 U.S. at 101–02. [Back to text]
776
The Act was held unconstitutional by a divided three-judge district court. National Ass’n of Letter Carriers v. Civil Service Comm’n, 346 F. Supp. 578 (D.D.C. 1972). [Back to text]
777
413 U.S. 548 (1973). In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Court refused to consider overbreadth attacks on a state statute of much greater coverage because the plaintiffs had engaged in conduct that the statute clearly could constitutionally proscribe. [Back to text]
778
The interests the Court recognized as served by the proscription on partisan activities were (1) the interest in the efficient and fair operation of governmental activities and the appearance of such operation, (2) the interest in fair elections, and (3) the interest in protecting employees from improper political influences. 413 U.S. at 557–67. [Back to text]
779
413 U.S. at 556. [Back to text]
780
413 U.S. at 554, 570 n.17. [Back to text]
781
413 U.S. at 570 n.17. [Back to text]
782
413 U.S. at 578–79. [Back to text]
783
413 U.S. at 580–81. [Back to text]
784
462 U.S. 367, 385 (1983). [Back to text]
785
513 U.S. 454 (1995). [Back to text]
786
See 513 U.S. at 471. The plaintiff class consisted of all Executive Branch employees below grade GS–16. Also covered by the ban were senior executives, Members of Congress, and other federal officers, but the possibility of improprieties by these groups did not justify application of the ban to “the vast rank and file of federal employees below grade GS–16.”Id. at 472. [Back to text]
787
513 U.S. at 477. [Back to text]
788
McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 2d 517 (1892). [Back to text]
789
Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an evenly divided Court, 341 U.S. 918 (1951). The appeals court majority, upholding the dismissal of a government employee against due process and First Amendment claims, asserted that “the plain hard fact is that so far as the Constitution is concerned there is no prohibition against the dismissal of Government employees because of their political beliefs, activities or affiliations. . . . The First Amendment guarantees free speech and assembly, but it does not guarantee Government employ.” Id. at 59. Although the Supreme Court issued no opinion in Bailey, several Justices touched on the issues in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). Justices Douglas and Jackson in separate opinions rejected the privilege doctrine as applied by the lower court in Bailey. Id. at 180, 185. Justice Black had previously rejected the doctrine in United Public Workers v. Mitchell, 330 U.S. 75, 105 (1947) (dissenting opinion). [Back to text]
790
Adler v. Board of Education, 342 U.S. 458, 492–93 (1952). Justices Douglas and Black dissented, again rejecting the privilege doctrine. Id. at 508. Justice Frankfurter, who dissented on other grounds, had previously rejected the doctrine in another case, Garner v. Board of Public Works, 341 U.S. 716, 725 (1951) (concurring in part and dissenting in part). [Back to text]
791
Wieman v. Updegraff, 344 U.S. 183, 190–91, 192 (1952). Some earlier cases had used a somewhat qualified statement of the privilege. United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947); Garner v. Board of Public Works, 341 U.S. 716, 722 (1951). [Back to text]
792
Perry v. Sindermann, 408 U.S. 593, 597 (1972) (citation omitted). In a companion case, the Court noted that the privilege basis for the appeals court’s due process holding in Bailey “has been thoroughly undermined in the ensuing years.” Board of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972). The test now in due process and other such cases is whether government has conferred a property right in employment which it must respect, but the inquiry when it is alleged that an employee has been penalized for the assertion of a constitutional right is that stated in the text. A finding, however, that protected expression or conduct played a substantial part in the decision to dismiss or punish does not conclude the case; the employer may show by a preponderance of the evidence that the same decision would have been reached in the absence of the protected expression or conduct. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 416 (1979). See Amendment 14, “The Property Interest,” infra. [Back to text]
793
391 U.S. 563, 568 (1968). [Back to text]
794
391 U.S. at 568. [Back to text]
795
391 U.S. at 568–70. Contrast Connick v. Myers, 461 U.S. 138 (1983), where Pickering was distinguished on the basis that the employee, an assistant district attorney, worked in an environment where a close personal relationship involving loyalty and harmony was important. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Id. at 151–52. [Back to text]
796
391 U.S. at 573. Pickering was extended to private communications of an employee’s views to the employer in Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), although the Court recognized that different considerations might arise in different contexts. That is, with respect to public speech, content may be determinative in weighing impairment of the government’s interests, whereas, with private speech, as “[w]hen a government employee personally confronts his immediate superior, . . . the manner, time, and place in which it is delivered” may also be relevant. Id. at 415 n.4. As discussed below, however, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that there is no First Amendment protection at all for government employees when they make statements pursuant to their official duties. [Back to text]
797
416 U.S. 134 (1974). The quoted language is from 5 U.S.C. § 7501(a). [Back to text]
798
Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 578–79 (1973). [Back to text]
799
Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974). [Back to text]
800
416 U.S. at 162. In dissent, Justice Marshall argued: “The Court’s answer is no answer at all. To accept this response is functionally to eliminate overbreadth from the First Amendment lexicon. No statute can reach and punish constitutionally protected speech. The majority has not given the statute a limiting construction but merely repeated the obvious.” Id. at 229. [Back to text]
801
461 U.S. 138 (1983). [Back to text]
802
461 U.S. at 146. Connick was a 5–4 decision. Justice Brennan wrote the dissent, arguing that information concerning morale at an important government office is a matter of public concern, and that the Court extended too much deference to the employer’s judgment as to disruptive effect. Id. at 163–65. [Back to text]
803
461 U.S. at 147–48. Justice Brennan objected to this introduction of context, admittedly relevant in balancing interests, into the threshold issue of public concern. [Back to text]
804
461 U.S. at 151–52. [Back to text]
805
461 U.S. at 150. The Court explained that “a stronger showing [of interference with governmental interests] may be necessary if the employee’s speech more substantially involve[s] matters of public concern.” Id. at 152. [Back to text]
806
This conclusion was implicit in Givhan, 439 U.S. 410 (1979), characterized by the Court in Connick as involving “an employee speak[ing] out as a citizen on a matter of general concern, not tied to a personal employment dispute, but . . . [speaking] privately.” 461 U.S. at 148, n.8. [Back to text]
807
