Freedom of Speech and Press: Exceptions to the First Amendment

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Freedom of Speech and Press:

Exceptions to the First Amendment

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September 8, 2014

Congressional Research Service

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Freedom of Speech and Press: Exceptions to the First Amendment

Summary

The First Amendment to the United States Constitution provides that “Congress shall make no

law ... abridging the freedom of speech, or of the press.” This language restricts government’s

ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of

speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech

may be more easily constrained than others. Furthermore, speech may be more easily regulated

depending upon the location at which it takes place.

This report provides an overview of the major exceptions to the First Amendment—of the ways

that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide

no protection or only limited protection for some types of speech. For example, the Court has

decided that the First Amendment provides no protection for obscenity, child pornography, or

speech that constitutes what has become widely known as “fighting words.” The Court has also

decided that the First Amendment provides less than full protection to commercial speech,

defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio

and television (as opposed to speech transmitted via cable or the Internet), and public employees’

speech.

Even speech that enjoys the most extensive First Amendment protection may be subject to

“regulations of the time, place, and manner of expression which are content-neutral, are narrowly

tailored to serve a significant government interest, and leave open ample alternative channels of

communication.” Furthermore, even speech that enjoys the most extensive First Amendment

protection may be restricted on the basis of its content if the restriction passes “strict scrutiny”

(i.e., if the government shows that the restriction serves “to promote a compelling interest” and is

“the least restrictive means to further the articulated interest”).

This report will outline many of the standards the government must meet when attempting to

regulate speech in a constitutional manner. The report will be updated periodically to reflect new

developments in the case law.

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Freedom of Speech and Press: Exceptions to the First Amendment

Contents

Introduction...................................................................................................................................... 1

Unprotected Speech ......................................................................................................................... 1

Obscenity ................................................................................................................................... 2

Child Pornography..................................................................................................................... 3

Fighting Words and True Threats .............................................................................................. 3

Protected Speech .............................................................................................................................. 5

Content-Based Restrictions ....................................................................................................... 5

Prior Restraint............................................................................................................................ 6

Forum Doctrine ......................................................................................................................... 7

Non-Content-Based Restrictions ............................................................................................... 9

Time, Place, and Manner Restrictions................................................................................. 9

Incidental Restrictions ....................................................................................................... 13

Commercial Speech ................................................................................................................. 14

Compelled Speech ................................................................................................................... 18

Commercial Disclosure Requirements .............................................................................. 19

Check-off Programs .......................................................................................................... 20

Defamation .............................................................................................................................. 21

Speech Harmful to Children .................................................................................................... 21

Children’s First Amendment Rights ........................................................................................ 23

Speech on Radio and Television .............................................................................................. 25

Broadcast Radio and Television ........................................................................................ 25

Cable, Satellite, and Online Radio and Television ............................................................ 26

Freedom of Speech and Government Funding ........................................................................ 27

Free Speech Rights of Government Employees and Government Contractors ....................... 30

Government Employees .................................................................................................... 30

Government Contractors ................................................................................................... 33

Symbolic Speech ..................................................................................................................... 33

Contacts

Author Contact Information........................................................................................................... 35

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Freedom of Speech and Press: Exceptions to the First Amendment

Introduction

The First Amendment to the United States Constitution provides that “Congress shall make no

law ... abridging the freedom of speech, or of the press.” This language restricts government’s

ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of

speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech

may be more easily constrained than others. Furthermore, speech may be more easily regulated

depending upon the location at which it takes place.

This report provides an overview of the major exceptions to the First Amendment—of the ways

that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide

no protection or only limited protection for some types of speech.1 For example, the Court has

decided that the First Amendment provides no protection for obscenity, child pornography, or

speech that constitutes what has become widely known as “fighting words.” The Court has also

decided that the First Amendment provides less than full protection to commercial speech,

defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio

and television (as opposed to speech transmitted via cable or the Internet), and public employees’

speech.

Even speech that enjoys the most extensive First Amendment protection may be subject to

“regulations of the time, place, and manner of expression which are content-neutral, are narrowly

tailored to serve a significant government interest, and leave open ample alternative channels of

communication.” Furthermore, even speech that enjoys the most extensive First Amendment

protection may be restricted on the basis of its content if the restriction passes “strict scrutiny”

(i.e., if the government shows that the restriction serves “to promote a compelling interest” and is

“the least restrictive means to further the articulated interest”).

Unprotected Speech

The Supreme Court has identified categories of speech that are unprotected by the First

Amendment and may be prohibited entirely. Among them are obscenity, child pornography, and

speech that constitutes so-called “fighting words” or “true threats.” In a 2010 case, the Court

made clear that it would not be likely to add more categories to the list of types of speech that

currently fall outside the First Amendment’s purview, but it did not entirely rule out the

possibility that other forms of unprotected speech exist.2

Supreme Court cases supporting all the prohibitions and restrictions on speech noted in this and the next paragraph

are cited in footnotes accompanying the subsequent discussion of these prohibitions and restrictions.

U.S. v. Stevens, 559 U.S. 460 (2010) (“Maybe there are some categories of speech that have been historically

unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no

evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such

additional categories to reject the Government's highly manipulable balancing test as a means of identifying them.”).

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Obscenity3

Obscenity is unique in being the only type of speech to which the Supreme Court has denied First

Amendment protection without regard to whether it is harmful to individuals. According to the

Court, there is evidence that, at the time of the adoption of the First Amendment, obscenity “was

outside the protection intended for speech and press.”4 Consequently, obscenity may be banned

simply because a legislature concludes that banning it protects “the social interest in order and

morality.”5 No actual harm, let alone compelling governmental interest, need be shown in order to

ban it.

The fundamental question in obscenity cases is whether the speech at issue actually constitutes

obscenity. This determination is by no means a simple one. Obscenity is not synonymous with

pornography, as most pornography is not legally obscene. Most pornography, in fact, is protected

by the First Amendment. To be obscene, pornography must, at a minimum, “depict or describe

patently offensive ‘hard core’ sexual conduct.”6 The Supreme Court has created a three-part test,

known as the Miller test, to determine whether a work is obscene. The Miller test asks:

(a) whether the “average person applying contemporary community standards” would find

that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts

or describes, in a patently offensive way, sexual conduct specifically defined by the

applicable state law; and (c) whether the work, taken as a whole, lacks serious literary,

artistic, political, or scientific value.7

The Supreme Court has clarified that only “the first and second prongs of the Miller test—appeal

to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying

contemporary community standards.”8 As for the third prong, “[t]he proper inquiry is not whether

an ordinary member of any given community would find serious literary, artistic, political, or

scientific value in allegedly obscene material, but whether a reasonable person would find such

value in the material, taken as a whole.”9

The Supreme Court has allowed one exception to the rule that obscenity is not protected by the

First Amendment: one has a constitutional right to possess obscene material “in the privacy of his

CRS Report 98-670, Obscenity, Child Pornography, and Indecency: Brief Background and Recent Developments, by

(name redacted).

Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting, wrote: “[T]here is no special

historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted

the First Amendment.” Id. at 514.

Id. at 485.

Miller v. California, 413 U.S. 15, 27 (1973).

Id. at 24 (citation omitted).

Pope v. Illinois, 481 U.S. 497, 500 (1987). In Hamling v. United States, 418 U.S. 87, 105 (1974), the Court noted that

a “community” was not any “precise geographic area,” and suggested that it might be less than an entire state. In

Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 577 (2002), the Supreme Court recognized that “Web

publishers currently lack the ability to limit access to their sites on a geographic basis,” and that therefore the use of

community standards to define “obscenity” “would effectively force all speakers on the Web to abide by the ‘most

puritan’ community’s standards.” Nevertheless, the Court found that use of community standards “does not by itself

render” a statute unconstitutional.” Id. at 585 (emphasis in original).

Pope, 481 U.S. at 500-501.

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own home.”10 However, there is no constitutional right to provide obscene material for private

use11 or even to acquire it for private use.12

Child Pornography13

Child pornography is material that visually depicts sexual conduct by children.14 It is unprotected

by the First Amendment even when it is not obscene; that is, child pornography need not meet the

Miller test to be banned. Because of the legislative interest in destroying the market for the

exploitative use of children, there is no constitutional right to possess child pornography even in

the privacy of one’s own home.15

In 1996, Congress enacted the Child Pornography Protection Act (CPPA), which defined “child

pornography” to include visual depictions that appear to be of a minor, even if no minor is

actually used. The Supreme Court, however, declared the CPPA unconstitutional to the extent that

it prohibited pictures that are produced without actual minors.16 Pornography that uses actual

children may be banned because laws against it target “[t]he production of the work, not its

content”; the CPPA, by contrast, targeted the content, not the production.17 The government “may

not prohibit speech because it increases the chance an unlawful act will be committed ‘at some

indefinite future time.’”18 In 2003, Congress responded by enacting Title V of the PROTECT Act,

P.L. 108-21, which prohibits any “digital image, computer image, or computer-generated image

that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” It also

prohibits “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that

... depicts a minor engaging in sexually explicit conduct,” and is obscene or lacks serious literary,

artistic, political, or scientific value.

Fighting Words and True Threats

So-called “fighting words” also lay beyond the pale of First Amendment protection.19 The

“fighting words” doctrine began in Chaplinsky v. New Hampshire, where the Court held that

fighting words, by their very utterance, inflict injury or tend to incite an immediate breach of the

Stanley v. Georgia, 394 U.S. 557, 568 (1969).

United States v. Reidel, 402 U.S. 351 (1971).

United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).

CRS Report 98-670, Obscenity, Child Pornography, and Indecency: Brief Background and Recent Developments, by

(name redacted).

New York v. Ferber, 458 U.S. 747, 764 (1982). The definition of “sexually explicit conduct” in the federal child

pornography statute includes “lascivious exhibition of the genitals or pubic area of any person [under 18], and “is not

limited to nude exhibitions or exhibitions in which the outlines of those areas [are] discernible through clothing.” 18

U.S.C. §§ 2256(2)(A)(v), 2252 note.

Osborne v. Ohio, 495 U.S. 103 (1990).

Ashcroft v. Free Speech Coalition, 435 U.S. 234 (2002).

Id. at 249; see also, id. at 242.

Id. at 253.

A subset of laws that prohibit “fighting words” are laws that prohibit speech expressed with the intent to threaten.

The Supreme Court has found that true threats may be punished without offending the constitution. See Virginia v.

Black, 538 U.S. 343, 363 (2003)(finding that cross-burning is a particularly virulent form of intimidation that may be

punished as a “true threat”).

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peace and may be punished consistent with the First Amendment.20 In Chaplinsky, the Court

upheld a statute which prohibited a person from addressing “any offensive, derisive or annoying

word to any other person who is lawfully in any street or other public place,” calling “him by any

offensive or derisive name,” or making “any noise or exclamation in his presence and hearing

with the intent to deride, offend or annoy him, or to prevent him from pursuing his lawful

business or occupation.”21 The state court construed the statute as forbidding only those

expressions that “have a direct tendency to cause acts of violence by the person to whom,

individually, the remark [was] addressed.”22 Given the limited scope of application, the Supreme

Court held that the statute at issue did not proscribe protected expression.23

This category of proscribable speech requires the threat of an immediate breach of peace in order

to be punishable. In Cohen v. California, the Supreme Court held that words on a t-shirt that

contained an expletive were not directed at a person in particular and could not be said to incite

an immediate breach of the peace.24 For that reason, profane words that are not accompanied by

any evidence of violence or public disturbance are not “fighting words.”25 The Court went on to

describe the value of expression in communicating emotion.26 In the Court’s view, certain words,

including expletives, which could in other contexts be construed as fighting words, may be

indispensable in effectively communicating emotion, a form of expression protected by the First

Amendment.27 Particular words, such as certain expletives, in and of themselves, likely could not

be universally defined as “fighting words.”

In Brandenburg v. Ohio, the Supreme Court struck down an Ohio statute that criminalized

advocating violent means to bring about social and economic change.28 The Court found that the

statute failed to distinguish between advocacy, which is protected by the First Amendment, and

incitements to “imminent lawless action,” which are not protected.29 These cases illustrate that

“fighting words” require an immediate risk of a breach of peace in order to be proscribable. What

speech is proscribable, therefore, appears highly dependent upon the context in which it arises.30

Relatedly, Justice Holmes, in one of his most famous opinions, wrote:

Chaplinsky, 315 U.S. at 572.

