FIRST AMENDMENT

The First Amendment today protects the overlapping realms of the spirit—of belief, emotion, and reason—and of political activity against intrusion by government. The amendment directly forbids federal violation of the individual's religious liberty, freedom of expression, freedom of assembly, and associated political liberties. The amendment indirectly forbids state violation because it is held to be incorporated into the fourteenth amendment's restrictions upon the powers of the states. The body of law presently defining First Amendment liberties has been shaped not so much by the words or intent of the original sponsors as by the actors and events of much later history. The story is one of the continual expansion of individual freedom of expression, of the freedom of the press, and, until 1980, of widening separation of church and state.

The constitutional convention of 1787 saw no need to include guarantees of religious liberty, freedom of speech, or other human rights. Most of the Framers believed in some such rights but supposed that the powers proposed for the new federal government were so severely limited by specific enumeration as to leave scant opportunity for either Congress or President to threaten individual liberty. The threats would come from state law and state governments. For protection against these, the Framers looked to the constitutions of the individual states. In the struggle for ratification of the constitution, however, those who feared abuse of federal power exacted an undertaking that if the proposed Constitution were ratified by the states, the first Congress would be asked to propose amendments constituting a bill of rights. The First Amendment is thus the first and most far-reaching of the ten articles of amendment submitted by james madison, proposed by Congress, and ratified by three-quarters of the states in 1791 solely as restrictions upon the new federal government, the powers of which were already severely limited.

The assumption that the amendment would have only a narrow function made it possible to ignore fundamental differences that would produce deep divisions more than a century later, after the amendment had been extended to the several states. The colonists held a variety of religious beliefs, though nearly all were Christian and a majority were Protestant. Whatever the limits of their tolerance back home in their respective states where one church was often dominant, they had reason to understand that the coherence of the federal union could be fixed only if the new federal government were required to respect the free exercise of religion. The men of South Carolina with their state-established religion and of Massachusetts with religion appurtenant to their state government could therefore support a prohibition against any federalestablishment of religion shoulder to shoulder with the deist thomas jefferson and other eighteenth-century rationalists who opposed any link between church and state. Similarly, in applying roger williams's vision of "the hedge or wall of separation between the garden of the church and the wilderness of the world," there was originally no need to choose between his concept of protection for the church against the encroachments of worldly society and Jefferson's concept of protection for the state against the encroachments of religion.

The conditions and political assumptions of 1791 also made it easy to guarantee "the freedom of speech or of the press" without accepting or rejecting the Blackstonian view that these guarantees bar only licensing and other previous restraints upon publication, leaving the government free to punish seditious libels and like unlawful utterances. Because the original amendment left the states unhampered in making and applying the general body of civil and criminal law, except as the people of each state might put restrictions into its own constitution, there was no need to consider how the First Amendment would affect the law of libel and slander, the power of the judges to punish contempt of court, or the operation of laws punishing words and demonstrations carrying a threat to the public peace, order, or morality. Such questions could and would arise only after the First Amendment was extended to the states.

The fulcrum for extending the First Amendment to the states was set in place in 1868 by the adoption of the Fourteenth Amendment, which provides in part: "… nor shall any State deprive any person of life, liberty or property without due process of law."

The effects of the new amendment upon religious and political liberty and upon freedom of expression were slow to develop. As late as 1922 the Court declared in PrudentialInsurance Co. v. Cheek that "neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restrictions about "freedom of speech." Within another decade, however, the First Amendment's guarantee of freedom of expression had been incorporated into the Fourteenth by judicial interpretation. incorporation of the other clauses, including the prohibition against laws "respecting an establishment of religion," followed somewhat later. Today the First Amendment restricts both state and federal governments to the same extent and in the same fashion.

Yet the historic sequence is important. Many questions of First Amendment law cannot be resolved truly in terms of the original intention because the questions could not arise while the original assumption held. Resolution of the issues was thus postponed until the middle decades of the twentieth century, an era in which liberalism, secularism, and individualism dominated American jurisprudence.

Disparate strains of thought were merged even in the writing of the First Amendment. Subsequent events, including current controversies, have poured new meaning into the words, yet the juxtaposition of the key phrases still tells a good deal about the chief strains in the philosophy underpinning and binding together guarantees of several particular rights.

The Framers put first the prohibition against any law "respecting an establishment of religion or prohibiting the free exercise thereof." The sequence attests the primacy ascribed to religion. The colonists belonged to diverse churches. Many had fled to the New World to escape religious oppression. Rigid though some might be in their own orthodoxy, probably a majority rejected the imposition of belief or the use of government to stamp out heresy. Certainly, they rejected use of federal power.

It was natural for the authors of the amendment to link "the freedom of speech, or of the press" with freedom of religious belief and worship. The one church was breaking up in late sixteenth-and seventeenth-century Britain. New faiths were emerging based upon individual study of the Holy Word. The man or woman who has discovered the road to salvation has a need, even feels a duty, to bring the gospel to others. Liberty of expression benefits more than the speaker. Suppression would deny the opportunity to hear and read the word of God, and thus to discover the road to salvation. Modern legal analysis recognizes the importance of the hearers' and readers' access to information and ideas in cases in which the author's interest lacks constitutional standing or would, if alone involved, be subject to regulation. (See listeners ' rights.)

Concern for a broader spiritual liberty expanded from the religious core. The thinking man or woman, the man or woman of feeling, the novelist, the poet or dramatist, and the artist, like the evangelist, can experience no greater affront to his or her humanity than denial of freedom of expression. The hearer and reader suffer violation of their spiritual liberty if they are denied access to the ideas of others. The denial thwarts the development of the human potential, the power and responsibility of choice. Although concerned chiefly with religion, john milton stated the broader concern in Areopagitica (1644), the single most influential plea, known to the Framers, for unlicensed access to the printing press.

The Enlightenment gave the argument a broader, more rationalistic flavor. Thomas Jefferson and other children of the Enlightenment believed above all else in the power of reason, in the search for truth, in progress, and in the ultimate perfectibility of man. Freedom of inquiry and liberty of expression were deemed essential to the discovery and spread of truth, for only by the endless testing of debate could error be exposed, truth emerge, and men enjoy the opportunities for human progress.