483 U.S. 378 (1987). This was a 5–4 decision, with Justice Marshall’s opinion of the Court being joined by Justices Brennan, Blackmun, Powell, and Stevens, and with Justice Scalia’s dissent being joined by Chief Justice Rehnquist and by Justices White and O’Connor. Justice Powell added a separate concurring opinion. [Back to text]
808
“Where . . . an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful function from that employee’s private speech is minimal.” 483 U.S. at 390–91. [Back to text]
809
543 U.S. 77 (2004) (per curiam). [Back to text]
810
543 U.S. at 84. [Back to text]
811
513 U.S. 454 (1995) (discussed under “Government as Employer: Political and Other Outside Activities,” supra). [Back to text]
812
543 U.S. at 84. [Back to text]
813
543 U.S. at 80. [Back to text]
814
547 U.S. 410, 421 (2006). [Back to text]
815
547 U.S. at 421. However, “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Id. at 419. Such necessity, however, may be based on a “common-sense conclusion” rather than on “empirical data.” Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 300 (2007) (citing Garcetti). [Back to text]
816
The Court cited Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), for these points. In Givhan, the Court had upheld the First Amendment right of a public school teacher to complain to the school principal about “employment policies and practices at [the] school which [she] conceived to be racially discriminatory in purpose or effect.” Id. at 413. The difference between Givhan and Ceballos was apparently that Givhan’s complaints were not made pursuant to her job duties, whereas Ceballos’ were. Therefore, Givhan spoke as a citizen whereas Ceballos spoke as a government employee. See Ceballos, 547 U.S. at 420–21. [Back to text]
817
547 U.S. at 421. [Back to text]
818
573 U.S. ___, No. 13–483, slip op. (2014). [Back to text]
819
Id. at 9. [Back to text]
820
Id. [Back to text]
821
Id. at 12–13.The Court, however, held that because no relevant precedent in the lower court or in the Supreme Court clearly established that the government employer could not fire an employee because of testimony the employee gave, the defendant was entitled to qualified immunity. Id. at 13–17. [Back to text]
822
Board of County Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996). See also O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 715 (1996) (government may not “retaliate[ ] against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance”). [Back to text]
823
See, e.g., Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980) (political patronage systems impermissibly infringe protected belief and associational rights of employees); Madison School Dist. v. WERC, 429 U.S. 167 (1977) (school teacher may not be prevented from speaking at a public meeting in opposition to position advanced by union with exclusive representation rights). The public employer may, as may private employers, permit collective bargaining and confer on representatives of its employees the right of exclusive representation, Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223–32 (1977), but the fact that its employees may speak does not compel government to listen to them. See Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979) (employees have right to associate to present their positions to their employer but employer not constitutionally required to engage in collective bargaining). See also Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984) (public employees not members of union have no First Amendment right to meet separately with public employers compelled by state law to “meet and confer” with exclusive bargaining representative). Government may also inquire into the fitness of its employees and potential employees, but it must do so in a manner that does not needlessly endanger the expression and associational rights of those persons. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1969). [Back to text]
824
In Connick, the Court noted that it did not suggest “that Myers’ speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment.” Rather, it was beyond First Amendment protection “absent the most unusual of circumstances.” 461 U.S. at 147. In Ceballos, however, the Court, citing Connick at 147, wrote that, if an employee did not speak as a citizen on a matter of public concern, then “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” 547 U.S. at 418. [Back to text]
825
In some contexts, the governmental interest is more far-reaching. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (interest in protecting secrecy of foreign intelligence sources). [Back to text]
826
For analysis of efforts of lower courts to apply Pickering and Connick, see Massaro, Significant Silences: Freedom of Speech in the Public Sector Workplace, 61 S. CAL. L. REV. 1 (1987); and Allred, From Connick to Confusion: The Struggle to Define Speech on Matters of Public Concern, 64 IND. L.J. 43 (1988). In Waters v. Churchill, 511 U.S. 661 (1994), a plurality of a divided Court concluded that a public employer does not violate the First Amendment if the employer (1) had reasonably believed that the employee’s conversation involved personal matters and (2) dismissed the employee because of that reasonable belief, even if the belief was mistaken. Id. at 679–80 (plurality opinion) (O’Connor, J., joined by Rehnquist, C.J., Souter & Ginsburg, JJ.). More than two decades later, a six-Justice majority approvingly cited to the plurality opinion from Waters, concluding that the employer’s motive is dispositive in determining whether a public employee’s First Amendment rights had been violated as a result of the employer’s conduct. See Heffernan v. City of Paterson, 578 U.S. ___, No. 14–1280, slip op. at 5 (2016). In so doing, the Court held that the converse of the situation in Waters—a public employer’s firing of an employee based on the mistaken belief that the employee had engaged in activity protected by the First Amendment—was actionable as a violation of the Constitution. See id. at 6 (“After all, in the law, what is sauce for the goose is normally sauce for the gander.”). Put another way, when an employer demotes an employee to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment, “even if . . . the employer makes a factual mistake about the employee’s behavior.” Id. The Court concluded that the employer’s motivation is central with respect to public employee speech issues because of (1) the text of the First Amendment—which “focus[es] upon the activity of the Government”; and (2) the underlying purposes of the public employee speech doctrine, which is to prevent the chilling effect that results when an employee is discharged for having engaged in protected activity. Id. at 6–7. [Back to text]
827
The principal federal law is the Whistleblower Protection Act of 1989, Pub. L. 101–12, 103 Stat. 16, 5 U.S.C. § 1201 note. [Back to text]
828
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (flag salute); Meyer v. Nebraska, 262 U.S. 390 (1923) (limitation of language curriculum to English); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (compulsory school attendance in public rather than choice of public or private schools). [Back to text]
829
In re Gault, 387 U.S. 1 (1967). Of course, children are in some respects subject to restrictions that could not constitutionally be applied to adults. E.g., Ginsberg v. New York, 390 U.S. 629 (1968) (access to material deemed “harmful to minors,” although not obscene as to adults). [Back to text]
830
393 U.S. 503 (1969). [Back to text]
831
393 U.S. at 506, 507. [Back to text]