Id. at 569.

Id. at 572.

Id.

403 U.S. 15, 20 (1971).

Id.

Id. at 26.

Id.

395 U.S. 444, 446 (1969)(per curiam).

Id. at 448.

See Odem v. Mississippi, 881 So.2d 940, 948 (Miss. Ct. App. 2004)(finding that complaints and shouts of profanity

from the defendant rose to the level of “fighting words” where the officer to whom he spoke did not initiate the

conversation nor did the officer have the opportunity to walk away); see also Washington v. King, 145 P.3d 1224

(Wash. Ct. App. 2006)(noting that “it is context that makes a threat “true” or serious), Commonwealth v. Pike, 756

N.E.2d 1157, 1158-60 (Mass. App. Ct. 2001)(upholding the conviction of a woman for violation of her neighbor’s civil

rights where she posted signs in her yard accusing homosexuals of molesting young children and yelled insulting

names as well as invitations to a physical fight because the words and conduct constituted “fighting words”).

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The most stringent protection of free speech would not protect a man in falsely shouting fire

in a theater and causing a panic.... The question in every case is whether the words used ...

create a clear and present danger.31

In its current formulation of this principle, the Supreme Court held that “advocacy of the use of

force or of law violation” is protected unless “such advocacy is directed to inciting or producing

imminent lawless action and is likely to incite or produce such action.”32 Similarly, the Court held

that a statute prohibiting threats against the life of the President could be applied only against

speech that constitutes a “true threat,” and not against mere “political hyperbole.”33

Protected Speech

All other types of speech are protected by the First Amendment. In general, the government may

not prohibit the citizenry from engaging in speech. However, that does not mean that speech may

not be subjected to regulation. The following subsections address different ways in which the

government constitutionally may place burdens upon speech that is protected, to varying degrees,

by the First Amendment.

Content-Based Restrictions

In cases of content-based restrictions of speech other than fighting words or true threats, the

Supreme Court applies “strict scrutiny,” which means that it will uphold a content-based

restriction only if it is necessary “to promote a compelling interest,” and is “the least restrictive

means to further the articulated interest.”34 Rigorous analysis is required because the government,

generally, is not constitutionally allowed to favor one type of content or idea by suppressing or

otherwise burdening another type of content or idea.35

Thus, it is unconstitutional for a state to proscribe a newspaper from publishing the name of a

rape victim, lawfully obtained.36 By contrast, “[n]o one would question but that a government

Schenck v. United States, 249 U.S. 47, 52 (1919).

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). See also, Stewart v. McCoy, 537 U.S. 993 (2002) (Justice Stevens’

statement accompanying denial of certiorari).

Watts v. United States, 394 U.S. 705, 708 (1969). See also, NAACP v. Claiborne Hardware Co., 458 U.S. 886

(1982); Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc), cert.

denied, 539 U.S. 958 (2003) (the “Nuremberg Files” case); Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation

in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person

or group of persons with the intent of placing the victim in fear of bodily harm or death.”).

Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126 (1989). The

Court does not apply strict scrutiny to another type of content-based restrictions—restrictions on commercial speech,

which is discussed below.

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995):

Discrimination against speech because of its message is presumed to be unconstitutional. . . . When

the government targets not subject matter, but particular views taken by speakers on a subject, the

violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an

egregious form of content discrimination. The government must abstain from regulating speech

when the specific motivating ideology or the opinion or perspective of the speaker is the rationale

for the restriction. Id. at 828-29.

The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Court left open the question “whether, in cases where

information has been acquired unlawfully by a newspaper or by a source, the government may ever punish not only the

(continued...)

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might prevent actual obstruction to its recruiting service or the publication of the sailing dates of

transports or the number and location of troops.”37 The government, therefore, may restrict speech

based upon its content, but only when the restriction satisfies the highest level of scrutiny the

Court can apply.

Prior Restraint

There are two ways in which the government may attempt to restrict speech. The more common

way is to make a particular category of speech, such as obscenity or defamation, subject to

criminal prosecution or civil suit, and then, if someone engages in the proscribed category of

speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint,

which may occur in two ways. First, a statute may require that a person submit the speech that he

wishes to disseminate—a movie, for example—to a governmental body for a license to

disseminate it—for example, to show the movie. Second, a court may issue a temporary

restraining order or an injunction against engaging in particular speech—publishing the Pentagon

Papers, for example.

With respect to both these types of prior restraint, the Supreme Court has written that “[a]ny

system of prior restraint of expression comes to this Court bearing a heavy presumption against

its constitutional validity.”38 Prior restraints, it has held,

are the most serious and the least tolerable infringement on First Amendment rights.... A

prior restraint ... by definition, has an immediate and irreversible sanction. If it can be said

that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint

“freezes” it at least for the time. The damage can be particularly great when the prior

restraint falls upon the communication of news and commentary on current events.39

The Supreme Court has written that “[t]he special vice of a prior restraint is that communication

will be suppressed ... before an adequate determination that it is unprotected by the First

Amendment.”40 The prohibition on prior restraint, thus, is essentially a limitation on restraints

until a final judicial determination that the restricted speech is not protected by the First

Amendment. It is a limitation, for example, on temporary restraining orders and preliminary

(...continued)

unlawful acquisition, but the ensuing publication as well.” Id. at 535 n.8 (emphasis in original). In Bartnicki v. Vopper,

532 U.S. 514 (2001), the Court held that a content-neutral statute prohibiting the publication of illegally intercepted

communications (in this case a cell phone conversation) violates free speech where the person who publishes the

material did not participate in the interception, and the communication concerns a public issue.

Near v. Minnesota, 283 U.S. 697, 716 (1931).

Freedman v. Maryland, 380 U.S. 51, 57, 58 (1965) (“a noncriminal process which requires the prior submission of a

film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards”); New York Times

Co. v. United States, 403 U.S. 713, 714 (1971) (injunction sought by United States against publication of the Pentagon

Papers denied).

Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court order restraining the

publication or broadcast of accounts of confessions or admissions made by the defendant at a criminal trial).

Injunctions that are designed to restrict merely the time, place, or manner of a particular expression are subject to a less

stringent application of First Amendment principles; see, “Time, Place, and Manner Restrictions,” below.

Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973); see also, Vance v.

Universal Amusement Co., 445 U.S. 308, 315-316 (1980) (“the burden of supporting an injunction against a future

exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the imposition of a

criminal sanction for a past communication”).

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injunctions pending final judgment, not on permanent injunctions after a final judgment is made

that the restricted speech is not protected by the First Amendment.41

In the case of a statute that imposes prior restraint, “a prescreening arrangement can pass

constitutional muster if it includes adequate procedural safeguards.”42 These procedural

safeguards, the Court wrote, include that “the burden of proving that the [speech] is unprotected

expression must rest on the censor,” and “that the censor will, within a specified brief period,

either issue a license or go to court to restrain [speech].”43 In the case of time, place, or manner

restrictions (and presumably other forms of speech that do not receive full First Amendment

protection), lesser procedural safeguards are adequate.44

Prior restraints are permitted in some circumstances. The Supreme Court has written, in dictum,

“that traditional prior restraint doctrine may not apply to [commercial speech],”45 and the Court

has not ruled whether it does. “The vast majority of [federal] circuits ... do not apply the doctrine

of prior restraint to commercial speech.”46 “Some circuits [however] have explicitly indicated that

the requirement of procedural safeguards in the context of a prior restraint indeed applies to

commercial speech.”47

Furthermore, “only content-based injunctions are subject to prior restraint analysis.”48 In addition,

prior restraint is generally permitted, even in the form of preliminary injunctions, in intellectual

property cases, such as those for infringements of copyright or trademark.49

Forum Doctrine

One of the first analyses in which a court will engage when examining a law that burdens

protected speech is the forum analysis. The analysis is important because speech may be more

easily regulated depending upon where it takes place. For example, speech that cannot be

restricted in a public park may be proscribable entirely if it occurs on a military base.

The Supreme Court has identified different types of fora. Some public spaces, such as streets and

parks, are known as “traditional public forums,” which means that they generally are open to all

people to express themselves by speech-making, demonstrating, or leafleting, and the like. The

government may exclude speakers from traditional public forums “only when the exclusion is

See, Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48

Duke Law Journal 147, 169-171 (1998).

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 571 n.13 (1980).

Freedman, 380 U.S. at 58, 59.

Thomas v. Chicago Park District, 534 U.S. 316, 322-323 (2002).

Central Hudson, 447 U.S. at 571 n.13.

Bosley v. WildWetT.com, 310 F. Supp. 2d 914, 930 (N.D. Ohio 2004).

New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123, 131 (2d Cir. 1998), cert. denied, 525

U.S. 824 (1998); citing as examples, Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir.

1996); In re Search of Kitty’s East, 905 F.2d 1367, 1371-72 & n.4 (10th Cir. 1990).

DVD Copy Control Association, Inc. v. Bunner, 75 P.3d 1, 17 (Cal. 2003) (a “prior restraint is a content-based

restriction on speech prior to its occurrence” (italics in original)). For the test regarding content-neutral injunctions, see

the section on “Time, Place, and Manner Restrictions,” below.

Bosley, supra footnote 46, at 930; Lemley and Volokh, supra footnote 41 (arguing that intellectual property should

have the same First Amendment protection from preliminary injunctions as other speech).

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necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that

interest.”50 Likewise, in traditional public forums, the government may limit speech on the basis

of its content only if it shows “that its regulation is necessary to serve a compelling state interest

and that it is narrowly drawn to achieve that end.”51 Thus, in traditional public forums, the

exclusion of speakers or of speech based on its content is constitutional only if it satisfies what

the Court calls “strict scrutiny.”

In traditional public forums, the government may regulate speech as to its time, place, and

manner of expression, so that, for example, two demonstrations do not occur at the same time and

place. The Supreme Court will uphold “regulations of the time, place, and manner of expression

which are content-neutral, are narrowly tailored to serve a significant government interest, and

leave open ample alternative channels of communication.”52 A “significant” government interest,

which is required for a time, place, or manner restriction to be constitutional, may be less vital

than a “compelling” government interest, which is required for a content-based exclusion of

speech from a traditional public forum to be constitutional.

A second category of public forum is the designated public forum, which “consists of public

property which the State has opened for use by the public as a place for expressive activity.”53

Such a forum “may be created for a limited purpose such as use by certain groups” (e.g., student

groups) or for the discussion of certain subjects (e.g., school board business),54 but, within the

framework of such legitimate limitations, “a content-based prohibition must be narrowly drawn to

effectuate a compelling state interest.”55 Thus, “[g]overnment restrictions on speech in a

designated public forum are subject to the same strict scrutiny as restrictions in a traditional

public forum.”56

A third category of forum is “[p]ublic property which is not by tradition or designation a forum

for public communication.... ”57 The Supreme Court has held that “the First Amendment does not

guarantee access to property simply because it is owned and controlled by the government....

[T]he State, no less than a private owner of property, has power to preserve the property under its

control for the use to which it is lawfully dedicated.”58 Thus, although public streets and parks are

traditional public forums, a sidewalk in front of a post office, which belongs to the post office, is

not a traditional nor a dedicated public forum, and the government may prohibit solicitation on

such a sidewalk, on the ground that “solicitation is inherently disruptive of the Postal Service’s

business.”59 A Court plurality found this speech restriction reasonable,60 and, “[i]n such a forum, a

government entity may impose restrictions on speech that are reasonable and viewpoint50

Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 800 (1985).

Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983).

Id.

Id. at 46 n.7.

Id. at 46.

Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132 (2009).

Perry Education Assn., 460 U.S. at 46.

United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129-130 (1981).

United States v. Kokinda, 497 U.S. 720, 732 (1990).

Id. at 727 (“regulation of speech activity where the Government has not dedicated its property to First Amendment

activity is examined only for reasonableness”).