After john stuart mill one should perhaps speak only of the ability to progress toward truth, and of the value of the process of searching. The compleat liberal posits that he has not reached, and probably can never reach, the ultimate truth. He hopes by constant search—by constant open debate, by trial and error—to do a little better. Meanwhile he supposes that the process of searching has inestimable value because the lessons of the search—the readiness to learn, the striving to understand the minds and hearts and needs of other men, the effort to weigh their interests with his own—exemplify the only foundation upon which men can live and grow together.

It was not chance that America's most eloquent spokesman for freedom of speech, oliver wendell holmes, was also a profound skeptic. Dissenting in abrams v. united states (1919), he wrote:

When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

On the far side of the First Amendment's guarantee of freedom of speech and of the press one finds the political rights "peaceably to assemble, and to petition the Government for a redress of grievances." (See freedom of petition; freedom of assembly and association.) The juxtaposition recalls that freedom of speech and of the press have a political as well as a spiritual foundation; and that the First Amendment protects political activity as part of and in addition to the world of the spirit. American thought, especially in Supreme Court opinions, puts the greater emphasis on the political function of free expression. In Garrison v. Louisiana (1964), for example, the Court explained that "speech is more than self-expression; it is the essence of self-government." alexander meikle-john, perhaps the foremost American philosopher of freedom of expression, argued that whereas other constitutional guarantees are restrictions protecting the citizens against abuse of the powers delegated to government, the guarantees of freedom of speech and of the press hold an absolute, preferred position because they are measures adopted by the people as the ultimate rulers in order to retain control over the government, the people's legislative and executive agents. James Madison, the author of the First Amendment, expressed a similar thought in a speech in 1794. "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people."

Despite the eloquence of Justice Holmes, most of us reject the notion that the ability of an idea to get itself accepted in free competition is the best test of its truth. Some propositions seem true or false beyond rational debate. Some false and harmful, political and religious doctrines gain wide public acceptance. Adolf Hitler's brutal theory of a "master race" is sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. The liberty cannot be denied to some persons and extended to others. It cannot be denied to some ideas and saved for others. The reason is plain enough: no man, no committee, and surely no government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debatable, and both from what is false. To license one to impose his truth upon dissenters is to give the same license to all others who have, but fear to lose, power. The judgment that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free people.

Constitutional law has been remarkably faithful to this philosophy in dealing with both religious and political ideas. In the prosecution of the leader of a strange religious cult for obtaining money by false pretenses, as in united states v. ballard (1963), the truth or falsity of the leader's claims of miraculous religious experiences is legally irrelevant; conviction depends upon proof that the defendant did not believe his own pretenses. Similarly, although distaste for political ideology may have influenced some of the decisions in the 1920s affirming the convictions of anarchists and communists for advocacy of the overthrow of the government by force and violence, the social, political, or religious activists seeking changes that frighten or annoy all "right-minded" people receive wide protection in their resort to the sitins, picketing, marches, mass demonstrations, coarse expletives, affronts to personal and public sensibilities, and other unorthodox vehicles that are so often their most effective means of expression. Such methods of expression may prejudice opposing public and private interests because of the time, place, or manner of communication, regardless of the content of the message; therefore, the amendment allows regulation of particular forms of expression, or of expression at a particular time or place, regardless of content, provided that the restriction protects important interests that cannot be secured by less restrictive means. The courts have typically scrutinized such restrictions, however, with an eye zealous to condemn as unconstitutional any statute or ordinance ostensibly designed to protect the public peace and order but phrased in such loose words as either to deter constitutionally protected expression or to invite discrimination by police, public prosecutors, or judges against radical "troublemakers" and other unpopular minorities. Thus, the American Nazis were secured the right to parade in uniform with swastikas in an overwhelmingly Jewish community many of whose residents had fled the Holocaust.

Distrust of official evaluation of the worth of ideas may also lie behind the decisions barring regulation of political debate in the interest of "fairness" or equality of opportunity. In buckley v. valeo (1976), holding that the freedom of speech clause bars laws restricting the dollars that may be spent in a political campaign, the Court observed: "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." Similarly, in miami herald v. tornillo (1974) the Court held a state law granting a political candidate a right of space in which to reply to a newspaper's attacks upon his or her record to be unconstitutional interference with the editorial freedom of the newspaper. Only in the area of broadcasting has the Court thus far recognized that realization of the ideal of free competition of ideas may be irreconcilable with total freedom from regulation in an era in which the public's chief sources of ideas and information are expensive media of mass communication, which are often under monopolistic control. Federal statutes and regulations subject radio and television broadcasters to loosely defined duties to present public issues fairly and to give a degree of access to political candidates and parties.

Although only deliberately false religious or political representations fall wholly outside the First Amendment, the law is more willing to try to separate the worthless from the valuable in the field of literature and the arts. The amendment gives no protection to "obscene" publications. For many years the definition of obscenity was broad enough to cover works containing individual words or short passages that would tend to excite lustful thoughts in a particularly susceptible person. This standard condemned Lady Chatterley's Lover, An American Tragedy, and Black Boy. From 1930 to 1973 the legal definition of obscenity was gradually narrowed so tightly that many jurists concluded that the First Amendment would protect the most prurient of matter unless it was "utterly without redeeming social value." After 1973 changes in the composition of the Court led to a somewhat less permissive formulation. A work is obscene if a person applying contemporary community standards would find that it appeals to the prurient interest; if it represents or describes ultimate sexual acts, excretory functions, or the genitals in a patently lewd or offensive manner; and if it lacks serious literary, artistic, political, or scientific value. young v. american mini theatres (1976) suggests that explicity sexual books and motion pictures, even when not obscene, may be regulated as to the places and perhaps the time and manner of their distribution in ways that are forbidden for other materials.

These exceptions from the principle that bars any branch of government, including the judiciary, from judging the value of ideas and sensations seem attributable partly to the emphasis that American law puts upon the political values of the First Amendment, partly to the diminishing but still traditional concern of government for public morals, and partly to the actual or supposed links between producers and distributors of commercial pornography and the criminal underworld.