832
393 U.S. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966). See also Papish v. Board of Curators, 410 U.S. 667 (1973) (state university could not expel a student for using “indecent speech” in campus newspaper). However, offensive “indecent” speech in the context of a high school assembly is punishable by school authorities. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (upholding 2-day suspension, and withdrawal of privilege of speaking at graduation, for student who used sophomoric sexual metaphor in speech given to school assembly). [Back to text]
833
408 U.S. 169 (1972). [Back to text]
834
408 U.S. at 180–81 (internal quotation marks omitted). [Back to text]
835
Healy v. James, 408 U.S. at 193. Because a First Amendment right was in issue, the burden was on the college to justify its rejection of a request for recognition rather than upon the requesters to justify affirmatively their right to be recognized. Id. at 184. Justice Rehnquist concurred in the result, because in his view a school administration could impose upon students reasonable regulations that would be impermissible if imposed by the government upon all citizens; consequently, he did not think that cases the Court cited that had arisen in the latter situation were controlling. Id. at 201. See also Grayned v. City of Rockford, 408 U.S. 104 (1972), in which the Court upheld an anti-noise ordinance that forbade persons on grounds adjacent to a school to willfully make noise or to create any other diversion during school hours that “disturbs or tends to disturb” normal school activities. [Back to text]
836
Widmar v. Vincent, 454 U.S. 263 (1981). To permit access by religious groups does not violate the Establishment Clause, and, even if the Missouri Constitution “has gone further than the Federal Constitution in proscribing indirect state support for religion, . . . the state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well.” Id. at 275–276. [Back to text]
837
454 U.S. at 274 n.14; see Brandon v. Board of Education, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981). [Back to text]
838
By enactment of the Equal Access Act in 1984, Pub. L. 98–377, title VIII, 98 Stat. 1302, 20 U.S.C. §§ 407174, Congress applied the same “limited open [public] forum” principles to public high schools, and the Court upheld the Act against First Amendment challenge. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990). [Back to text]
839
Christian Legal Society v. Martinez, 561 U.S. ___, No. 08–1371, slip op. (2010). The Court did not address the more difficult question raised by the school’s written policy, which forbade discrimination, among other things, based on religion or sexual orientation, because the parties stipulated that in practice student groups were required to accept all students who complied with neutral membership requirements (e.g., payment of dues). Id. at 11–12. Thus, the Court did not address whether the application of the narrower written anti-discrimination policies constituted viewpoint discrimination against a student group that required its members to adhere to its religious tenets, including the belief that sexual activity should only occur in the context of marriage between a man and a woman. Id. at 21–23 (Alito, J., dissenting). [Back to text]
840
Board of Education v. Pico, 457 U.S. 853 (1982). [Back to text]
841
457 U.S. at 862, 864–69, 870–72. Only Justices Marshall and Stevens joined fully Justice Brennan’s opinion. [Back to text]
842
The principal dissent was by Justice Rehnquist. 457 U.S. at 904. See also id. at 885 (Chief Justice Burger), 893 (Justice Powell), 921 (Justice O’Connor). [Back to text]
843
484 U.S. 260 (1988). [Back to text]
844
484 U.S. at 273. [Back to text]
845
484 U.S. at 270–71. [Back to text]
846
484 U.S. at 270. [Back to text]
847
484 U.S. at 271. Selection of materials for school libraries may fall within this broad category, depending upon what is meant by “designed to impart particular knowledge or skills.” See generally Stewart, The First Amendment, the Public Schools, and the Inculcation of Community Values, 18 J. LAW & EDUC. 23 (1989). [Back to text]
848
The Court in Kuhlmeier declined to decide “whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.” 484 U.S. at 274, n.7. [Back to text]
849
One exception may exist for student religious groups covered by the Equal Access Act; in this context the Court seemed to step back from Kuhlmeier’s broad concept of curriculum-relatedness, seeing no constitutionally significant danger of perceived school sponsorship of religion arising from application of the Act’s requirement that high schools provide meeting space for student religious groups on the same basis that they provide such space for student clubs. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990). [Back to text]
850
127 S. Ct. 2618 (2007). [Back to text]
851
127 S. Ct. at 2624. [Back to text]
852
127 S. Ct. at 2625. [Back to text]
853
127 S. Ct. at 2636. [Back to text]
854
University of Pennsylvania v. EEOC, 493 U.S. 182 (1990). [Back to text]
855
The basic federal legislation regulating campaign finances is spread over several titles of the United States Code. The relevant, principal modern laws are the Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, the Federal Election Campaign Act Amendments of 1979, 93 Stat. 1339, and the Bipartisan Campaign Reform Act of 2002, 116 Stat. 81, found at 2 U.S.C. 431 et seq., and sections of Titles 18 and 26. The Federal Corrupt Practices Act of 1925, 43 Stat. 1074, was upheld in Burroughs v. United States, 290 U.S. 534 (1934), but there was no First Amendment challenge. All states, of course, extensively regulate elections. [Back to text]
856
See, e.g., Mills v. Alabama, 384 U.S. 214, 218–19 (1966); Buckley v. Valeo, 424 U.S. 1, 14, 19 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765, 776–78 (1978); Brown v. Hartlage, 456 U.S. 45, 52–54 (1982). [Back to text]
857
See Republican Party of Minn. v. White, 536 U.S. 765 (2002). In the only case post-White concerning speech restrictions on candidates for judicial office, however, the Court in Williams-Yulee v. Florida Bar, upheld a more narrow restriction on candidate speech. See 575 U.S. ___, No. 13–1499, slip op. (2015). The Williams-Yulee Court held that a provision within Florida’s Code of Judicial Conduct that prohibited judicial candidates from personally soliciting campaign funds served a compelling interest in preserving public confidence in the judiciary through a means that was “narrowly tailored to avoid unnecessarily abridging speech.” Id. at 8–9. [Back to text]
858
Brown v. Hartlage, 456 U.S. 45 (1982). See also Mills v. Alabama, 384 U.S. 214 (1966) (setting aside a conviction and voiding a statute that punished electioneering or solicitation of votes for or against any proposition on the day of the election, applied to publication of a newspaper editorial on election day supporting an issue on the ballot); Vanasco v. Schwartz, 401 F. Supp. 87 (E.D.N.Y. 1975) (three-judge court), aff’d, 423 U.S. 1041 (1976) (statute barring malicious, scurrilous, and false and misleading campaign literature is unconstitutionally overbroad). [Back to text]
859
Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989). Cf. Burson v. Freeman, 504 U.S. 191 (1992) (upholding Tennessee law prohibiting solicitation of votes and distribution of campaign literature within 100 feet of the entrance to a polling place; plurality found a “compelling” interest in preventing voter intimidation and election fraud). [Back to text]