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neutral.”61 Such restrictions, in other words, need not meet strict scrutiny. Also falling into the

category of nonpublic forums are military bases,62 prisons,63 and school mail systems.64

Non-Content-Based Restrictions

If the government limits speech, but its purpose in doing so is not based on the content of the

speech, then the limitation on speech may still violate the First Amendment, but it is less likely

than a content-based restriction to do so. This is because the Supreme Court applies less than

“strict scrutiny” to non-content-based restrictions. With respect to non-content-based restrictions,

the Court requires that the governmental interest be “significant” or “substantial” or “important,”

but not necessarily, as with content-based restrictions, “compelling.” And, in the case of noncontent-based restrictions, the Court requires that the restriction be narrowly tailored, but not, as

with content-based restrictions, that it be the least restrictive means to advance the governmental

interest.

Two types of speech restrictions that receive this “intermediate” scrutiny are (1) time, place, or

manner restrictions, and (2) incidental restrictions, which are restrictions aimed at conduct other

than speech, but that incidentally restrict speech. This report includes separate sections on these

two types of restrictions. In addition, restrictions on commercial speech, though content-based,

are subject to similar intermediate scrutiny; this report also includes a separate section on

commercial speech. Finally, bans on nude dancing and zoning restrictions on pornographic

theaters and bookstores, although discriminating on the basis of the content of speech, receive

intermediate scrutiny because, according to the Supreme Court, they are aimed at combating

“secondary effects,” such as crime, and not at the content of speech.

Time, Place, and Manner Restrictions

Even speech that enjoys the most extensive First Amendment protection may be subject to

“regulations of the time, place, and manner of expression which are content-neutral, are narrowly

tailored to serve a significant government interest, and leave open ample alternative channels of

communication.”65 In the case in which this language appears, the Supreme Court allowed a city

ordinance that banned picketing “before or about” any residence to be enforced to prevent

picketing outside the residence of a doctor who performed abortions, even though the picketing

occurred on a public street. The Court noted that “[t]he First Amendment permits the government

to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the

objectionable speech.”66

Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132 (2009).

Greer v. Spock, 424 U.S. 828 (1976). See also, United States v. Apel, No. 12-1038, slip op. (2014) (holding that

commanding military officers have broad statutory authority to exclude civilians from the grounds of a military base,

including roads that are generally open to the public).

Adderley v. Florida, 385 U.S. 39 (1966) (holding that a sheriff could lawfully remove protesters from a county jail,

because the property was closed to the public and the removal of the protesters served a security purpose).

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983).

Frisby v. Schultz, 487 U.S. 474, 481 (1988).

Id. at 487.

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Thus, the Court, while acknowledging that music, as a form of expression and communication, is

protected under the First Amendment, upheld volume restrictions placed on outdoor music in

order to prevent intrusion on those in the area.67 Other significant governmental interests, besides

protection of captive audiences, may justify content-neutral time, place, and manner restrictions.

For example, in order to prevent crime and maintain property values, a city may place zoning

restrictions on “adult” theaters and bookstores.68 And, in order to maintain the orderly movements

of crowds at a state fair, a state may limit the distribution of literature to assigned locations.69

However, a time, place, and manner restriction will not be upheld in the absence of sufficient

justification or if it is not narrowly tailored. Thus, the Court held unconstitutional a total

restriction on displaying flags or banners on public sidewalks surrounding the Supreme Court.70 A

lack of sufficiently narrow tailoring was also the reason the court struck down a statutory buffer

zone prohibiting speech near abortion clinics in Massachusetts, which will be discussed further

below.71 Lastly, a time, place, and manner restriction will not be upheld if it fails to “leave open

ample alternative channels for communication.” Accordingly, the Court held unconstitutional an

ordinance that prohibited the display of signs from residences, because “[d]isplaying a sign from

one’s own residence often carries a message quite distinct from placing the same sign someplace

else.”72

When a court issues an injunction that restricts the time, place, or manner of a particular form of

expression, because prior restraint occurs, “a somewhat more stringent application of general

First Amendment principles” is required than is required in the case of a generally applicable

statute or ordinance that restricts the time, place, or manner of speech.73 Instead of asking whether

the restrictions are “narrowly tailored to serve a significant governmental interest,” a court must

ask “whether the challenged provisions of the injunction burden no more speech than necessary to

serve a significant government interest.”74 Applying this standard, the Supreme Court, in Madsen

v. Women’s Health Center, Inc., upheld a state court injunction that had ordered the establishment

of a 36-foot buffer zone on a public street outside a particular health clinic that performed

abortions. The Court in this case also upheld an injunction against noise during particular hours,

but found that a “broad prohibition on all ‘images observable’ burdens speech more than

necessary to achieve the purpose of limiting threats to clinic patients or their families.”75 It also

Ward v. Rock Against Racism, 491 U.S. 781 (1989).

Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976); Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986).

Although singling out “adult” material might appear to be a content-based distinction, the Court in Renton said that

regulations of speech are content-neutral if they “are justified without reference to the content of the regulated speech.”

475 U.S. at 48 (emphasis in original). Zoning restrictions are justified as measures to “prevent crime, protect the city’s

retail trade, maintain property values, and generally ‘protec[t] and preserv[e] the quality of [the city’s] neighborhoods,

commercial districts, and the quality of urban life,’ not to suppress the expression of unpopular views.” Id.

Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981).

United States v. Grace, 461 U.S. 171 (1983).

McCullen v. Coakley, No. 12-1168, slip op. (2014), available at http://www2.bloomberglaw.com/public/desktop/

document/McCullen_v_Coakley_No_121168_US_June_26_2014_Court_Opinion.

City of Ladue v. Gilleo, 512 U.S. 43 (1994).

Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 765 (1994). In this case, the Court held that the challenged

injunction was content-neutral, even though it was directed at abortion protesters, because its purpose was to protect

patients, not to interfere with the protesters’ message.

Id. This is not “prior restraint analysis,” which courts apply to content-based injunctions; see, “Content-Based

Restrictions,” supra.

Id. at 773.

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struck down a prohibition on all uninvited approaches of persons seeking the services of the

clinic, and a prohibition against picketing within 300 feet of the residences of clinic staff. The

Court distinguished the 300-foot restriction from the ordinance it had previously upheld that

banned picketing “before or about” any residence.

In Schenck v. Pro-Choice Network of Western New York, the Court applied Madsen to another

injunction that placed restrictions on demonstrating outside an abortion clinic.76 The Court upheld

the portion of the injunction that banned “demonstrating within fifteen feet from either side or

edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and

driveway entrances of such facilities”—what the Court called “fixed buffer zones.” It struck

down a prohibition against demonstrating “within fifteen feet of any person or vehicles seeking

access to or leaving such facilities”—what it called “floating buffer zones.” The Court cited

“public safety and order” in upholding the fixed buffer zones, but it found that the floating buffer

zones “burden more speech than is necessary to serve the relevant governmental interests”

because they make it “quite difficult for a protester who wishes to engage in peaceful expressive

activity to know how to remain in compliance with the injunction.” The Court also upheld a

“provision, specifying that once sidewalk counselors who had entered the buffer zones were

required to ‘cease and desist’ their counseling, they had to retreat 15 feet from the people they had

been counseling and had to remain outside the boundaries of the buffer zones.”

In Hill v. Colorado, the Court upheld a Colorado statute that makes it unlawful, within 100 feet of

the entrance to any health care facility, to “knowingly approach” within 8 feet of another person,

without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a

sign to, or engaging in oral protest, education, or counseling with such other person.”77 This

decision is significant because it upheld a statute that applies to everyone, and not, as in Madsen

and Schenck, an injunction directed at a particular situation. The Court found the statute to be a

content-neutral time, place, and manner regulation of speech that “reflects an acceptable balance

between the constitutionally protected rights of law-abiding speakers and the interests of

unwilling listeners.”78 The restrictions are content-neutral because they regulate only the places

where some speech may occur, and because they apply equally to all demonstrators, regardless of

viewpoint. Although the restrictions do not apply to all speech, the “kind of cursory examination”

that might be required to distinguish casual conversation from protest, education, or counseling is

not “problematic.”79 The law is “narrowly tailored” to achieve the state’s interests. The eight-foot

restriction does not significantly impair the ability to convey messages by signs, and ordinarily

allows speakers to come within a normal conversational distance of their targets. Because the

statute allows the speaker to remain in one place, persons who wish to hand out leaflets may

position themselves beside entrances near the path of oncoming pedestrians, and consequently are

not deprived of the opportunity to get the attention of persons entering a clinic.

The constitutionality of buffer zone statutes was recently brought into question again in 2014

when the Supreme Court struck down a Massachusetts statute that banned all speech within 35

feet of the entrance to abortion clinics.80 The case was captioned McCullen v. Coakley. The Court

519 U.S. 357 (1997).

530 U.S. 703, 707 (2000).

Id. at 714.

Id. at 722.

McCullen v. Coakley, No. 12-1168, slip op. (2014), available at http://www2.bloomberglaw.com/public/desktop/

document/McCullen_v_Coakley_No_121168_US_June_26_2014_Court_Opinion.

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did not overrule Hill v. Colorado, but did appear to narrow the circumstances to which buffer

zones may be applied. Justice Roberts began the majority opinion in McCullen with a paean to

speech on public sidewalks that have “immemorially been held in trust for the use of the public

and, time out of mind have been used for purposes of assembly, communicating thoughts between

citizens, and discussing public questions.”81 Because speech on public sidewalks is so integral to

public discussion, the law, though it did not reference speech specifically, was subject to First

Amendment scrutiny. Though the content-neutrality of the statute was challenged, ultimately, the

majority held that the law was content neutral because it was justified regardless of the content of

the speech restricted and was aimed at addressing legitimate government concerns separate and

apart from the suppression of speech. Namely, the law sought to protect public safety and access

to clinic facilities and did not, on its face, single out speech on a certain topic for greater

restriction. The Court acknowledged that because the law applied only to abortion clinics, the law

had the “inevitable effect” of restricting speech about abortion more than other types of speech.

However, “a facially neutral law does not become content based simply because it may

disproportionately affect speech on certain topics.”

The majority struck down the law, nonetheless, finding that the law was not narrowly tailored

enough to withstand even the lower standard of scrutiny. The Court began this portion of the

decision by discussing the plight of the petitioners in this case. Massachusetts’s law is in place,

ostensibly, to protect public safety, a legitimate concern. The plaintiffs, however, apparently did

not pose a threat to public safety in the opinion of the Court. The plaintiffs sought to peacefully

and quietly counsel women who may be seeking abortions. Of this, the Court notes, “Petitioners

are not protestors. They seek not merely to express their opposition to abortion, but to inform

women of various alternatives and provide help in pursuing them.”82 The petitioners argued that

the buffer zones inhibited their communication of this message because they often could not tell,

until a woman was inside a buffer zone, whether she was a woman they would wish to counsel.

This fact led them to be reduced to shouting or yelling to women to attempt to gain their

attention, a tactic, the Court noted, that is at odds with their intended message. In other words, the

distance the plaintiffs were required to stand away from the clinic entrance changed their message

in what the Court believed was a substantial way, and Massachusetts had not offered sufficient

evidence to support its argument that the buffer zone was the only way that the commonwealth’s

goals could be achieved.

In the wake of this decision, what is clear is that generally applicable laws creating buffer zones

that apply to all speech and activities in public fora with the intention of protecting public safety

will be considered to be content neutral, and reviewed under the less restrictive time, place, and

manner standard. However, it appears that, when reviewing whether the law is narrowly tailored

to achieve the government’s interests, the Court will be less inclined to accept the government’s

contention that the burden on otherwise protected speech created by buffer zones is necessary to

preserve public safety without more evidence that the threat to public safety is ongoing and a

permanent statutory prohibition remains necessary. Instead, the Court appeared to indicate that a

more tailored approach to particular circumstances would be preferable. As a result, there may be

a return to the use of injunctions to institute temporary buffer zones when circumstances require,

instead of statutes banning speech regardless of whether a need to regulate speech in a particular

location has ever been demonstrated. The Court also appeared to be sensitive to the fact that the

design of the buffer zone in this case had the effect of changing the message of the plaintiffs in

Id.

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McCullen by requiring them to shout in order to get the attention of those to whom they wished to

speak. States instituting buffer zones in the future might be advised to take this into account when

crafting buffer zone distances.

Incidental Restrictions

Some laws are not designed to limit freedom of expression, but nevertheless can have that effect.