So long as one is dealing with beliefs and expressions separable from conduct harmful to other individuals or the community, the essential unity of the philosophical core of the First Amendment makes it unnecessary to distinguish for legal purposes among religious beliefs, political ideologies, and other equally sincere convictions. In upholding the First Amendment privilege of Jehovah's Witnesses to refuse to join other school children in a daily salute to the United States flag, the Court pointedly refrained from specifying whether the privilege arose under the free exercise clause or the guarantee of freedom of speech: "… compelling the flag salute and pledge …invades the sphere of intellect and spirit which it is the purpose of the First Amendment to reserve from all official control." (See flag salute cases.) Test oaths, like particular beliefs, cannot be required for holding public office or receiving public grants. In upholding the conviction of a Mormon for polygamy in reynolds v. united states (1879), despite his plea that the free exercise clause protected him in obeying his religious duty, the Supreme Court sought to erect this distinction between the realm of ideas and the world of material action into a constitutional principle: "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."

As the guarantees of the freedoms of speech and press and of free exercise of religion seek to bar hostile governmental intrusion from the realm of the spirit, so do modern interpretations of the establishment clause bar state sponsorship of, or material assistance to, religion. In the beginning religion and established churches were dominant forces in American life. Nearly all men and women were Christians; Protestants were predominant. In South Carolina the Constitution of 1778 declared the "Protestant religion to be the established religion of this State." Church and state were intertwined in Massachusetts. Where there was no official connection, both the laws and practices of government bore evidence of benevolent cooperation with the prevailing creeds. sunday closing laws were universal. Oaths were often required of state officials. Legislative sessions began with prayer. The crier in the United States Supreme Court still begins each session by invoking divine blessing. The coinage states, "In God We Trust." Church property was and remains exempt from taxation. As public education spread, prayers and Bible-reading became the first order of each school day.

These traditional links between church and state were challenged after incorporation of the First Amendment into the Fourteenth Amendment, not only by anticlerical secularists but also by religious minorities whose members were set apart by official involvement in religious practices and who were fearful that their isolation would hamper full assimilation into all aspects of American life and might stimulate invidious discrimination. The Supreme Court was then forced to choose among the competing strains of religious and political philosophy whose adherents had agreed only that the federal government, but not the States, should be barred from "an establishment of religion." The majority's inclination during the years 1945–1980 toward Jefferson's strongly secular, anticlerical view of the wall of separation between church and state led to two important lines of decision.

One line bars both state and federal governments from giving direct financial aid to sectarian primary and secondary schools even though the same or greater aid is given to the public schools maintained by government. The decisions leave somewhat greater latitude not only for aid to parents but also to include religious institutions in making grants for higher education. (See government aid to sectarian institutions.)

The second important line of decisions required discontinuance of the widespread and traditional practice of starting each day in the public schools with some form of religious exercise, such as saying an ecumenical prayer or reading from the Bible. The latter decisions provoked such emotional controversy that in the 1980s, more than two decades after the decisions were rendered, fundamentalist groups were actively pressing for legislation abolishing the Supreme Court's jurisdiction to enforce the establishment clause in cases involving school prayer, thus leaving interpretation of the clause to the vagaries of judges in individual states. (See religion in public schools.)

Even though the line between the realm of the spirit and the world of material conduct subject to government regulation is fundamental to the jurisprudence of the First Amendment, the simple line between belief and conduct drawn in the polygamy cases was too inflexible to survive as a complete constitutional formula. Religious duties too often conflict with the commands of civil authority. Conversely, the public has compelling interests in the world of conduct that sometimes cannot be secured without interference with the expression of ideas.

Two cases suggest the line limiting constitutional protection for religious disobedience to the commands of the state. In wisconsin v. yoder (1972) the Supreme Court held that the free exercise clause secured Amish parents the privilege of holding fourteen-and fifteen-year-old children out of high school contrary to a state compulsory attendance law but pursuant to their religious conviction that salvation requires simple life in a church community apart from the world and worldly influence. The Court's constitutional, judicial duty—the Court said—required balancing the importance of the interests served by the state law against the importance to believers of adherence to the religious practice in question. Striking such a balance, the Court held in Negre v. Larsen (1971) that a faithful Roman Catholic's belief that the "unjust" nature of the war in Vietnam required him to refuse to participate did not excuse his refusal to be inducted into the armed forces.

When belief is invoked to justify otherwise unlawful conduct, it may become significant that the First Amendment speaks of the free exercise of "religion," but not of other kinds of belief held with equal sincerity. In united states v. seeger (1965) the Court skirted establishment clause questions by refusing to make any distinction between the teachings of religion and other moral convictions for the purposes of the Selective Service Act. That act exempted from military service conscientious objectors opposed to war in any form by reason of their "religious training and belief" and defined such belief as one "in relation to a Supreme Being involving duties superior to those arising from any human relation." A majority held that, despite the references to religion and a belief in a Supreme Being, the exemption extended "to any belief that occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." In the Yoder case, on the other hand, the opinion of the Court by Chief Justice warren e. burger, calling upon the example of Henry D. Thoreau, stated that a "philosophical and personal" belief "does not rise to the demands of the Religion Clauses." Perhaps this declaration of orthodoxy puts an end to the question, but in an age of subjectivism it is likely to press for fuller debate and deliberation.

Where religious objectors seek exemption from laws of general application, both federal and state governments must walk a narrow line. On the one hand, the free execise clause may require exception. On the other hand, excepting religious groups from laws of general application may be an unconstitutional "establishment of religion." Here again the decisions call for ad hoc balancing of the individual and public interests affected by the particular legislative act.

The requirement of self-preservation exerts the strongest pressures upon government to violate the realm of the spirit by suppressing the publication of ideas and information. Here, as in other areas, judicial elaboration of the First Amendment has been increasingly favorable to freedom of expression.