860
Timmons v. Twin City Area New Party, 520 U.S. 351 (1997). [Back to text]
861
520 U.S. at 538 (internal quotation marks omitted). [Back to text]
862
520 U.S. at 369–70. [Back to text]
863
424 U.S. 1 (1976). [Back to text]
864
The Court’s lengthy opinion was denominated per curiam, but five Justices filed separate opinions. [Back to text]
865
424 U.S. at 23. [Back to text]
866
424 U.S. at 22. [Back to text]
867
424 U.S. at 25 (internal quotation marks omitted). [Back to text]
868
424 U.S. at 19. [Back to text]
869
424 U.S. at 21. [Back to text]
870
424 U.S. at 14–38. Chief Justice Burger and Justice Blackmun would have struck down the contribution limitations. Id. at 235, 241–46, 290. See also California Medical Ass’n v. FEC, 453 U.S. 182 (1981), sustaining a provision barring individuals and unincorporated associations from contributing more than $5,000 per year to any multicandidate political action committee, on the basis of the standards applied to contributions in Buckley; and FEC v. National Right to Work Comm., 459 U.S. 197 (1982), sustaining a provision barring nonstock corporations from soliciting contributions from persons other than their members when the corporation uses the funds for designated federal election purposes. [Back to text]
871
424 U.S. at 48. [Back to text]
872
424 U.S. at 39–51. Justice White dissented. Id. at 257. In an oblique return to the right-privilege distinction, the Court agreed that Congress could condition receipt of public financing funds upon acceptance of expenditure limitations. Id. at 108–09. In Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980), aff’d by an equally divided Court, 455 U.S. 129 (1982), a provision was invalidated that limited independent political committees to expenditures of no more than $1,000 to further the election of any presidential candidate who received public funding. An equally divided affirmance is of limited precedential value. When the validity of this provision, 26 U.S.C. § 9012(f), was again before the Court in 1985, the Court invalidated it. FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985). In an opinion by Justice Rehnquist, the Court determined that the governmental interest in preventing corruption or the appearance of corruption was insufficient justification for restricting the First Amendment rights of committees interested in making independent expenditures on behalf of a candidate, since “the absence of prearrangement and coordination undermines the value of the expenditure to the candidate, and thereby alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Id. at 498. See also Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604 (1996) (the First Amendment bars application of the Party Expenditure Provision of the Federal Election Campaign Act, 2 U.S.C. § 441a(d)(3), to expenditures that the political party makes independently, without coordination with the candidate). [Back to text]
873
424 U.S. at 51–54. Justices Marshall and White disagreed with this part of the decision. Id. at 286. [Back to text]
874
424 U.S. at 54–59. [Back to text]
875
128 S. Ct. 2759, 2771, 2772 (2008). The statute was § 319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. 107–155, 116 Stat. 109, 2 U.S.C. § 441a–1(a), which was part of the so-called “Millionaire’s Amendment.” [Back to text]
876
128 S. Ct. at 2773 (emphasis in original). Justice Stevens, in the part of his dissenting opinion joined by Justices Souter, Ginsburg, and Breyer, found that the Millionaire’s Amendment does not cause self-funding candidates “any First Amendment injury whatsoever. The Millionaire’s Amendment quiets no speech at all. On the contrary, it does no more than assist the opponent of a self-funding candidate in his attempts to make his voice heard. . . . Enhancing the speech of the millionaire’s opponent, far from contravening the First Amendment, actually advances its core principles.” Id. at 2780. [Back to text]
877
128 S. Ct. at 2773–74. The Court also struck down the disclosure requirements in § 319(b) of BCRA because they “were designed to implement the asymmetrical contribution limits provided for in § 319(a), and . . . § 319(a) violates the First Amendment.” Id. at 2775. [Back to text]
878
564 U.S. ___, No. 10–238, slip op. (2011). [Back to text]
879
These included limiting the expenditure of personal funds to $500, participating in at least one public debate, adhering to an over all expenditure cap, and returning all unspent public moneys to the State. [Back to text]
880
Bennett, 564 U.S. ___, No. 10–238, slip op. at 11 quoting Davis, 554 U.S. at 739. [Back to text]
881
Slip op. 10–11 (Kagan, J., dissenting). [Back to text]
882
Slip op. at 17. [Back to text]
883
424 U.S. at 64, 66. See also Amendment I, “Political Association,” supra. [Back to text]
884
424 U.S. at 66, 67, 68. [Back to text]
885
424 U.S. at 74. [Back to text]
886
459 U.S. 87 (1982). [Back to text]
887
459 U.S. at 97–98. [Back to text]
888
561 U.S. ___, No. 09–559, slip op. (2010). [Back to text]
889
Note, however, that the Court subsequently declined to extend the reasoning of this case to find that a legislator’s vote was a form of expression protected by the First Amendment. Nevada Comm’n on Ethics v. Carrigan, 564 U.S. ___, No. 10–568, slip op. (2011) (upholding law prohibiting legislator with a conflict of interest from voting on a proposal or advocating its passage or failure). [Back to text]
890
Reed, No. 09–559, slip op. at 7. Five Justices joined the majority opinion written by Chief Justice Roberts—Justices Kennedy, Ginsburg, Breyer, Alito and Sotomayor. One might question, however, what level of scrutiny Justice Breyer would support, since he also joined a concurrence by Justice Stevens, which suggested that the disclosure of the name and addresses on the petitions is not “a regulation of pure speech,” and consequently should be subjected to a lesser standard of review. Slip op. at 1 (Stevens, J., concurring in part and in judgment). Justice Breyer, in his own concurrence, suggests that “in practice [the standard articulated in both the majority and Justice Steven’s concurrence] has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statute’s salutary effects upon the others.” Slip op. at 1 (Breyer, J., concurring). Justice Scalia, on the other hand, questioned whether “signing a petition that has the effect of suspending a law fits within ‘freedom of speech’ at all.” Slip op. at 1 (Scalia, J., concurring in judgement). [Back to text]
891
Slip op. at 12–13 (citation omitted). [Back to text]
892
528 U.S. 377 (2000). [Back to text]
893
528 U.S. at 381–82. [Back to text]
894
528 U.S. at 390. [Back to text]
895
528 U.S. at 393, 395. [Back to text]
896
528 U.S. at 397. [Back to text]
897
528 U.S. at 397. [Back to text]
898
572 U.S. ___, No. 12–536, slip op. (2014). [Back to text]
899
Chief Justice Roberts wrote the plurality opinion, joined by Justices Scalia, Kennedy and Alito. Justice Thomas, concurring in the judgment, declined to join the reasoning of the plurality, arguing that, to the extent that Buckley afforded a lesser standard of review to restrictions on contributions than to expenditures, it should be overruled. [Back to text]
900
The Court declined to revisit the differing standards between contributions and expenditures established in Buckley, holding that the issue in question, aggregate spending limits, did not meet the demands of either test. 572 U.S. ___, slip op. at 10. [Back to text]