For example, when a National Park Service regulation prohibiting camping in certain parks was

applied to prohibit demonstrators who were attempting to call attention to the plight of the

homeless from sleeping in certain Washington, DC, parks, it had the effect of limiting the

demonstrators’ freedom of expression. Nevertheless, the Court found that application of the

regulation did not violate the First Amendment because the regulation was content-neutral and

was narrowly focused on a substantial governmental interest in maintaining parks “in an

attractive and intact condition.”83

The Supreme Court has said that an incidental restriction on speech is constitutional if it is not

“greater than necessary to further a substantial governmental interest.”84 However, the Court has

made clear that an incidental restriction, unlike a content-based restriction, “need not be the least

restrictive or least intrusive means” of furthering a governmental interest. Rather, the restriction

must be “narrowly tailored,” and “the requirement of narrow tailoring is satisfied ‘so long as the

... regulation promotes a substantial governmental interest that would be achieved less effectively

absent the regulation.’”85

The Court has noted that the standard for determining the constitutionality of an incidental

restriction “in the last analysis is little, if any, different from the standard applied to time, place, or

manner restrictions.”86 Thus, the restriction on camping may be viewed as a restriction on

conduct that only incidentally affects speech, or, if one views sleeping in connection with a

demonstration as expressive conduct, then the restriction may be viewed as a time, place, and

manner restriction on expressive conduct. In either case, as long as the restriction is contentneutral, the same standard for assessing its constitutionality will apply.

In 1991, the Supreme Court held that the First Amendment does not prevent the government from

requiring that dancers wear “pasties” and a “G-string” when they dance (non-obscenely) in

“adult” entertainment establishments. Indiana sought to enforce a state statute prohibiting public

nudity against two such establishments, which asserted First Amendment protection. The Court

found that the statute proscribed public nudity across the board, not nude dancing as such, and

therefore imposed only an incidental restriction on expression.87 In 2000, the Supreme Court

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 537 (1987). This is known

as the “O’Brien test,” which was first formulated in the case United States v. O’Brien, 391 U.S. 367, 382 (1968)..

Ward, 491 U.S. at 798-799. This case makes clear that, although both “strict scrutiny” and the O’Brien test for

incidental restrictions require “narrow tailoring,” “the same degree of tailoring is not required” under the two; under the

O’Brien test, “least-restrictive-alternative analysis is wholly out of place.” Id. at 798-799 n.6. It is also out of place in

applying the Central Hudson commercial speech test.

Clark, 468 U.S. at 298. And, “the validity of time, place, or manner restrictions is determined under standards very

similar to those applicable in the commercial speech context.” United States v. Edge Broadcasting Co., 509 U.S. 418,

430 (1993).

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).

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again upheld the application of a statute prohibiting public nudity in an “adult” entertainment

establishment. It found that the statute was intended “to combat harmful secondary effects,” such

as “prostitution and other criminal activity.”88

In a 1994 case, the Supreme Court apparently put more teeth into the test for incidental

restrictions by remanding the case for further proceedings rather than deferring to Congress’s

judgment as to the necessity for the “must-carry” provisions of the Cable Television Consumer

Protection and Competition Act of 1992.89 To justify an incidental restriction of speech, the Court

wrote, the government “must demonstrate that the recited harms are real, not merely conjectural,

and that the regulation will in fact alleviate these harms in a direct and material way.”90 The Court

added that

[its] obligation to exercise independent judgment when First Amendment rights are

implicated is not a license to reweigh the evidence de novo, or to replace Congress’ factual

predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress

has drawn reasonable inferences based on substantial evidence.91

Commercial Speech

“The Constitution ... affords a lesser protection to commercial speech than to other

constitutionally guaranteed expression.”92 Commercial speech is “speech that proposes a

commercial transaction.”93 The most typical example of commercial speech is an advertisement.

However, other speech related to commercial transactions may be regulated as commercial

speech, too. For example, the disclosures required for the public sale of securities are commercial

speech and regulated as such. However, speech itself does not become commercial speech simply

because it is sold. That books and films are published and sold for profit does not make them

commercial speech; that is, it does not “prevent them from being a form of expression whose

liberty is safeguarded [to the maximum extent] by the First Amendment.”94 Important to each

attempt by the government to regulate speech due to its commercial character, therefore, is the

question of whether the speech is, in fact, commercial in the constitutional sense.

Erie v. Pap’s A.M., 529 U.S. 277 (2000).

Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994), discussed under

“Radio and Television,” below. David Cole describes Turner as “effectively giving bite to the O’Brien standard.” He

writes that, “if the Court had applied the O’Brien standard the way it applied that standard in O’Brien, it should have

upheld the ‘must carry’ rule. The O’Brien standard is extremely deferential.” The Perils of Pragmatism, LEGAL TIMES,

July 25, 1994, at S27, S30.

Id. at 664.

Id. at 666.

Edge Broadcasting Co., 509 U.S. at 418.

Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989) (emphasis in original). In

Nike, Inc. v. Kasky, 45 P.3d 243 (2002), cert. dismissed, 539 U.S. 654 (2003), Nike was sued for unfair and deceptive

practices for allegedly false statements it made concerning the working conditions under which its products were

manufactured. The California Supreme Court ruled that the suit could proceed, and the Supreme Court granted

certioriari, but then dismissed it as improvidently granted, with a concurring and two dissenting opinions. The issue left

undecided was whether Nike’s statements, though they concerned a matter of public debate and appeared in press

releases and letters rather than in advertisements for its products, should be deemed “‘commercial speech’ because they

might affect consumers’ opinions about the business as a good corporate citizen and thereby affect their purchasing

decisions.” Id. at 657 (Stevens, J., concurring). Nike subsequently settled the case.

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502 (1952).

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Commercial speech may be banned if it is false or misleading, or if it advertises an illegal product

or service. Even if it fits in none of these categories, the government may regulate it more than it

may regulate fully protected speech. In addition, the government may generally require

disclosures to be included in commercial speech; see the section on “Compelled Speech,” below.

The Supreme Court has prescribed the four-prong Central Hudson test to determine whether a

governmental regulation of commercial speech is constitutional. This test asks initially (1)

whether the commercial speech at issue is protected by the First Amendment (that is, whether it

concerns a lawful activity and is not misleading) and (2) whether the asserted governmental

interest in restricting it is substantial. “If both inquiries yield positive answers,” then to be

constitutional the restriction must (3) “directly advance[ ] the governmental interest asserted,”

and (4) be “not more extensive than is necessary to serve that interest.”95

The Supreme Court has held that, in applying the third prong of the Central Hudson test, the

courts should consider whether the regulation, in its general application, directly advances the

governmental interest asserted. If it does, then it need not advance the governmental interest as

applied to the particular person or entity challenging it.96 Its application to the particular person or

entity challenging it is relevant in applying the fourth Central Hudson factor, although this factor

too is to be viewed in terms of “the relation it bears to the overall problem the government seeks

to correct.”97 The fourth prong is not to be interpreted “strictly” to require the legislature to use

the “least restrictive means” available to accomplish its purpose. Instead, the Court has held,

legislation regulating commercial speech satisfies the fourth prong if there is a reasonable “fit”

between the legislature’s ends and the means chosen to accomplish those ends.98

Despite the more lenient standard of review applied to the regulation of commercial speech, the

Court often strikes down commercial speech regulations that burden too much speech,

particularly if the speech is neither false nor misleading.99 In 44 Liquormart, Inc. v. Rhode Island,

the Court struck down a state statute that prohibited disclosure of retail prices in advertisements

for alcoholic beverages.100 In the process, the Court made clear that a total prohibition on “the

dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the

preservation of a fair bargaining process” will be subject to a stricter review by the courts than a

regulation designed “to protect consumers from misleading, deceptive, or aggressive sales

practices.”101 The Court added, “The First Amendment directs us to be especially skeptical of

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. at 566 (1980).

See, Edge Broadcasting, 509 U.S. at 427.

Id. at 430.

Fox, 492 U.S. at 480.

See Cincinatti v. Discovery Network, Inc., 507 U.S. 510 (1993) (striking down a Cincinatti regulation that banned

newsracks on public property if they distributed commercial publications); Edenfield v. Fane, 507 U.S. 761 (1993)

(striking down a Florida law banning solicitation by certified public accountants); Edge Broadcasting, 509 U.S. at 418

(upholding federal statutes that prohibit the broadcast of lottery advertising by a broadcaster licensed to a State that

does not allow lotteries, while allowing such broadcasting by a broadcaster licensed to a State that sponsors a lottery);

Ibanez v. Florida Board of Accountancy, 512 U.S. 136 (1994) (holding that the Florida Board of accountancy could not

prohibit a Certified Public Accountant from stating that she was a certified public accountant in her advertisements);

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (striking down 27 U.S.C. § 205(e), which prohibited beer labels

from displaying alcohol content unless state law required the disclosure, because the regulatory scheme was irrational);

Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)(upholding a rule that prohibited personal injury lawyers from

sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster).

100

Id.

101

Id. at 501. The nine Justices were unanimous in striking down the law, which prohibited advertising the price of

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regulations that seek to keep people in the dark for what the government perceives to be their own

good.”102

The Court has also demonstrated a willingness to strike down commercial speech regulations

where the government’s chosen methods of achieving a legitimate goal are too burdensome on the

speakers. In Lorillard Tobacco Co. v. Reilly, the Supreme Court applied the Central Hudson test

to strike down most of the Massachusetts attorney general’s regulations governing the advertising

and sale of cigarettes, smokeless tobacco, and cigars.103 The Court struck down the outdoor

advertising regulations under the fourth prong of the Central Hudson test, finding that the

prohibition of any advertising within 1,000 feet of schools or playgrounds “prohibit[ed]

advertising in a substantial portion of the major metropolitan areas of Massachusetts,”104 and that

such a burden on speech did not constitute a reasonable fit between the means and ends of the

regulatory scheme. “Similarly, a ban on all signs of any size seems ill suited to target the problem

of highly visible billboards, as opposed to smaller signs.”105

In a case that further elucidates the application of the fourth prong of the Central Hudson test and

reemphasizes the Court’s reluctances to uphold restrictions on the communication of truthful

information, even in the commercial context, Thompson v. Western States Medical Center,106 the

Court struck down Section 503A of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 353a, which

“exempts ‘compounded drugs’ from the Food and Drug Administration’s standard drug approval

requirements as long as the providers of those drugs abide by several restrictions, including that

they refrain from advertising or promoting particular compounded drugs.”107 “Drug

compounding,” the Court explained, “is a process by which a pharmacist or doctor combines,

mixes, or alters ingredients to create a medication tailored to the needs of an individual

patient.”108 The Court found that the speech restriction in this case served “important”

governmental interests, but that, “[e]ven assuming” that it directly advances these interests, it

failed the fourth prong of the Central Hudson test.109 In considering the fourth prong, the Court

wrote that “the Government has failed to demonstrate that the speech restrictions are ‘not more

extensive than is necessary to serve’” the governmental interests, as “[s]everal non-speech-related

means [of serving those interests] might be possible here.”110 “If the First Amendment means

anything,” the Court added, “it means that regulating speech must be a last—not first—resort. Yet

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alcoholic beverages, but only parts of Justice Stevens’ opinion for the Court were joined by a majority of justices. The

quotations above, for example, are from Part IV of the Court’s opinion, which was joined by only Justices Kennedy and

Ginsburg besides Justice Stevens.

102

Id. at 503.

103

533 U.S. 525 (2001).

104

Id. at 562.

105

Id. at 563. The Court also found “that the point-of-sale advertising regulations fail both the third and fourth steps of

the Central Hudson analysis.” The prohibition on advertising “placed lower than five feet from the floor of any retail

establishment which is located within a one thousand foot radius of” any school or playground did not advance the goal

of preventing minors from using tobacco products because “[n]ot all children are less than 5 feet tall, and those who are

certainly have the ability to look up and take in their surroundings.” Id. at 566.

106

535 U.S. 357 (2002).

107

Id. at 360.

108

Id. at 360-361.

109

Id. at 369, 371.

110

Id. at 371, 372.