The expansion of the freedom by interpretation began within a decade from ratification. william blackstone had taught that the freedoms of speech and press were freedoms from prior restraints, such as licensing, and did not bar subsequent liability or punishment for unlawful words, including seditious libels. Dispute arose when Congress enacted a Sedition Act and the Federalist party then in office prosecuted the editors of journals supporting their political opponents, the Jeffersonian Republicans, for publishing false, scandalous, and malicious writings exciting the hatred of the people. (See alien and sedition acts.) Thomas Jefferson and James Madison led the attack upon the constitutionality of the Sedition Act by drafting the virginia and kentucky resolutions declaring that the act violated the First Amendment. The lower federal courts followed the orthodox teaching of Blackstone, upheld the act, and convicted the Republican editors. Jefferson pardoned them after his election to the presidency. Still later, Congress appropriated funds to repay their fines. Events thus gave the speech and press clauses an interpretation extending the guarantees beyond mere prohibition of previous restraints. The Supreme Court subsequently ratified the teaching of history.

The modern law defining freedom of expression began to develop shortly after world war i when pacifists and socialists who made speeches and published pamphlets urging refusal to submit to conscription for the armed forces were prosecuted for such offenses as willfully obstructing the recruiting or enlistment service of the United States. In affirming the conviction in schenck v. united states (1919), Justice Holmes coined the famous clear and present danger test: "The question in every case is whether the words used are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." When Justice Holmes wrote these words, they gave little protection to propaganda held subversive by dominant opinion. Speaking or circulating a paper, the Justice held, is not protected by the First Amendment if the "tendency" of the words and the intent with which they are uttered are to produce an unlawful act. Later, after Justice Holmes's sensitivity to the dangers of prosecution for words alone had been increased by the prosecution of tiny groups of anarchists and communists for holding meetings and distributing political pamphlets in time of peace, criticizing the government, and preaching its overthrow by force and violence, he and Justice louis d. brandeis in a series of dissenting opinions tightened their definition of "clear and present danger" and laid the emotional and philosophical foundation for the next generation's expansion of the First Amendment guarantees. Justice Brandeis's eloquent opinion in whitney v. california (1927) is illustrative:

Those who won our independence by revolution were not cowards. They did not fear political liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious.… There must be the probability of serious injury to the state. Among freemen, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgement of the rights of free speech and assembly.

In the 1920s a majority of the Justices consistently rejected the views expressed by Justices Holmes and Brandeis. gitlow v. new york (1925) held that (1) a state, despite the First Amendment, may punish utterances inimical to the public welfare; (2) a legislative finding that a class of utterances is inimical to the public welfare will be accepted by the Court unless the finding is arbitrary or capricious; (3) the Court could not set aside as arbitrary or capricious a legislative finding that teaching the overthrow of the government by force or violence involves danger to the peace and security of the State because the spark of the utterance "may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration"; and (4) the Court would not consider the kind or degree of evil threatened by a particular utterance if it fell within a class of utterances found by the legislature to be dangerous to the state.

Ironically, in the very years in which the Court was deferential to legislative restrictions upon radical political expression, the Court was going behind legislative judgment to invalidate minimum wage laws, the regulation of prices and other restrictions upon freedom of contract. Beginning in 1937, however, a philosophy of judicial self-restraint became dominant among the Justices. "We have returned to the original proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws," the Court declared in ferguson v. skrupa (1963). (See judicial activism and judicial restraint.)

Such sweeping denigration of judicial review put civil libertarians in a dilemma. On the one hand, the need for consistency of institutional theory cautioned against activist judicial ventures even under the First Amendment. On the other hand, self-restraint would leave much civil liberty at the mercy of executive or legislative oppression. The only logical escape was to elevate civil liberties to a "preferred position" justifying standards of judicial review stricter than those used in judging economic regulations. The dissenting opinions by Justices Holmes and Brandeis seemed to point the way. Three rationales were offered:

1. In a famous footnote in united states v. carolene products company (1938), Justice harlan fiske stone suggested that legislation restricting the dissemination of information or interfering with political activity "may be subject to more exacting judicial scrutiny … than most other types of legislation" where the legislation "restricts those political processes which can ordinarily be expected to bring about the repeal of undesirable legislation." The rationale fails to justify strict scrutiny in cases involving religious liberty, freedom of expression in literature, entertainment, and the arts, and other nonpolitical, personal liberties.
2. "Personal liberties" deserve more stringent protection than "property rights." The rationale does not explain why holding property is not a preferred "personal" liberty.
3. Stricter review is appropriate in applying the First Amendment, and the First when incorporated into the Fourteenth, because the guarantees of the First Amendment are more specific than the general constitutional prohibitions against deprivation of life, liberty, or property without due process of law. The difference in specificity is considerable, but its relevance is less obvious. Justice hugo l. black stood almost alone in the supposition that the language of the First Amendment could be read literally. (See absolutism.) Perhaps the most that can be said is that the Bill of Rights marks particular spheres of human activity for which the Framers deemed it essential to provide judicially enforced protection against legislative and executive oppression. During the debate in Congress, James Madison observed: "If they [the Amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardian of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive.…"

At bottom all the rationales assert that the ultimate protection for minorities, for spiritual liberty, and for freedom of expression, political activity, and other personal liberties comes rightfully from the judiciary. In this realm the political process, filled with arbitrary compromises and responsive, as in some degree it must be, to short-run pressures, is deemed inadequate to enforce the long-range enduring values that often bespeak a people's aspirations instead of merely reflecting their practices.

Propelled by this judicial philosophy, the Court greatly expanded the First Amendment guarantees of freedom of expression. The Court avowedly adopted the strict Holmes-Brandeis "clear and present danger" test for judging whether prosecution for a subversive utterance is justified by its proximity to activities the government has a right to prevent. The amendment bars restrictions upon the publication of information or ideas relating to public affairs because of harm which the government asserts will result from the impact of the message unless the government shows pressing necessity to avoid an immediate public disaster. The case of the Pentagon Papers (1971) illustrates the principle. (See new york times v. united states.) A consultant to the Department of Defense, cleared for access to classified information, gave copies of highly secret papers describing military operations and decision making to newspapers for publication. The Department of Justice upon instructions from the President asked the courts to enjoin publication, making strong representations that the risks of injury to national interests included "the death of the soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate … and the prolongation of the war." All the weight of these executive representations was insufficient to induce the Court to bar disclosure.