901
In 2014, these aggregate limits capped total contributions per election cycle to $48,600 to all federal candidates and $74,600 to all other political committees, of which only $48,600 could be contributed to state or local party committees and PACs. 2 U.S.C. § 441a(a)(3) (2012); 78 Fed. Reg. 8,532 (Feb. 6, 2013). [Back to text]
902
572 U.S. ___, No. 12–536, slip op. at 19. [Back to text]
903
Id. at 15. [Back to text]
904
Id. at 21–22. [Back to text]
905
Id. at 21–30. [Back to text]
906
Id. at 30. [Back to text]
907
Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1980). It is not clear from the opinion whether the Court was applying a contribution or an expenditure analysis to the ordinance, see id. at 301 (Justice Marshall concurring), or whether it makes any difference in this context. [Back to text]
908
Meyer v. Grant, 486 U.S. 414 (1988). The Court subsequently struck down a Colorado statute that required ballot-initiative proponents, if they pay circulators, to file reports disclosing circulators’ names and addresses and the total amount paid to each circulator. Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999). Although the Court upheld a requirement that proponents’ names and the total amount they have spent to collect signatures be disclosed, as this served “as a control or check on domination of the initiative process by affluent special interest groups” (id. at 202), it found that “[t]he added benefit of revealing the names of paid circulators and the amounts paid to each circulator . . . is hardly apparent and has not been demonstrated.” Id. at 203. The Court also struck down a requirement that circulators be registered voters, as the state’s interest in ensuring that circulators would be amenable to subpoenas was served by the requirement that they be residents a requirement on which the Court had no occasion to rule. [Back to text]
909
435 U.S. 765, 777 (1978). Justice Powell wrote the opinion of the Court. Dissenting, Justices White, Brennan, and Marshall argued that while corporations were entitled to First Amendment protection, they were subject to more regulation than were individuals, and substantial state interests supported the restrictions. Id. at 802. Justice Rehnquist went further in dissent, finding no corporate constitutional protection. Id. at 822. [Back to text]
910
2 U.S.C. § 441b. The provision began as § 313 of the Federal Corrupt Practices Act of 1925, 43 Stat. 1074, prohibiting contributions by corporations. It was made temporarily applicable to labor unions in the War Labor Disputes Act of 1943, 57 Stat. 167, and became permanently applicable in § 304 of the Taft-Hartley Act. 61 Stat. 159. [Back to text]
911
All three cases involved labor unions and were decided on the basis of statutory interpretation, apparently informed with some constitutional doubts. United States v. CIO, 335 U.S. 106 (1948); United States v. United Automobile Workers, 352 U.S. 567 (1957); Pipefitters v. United States, 407 U.S. 385 (1972). [Back to text]
912
Bellotti, 435 U.S. at 811–12 (Justice White dissenting). The majority opinion, however, saw several distinctions between the federal law and the law at issue in Bellotti. The Court emphasized that Bellotti was a referendum case, not a case involving corporate expenditures in the context of partisan candidate elections, in which the problem of corruption of elected representatives was a weighty problem. “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.” Id. at 787–88 & n.26. [Back to text]
913
558 U.S. ___, No. 08–205, slip op. (2010). [Back to text]
914
459 U.S. 197 (1982). [Back to text]
915
459 U.S. at 210–11. [Back to text]
916
479 U.S. 238 (1986). Justice Brennan’s opinion for the Court was joined by Justices Marshall, Powell, O’Connor, and Scalia; Chief Justice Rehnquist, author of the Court’s opinion in National Right to Work Comm., dissented from the constitutional ruling, and was joined by Justices White, Blackmun, and Stevens. [Back to text]
917
479 U.S. at 259. [Back to text]
918
479 U.S. at 259–60, 262. [Back to text]
919
The Court did not spell out whether there was any significant distinction between the two organizations, NRWC and MCFL; Chief Justice Rehnquist’s dissent suggested that there was not. See 479 U.S. at 266. [Back to text]
920
494 U.S. 652 (1990). [Back to text]
921
Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990)Austin found the law helped prevent “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 ideas.” 494 U.S. at 660. [Back to text]
922
494 U.S. at 660–61. [Back to text]
923
494 U.S. at 661–65. [Back to text]
924
539 U.S. 146 (2003). [Back to text]
925
539 U.S. at 157. [Back to text]
926
540 U.S. 93 (2003). [Back to text]
927
540 U.S. at 133. [Back to text]
928
540 U.S. at 123. [Back to text]
929
540 U.S. at 204. [Back to text]
930
540 U.S. at 190. [Back to text]
931
540 U.S. at 141. [Back to text]
932
540 U.S. at 136 (internal quotation marks omitted). [Back to text]
933
540 U.S. at 136. [Back to text]
934
540 U.S. at 205 (quoting Austin v. Michigan State Chamber of Commerce, 494 U.S. at 660). [Back to text]
935
540 U.S. at 204. [Back to text]
936
540 U.S. at 206. [Back to text]
937
546 U.S. 410 (2006). [Back to text]
938
127 S. Ct. 2652 (2007). [Back to text]
939
Only Justice Alito joined Parts III and IV of Chief Justice Roberts’ opinion, which addressed the issue of as-applied challenges to BCRA. Justices Scalia (joined by Kennedy and Thomas) concurred in the judgment, but would have overturned McConnell and struck down BCRA’s limits on issue advocacy on its face. [Back to text]
940
The suggestion was made that an “intent and effect” standard had been endorsed by the Court in McConnell, which stated that “[t]he justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters’ decisions and have that effect.” 540 U.S. at 206. While acknowledging that an evaluation of the “intent and effect” had been relevant to the rejection of a facial challenge, Chief Justice Roberts’ opinion in WRTL II denied that such a standard had been endorsed for as-applied challenges. 127 S. Ct. at 2664–66. [Back to text]
941
127 S. Ct. at 2667. [Back to text]
942
558 U.S. ___, No. 08–205, slip op. (2010). [Back to text]
943
See Buckley, 424 U.S. at 49 (First Amendment’s protections do not depend on the speaker’s “financial ability to engage in public discussion.”); Davis v. Federal Election Commission, 554 U.S. ___, No. 07–320, slip op. (2008) (invalidating the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. [Back to text]
944
Citizens United, slip op. at 34. The Court concluded that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”, slip op. at 42. The State of Montana had had a long-standing bar on independent political expenditures by corporations founded on a record that those expenditures in fact could lead to corruption or the appearance of corruption. In a per curiam opinion, with four justices dissenting, the Court struck down the Montana law as contrary to Citizens United. American Tradition Partnership, Inc. v. Bullock, 567 U.S. ___, No. 11–1179, slip op. (2012). [Back to text]
945
Slip. op. at 35–37. [Back to text]
946
558 U.S. ___, slip op. at 21. For example, a PAC must appoint a treasurer, keep detailed records of persons making donations, preserve receipts for three years, must report changes to its organizational statement within 10 days, and must file detailed monthly reports with the FEC. Id. [Back to text]