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here it seems to have been the first strategy the Government thought to try.”111 The Court noted

that it had “rejected the notion that the Government has an interest in preventing the

dissemination of truthful commercial information in order to prevent members of the public from

making bad decisions with the information.”112

Lastly, in its Thompson opinion, the Court noted that “several Members of the Court have

expressed doubts about the Central Hudson analysis and whether it should apply in particular

cases.” These Justices believe that the test does not provide adequate protection to commercial

speech, but the Court has found it unnecessary to consider whether to abandon the test, because it

has been striking down the statutes in question. It is possible, given recent developments, that the

Court is now moving towards a higher degree of protection for at least some truthful commercial

speech.

In Sorrell v. IMS Health,113 the Court, for the first time since the Central Hudson decision was

issued, did not apply the Central Hudson standard to a commercial speech regulation. Instead, the

Court applied what it termed to be “heightened judicial scrutiny” to a Vermont statute that

prohibited the sale of certain data for the purposes of using that data to market drugs to doctors

and other medical professionals. The data could be freely sold for academic research or for any

other reason not related to the commercial use of the data. The Court held that the Vermont statute

should be subject to “heightened judicial scrutiny,” because it placed both content- and speakerbased restrictions on speech.114 The Court seemed particularly concerned with what it believed to

be Vermont’s attempt to favor its own message by disadvantaging the speech of a particular group

(in this case, pharmaceutical marketers). The “First Amendment requires heightened scrutiny

whenever the government creates ‘a regulation of speech because of disagreement with the

message it conveys.’”115 Burdens on commercial speech are not excepted from this rule,

according to the Court. Often citizens may have more of an interest in hearing truthful

commercial speech than even highly valued political dialogue. “That reality has great relevance in

the fields of medicine and public health, where information can save lives.”116

Fundamentally, the Court seemed to be particularly concerned that the government, in this case,

had burdened a message simply because the government did not approve of the message, and

found it to be too effective. The government also left unburdened the speech of speakers with

whom the government agreed or whose message the government supported. “This the State

cannot do,” even when regulating commercial speech.117 It remains to be seen whether Sorrell

signals a shift in the Court towards greater protections for commercial speech and away from the

Central Hudson test.

111

Id. at 373.

Id. at 374.

113

No. 10-779 131 S.Ct. 2653 (2011).

114

Id. at 2663-2664.

115

Id. (citing Ward, 491 U.S. at 791).

116

Id.

117

Id.

112

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Compelled Speech

On occasion, the government attempts to compel speech rather than to restrict it. For example, in

Riley v. National Federation of the Blind of North Carolina, Inc., a North Carolina statute

required professional fundraisers for charities to disclose to potential donors the gross percentage

of revenues retained in prior charitable solicitations.118 The Supreme Court held this unconstitutional, stating:

There is certainly some difference between compelled speech and compelled silence, but in

the context of protected speech, the difference is without constitutional significance, for the

First Amendment guarantees “freedom of speech,” a term necessarily comprising the

decision of both what to say and what not to say.119

Nonetheless, disclosures in the noncommericial context may also be permissible in some

circumstances. In Meese v. Keene, the Court upheld a compelled disclosure requirement in the

Foreign Agents Registration Act of 1938.120 It requires that, when an agent of a foreign principal

seeks to disseminate foreign “political propaganda,” he must label such material with certain

information, including his identity, the principal’s identity, and the fact that he has registered with

the Department of Justice.

On the subject of compelled disclosure, the Court wrote:

Congress did not prohibit, edit, or restrain the distribution of advocacy materials.... To the

contrary, Congress simply required the disseminators of such material to make additional

disclosures that would better enable the public to evaluate the import of the propaganda.121

One might infer from this that compelled disclosure, in a noncommercial context, gives rise to no

serious First Amendment issue, and nothing in the Court’s opinion would seem to refute this

inference. Thus, it seems impossible to reconcile this opinion with the Court’s holding a year later

in Riley (which did not mention Meese v. Keene) that there is no difference of constitutional

significance between compelled speech and compelled silence.

In Meese v. Keene, the Court did not mention earlier cases in which it had struck down laws

compelling speech. In Wooley v. Maynard, the Court struck down a New Hampshire statute

requiring motorists to leave visible on their license plates the motto “Live Free or Die.”122 In West

Virginia State Board of Education v. Barnette, the Court held that a state may not require children

to pledge allegiance to the United States.123 In Miami Herald Publishing Co. v. Tornillo, the Court

118

487 U.S. 781 (1988). In Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 605 (2003), the

Supreme Court held that a fundraiser who retained 85 percent of gross receipts from donors, but falsely represented that

“a significant amount of each dollar donated would be paid over to” a charitable organization, could be sued for fraud.

“So long as the emphasis is on what the fundraisers misleadingly convey, and not on percentage limitations on

solicitors’ fees per se, such [fraud] actions need not impermissibly chill protected speech.” Id. at 619.

119

Riley, 487 U.S. at 796-797 (emphasis in original).

120

481 U.S. 465 (1987).

121

Id. at 480.

122

430 U.S. 705 (1977).

123

319 U.S. 624 (1943).

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struck down a Florida statute that required newspapers to grant political candidates equal space to

reply to the newspapers’ criticism and attacks on their record.124

In McIntyre v. Ohio Elections Commission, the Court, applying strict scrutiny, struck down a

compelled disclosure requirement by holding unconstitutional a state statute that prohibited the

distribution of anonymous campaign literature. “The State,” the Court wrote, “may, and does,

punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing

a category of speech, based on its content, with no necessary relationship to the danger sought to

be prevented.”125

In Hurley v. Irish-American Gay Group of Boston, the Court held that Massachusetts could not

require private citizens who organize a parade to include among the marchers a group imparting a

message—in this case support for gay rights—that the organizers do not wish to convey.

Massachusetts had attempted to apply its statute prohibiting discrimination on the basis of sexual

orientation in any place of public accommodations, but the Court held that parades are a form of

expression, and the state’s “[d]isapproval of a private speaker’s statement does not legitimatize

use of the Commonwealth’s power to compel the speaker to alter the message by including one

more acceptable to others.”126

Each of these cases, Meese v. Keene notwithstanding, indicates that the Court may be nearly as

reluctant to allow the government to require speech as it is to allow the government to prohibit it.

However, recently, the Court took a different view. In Citizens United v. FEC,127 the Court upheld

requirements for disclosure of funding sources for electioneering communications in the

Bipartisan Campaign Reform Act using language very similar to that it used in Meese v. Keene.

The Court found that, while the disclosure requirements may place some burden on speakers, they

“do not prevent anyone from speaking” and “impose no ceiling on campaign-related activities.”

The Court acknowledged that the requirements might be unconstitutional if there was a

reasonable probability that the speaker might suffer threats or harm as a result of the speech, but

found that the requirements only would be unconstitutional as applied in those cases. It seems,

therefore, that generally applicable disclosure requirements may be permissible in the eyes of the

Court, so long as they are factual, do not prevent any speech, do not require the communication of

a message with which a private speaker does not agree, and are not aimed at suppressing

particular categories of speakers.

Commercial Disclosure Requirements

In the commercial speech context, by contrast, the Supreme Court held, in Zauderer v. Office of

Disciplinary Counsel, that

[an advertiser’s] constitutionally protected interest in not providing any particular factual

information in his advertising is minimal.... [A]n advertiser’s rights are reasonably protected

124

418 U.S. 241 (1974). In Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986),

the Court held that a state may not require a privately owned utility company to include in its billing envelopes views

of a consumer group with which it disagrees. While a plurality opinion adhered to by four Justices relied heavily on

Tornillo, there was not a Court majority consensus as to rationale.

125

514 U.S. 334, 357 (1995).

126

515 U.S. 557, 581 (1995).

127

130 S. Ct. 876 (2010).

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as long as disclosure requirements are reasonably related to the State’s interest in preventing

deception of consumers.... The right of a commercial speaker not to divulge accurate

information regarding his services is not ... a fundamental right.128

In Zauderer, the Supreme Court upheld an Ohio requirement that advertisements by lawyers that

mention contingent-fee rates disclose whether percentages are computed before or after deduction

of court costs and expenses. It stands for the principle that the government may require

commercial speakers to provide additional factual information along with their commercial

messages, as long as the disclosure requirement is reasonably related to the government’s interest.

According to a number of Circuit Courts of Appeal, the Zauderer standard may apply to

disclosure requirements imposed for reasons beyond the prevention of consumer deception.129

Check-off Programs

Another type of compelled commercial speech occurs when the government requires industry

participants to contribute money that will support advertising campaigns for the industry, often

called “check-off” programs. In Glickman v. Wileman Brothers & Elliott, Inc., the Supreme Court

upheld the constitutionality of marketing orders promulgated by the Secretary of Agriculture that

imposed assessments on fruit growers to cover the cost of generic advertising of fruits.130 The

First Amendment, the Court held, does not preclude the government from “compel[ling] financial

contributions that are used to fund advertising,” provided that such contributions do not finance

“political or ideological” views.131

However, in United States v. United Foods, Inc., the Court struck down a federal statute that

mandated assessments on handlers of fresh mushrooms to fund advertising for the product.132 The

Court did not apply the Central Hudson commercial speech test, but rather found “that the

mandated support is contrary to First Amendment principles set forth in cases involving

expression by groups which include persons who object to the speech, but who, nevertheless,

must remain members of the group by law or necessity.”133 It distinguished Glickman on the

ground that “[i]n Glickman the mandated assessments for speech were ancillary to a more

comprehensive program restricting marketing authority. Here, for all practical purposes, the

advertising itself, far from being ancillary, is the principal object of the regulatory scheme.”134

In Johanns v. Livestock Marketing Association, the Supreme Court upheld a federal statute that

directed the Secretary of Agriculture to use funds raised by an assessment on cattle sales and

importation to promote the marketing and consumption of beef and beef products.135 The Court

128

471 U.S. 626, 651, 652 n.14 (1985) (emphasis in original).

American Meat Institute v. Dep’t of Ag., No. 13-5281 (D.C. Cir. 2014); N.Y. State Rest. Ass’n v. N.Y. City Bd. of

Health, 556 F.3d 114, 133 (2d Cir. 2009); Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 310 (1st Cir. 2005)

(Torruella, J.).

130

521 U.S. 457 (1997).

131

Id., 521 U.S. at 471, 472. The Court found that the marketing orders did not raise a First Amendment issue, but

“simply a question of economic policy for Congress and the Executive to resolve.” The Central Hudson test (see

“Commercial Speech,” above), therefore, was inapplicable. Id. at 474.

132

533 U.S. 405 (2001).

133

Id. at 413.

134

Id. at 411.

135

544 U.S. 550 (2005).

129

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found that, unlike in Glickman and United Foods, where “the speech was, or was presumed to be,

that of an entity other than the government itself,” in Johanns the promotional campaign

constituted the government’s own speech and therefore was “exempt from First Amendment

scrutiny.”136 It did not matter “whether the funds for the promotions are raised by general taxes or

through targeted assessment.”137 As for the plaintiffs’ contention “that crediting the advertising to

‘America’s Beef Producers’” attributes the speech to them, the Court found that, because the

statute does not require such attribution, it does not violate the First Amendment, but the

plaintiffs’ contention might form the basis for challenging the manner in which the statute is

applied.138 Therefore, it seems that “check-off” programs and marketing orders will likely be

upheld as constitutional so long as the advertising campaign constitutes the government’s own

speech.

Defamation

Defamation (libel is written defamation; slander is oral defamation) is the intentional

communication of a falsehood about a person, to someone other than that person, that injures the

person’s reputation. The injured person may sue and recover damages under state law, unless state

law makes the defamation privileged (for example, a statement made in a judicial, legislative,

executive, or administrative proceeding is ordinarily privileged). Being required to pay damages

for a defamatory statement restricts one’s freedom of speech; defamation, therefore, constitutes an

exception to the First Amendment.

The Supreme Court, however, has granted limited First Amendment protection to defamation.

The Court has held that public officials and public figures may not recover damages for

defamation unless they prove, with “convincing clarity,” that the defamatory statement was made

with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of

whether it was false or not.”139

The Court has also held that a private figure who sues a media defendant for defamation may not

recover without some showing of fault, although not necessarily of actual malice (unless the

relevant state law requires it). However, if a defamatory falsehood involves a matter of public

concern, then even a private figure must show actual malice in order to recover presumed

damages (i.e., not actual financial damages) or punitive damages.140

Speech Harmful to Children

Speech that is otherwise fully protected by the First Amendment may be restricted in order to

protect children. This is because the Court has “recognized that there is a compelling interest in

protecting the physical and psychological well-being of minors.”141 However, any restriction must

136

Id. at 559, 553.