After 1940 the preferred freedoms theory coupled with the incorporation of the First Amendment into the Fourteenth led to Supreme Court review and invalidation or modification of many familiar state statutes and well-established common law doctrines restricting or penalizing sundry forms of expression: libel and slander, contempt of court, obscenity, breach of the peace, and laws limiting access to the streets, parks, or other public places for the purposes of expression. A short reference to the law of contempt will illustrate the trend.

The interest in the impartial disposition of judicial business solely upon the evidence and arguments presented in court often conflicts with the interest in free discussion of public affairs. Newspaper editorials and like public pressures upon a judge may improperly influence or seem to influence the disposition of a pending judicial proceeding. In English and early American law such publications were enjoinable and punishable as contempt of court. Today the First Amendment is held to protect such expression. Similarly, the English law and some American decisions treated the pretrial publication of evidence as contempt of court where, as in a notorious criminal case, the publicity might reach actual or prospective jurors and serve to make it difficult to assure the accused a fair trial and a jury verdict based solely upon the evidence presented in the court room. The Supreme Court has now set its face firmly against gag orders forbidding newspapers to print or broadcast or publicize confessions or other damaging evidence before their admissibility has been determined and they have been received in court.

The heavy emphasis that constitutional law puts upon the role of the First Amendment in the operation of representative government has led some commentators to ascribe special significance to the amendment's particular mention of "the freedom of the press" in addition to the more general guarantee of "the freedom of speech." In a crowded society, newspapers, radio, and television not only are the most effective vehicles for disseminating ideas and information but also have by far the best, if not the only, adequate resources for gathering information concerning the conduct of public affairs by the vast and omnipresent agencies of government. Starting from this premise, proponents of a "structural view" of the First Amendment argue that the special functions of the "fourth estate" entitle its members to special protection. Some of the claims to exemption from laws of general applicability have been patently excessive, such as the claims to exemption from antitrust laws, labor relations laws, and wage and hour regulation. With much greater force but scarcely greater success, the media have claimed that the First Amendment protects reporters in refusal to disclose their sources or give unpublished information to a court or grand jury in compliance with the general testimonial obligation of all citizens. (See reporter ' sprivilege.) On the other hand, the near-immunity from liability for libels upon public figures which the Court has granted to the press under the First Amendment has not yet been extended by that Court to other writers and publishers.

The words of the First Amendment move from religion to speech and press and then to the purely political rights of free assembly and petition for redress of grievances. Denials of the rights of assembly and petition have been infrequent. The express mention of a "right of the people peaceably to assemble" is also taken, however, to symbolize the much broader freedom of association that the amendment is held to secure.

The freedom of association thus far held to be protected by the First Amendment, while broad, is narrower than the freedom of individuals to associate themselves for all purposes in which they may be interested, the right debated by Thomas Hobbes and Jean-Jacques Rousseau, on one side, and, on the other side, by john locke. The enactment of labor relations acts securing employees the right to form, join, and assist labor unions made it unnecessary for workers to appeal to a constitutional right of freedom of association. Only the antitrust laws barring unreasonable restraints on competition impose substantial restrictions upon business combinations. In consequence, the decisional law treats association as a necessary and therefore protected incident of other First Amendment liberties: speech, political action, and religious purposes. Associations formed to provide legal services in litigation have been treated as "political" not only in the plausible instances of suits to establish civil liberties and civil rights but also in the incongruous instances of actions for damages for personal injuries.

Legislative efforts to outlaw associations formed for religious or political purposes have been infrequent, except in the case of the Communist party. A decision in 1961 sustained the power of Congress to require the party to register and disclose its membership as a foreign-dominated organization dedicated to subversion of the government, but the sanctions directed at members, for example, denial of passports and employment in defense facilities, were held unconstitutional. Associations and their members have had more occasion to complain of coerced disclosure under disclosure laws and in legislative investigations. Prima facie the First Amendment protects privacy of association. Governmentally compelled disclosure must be justified by a showing of important public purpose. Where the unpopularity of the association makes it likely that disclosure will result in reprisals, an even stronger justification may be required. Similarly, a state must justify by a strong public purpose any interference with the conduct of a religious organization's or political party's internal affairs.

Any pressure for substantial new growth in First Amendment interpretation will probably come in three areas. First, the amendment was intended and has nearly always been construed as a prohibition against active government interference. Today government has a near-monopoly upon much information essential to informed self-government. Although freedom of information acts may at least partially satisfy the need, there is likely to be pressure to read into the First Amendment's explicit verbal barrier to abridgment affirmative governmental duties to provide access to official proceedings and even to supply otherwise inaccessible information in the government's possession.

Second, in the crowded modern world broadcasters, newspapers, and other media of mass communication dominate the dissemination of information and formation of public opinion. New technologies make prediction hazardous, but the concentration of control over the most influential media appears to be increasing. In this context the old assumption, that the widest dissemination of information and freest competition of ideas can be secured by forcing government to keep hands off, is open to doubt. Such questions as whether the First Amendment permits government regulation to secure fair access to the mass media and whether the amendment itself secures a right of access to media licensed by government may well multiply and intensify.

Third, the electoral influence of political advertising through the mass media, coupled with its high cost, gives great political power to the individuals and organizations that can raise and spend the largest sums of money in political campaigns. Even though decisions already rendered tend to accord political expenditures the same protection as speech, important future litigation over legislative power to limit the use and power of money in elections seems assured. (See campaign financing.)

The First Amendment secures the people of the United States greater freedom against governmental interference in the realms of the spirit, intellect, and political activity than exists in any other country. The future may bring shifts of boundary lines and emphasis. A threat to national survival could revive earlier restrictions. Generally speaking, however, the modern First Amendment appears to meet the nation's needs.

Archibald Cox
(1986)

(see also: Children and the First Amendment.)

Bibliography

Abernathy, Glenn 1961 The Right of Assembly and Association. Columbia: University of South Carolina Press.

Chafee, Zechariah, Jr. 1948 Free Speech in the United States. Cambridge, Mass.: Harvard University Press.

Cox, Archibald 1981 Freedom of Speech in the Burger Court. Cambridge, Mass.: Harvard University Press.