947
For instance, while the Court in National Right to Work allowed restrictions on corporate solicitation of other corporations for PAC funds, the Court might be disinclined to allow restrictions on corporations soliciting other corporations for funds to use for direct independent expenditures. [Back to text]
948
558 U.S. ___, slip op. at 50–51 (citations omitted). The Court had previously acknowledged that as-applied challenges would be available to a group if it could show a “reasonable probability” that disclosure of its contributors’ names would “subject them to threats, harassment, or reprisals from either Government officials or private parties.” McConnell, 540 U.S. at 198 (quoting Buckley, 427 U.S. at 74). [Back to text]
949
548 U.S. 230 (2006). Justice Breyer wrote the plurality opinion, with only Chief Justice Roberts joining it in full. Justice Alito joined the opinion as to the contribution limitations but not as to the expenditure limitations. Justice Alito and three other Justices concurred in the judgment as to the limitations on both expenditures and contributions, and three Justices dissented. [Back to text]
950
548 U.S. at 248 (citation omitted). [Back to text]
951
Although, as here, limits on contributions may be so low as to violate the First Amendment, “there is no constitutional basis for attacking contribution limits on the ground that they are too high. Congress has no constitutional obligation to limit contributions at all . . . .” Davis v. Federal Election Commission, 128 S. Ct. 2759, 2771 (2008) (dictum). [Back to text]
952
548 U.S. at 249 (citation omitted). The plurality noted that, “in terms of real dollars (i.e., adjusting for inflation),” they were lower still. Id. at 250. [Back to text]
953
548 U.S. at 253. [Back to text]
954
60 Stat. 812, 839 (1946), 2 U.S.C. §§ 26170. [Back to text]
955
347 U.S. 612 (1954). [Back to text]
956
347 U.S. at 623. [Back to text]
957
347 U.S. at 617–24. [Back to text]
958
347 U.S. at 625. Justices Douglas, Black, and Jackson dissented. Id. at 628, 633. They thought the Court’s interpretation too narrow and would have struck the statute down as being too broad and too vague, but would not have denied Congress the power to enact narrow legislation to get at the substantial evils of the situation. See also United States v. Rumely, 345 U.S. 41 (1953). [Back to text]
959
Cammarano v. United States, 358 U.S. 498 (1959). [Back to text]
960
Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961). See also UMW v. Pennington, 381 U.S. 657, 669–71 (1965). [Back to text]
961
California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). Justices Stewart and Brennan thought that joining to induce administrative and judicial action was as protected as the concert in Noerr but concurred in the result because the complaint could be read as alleging that defendants had sought to forestall access to agencies and courts by plaintiffs. Id. at 516. [Back to text]
962
E.g., the speech and associational rights of persons required to join a union, Railway Employees Dep’t v. Hanson, 351 U.S. 225 (1956); International Ass’n of Machinists v. Street, 367 U.S. 740 (1961); see also Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (public employees), restrictions on picketing and publicity campaigns, Babbitt v. United Farm Workers, 442 U.S. 289 (1979), and application of collective bargaining laws in sensitive areas, NLRB v. Yeshiva Univ., 444 U.S. 672 (1980) (faculty collective bargaining in private universities); NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (collective bargaining in religious schools). [Back to text]
963
NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941). [Back to text]
964
61 Stat. 142, § 8(c) (1947), 29 U.S.C. § 158(c). [Back to text]
965
Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 616–20 (1969). [Back to text]
966
8 J. WIGMORE, EVIDENCE 2192 (3d ed. 1940). See Blair v. United States, 250 U.S. 273, 281 (1919); United States v. Bryan, 339 U.S. 323, 331 (1950). [Back to text]
967
408 U.S. 665 (1972). “The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them.” Id. at 682. [Back to text]
968
408 U.S. at 690–91. The cases consolidated in Branzburg all involved grand juries, so the reference to criminal trials should be considered dictum. [Back to text]
969
Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist joined the Court’s opinion. Justice Powell, despite having joined the majority opinion, also submitted a concurring opinion in which he suggested a privilege might be available if, in a particular case, “the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement.” 408 U.S. at 710. Justice Stewart’s dissenting opinion in Branzburg referred to Justice Powell’s concurring opinion as “enigmatic.” Id. at 725. Judge Tatel of the D.C. Circuit wrote, “Though providing the majority’s essential fifth vote, he [Powell] wrote separately to outline a ‘case-by-case’ approach that fits uncomfortably, to say the least, with the Branzburg majority’s categorical rejection of the reporters’ claims.” In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005 (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006). “[C]ourts in almost every circuit around the country interpreted Justice Powell’s concurrence, along with parts of the Court’s opinion, to create a balancing test when faced with compulsory process for press testimony and documents outside the grand jury context.” Association of the Bar of the City of New York, The Federal Common Law of Journalists’ Privilege: A Position Paper (2005) at 4–5 [http://www.abcny.org/pdf/report/White%20paper%20on%20reporters%20privilege.pdf] (citing examples). [Back to text]
970
408 U.S. at 706. [Back to text]
971
The 33rd state statute enacted was the State of Washington’s, which took effect on July 22, 2007. See the website of the Reporters Committee for Freedom of the Press for information on the state laws. The greatest difficulty these laws experience is the possibility of a constitutional conflict with the Fifth and Sixth Amendment rights of criminal defendants. See Matter of Farber, 78 N.J. 259, 394 A.2d 330, cert. denied sub nom. New York Times v. New Jersey, 439 U.S. 997 (1978). See also New York Times v. Jascalevich, 439 U.S. 1301, 1304, 1331 (1978) (applications to Circuit Justices for stay), and id. at 886 (vacating stay). [Back to text]
972
Rule 501 also provides that, in civil actions and proceedings brought in federal court under state law, the availability of a privilege shall be determined in accordance with state law. [Back to text]
973
See, e.g., In re: Grand Jury Subpoena. Judith Miller, 397 F.3d 964, 972 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005 (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of Appeals for the District of Columbia “is not of one mind on the existence of a common law privilege”). [Back to text]
974
Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978). Justice Powell thought it appropriate that “a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment” when he assesses the reasonableness of a warrant in light of all the circumstances. Id. at 568 (concurring). Justices Stewart and Marshall would have imposed special restrictions upon searches when the press was the object, id. at 570 (dissenting), and Justice Stevens dissented on Fourth Amendment grounds. Id. at 577. [Back to text]
975