Id. at 562.

138

Id. at 564-566.

139

New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).

140

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

141

Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). A federal district court noted that, in

cases that involve a restriction of minors’ access to sexually explicit material, “the Supreme Court’s jurisprudence does

not require empirical evidence. Only some minimal amount of evidence is required.... ” Playboy Entertainment Group,

(continued...)

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be accomplished “‘by narrowly drawn regulations without unnecessarily interfering with First

Amendment freedoms.’ It is not enough to show that the government’s ends are compelling; the

means must be carefully tailored to achieved those ends.”142

Thus, the government may prohibit the sale to minors of material that it deems “harmful to

minors” (“so called ‘girlie’ magazines”), whether or not they are not obscene as to adults.143 It

may prohibit the broadcast of “indecent” language on radio and television during hours when

children are likely to be in the audience, but it may not ban it around the clock unless it is

obscene.144 Federal law currently bans indecent broadcasts between 6 a.m. and 10 p.m.145

Similarly, Congress may not ban dial-a-porn, but it may (as it does at 47 U.S.C. § 223) prohibit it

from being made available to minors or to persons who have not previously requested it in

writing.146

The government’s ability to restrict speech in order to protect children is not unlimited, however.

In Reno v. American Civil Liberties Union, the Supreme Court declared unconstitutional two

provisions of the Communications Decency Act (CDA) that prohibited indecent communications

to minors on the Internet.147 The Court held that the CDA’s “burden on adult speech is unaccep(...continued)

Inc. v. U.S., 30 F. Supp. 2d 702, 716 (D. Del. 1998); aff’d, 529 U.S. 803 (2000). By contrast, in cases not involving

access of minors to sexually explicit material, the Supreme Court generally requires that the government, to justify a

restriction even on speech with less than full First Amendment protection, “must demonstrate that the recited harms are

real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”

Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (incidental restriction on speech). See also, Edenfield v.

Fane, 507 U.S. 761, 770-771 (1993) (restriction on commercial speech); Nixon v. Shrink Missouri Government PAC,

528 U.S. 377, 392 (2000) (restriction on campaign contributions).

142

Id. In the case of content-based regulations, narrow tailoring requires that the regulation be “the least restrictive

means to further the articulated interest.”

143

Ginsberg v. New York, 390 U.S. 629, 631 (1968). The Supreme Court held that this standard does not extend to

violent speech. Brown v. Ent. Merch. Ass’n, 131 S. Ct. 2729 (2011).

144

Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Action for Children’s

Television v. Federal Communications Commission, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S.

1043 (1996). The Supreme Court has stated that, to be indecent, a broadcast need not have prurient appeal; “the normal

definition of ‘indecent’ refers merely to nonconformance with accepted standards of morality,” Pacifica, 438 U.S. at

740. The FCC holds that the concept “is intimately connected with the exposure of children to language that describes,

in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or

excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the

audience.” Id. at 732. The FCC applied this definition in a case in which the singer Bono said at the Golden Globe

Awards that his award was “f[***]ing brilliant.” In another case involving “fleeting expletives,” however, the U.S.

Court of Appeals for the Second Circuit held “that the FCC’s new policy regarding ‘fleeting expletives’ is arbitrary and

capricious under the Administrative Procedure Act.” Fox Television Stations, Inc. v. Federal Communications

Commission, 489 F.3d 444 (2d Cir. 2007). The Supreme Court, however, reversed the Second Circuit’s decision,

finding that the FCC’s explanation of its decision was adequate; it left open the question whether censorship of fleeting

expletives violates the First Amendment. Federal Communications Commission v. Fox Television Stations, Inc., 129 S.

Ct. 1800 (2009).

Similarly, the FCC fined broadcast stations for broadcasting Janet Jackson’s exposure of her breast for nine-sixteenth

of a second during a Super Bowl halftime show, but a federal court of appeals overturned the fine on non-constitutional

grounds. CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008). For additional information, including an analysis of whether

prohibiting the broadcast of “fleeting expletives” would violate the First Amendment, see CRS Report RL32222,

Regulation of Broadcast Indecency: Background and Legal Analysis, by (name redacted).

145

See, “Speech on Radio and Television.”

146

Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115 (1989); Dial

Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992).

147

521 U.S. 844 (1997).

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table if less restrictive alternatives would be at least as effective in achieving the legitimate

purpose that the statute was enacted to serve.” “[T]he governmental interest in protecting children

from harmful materials ... does not justify an unnecessarily broad suppression of speech

addressed to adults. As we have explained, the Government may not ‘reduc[e] the adult

population ... to ... only what is fit for children.’”148

The Court distinguished the Internet from radio and television because (1) “[t]he CDA’s broad

categorical prohibitions are not limited to particular times and are not dependent on any

evaluation by an agency familiar with the unique characteristics of the Internet”; (2) the CDA

imposes criminal penalties, and the Court has never decided whether indecent broadcasts “would

justify a criminal prosecution”; and (3) radio and television, unlike the Internet, have, “as a matter

of history ... received the most limited First Amendment protection ... in large part because

warnings could not adequately protect the listener from unexpected program content.... [On the

Internet], the risk of encountering indecent material by accident is remote because a series of

affirmative steps is required to access specific material.”

In 1998, Congress enacted the Child Online Protection Act (COPA), P.L. 105-277, title XIV, to

replace the CDA. COPA differs from the CDA in two main respects: (1) it prohibits

communication to minors only of “material that is harmful to minors,” rather than material that is

indecent, and (2) it applies only to communications for commercial purposes on publicly

accessible websites. COPA has not taken effect, because a constitutional challenge was brought

and the district court, finding a likelihood that the plaintiffs would prevail, issued a preliminary

injunction against enforcement of the statute, pending a trial on the merits. The Third Circuit

affirmed, but, in 2002, in Ashcroft v. American Civil Liberties Union, the Supreme Court held that

COPA’s use of community standards to define “material that is harmful to minors” does not by

itself render the statute unconstitutional. The Supreme Court, however, did not remove the

preliminary injunction against enforcement of the statute, and remanded the case to the Third

Circuit to consider whether it is unconstitutional nonetheless. In 2003, the Third Circuit again

found the plaintiffs likely to prevail and affirmed the preliminary injunction. In 2004, the

Supreme Court affirmed the preliminary injunction because it found that the government had

failed to show that filtering prohibited material would not be as effective in accomplishing

Congress’s goals. It remanded the case for trial, however, and did not foreclose the district court

from concluding otherwise.149 In 2007, the district court found COPA unconstitutional and issued

a permanent injunction against its enforcement; in 2008, the U.S. Court of appeals affirmed,

finding that COPA “does not employ the least restrictive alternative to advance the Government’s

compelling interest” and is also vague and overbroad.150 In 2009, the Supreme Court declined to

review the case.

Children’s First Amendment Rights

In a case upholding high school students’ right to wear black arm bands to protest the war in

Vietnam, the Supreme Court held that public school students do not “shed their constitutional

148

Id. at 874-875.

American Civil Liberties Association v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999), aff’d, 217 F.3d 162 (3d Cir.

2000), vacated and remanded sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), aff’d on

remand, 322 F.3d 240 (3d Cir. 2003), aff’d and remanded, 542 U.S. 656 (2004). See also, footnote 8 of this report.

150

American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff’d sub nom. American Civil

Liberties Union v. Mukasey, 534 F.3d 181, 198 (3d Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009).

149

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rights to freedom of speech or expression at the schoolhouse gate.”151 They do, however, shed

them to some extent. The Supreme Court has upheld the suspension of a student for using a

sexual metaphor in a speech nominating another student for a student office.152 It has upheld

censorship of a student newspaper produced as part of the school curriculum.153 (Lower courts

have indicated that non-school-sponsored student writings may not be censored.)154

A plurality of the Justices found that a school board must be permitted “to establish and apply

their curriculum in such a way as to transmit community values,” but that it may not remove

school library books in order to deny access to ideas with which it disagrees for political or

religious reasons.155 The Supreme Court has also held that Congress may not prohibit people 17

or younger from making contributions to political candidates and contributions or donations to

political parties.156 Most recently, in Morse v. Frederick, the Court held that a school could punish

a pupil for displaying a banner that read, “BONG HiTS 4 JESUS,” because these words could

reasonably be interpreted as “promoting illegal drug use.”157 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.”158 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.’”159

As Morse v. Frederick was a 5-to-4 decision, Justices Alito’s and Kennedy’s votes were necessary

for a majority and therefore should be read as limiting the majority opinion with respect to future

cases.

Outside of the context of public schools, children have greater First Amendment rights. For

example, in Brown v. Entertainment Merchants Assn., the Supreme Court struck down a

California statute banning the sale of certain violent video games to persons under the age of

18.160 In this case, the Court applied strict scrutiny to strike down a law designed to protect

children. First, citing explicitly violent literature and children’s stories, the Court disagreed that

explicit violence was equivalent to explicit sexual content, and declined to find that children

needed to be protected from it in a similar fashion. Then, applying strict scrutiny to the law, the

Court found that California had not presented sufficient evidence of the harm to children caused

by the games and struck down the regulation on that basis. This case suggests that outside the

context of access to sexual content and public school, children may have First Amendment rights

nearly coextensive with adults.

151

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).

Bethel School District No. 463 v. Fraser, 478 U.S. 675 (1986).

153

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

154

E.g., Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988); Romano v. Harrington, 725 F. Supp. 687 (E.D. N.Y. 1989).

155

Board of Education, Island Trees School District v. Pico, 457 U.S. 853, 864 (1982). The Court noted that “nothing

in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of

their schools.” Id. at 871.

156

McConnell v. Federal Election Commission, 540 U.S. 93, 231-232 (2003).

157

127 S. Ct. 2618, 2624 (2007).

158

Id. at 2625.

159

Id. at 2636.

160

131 S. Ct. 2729 (2011).

152

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Speech on Radio and Television

Speech on radio and television is treated differently depending on the method of delivery of the

content. Broadcast radio and television content may be regulated more extensively than cable,

satellite, or online radio or television content. Recent Supreme Court opinions have hinted that

this discrepancy in treatment of broadcast content may change in the near future, if the right case

presents itself to the Court.

Broadcast Radio and Television

Radio and television broadcasting has more limited First Amendment protection than other

media. In Red Lion Broadcasting Co. v. Federal Communications Commission, the Supreme

Court invoked what has become known as the “scarcity rationale” to justify this discrimination:

Where there are substantially more individuals who want to broadcast than there are

frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to

broadcast comparable to the right of every individual to speak, write, or publish.161

The Court made this statement in upholding the constitutionality of the Federal Communication

Commission’s (FCC’s) “fairness doctrine,” which required broadcast media licensees to provide

coverage of controversial issues of interest to the community and to provide a reasonable

opportunity for the presentation of contrasting viewpoints on such issues. The Fairness Doctrine

has since been repealed by the FCC.162

Following Red Lion, in Federal Communications Commission v. Pacifica Foundation, the Court

upheld the power of the FCC “to regulate a radio broadcast that is indecent but not obscene.”163

The Court cited two distinctions between broadcasting and other media: “First, the broadcast

media have established a uniquely pervasive presence in the lives of all Americans ...

confront[ing] the citizen, not only in public, but also in the privacy of the home,” and “[s]econd,

broadcasting is uniquely accessible to children.”164

The Court may be poised to limit, or even overrule these decisions allowing the government to

regulate more tightly the speech of broadcasters. The FCC’s indecency policy has come under fire

over the past decade.165 The most recent legal challenges to the rule involved the agency’s

decision to pursue enforcement actions against broadcasters that aired fleeting expletives or

fleeting indecent images. The court challenge to the policy, captioned FCC v. Fox Television,

reached the Supreme Court twice, and twice the policy was struck down, but the Court did not do

so on First Amendment grounds in either case.166 The second time the challenge reached the

161

395 U.S. 367, 388 (1969).

76 Fed. Reg. 55817-818 (2011).

163

438 U.S. 726, 729 (1978).

164

Id. at 748-749. In Action for Children’s Television v. Federal Communications Commission (ACT III), 58 F.3d 654,

660 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996), the court of appeals, in upholding a ban on indecent

broadcasts from 6 a.m. to 10 p.m., wrote: “While we apply strict scrutiny to regulations of this kind regardless of the

medium affected by them, our assessment of whether section 16(a) survives that scrutiny must necessarily take into

account the unique context of the broadcast media.” See, “Speech Harmful to Children,” supra.