Emerson, Thomas I. 1970 The System of Freedom of Expression. New York: Random House.

Howe, Mark Dewolfe 1965 The Garden and the Wilderness. Chicago: University of Chicago Press.

Konvitz, Milton 1957 Fundamental Liberties of a Free People: Religion, Speech, Press, Assembly. Ithaca, N.Y.: Cornell University Press.

Levy, Leonard W. 1963 Freedom of Speech and Press in Early American History: Legacy of Suppression. New York: Harper & Row.

——1972 "No Establishment of Religion: The Original Understanding." Pages 169–224 in Judgments: Essays in American Constitutional History. Chicago: Quadrangle.

Meiklejohn, Alexander 1960 Political Freedom: The Constitutional Powers of the People. New York: Harper & Bros.

Pfeffer, Leo 1967 Church, State, and Freedom. Rev. ed. Boston: Beacon Press.

Stokes, Anson Phelps 1950 Church and State in the United States. 3 Vols. New York: Harper & Bros.

——1964 Church and State in the United States. Rev. ed., with Leo Pfeffer. New York: Harper & Row.

FIRST AMENDMENT

Johanns v. Livestock Marketing Association

The federal government has a number of programs in place that promote the sale of agricultural products. To fund advertising and promotion, the government has mandated that producers be assessed a certain amount for the products they sell. Some producers and producers' associations have objected to these assessments, claiming that they infringe on their First Amendment rights. The U.S. Supreme Court, in United States v. United Foods, 533 U.S. 405, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001) addressed this issue, ruling that an assessment levied against producers of fresh mushrooms for generic advertising violated the First Amendment rights of producers who objected to the assessment. However, the Court went in a different direction in Johanns v. Livestock Marketing Association, __U.S. __, __S.Ct. __, __ L.Ed.2d __ 2005 WL 1200576 (2005). The Court found that a federal assessment on beef producers that was levied to help promote beef consumption did not violate the First Amendment because the advertising campaign was controlled by the Department of Agriculture and thus was government speech. The funding of government speech does not alone raise First Amendment concerns.

The Beef Promotion and Research Act of 1985, 99 Stat. 1597, created a federal policy that encouraged the marketing and consumption of beef. Cattle producers are assessed $1 per animal on all sales of domestic or imported cattle. A Beef Board, appointed by the Secretary of Agriculture, oversees the marketing campaigns, and an operating committee proposes projects to be funded by the assessment. The Secretary of Agriculture or his designee approves each project and the content of promotional materials. Since 1998, more than $1 billion has been collected, and a large portion of the funds have been spent on marketing campaigns, which usually include the trademarked slogan "Beef. It's What's for Dinner." Many of the messages contain the phrase "Funded by America's Beef Producers," and most also bear a Beef Board logo. Although the program has met with acceptance from most beef producers, the Livestock Marketing Association objected, contending that generic advertising hurt the U.S. beef industry by not pointing out its superiority over imported beef.

The association sued the Secretary of Agriculture to end the mandatory program. Following the Supreme Court's decision in United Foods, which struck down the mushroom-promotion program, a federal district court ruled the same as to the beef program. The U.S. Court of Appeals for the Eighth Circuit upheld the decision. It acknowledged that the challenged advertising was government speech but concluded that this status was not relevant to challenges to compelled funding of speech. Compelled funding of speech could violate the First Amendment even if it were the government's speech.

The Supreme Court, in a 6-3 decision, overturned the Eighth Circuit's ruling. Justice Antonin Scalia, in his majority opinion, noted that in all of the prior cases that had invalidated subsidized speech, the speech "was, or was presumed to be, that of an entity other than the government." However, compelled support of a government program is "perfectly constitutional, as every taxpayer knows." Taxpayers are not allowed to pick and choose the government programs they want to support with their personal taxes.

Justice Scalia examined the role of the Beef Board and the operating committee that designed the marketing campaigns to see whether they were private actors. He concluded that neither body had ultimate control over the promotional campaigns-the law specifically empowered the Secretary of Agriculture to approve all promotional campaigns and materials. The fact that the Secretary "exercises final approval authority over every word used in every promotional campaign" demonstrated the degree of government control over the message funded by the assessment. This distinguished it from the other agricultural-promotion plans the Court had reviewed

The Livestock Marketing Association had argued that the beef program did not qualify as government speech because it was funded by targeted assessments rather than by general tax revenues. Justice Scalia rejected this argument as making no difference as to the constitutionality of the compelled subsidy. He stated that "Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech," even when the funding is through targeted assessments. As long as government speech is subject to "democratic accountability," there is no problem with compelled funding. In this case, the Secretary of Agriculture was politically accountable, and Congress had oversight authority. Thus, "No more is required."

Justice David Souter, in a dissenting opinion joined by Justices John Paul Stevens and Anthony Kennedy, contended that the speech in question could not "meaningfully be considered government speech at all." He was particularly troubled by the fact that none of the promotional campaigns and advertisements ever disclosed that the government had a hand in the messages. Viewers and readers of the advertisements would "most naturally think" that the ads were "placed and paid for by the beef producers who stand to profit when beef is on the table." According to Justice Souter, it made no sense to say that the government was accountable for the speech when the public was kept in the dark.

McCreary County, Kentucky v. American Civil Liberties Union of Kentucky and Van Orden v. Perry

The national debate over the legality of displaying the Ten Commandments on government property reached the U.S. Supreme Court in two cases during the 2004 term. The Court, in McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 544 U.S. __, 125 S.Ct. 2722, __ L.Ed.2d __(2005), ruled that displays inside courthouses violated the First Amendment's Establishment Clause. However, in Van Orden v. Perry, __U.S. __, 125 S.Ct. 2854, __ L.Ed.2d __ (2005), the Court allowed the display of a granite monument on the grounds of the Texas capitol in Austin. The split decision indicated that courts must consider the constitutionality of such displays on a case-by-case basis.