Congress enacted the Privacy Protection Act of 1980, Pub. L. 96–440, 94 Stat. 1879, 42 U.S.C. § 2000aa, to protect the press and other persons having material intended for publication from federal or state searches in specified circumstances, and creating damage remedies for violations. [Back to text]
976
Irvin v. Dowd, 366 U.S. 717 (1961); Rideau v. Louisiana, 373 U.S. 723 (1963). [Back to text]
977
Sheppard v. Maxwell, 384 U.S. 333 (1966); compare Estes v. Texas, 381 U.S. 532 (1965), with Chandler v. Florida, 449 U.S. 560 (1981). [Back to text]
978
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976). [Back to text]
979
See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (disciplinary rules restricting extrajudicial comments by attorneys are void for vagueness, but such attorney speech may be regulated if it creates a “substantial likelihood of material prejudice” to the trial of a client); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (press, as party to action, restrained from publishing information obtained through discovery). [Back to text]
980
Gannett Co. v. DePasquale, 443 U.S. 368 (1979). [Back to text]
981
DePasquale rested solely on the Sixth Amendment, the Court reserving judgment on whether there is a First Amendment right of public access. 443 U.S. at 392. [Back to text]
982
448 U.S. 555 (1980). The decision was 7 to 1, with Justice Rehnquist dissenting, id. at 604, and Justice Powell not participating. Justice Powell, however, had taken the view in Gannett Co. v. DePasquale, 443 U.S. 368, 397 (1979) (concurring), that the First Amendment did protect access to trials. [Back to text]
983
See Richmond Newspapers v. Virginia, 448 U.S. 555, 582 (1980) (Justice Stevens concurring). [Back to text]
984
448 U.S. at 564–69. The emphasis on experience and history was repeated by the Chief Justice in his opinion for the Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II). [Back to text]
985
448 U.S. at 587–88 (emphasis in original, citations omitted). [Back to text]
986
457 U.S. 596 (1982). Joining Justice Brennan’s opinion of the Court were Justices White, Marshall, Blackmun, and Powell. Justice O’Connor concurred in the judgment. Chief Justice Burger, with Justice Rehnquist, dissented, arguing that the tradition of openness that underlay Richmond Newspapers, was absent with respect to sex crimes and youthful victims and that Richmond Newspapers was unjustifiably extended. Id. at 612. Justice Stevens dissented on the ground of mootness. Id. at 620. [Back to text]
987
That there was no tradition of openness with respect to the testimony of minor victims of sex crimes was irrelevant, the Court argued. As a general matter, all criminal trials have been open. The presumption of openness thus attaches to all criminal trials and to close any particular kind or part of one because of a particular reason requires justification on the basis of the governmental interest asserted. 457 U.S. at 605 n.13. [Back to text]
988
457 U.S. at 606–07. Protecting the well-being of minor victims was a compelling interest, the Court held, and might justify exclusion in specific cases, but it did not justify a mandatory closure rule. The other asserted interest—encouraging minors to come forward and report sex crimes—was not well served by the statute. [Back to text]
989
The Court throughout the opinion identifies the right as access to criminal trials, even italicizing the words at one point. 457 U.S. at 605. [Back to text]
990
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). [Back to text]
991
464 U.S. at 510. [Back to text]
992
467 U.S. 39 (1984). [Back to text]
993
Gannett Co. v. DePasquale, 443 U.S. 368 (1979), did not involve assertion by the accused of his 6th Amendment right to a public trial; instead, the accused in that case had requested closure. “[T]he constitutional guarantee of a public trial is for the benefit of the defendant.” Id. at 381. [Back to text]
994
467 U.S. at 47. [Back to text]
995
Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). [Back to text]
996
478 U.S. at 14. [Back to text]
997
478 U.S. at 12. [Back to text]
998
Pell v. Procunier, 417 U.S. 817, 822 (1974).In a related, but distinct context, however, state laws that restrict the First Amendment rights of former prisoners that are still under the supervision of the state appear to be subject to strict scrutiny. For example, in Packingham v. North Carolina, 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. 582 U.S. ___, No. 15–1194, slip op. (2017). The Court held that the North Carolina law impermissibly restricted lawful speech because it was not narrowly tailored to serve the significant government interest in protecting minors from registered sex offenders. Id. at 8 (holding that it was “unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.”). [Back to text]
999
Procunier v. Martinez, 416 U.S. 396, 412 (1974). [Back to text]
1000
416 U.S. 396 (1974). But see Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977), in which the Court sustained prison regulations barring solicitation of prisoners by other prisoners to join a union, banning union meetings, and denying bulk mailings concerning the union from outside sources. The reasonable fears of correctional officers that organizational activities of the sort advocated by the union could impair discipline and lead to possible disorders justified the regulations. [Back to text]
1001
416 U.S. at 396. [Back to text]
1002
482 U.S. 78 (1987). [Back to text]
1003
482 U.S. at 89. In Overton v. Bazzetta, 539 U.S. 126 (2003), the Court applied Turner to uphold various restrictions on visitation by children and by former inmates, and on all visitation except attorneys and members of the clergy for inmates with two or more substance-abuse violations; an inmate subject to the latter restriction could apply for reinstatement of visitation privileges after two years. “If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations.” Id. at 137. [Back to text]
1004
482 U.S. at 89. [Back to text]
1005
Beard v. Banks, 548 U.S. 521, 529 (2006) (citations and internal quotation marks omitted; this quotation quotes language from Turner v. Safley, 482 U.S. at 89–90). [Back to text]
1006
490 U.S. 401, 411–14 (1989). Thornburgh v. Abbott noted that, if regulations deny prisoners publications on the basis of their content, but the grounds on which the regulations do so is content-neutral (e.g., to protect prison security), then the regulations will be deemed neutral. Id. at 415–16. [Back to text]
1007
548 U.S. 521, 524–25 (2006). This was a 4–2–2 decision, with Justice Alito, who had written the court of appeals decision, not participating. [Back to text]
1008
548 U.S. at 531. [Back to text]
1009
548 U.S. at 531–32. [Back to text]
1010
548 U.S. at 533. [Back to text]
1011
548 U.S. at 537 (Thomas, J., concurring), quoting Overton v. Bazzetta, 539 U.S. at 139 (Thomas, J., concurring) (emphasis originally in Overton). [Back to text]
1012
Pell v. Procunier, 417 U.S. 817 (1974). Justices Douglas, Brennan, and Marshall dissented. Id. at 836. [Back to text]
1013
417 U.S. at 822–25. [Back to text]
1014
Branzburg v. Hayes, 408 U.S. 665, 707 (1972), quoted in Pell v. Procunier, 417 U.S. 817, 833 (1974). [Back to text]
1015
417 U.S. at 834. The holding was applied to federal prisons in Saxbe v. Washington Post, 417 U.S. 843 (1974). Dissenting, Justices Powell, Brennan, and Marshall argued that “at stake here is the societal function of the First Amendment in preserving free public discussion of governmental affairs,” that the press’s role was to make this discussion informed, and that the ban on face-to-face interviews unconstitutionally fettered this role of the press. Id. at 850, 862. [Back to text]