165

CRS Report RL32222, Regulation of Broadcast Indecency: Background and Legal Analysis, by (name redacte

166

Federal Communications Commission v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009); FCC v. Fox

(continued...)

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highest court, Justice Ginsburg filed a concurring opinion that was joined by Justice Thomas.167

In her concurrence, Justice Ginsburg made clear that she believes that FCC v. Pacifica168 was

wrongly decided, and that she believes the case should be reconsidered. This concurrence may

prove significant in a future case, should the Supreme Court have the occasion to consider the

constitutionality of broadcast indecency regulations while Justice Ginsburg and Justice Thomas

remain on the Court. If the Court does overrule Pacifica and Red Lion, it is possible that it will

become more difficult for the government to impose restrictions on speech over the broadcast

airwaves.

Cable, Satellite, and Online Radio and Television

Speech on cable systems and online video and radio delivery systems is fully protected speech the

regulation of which is subject to strict scrutiny. The Court began to draw a distinction between

these content delivery systems and broadcast systems in Turner Broadcasting System, Inc. v.

Federal Communications Commission. In that case, the Court held that “application of the more

relaxed standard of scrutiny adopted in Red Lion and other broadcast cases is inapt when determining the First Amendment validity of cable regulation.”169 Despite finding that speech over

cable systems was entitled to greater First Amendment protection, the Court did not apply strict

scrutiny to the “must-carry” provisions of the Cable Television Consumer Protection and

Competition Act of 1992, which require cable television systems to devote a portion of their

channels to the transmission of local broadcast television stations. The Court found the

requirements to be content-neutral in application and subject only to the test for incidental

restrictions on speech.170

In United States v. Playboy Entertainment Group, Inc., the Supreme Court did apply strict

scrutiny to a content-based speech restriction on cable television.171 The Court struck down a

federal statute designed to “shield children from hearing or seeing images resulting from signal

bleed,” which refers to blurred images or sounds that come through to non-subscribers. The

statute required cable operators, on channels primarily dedicated to sexually oriented

programming, either to fully scramble or otherwise fully block such channels, or to not provide

such programming when a significant number of children are likely to be viewing it, which, under

an FCC regulation, meant to transmit the programming only from 10 p.m. to 6 a.m. The Court

apparently assumed that the government had a compelling interest in protecting children from

sexually oriented signal bleed, but found that Congress had not used the least restrictive means to

do so. Congress in fact had enacted another provision that was less restrictive and that served the

government’s purpose. This other provision requires that, upon request by a cable subscriber, a

(...continued)

Television, Inc. 132 S.Ct. 2307 (2012).

167

FCC v. Fox, 132 S.Ct. at 2321 (Ginsburg, J., concurring).

168

428 U.S. 726 (1978).

169

Turner, 512 U.S. at 639.

170

Id. at 667-668. Attempting to apply this test, however, the Court found “genuine issues of material fact still to be

resolved” as to whether “broadcast television is in jeopardy” and as to “the actual effects of must-carry on the speech of

cable operators and cable programmers.” It therefore remanded the case for further proceedings. On remand, the lower

court upheld the must-carry rules, and the Supreme Court affirmed, finding “that the must-carry provisions further

important governmental interests; and ... do not burden substantially more speech than necessary to further those

interests.” Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180, 185 (1997).

171

529 U.S. 803 (2000).

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cable operator, without charge, must fully scramble or fully block any channel to which a

subscriber does not subscribe.

The Supreme Court has never decided whether the regulation of speech over satellite radio and

television can be regulated similarly to broadcast radio and television, or if regulation of speech

over the medium should be subject to strict scrutiny like speech over cable systems. The FCC

does not currently regulate indecency over satellite television, reasoning that “because cable and

satellite services are subscription-based, viewers of these services have greater control over the

programming content that comes into their homes, whereas broadcast content traditionally has

been available to any member of the public with a radio or television.”172 The FCC, therefore,

equates its regulatory authority over satellite television and radio with its authority over cable,

and refrains from regulating content delivered by both.

As noted above, in the section entitled “Speech Harmful to Children,” the Supreme Court held, in

Reno v. ACLU, that speech on the Internet is fully protected and that its regulation, generally,

would be subject to strict scrutiny.173

Freedom of Speech and Government Funding

The Constitution grants Congress the power to subsidize some activities and speech without

subsidizing all speech, or even all viewpoints on a particular topic. There is a certain amount of

discrimination inherent in the choices Congress makes to provide funds or tax deductions to one

organization’s activities, but not to another. However, when the condition on the receipt of federal

funds is an agreement to espouse, or to refrain from espousing, a particular point of view that is in

line with the government’s favored viewpoint, questions related to whether Congress is infringing

upon the First Amendment freedoms of fund recipients may arise. While the principle that

Congress may choose to subsidize whatever speech or behavior it may desire may seem simple

enough, in practice, the case law has been described as complicated and contentious.174

Nonetheless, some core principles may be distilled from the case history.

Congress may not coerce citizens to engage in or to refrain from certain speech through the tax

code.175 Congress may, however, choose not to provide a subsidy to a particular type of speech,

though it chooses to provide subsidies to other types of speech. In the seminal case, Regan v.

Taxation with Representation, a group known as Taxation with Representation (TWR) challenged

Congress’s denial of certain tax deductions to organizations that engage in substantial lobbying

activities as a violation of the group’s core First Amendment rights.176 TWR argued that the

federal government was unconstitutionally discriminating against a form of fully protected

speech, in this case lobbying, based solely upon its content, while providing tax subsidies to

172

FCC, Regulation of Obscenity, Indecency, and Profanity, http://www.fcc.gov/encyclopedia/regulation-obscenityindecency-and-profanity.

173

521 U.S. 844 (1997).

174

Alliance for Open Society v. United States Agency for International Development, 678 F.3d 127 (2d. Cir. 2011)

denying rehearing en banc (J. Pooler, concurring) (citing Kathleen Sullivan, Unconstitutional Conditions, 102 Harv. L.

Rev. 1415, 1415-17 (1989)).

175

Speiser v. Randall, 375 U.S. 513 (1958) (striking down a law that denied any and all tax deductions to persons who

advocated the unlawful overthrow of the United States government).

176

Regan v. Taxation with Representation, 461 U.S. 540 (1983).

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charitable donations, and that this discrimination violated the First Amendment.177 The Supreme

Court disagreed and found that the refusal to allow a tax deduction for lobbying activities was

within Congress’s power to tax and spend. In short, Congress was not discriminating against

lobbying. It was merely choosing not to pay for lobbying activities. The Court pointed out that

TWR was not prohibited from lobbying under the statute. It was merely prohibited from lobbying

with funds it received pursuant to its 501(c)(3) structure. The Court noted that this would be a

different case if Congress had discriminated against lobbying speech in such a way as to “aim at

the suppression of dangerous ideas.”178 Finding no such circumstances in Congress’s general

refusal to subsidize lobbying activities, with a narrow exception for certain veterans

organizations, the Court held that Congress did not have to provide a tax deduction in this

circumstance.

The following year, in FCC v. League of Women Voters,179 the Court examined whether Congress

could constitutionally prohibit non-commercial broadcast stations that received federal funds

through the Corporation for Public Broadcasting from engaging in editorializing. The Court

found that Congress could not. Distinguishing this case from TWR where the organization

remained free to engage in lobbying, the Court found that under this funding restriction noncommercial broadcasters were prohibited completely from editorializing if they received federal

funds.180 In fact, a non-commercial broadcaster that received only 1% of its funding from the

federal government was subject to the editorializing prohibition and could not, for example,

segregate its federal funds so as to prevent the use of those funds for editorializing activities,

while using its private funds to editorialize. The Court conceded, however, that if Congress were

to amend the statute at issue to prohibit the use of federal funds to support editorializing

activities, but allow the broadcasters to engage in such speech with private funding, the statute

would then be constitutional.181

Following FCC v. League of Women Voters, it appeared that Congress was entitled to subsidize

the activities it supported, including speech activities, without being required to subsidize all

activities. However, Congress was required to allow those who might benefit from congressional

largesse the freedom to express their opinions outside the bounds of the congressional subsidy.

Illustrating these principles, in Rust v. Sullivan,182 grant recipients challenged the administration

of Title X of the Public Health Service Act. Title X was intended to provide federal funding to

subsidize health care for women prior to the conception of a child that included counseling,

preconceptive care, education, general reproductive health care, and preventive family

planning.183 However, the regulations made clear that no federal money was to be spent to

provide counseling for abortion, nor were any participants in the Title X program permitted to

provide patients with a referral to an abortion provider, even when the patient may have requested

177

Taxpayers who donated to 501(c)(3) organizations could deduct those donations from their taxes. 26 U.S.C.

§501(c)(3). 501(c)(3) organizations were prohibited from engaging in substantial lobbying. Taxpayers who donated to

501(c)(4) organizations could not deduct those donations from their federal income taxes. 26 U.S.C. §501(c)(4).

501(c)(4) organizations were permitted to engage in lobbying activities. TWR had been operating with a dual structure

wherein its lobbying activities were accomplished via contributions to a 501(c)(4) organization and its other activities

were funded through a 501(c)(3).

178

Regan, 461 U.S. at 550.

179

468 U.S. 364 (1984).

180

Id. at 400.

181

Id.

182

500 U.S. 173 (1991).

183

42 C.F.R. §59.2 (1989).

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such a referral, nor could employees advocate or lobby for abortion rights.184 The Supreme Court

upheld the program. The Court reasoned that Congress is entitled to subsidize the public policy

message it chooses to fund without funding other opinions on the same topic. Congress was

within its constitutional rights to control the message that it preferred to encourage family

planning methods other than abortion with funding conditions. The Court wrote, “this is not a

case of the Government suppressing a dangerous idea, but of a prohibition on a project grantee or

its employees engaging in activity that was outside of the project’s scope.”185 Congress was not

denying a benefit based upon the grantees’ support for abortion, but was instead preventing the

use of federal funds for purposes outside the intended use of the program those funds were

intended to support. Important for the Court’s analysis in this case was the fact that the

restrictions on speech only applied to the administration and employees of the Title X program

itself.186 The grantee, on the other hand, was free to receive funds for a variety of programs from

a variety of sources and these other activities were not subject to the Title X speech restriction. As

a result, Title X did not suffer from the same fatal flaw as the funding restriction in FCC v.

League of Women Voters.

Following Rust came two significant cases wherein the law of unconstitutional conditions was

further refined. First, in Legal Services Corporation v. Vasquez,187 the Supreme Court struck

down a restriction on the use of federal funds by lawyers employed by the Legal Services

Corporation (LSC) to challenge existing welfare laws. In Rust, the government had used

restrictions on the use of federal funds to subsidize and control the government’s own message. In

this case, however, the government was attempting to use restrictions on the use of federal funds

to hinder private speech. In the Court’s analysis, lawyers for the LSC were not speaking for the

federal government or administering the federal government’s message. They were representing

the private views and interests of their clients. Because the LSC funded private expression, and

not the message of the government, the Court found that Congress could not limit the types of

cases that LSC attorneys could bring on behalf of their clients because such restrictions violated

the First Amendment.188

The second case outlining some limits to Congress’s ability to condition its spending was

Rosenberger v. Rector and Visitors of Univ. of Va.189 In this case, plaintiffs challenged a university

regulation that provided funds to student publications, but refused to provide funding to student

publications with religious affiliations. The Court found the university’s restriction to be

unconstitutional. Where the government creates a quasi-public forum, as it had in this case by

making funds generally available to all university student publications, the government could not

then discriminate against students seeking to use that forum on the basis of content.

Taken together these cases seem to indicate that where Congress has appropriated funds to

support the government’s own message, Congress has wide latitude to condition the receipt of

those funds on the espousal of the government’s approved message, unless that condition

invidiously discriminates against the espousal of dangerous ideas. In conditioning the use of

federal funds on making sure the funds are only used to support Congress’s approved message,

184

Rust, 500 U.S. at 180-181.