In the Kentucky case, executives of two counties had posted a version of the Ten Commandments on the walls of their respective courthouses in 1999. The American Civil Liberties Union (ACLU) filed a lawsuit, challenging the constitutionality of the displays. It cited the ceremonies in which the displays were celebrated, with local religious leaders in attendance. The federal district court agreed with the ACLU that the displays lacked any secular purpose because the Ten Commandments were a "distinctly religious document, believed by many Christians and Jews to be the direct and revealed word of God." The U.S. Court of Appeals for the Sixth Circuit upheld the district court ruling, finding that the counties' purpose was religious, not educational.

The Supreme Court, in a 5-4 decision, upheld the Sixth Circuit decision. Justice David Souter, in his majority opinion, declared that "[t]he reasonable observer could only think that the counties meant to emphasize and celebrate the religious message. He added that "[t]he display's unstinting focus was on religious passages, showing that the counties posted the Commandments precisely because of their sectarian content." In a concurring opinion, Justice Sandra Day O'Connor stated that "[a]llowing the government to be a potential mouthpiece for competing religious ideas risks the sort of division" that the Constitution tries to avoid. In her view, it was important that government should refrain from constraining or directing thoughts.

Justice Antonin Scalia, in a dissenting opinion joined by Chief Justice William Rehnquist and Justices Anthony Kennedy and Clarence Thomas, lashed out at the majority. Justice Scalia contended that the majority had no constitutional basis for its decision. He noted that almost 98 percent of American Christians, Jews, and Muslims believe in one god. The fact that an "overwhelming majority" believed in one god should have led the Court to permit public officials to express their beliefs through pubic statements and displays of the Ten Commandments.

The Texas case involved a large, stone monument of the Ten Commandments that stood alongside many other monuments near the Texas Capitol in Austin. The monument was one of many erected around the United States during the 1950s and 1960s by the Fraternal Order of Eagles, a national civic organization. Thomas Van Orden, a disbarred attorney, filed a federal lawsuit that challenged the constitutionality of the monument's presence on public property. The district court dismissed his suit, finding that the state had a valid secular purpose in displaying the monument and that it did not intend to convey the message that the state endorsed religion. The U.S. Court of Appeals for the Fifth Circuit upheld this ruling.

The Supreme Court, in a 5-4 decision, affirmed the Fifth Circuit decision. Chief Justice William Rehnquist, in his majority opinion, acknowledged that the Ten Commandments were religious rather than codes of secular law. However, apart from their religious component, "the Ten Commandments have an undeniable historical meaning." Moreover, "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause." Although he found the Texas display unobjectionable, Rehnquist made clear that there were "limits to the government's display of religious messages or symbols." Justice Stephen Breyer, who was the swing vote in both cases, authored a concurring opinion in which he called the Texas display a "borderline case." He found persuasive the fact that the monument had not been challenged for 40 years. In addition, he saw the monument not as a religious object but as part of a "broader moral and historical message reflective of a cultural heritage."

Justice John Paul Stevens, in a dissenting opinion joined by Justice Ruth Bader Ginsburg, argued that the Ten Commandments were inherently religious and that the display on public grounds amounted to an endorsement by the state of "the divine code of the Judeo-Christian God."

Courts Split About Whether Reporter's Sources Are Protected

Two federal courts in February 2005 reached opposite conclusions about whether a reporter's confidential sources are protected by the First Amendment to the U.S. Constitution. The U.S. Court of Appeals for the District of Columbia Circuit held that an investigative reporter could not withhold the identity of her confidential sources from a grand jury . However, less than two weeks later, a U.S. district judge in New York held that a prosecutor could not compel a reporter to turn over records of the reporter's telephone calls. Both cases involved reporters with the New York Times, along with other journalists.

It all started when President George W. Bush gave his State of the Union address in January 2003. In that speech, Bush stated: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." The subject matter contained in that single sentence created multitudes of press and media coverage over the ensuing months.

On July 6, 2003, the New York Times published an editorial opinion, written by former Ambassador Joseph Wilson. In it, he claimed to have been sent by the CIA to Niger in 2002 in response to Vice President Dick Cheney's request to investigate whether Iraq had been seeking to purchase uranium from Niger. Further, Wilson claimed in that article that upon return from Niger, he reported that there was no credible evidence to support any effort by Iraq to seek such material.

On July 17, 2003, Chicago Sun-Times columnist Robert Novak picked up the story and published a column in which he stated that Wilson's appointment to Niger was routine and done without the knowledge of CIA Director George Tenet. Further, said Novak in his article, "two senior administration officials" told him that Wilson's selection was at the behest of Wilson's wife, Valerie Plame, whom Novak described as a CIA "operative on weapons of mass destruction."

After this, the floodgates opened. Various media accounts published similar accounts, claiming that other reporters had been told the same facts by government officials. One such article, authored by appellant Matthew Cooper, indicated that,

Some government officials have noted to Time in interviews…that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction…[and] have suggested that she was involved in the husband's being dispatched to Niger to investigate reports that Saddam Hussein's government had sought to purchase large quantities of uranium ore…

Other media accounts reported that two top White House officials had contacted several Washington journalists and disclosed the name and occupation of Wilson's wife.

At this point, the U.S. Dept. of Justice began an investigation into whether any government official had violated federal law and committed a crime (disclosure of the identity of a covert agent is criminalized under 50 U.S.C. §421). In December 2003, the U.S. Attorney General delegated full authority in the investigation to the Deputy Attorney General, who in turn appointed Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois, as special counsel, with carte blanche authority to investigate as needed.

In conjunction with Fitzgerald's review, a grand jury was appointed and began its investigation in January 2004. Those questioned included President Bush and Secretary of State Colin Powell. By May 2004, journalist Matthew Cooper had been issued a subpoena seeking testimony and documents related to two specified published articles (including the July 17th article). Cooper refused to cooperate and moved to quash the subpoena. In July 2004, the U.S. District Court for the District of Columbia denied Cooper's motion to quash in open court and directed him to comply with the request. Meanwhile, another grand jury subpoena was issued to Time, Inc., seeking the same documents as those requested of Cooper, and Time's motion to quash was similarly denied by the district court.

Still refusing to comply with the subpoenas, both Cooper and Time, Inc. were held in contempt of court. Both filed appeals. After some negotiation with Fitgerald's office, Cooper agreed to provide testimony and documents related to a specific source, Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, who had no objection to their release. Subsequently, the notices of appeal were dismissed,

and Fitzgerald moved the court to dismiss the contempt orders.