1016
438 U.S. 1 (1978). The decision’s imprecision of meaning is partly attributable to the fact that there was no opinion of the Court. A plurality opinion represented the views of only three Justices; two Justices did not participate, three Justices dissented, and one Justice concurred with views that departed somewhat from the plurality. [Back to text]
1017
438 U.S. at 15–16. [Back to text]
1018
438 U.S. at 16. [Back to text]
1019
The dissenters, Justices Stevens, Brennan, and Powell, believed that the Constitution protects the public’s right to be informed about conditions within the prison and that total denial of access, such as existed prior to institution of the suit, was unconstitutional. They would have sustained the more narrowly drawn injunctive relief to the press on the basis that no member of the public had yet sought access. 438 U.S. at 19. It is clear that Justice Stewart did not believe that the Constitution affords any relief. Id. at 16. Although the plurality opinion of the Chief Justice Burger and Justices White and Rehnquist may be read as not deciding whether any public right of access exists, overall it appears to proceed on the unspoken basis that there is none. The second question, when Justice Stewart’s concurring opinion and the dissenting opinion are combined, appears to be answerable qualifiedly in the direction of constitutional constraints upon the nature of access limitation once access is granted. [Back to text]
1020
461 U.S. 540 (1983). [Back to text]
1021
461 U.S. at 545. See also Cammarano v. United States, 358 U.S. 498, 512–13 (1959) (exclusion of lobbying expenses from income tax deduction for ordinary and necessary business expenses is not a regulation aimed at the suppression of dangerous ideas, and does not violate the First Amendment). [Back to text]
1022
468 U.S. 364 (1984). [Back to text]
1023
330 U.S. 127 (1947). [Back to text]
1024
468 U.S. at 399–401, & n.27. [Back to text]
1025
500 U.S. 173, 193 (1991). Dissenting Justice Blackmun contended that Taxation With Representation was easily distinguishable because its restriction was on all lobbying activity regardless of content or viewpoint. Id. at 208–09. [Back to text]
1026
500 U.S. at 196 (emphasis in original). Dissenting Justice Blackmun wrote: “Under the majority’s reasoning, the First Amendment could be read to tolerate any governmental restriction is limited to the funded workplace. This is a dangerous proposition, and one the Court has rightly rejected in the past.” Id. at 213 (emphasis in original). [Back to text]
1027
The Court attempted to minimize the potential sweep of its ruling in Rust. “This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipient to speak outside the scope of the Government-funded project, is invariably sufficient to justify government control over the content of expression.” 500 U.S. at 199. The Court noted several possible exceptions to the general principle: government ownership of a public forum does not justify restrictions on speech; the university setting requires heightened protections through application of vagueness and overbreadth principles; and the doctor-patient relationship may also be subject to special First Amendment protection. (The Court denied, however, that the doctor-patient relationship was significantly impaired by the regulatory restrictions at issue.) Lower courts were quick to pick up on these suggestions. See, e.g., Stanford Univ. v Sullivan, 773 F. Supp. 472, 476–78 (D.D.C. 1991) (confidentiality clause in federal grant research contract is invalid because, inter alia, of application of vagueness principles in a university setting); Gay Men’s Health Crisis v. Sullivan, 792 F. Supp. 278 (S.D.N.Y. 1992) (“offensiveness” guidelines restricting Center for Disease Control grants for preparation of AIDS-related educational materials are unconstitutionally vague). [Back to text]
1028
524 U.S. 569, 572 (1998). [Back to text]
1029
524 U.S. at 587. [Back to text]
1030
524 U.S. at 581. Justice Scalia, in a concurring opinion joined by Justice Thomas, claimed that this interpretation of the statute “gutt[ed] it.” Id. at 590. He believed that the statute “establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional.” Id. [Back to text]
1031
524 U.S. at 585. [Back to text]
1032
524 U.S. at 588–89. [Back to text]
1033
570 U.S. ___, No. 12–10, slip op. (2013). [Back to text]
1034
22 U.S.C. § 7631(e), (f) (2012). [Back to text]
1035
See All. for Int’l Dev., slip op. at 6. [Back to text]
1036
Id. at 13. [Back to text]
1037
531 U.S. 533 (2001). [Back to text]
1038
531 U.S. at 541, 542. [Back to text]
1039
531 U.S. at 544, 546. [Back to text]
1040
539 U.S. 194, 199 (2003). [Back to text]
1041
539 U.S. at 211. [Back to text]
1042
539 U.S. at 213 (emphasis in original). Other grounds for the plurality decision are discussed under “Non-obscene But Sexually Explicit and Indecent Expression” and “The Public Forum.” [Back to text]
1043
547 U.S. 47, 51 (2006). [Back to text]
1044
547 U.S. at 60. The Court stated that Congress’s authority to directly require campus access for military recruiters comes from its Article I, section 8, powers to provide for the common defense, to raise and support armies, and to provide and maintain a navy. Id. at 58. [Back to text]
1045
547 U.S. at 60. [Back to text]
1046
547 U.S. at 64, 65. [Back to text]
1047
547 U.S. at 67. [Back to text]
1048
547 U.S. at 61, 62. [Back to text]
1049
547 U.S. at 63. [Back to text]
1050
547 U.S. at 65. [Back to text]
1051
547 U.S. at 68, quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000). [Back to text]
1052
547 U.S. at 69. [Back to text]
1053
500 U.S. 173 (1991). [Back to text]
1054
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). [Back to text]
1055
Id. at 833. [Back to text]
1056
See Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009). Nonetheless, while the First Amendment’s Free Speech Clause has no applicability with regard to government speech, it is important to note that other constitutional provisions— such as the Equal Protection principles of the Fifth and Fourteenth Amendments— may constrain what the government can say. Id. at 468–69. [Back to text]
1057
See id. at 468 (“Indeed, it is not easy to imagine how government could function if it lacked this freedom.”). [Back to text]
1058
See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 562 (2005). [Back to text]
1059
See Rust, 500 U.S. at 194. [Back to text]
1060
See Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006). [Back to text]
1061
See Livestock Mktg. Ass’n, 544 U.S. at 562. [Back to text]
1062
See Pleasant Grove City, 555 U.S. at 472. [Back to text]
1063
See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, No. 14–144, slip op. at 1 (2015). [Back to text]
1064
See Livestock Mktg. Ass’n, 544 U.S. at 560. [Back to text]
1065
See Pleasant Grove City, 555 U.S. at 470. [Back to text]
1066
Id. at 470–73. [Back to text]
1067
See Walker, slip op. at 1. [Back to text]
1068
See id. at 7–12. [Back to text]
1069
582 U.S. ___, No. 15–1293, slip op. at 14 (2017). [Back to text]
1070
Id. at 17–18 (“Trademarks are private, not government, speech.”). [Back to text]
1071
Id. [Back to text]
1072
Id. at 2. [Back to text]
1073
Id. at 17 (quoting Walker, 576 U.S. at ___, slip op. at 10). [Back to text]