Id. at 194.

186

Id. at 196.

187

531 U.S. 533 (2001).

188

Id. at 543.

189

515 U.S. 819 (1995).

185

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ample opportunity for the recipients of those funds to exercise their protected constitutional rights

outside of the federal program in which they are participating must be preserved. However, where

Congress has provided funds for private speech or created a public or quasi-public forum, the

ability to restrict speech funded by that money on the basis of content is narrower.

In 2013, the Court again struck down a condition on the receipt of federal funds for violating the

First Amendment. In 2003, Congress passed the United States Leadership Against HIV/AIDS,

Tuberculosis and Malaria Act (Leadership Act), 22 U.S.C. §§ 7601 et seq. Congress provided

funds in the Leadership Act to private entities to assist in the fight against HIV/AIDS. Within the

statute, Congress made clear that organizations would not be eligible to receive those funds

unless they had adopted a policy explicitly opposing prostitution and sex trafficking.190 This

requirement meant that organizations that disagreed with that message or took no position

regarding prostitution or trafficking had to adopt a policy denouncing prostitution and sex

trafficking that applied to the entire organization in order to receive federal funds under the

program. The Court pointed out the difference “between [permissible] conditions that define the

federal program and those that reach outside” the program to restrict speech and behavior

accomplished without federal funds. The Court noted that the line between the two is not always

clear but it is crossed when the government seeks “to leverage funding to regulate speech outside

the contours of the program itself.”191 Essentially, the Court found that the policy requirement

forced funding recipients to adopt the government’s view as their own on an issue of public

concern. “By requiring recipients to profess a specific belief, the policy requirement goes beyond

defining the limits of the federally funded program to defining the recipient,” and that the

government cannot do.192

Free Speech Rights of Government Employees and Government

Contractors

Government Employees

In Pickering v. Board of Education, the Supreme Court made clear that the government has an

interest in regulating the speech of its employees and may do so to a greater degree than it may

restrict the speech of citizens generally,193 but the First Amendment “protects a public employee’s

right, in certain circumstances, to speak as a citizen addressing matters of public concern”194

without fear of loss of government employment. In Pickering, the Supreme Court held it

unconstitutional for a school board to fire a teacher for writing a letter to a local newspaper

criticizing the administration of the school system. In keeping with the rule announced by the

case, the Court did not hold that the teacher had the same right as a private citizen to write such a

letter. Rather, because the teacher had spoken as a citizen on a matter of public concern, the Court

balanced “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

190

22 U.S.C. § 7631(f).

Agency for International Development v. Alliance for Open Society, Int’l., No. 12-10 slip op., at 12 (2013).

192

Id. at 12.

193

391 U.S. 563, 568 (1968).

194

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).

191

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performs through its employees.”195 In this case, the Court found that the open letter was not a

direct criticism of the teacher’s direct supervisors, which would have raised questions regarding

the ability of the school to discipline an insubordinate employee. In this case, while the teacher

did have an employment relationship with the school board, the relationship was not a close

working relationship and therefore the teacher’s speech was too tenuous in relation to the board to

be considered within the scope of his employment or a threat to the proper functioning of the

particular school that employed him.196

In Arnett v. Kennedy, the Supreme Court again balanced governmental interests and employee

rights, and this time sustained the constitutionality of a federal statute that authorized removal or

suspension without pay of an employee “for such cause as will promote the efficiency of the

service,” where the “cause” cited was an employee’s speech.197 The employee’s speech in this

case, however, consisted in falsely and publicly accusing the director of his agency of bribery.

The Court interpreted the statute to proscribe: “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 as are necessary for the protection of the

Government as employer.”198

In Connick v. Myers, an assistant district attorney was fired for insubordination after she

circulated a questionnaire among her peers soliciting views on matters relating to employee

morale.199 The Supreme Court upheld the firing, distinguishing Pickering on the ground that, in

that case, unlike in this one, the fired employee had engaged in speech concerning matters of

public concern:

We hold only that when a public employee speaks not as a citizen upon matters of public

concern, but as an employee upon matters only of personal interest, absent the most unusual

of circumstances, a federal court is not the appropriate forum in which to review the wisdom

of a personnel decision taken by a public agency allegedly in reaction to the employee’s

behavior.200

In Rankin v. McPherson, the Court upheld the right of an employee to remark, after hearing of an

attempt on President Reagan’s life, “If they go for him again, I hope they get him.”201 The Court

considered the fact that the statement dealt with a matter of public concern, did not amount to a

threat to kill the President, did not interfere with the functioning of the workplace, and was made

in a private conversation with another employee and therefore did not discredit the office.

Furthermore, as the employee’s duties were purely clerical and encompassed “no confidential,

policymaking, or public contact role,” her remark did not indicate that she was “unworthy of

employment.”202

195

Id., quoting Pickering, 391 U.S. at 568.

Pickering, 391 U.S. at 569-570.

197

416 U.S. 134, 140 (1974).

198

Id. at 162.

199

461 U.S. 138 (1983).

200

Id. at 146-147. Subsequently, in Garcetti v. Ceballos, 547 U.S. at 418, the Court 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.” See Connick, 461 U.S. at 147.

201

483 U.S. 378, 380 (1987).

202

Id. at 390-391.

196

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These Supreme Court cases indicate the relevant factors in determining whether a government

employee’s speech is protected by the First Amendment. It should be emphasized that the Court

considers the time, place, and manner of expression.203 Thus, if an employee made political

speeches on work time, such that they interfered with his or others’ job performance, he could

likely be fired as “unworthy of employment.” At the same time, he could not be fired for the

particular political views he expressed, unless his holding of those views made him unfit for the

job. Also, a governmental employer could not allow employees to make speeches in support of

one political candidate on work time, but not allow employees to make speeches in support of

that candidate’s opponent. But a Secret Service agent assigned to guard the President would not

have the same right as the clerical worker in Rankin to express the hope that the President would

be assassinated.

In Garcetti v. Ceballos, the Court appeared to limit 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.204 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 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.”205 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. Rather, the

“controlling factor” was “that his expressions were made pursuant to his duties.”206 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 2014, the Court further clarified the distinction between the speech of an employee as a public

citizen and speech of an employee during the course of employment. In Lane v. Franks, the Court

found that the First Amendment protected the testimony of a public employee in a criminal trial

where the employee was called to testify to crimes he had witnessed in the course of his

employment.207 Though the employee was called to the stand to speak about his employment, he

was not called as a representative of his employer; therefore, he was speaking outside the scope

of his employment, and criminal activity is a matter of public concern. The Court, therefore,

applied the Pickering test, and found that “the employer’s side of the Pickering scale [was]

entirely empty.” As a result, the employee’s speech was entitled to First Amendment protection.

203

See, e.g., Connick v. Myers, 461 U.S. at 152 (“Also relevant is the manner, time, and place in which the

questionnaire was distributed.”).

204

Garcetti, 547 U.S. at 421.

205

Id.

206

Garcetti, 547 U.S. at 421.

207

Lane v. Franks, No. 13-483, slip op., (2014) available at http://www2.bloomberglaw.com/public/desktop/document/

Lane_v_Franks_No_13483_US_June_19_2014_Court_Opinion.

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Government Contractors

In Board of County Commissioners v. Umbehr, the Court held that “the First Amendment protects

independent contractors from the termination of at-will government contracts in retaliation for

their exercise of the freedom of speech.”208 The Court held that, in determining whether a

particular termination violates the First Amendment, “the Pickering balancing test, adjusted to

weigh the government’s interests as contractor rather than as employer,” should be used.209 The

Court did “not address the possibility of suits by bidders or applicants for new government

contracts.”210

In Elrod v. Burns211 and Branti v. Finkel,212 the Supreme Court held that “[g]overnment officials

may not discharge public employees for refusing to support a political party or its candidates,

unless political affiliation is a reasonably appropriate requirement for the job in question.”213 In

O’Hare Truck Service, Inc. v. Northlake, the Court held “that the protections of Elrod and Branti

extend to ... [a situation] where the government retaliates against a contractor, or a regular

provider of services, for the exercise of rights of political association or the expression of political

allegiance.”214

Symbolic Speech

“The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long

recognized that its protection does not end at the spoken or written word.”215 Thus wrote the

Supreme Court when it held that a statute prohibiting flag desecration violated the First

Amendment. Such a statute is not content-neutral if it is designed to protect “a perceived need to

preserve the flag’s status as a symbol of our Nation and certain national ideals.”216

By contrast, the Court upheld a federal statute that made it a crime to burn a draft card, finding

that the statute served “the Government’s substantial interest in assuring the continuing

availability of issued Selective Service certificates,” and imposed only an “appropriately narrow”

incidental restriction of speech.217 Even if Congress’s purpose in enacting the statute had been to

suppress freedom of speech, the Court would “not strike down an otherwise constitutional statute

on the basis of an alleged illicit legislative motive.”218

In 1992, in R.A.V. v. City of St. Paul, the Supreme Court struck down an ordinance that prohibited

the placing on public or private property of a symbol, such as “a burning cross or Nazi swastika,

which one knows or has reasonable grounds to know arouses anger, alarm or resentment in

208

518 U.S. 668, 670 (1996).

Id. at 673.

210

Id. at 685.

211

427 U.S. 347 (1976).

212

445 U.S. 507 (1980).

213

O’Hare Truck Service, Inc. v. Northlake, 518 U.S. 712, 714 (1996).

214

Id.

215

Texas v. Johnson, 491 U.S. 397 (1989).

216

United States v. Eichman, 496 U.S. 310 (1990).

217

United States v. O’Brien, 391 U.S. 367, 382 (1968).

218

Id. at 383.

209

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others, on the basis of race, color, creed, religion or gender.”219 Read literally, this ordinance

would clearly violate the First Amendment, because, “[i]f there is a bedrock principle underlying

the First Amendment, it is that the Government may not prohibit the expression of an idea simply

because society finds the idea itself offensive or disagreeable.”220 In this case, however, the

Minnesota Supreme Court had construed the ordinance to apply only to conduct that amounted to

fighting words. Therefore, the question for the Supreme Court was whether the ordinance,

construed to apply only to fighting words, was constitutional.

The Court held that it was not, because, although fighting words may be proscribed “because of

their constitutionally proscribable content,” they may not “be made the vehicles for content

discrimination unrelated to their distinctively proscribable content.”221 Thus, the government may

proscribe fighting words, but it may not make the further content discrimination of proscribing

particular fighting words on the basis of hostility “towards the underlying message expressed.”222

In this case, the ordinance banned fighting words that insult “on the basis of race, color, creed,

religion or gender,” but not “for example, on the basis of political affiliation, union membership,

or homosexuality.... The First Amendment does not permit St. Paul to impose special prohibitions

on those speakers who express views on disfavored subjects.”223

In a subsequent case, the Supreme Court held that its opinion in R.A.V. did not mean that statutes

that impose additional penalties for crimes that are motivated by racial hatred are

unconstitutional. Such statutes imposed enhanced sentences not for bigoted thought, but for the

commission of crimes that can inflict greater and individual and societal harm because of their

bias-inspired motivation. A defendant’s motive has always been a factor in sentencing, and even

in defining crimes; “Title VII [of the Civil Rights Act of 1964], for example, makes it unlawful

for an employer to discriminate against an employee ‘because of such individual’s race, color,

religion, sex, or national origin.’”224

In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a

state to prohibit burning a cross with the intent of intimidating any person or group of persons.225

Such a prohibition does not discriminate on the basis of a defendant’s beliefs—“as a factual

matter it is not true that cross burners direct their intimidating conduct solely to racial or religious

minorities.... The First Amendment permits Virginia to outlaw cross burning done with the intent

to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of

prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating

messages.”226

219

505 U.S. 377 (1992).

Texas v. Johnson, 491 U.S. at 417.

221

R.A.V., 505 U.S. at 384-385 (emphasis in original).

222

Id. at 386.

223

Id. at 391.

224

Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (emphasis added by the Court to its quotation of the statute).

225

Virginia v. Black, 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, from the fact that

a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as “a burning cross is

not always intended to intimidate,” but may constitute a constitutionally protected expression of opinion. Id. at 365.

226

Id. at 363.

220

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Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

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