In August and September 2004, the grand jury issued additional subpoenas to Cooper, Time, Inc., and Judith Miller, another journalist for the New York Times, who had gathered material for an article about Plame but never completed it. Miller likewise refused to comply, was found in contempt, and appealed. Cooper and Time, Inc. also refused to comply with the more expansive subpoenas and again appealed their contempt orders.

All three retained common counsel and, on appeal, asserted four theories for reversal of the orders against them. First, they claimed a First Amendment right to conceal their confidential sources even against the subpoenas of grand juries. Second, they claimed a right to an evidentiary privilege under the common law to conceal confidential sources (in the alternative, arguing that if this privilege is qualified, the Department of Justice had not overcome the privilege). Third, they claimed that their due process rights were violated by the Special Counsel's ex parte and in-camera submission of evidence to the district court to establish that the Department of Justice had overcome any privilege. Finally, they argued that Special Counsel Fitzgerald failed to comply with Department of Justice guidelines for the issuance of subpoenas to journalists, such failure constituting independent ground for the reversal of their contempt convictions.

But the district court did not support their arguments. The chief district judge held, "[A] reporter called to testify before a grand jury regarding confidential information enjoys no First Amendment protection." On appeal, the U.S. Court of Appeals for the District of Columbia unanimously affirmed. In Re: Grand Jury Subpoena, Judith Miller, No. 04-3138 (CADC, 2005). Said the appeals court: "Finding no grounds for relief under the First Amendment, due process clause, or Department of Justice guidelines, and persuaded that any common law privilege that exists would be overcome in this case, we affirm the judgment of the District Court."

The appellate court also noted that the district court "correctly held" that the governing authority in this case was Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), saying that the "…Highest Court considered and rejected the same claim of First Amendment privilege on facts materially indistinguishable from those at bar."

Miller was also involved in a dispute over her telephone records in a separate case. Miller has written extensively on the subjects of national security, terrorism, the Middle East, and weapons of mass destruction. On several occasions, she has also reported on the involvement of Islamic charities with terrorism. A second New York Times reporter, Philip Shenon, has written extensively on similar topics. Both Miller and Shenon testified that they rely heavily on confidential sources for their stories.

After the September 11th attacks in 2001, Miller and Shenon reported on the possible government investigation of two Islamic charity groups located in the United States, including the Holy Land Foundation for Relief and Development ("HLF") in Richardson, Texas, and the Global Relief Foundation, Inc. ("GRF") in Bridgeview, Illinois. In December 2001, Miller learned from government officials that the government planned to freeze HLF's assets. Miller contacted HLF for comment about the possible seizure. Shenon likewise contacted GRF nearly two weeks later when he learned that government officials planned to freeze GRF's assets.

The U.S. Attorney's Office for the Northern District of Illinois and the Chicago Field Office of the Federal Bureau of Investigation began an investigation to determine whether government officials were responsible for leaking information to Miller and Shenon about the searches of the GRF and HLF offices. According to federal authorities, the disclosures to HLF and GRF by Miller and Shenon increased the likelihood that these organizations destroyed their records.

Fitzgerald assembled another grand jury to investigate leaks of information to the reporters. Fitzgerald requested telephone records from Miller and Shenon about the forthcoming raids of the GRF and HLF offices. Miller and Shenon, along with the New York Times, refused this request. According to Miller and Shenon, these telephone records would reveal hundreds of communications between them and their confidential sources, and many of these communications did not concern the seizures of HLF or GRF. Fitzgerald continued his efforts to obtain the telephone records.

The New York Times brought an action against Ashcroft (later replaced by Alberto Gonzales, who became U.S. attorney general on February 3, 2005), seeking a declaratory judgment that the phone records were privileged. After an exhaustive review of existing precedent, U.S. District Judge Robert W. Sweet ruled in favor of the newspaper. According to the judge, "The record before this court has demonstrated that the reporters at issue relied upon the promise of confidentiality to gather information concerning issues of paramount national importance—the nation's preparedness for the attacks of September 11, the government's efforts to combat al-Qaida post-September 11, and the risk posed to the American people by biological weapons." N.Y. Times Co. v. Gonzales, No. 04 Civ. 7677, 2005 WL 427911 (S.D.N.Y. Feb. 24, 2005).

In April 2005, the full appellate court en banc denied a rehearing. Notwithstanding the denial, Circuit Judge Tatel acknowledged "somewhat conflicted" prior decisions coming from that court in the interpretating and application of Branzburg.

Although First Amendment advocates applauded the decision, experts noted that Sweet's opinion is in the minority position among the courts. The D.C. Circuit's decision, on the other hand, is consistent with other federal circuits.

On July 6, 2005, Miller was jailed for contempt of court for her refusal to testify before the grand jury. Cooper, under similar threat of being held in contempt, agreed to testify. It was then revealed that Cooper's source had agreed to waive confidentiality. The source turned out to be President Bush's chief adviser, Karl Rove, leading to heavy questioning about his motives in revealing secret information. Rove, who has a reputation for using political "dirty tricks," denied any knowledge of who Plame was. His emails to Cooper were placed at the center of the investigation into the leak, which was ongoing as of early August 2005.

City of San Diego, California v. Roe

Although the First Amendment protects free speech, government employees do not have the same rights to free expression as members of the general public. Although government employees do not give up all of their First Amendment rights, the U.S. Supreme Court has made clear that the government may restrict some expression. The Court considered this topic again in City of San Diego, California v. Roe, __U.S. __, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004), which held that a police officer could be fired for selling pornographic sex tapes of himself in a generic police uniform. Although the activities did not take place during work hours, the Court concluded that the First Amendment did not protect the officer's behavior, as it violated departmental policies and was detrimental to the proper functioning of the police force.

John Roe, a San Diego police officer, ran a sideline business on the adults-only section of eBay, the online auction site. Roe, whose user name was "[email protected]," sold police equipment and San Diego Police Department (SDPD) uniforms, but he also sold a video that showed him disrobing from a police uniform (not an SDPD uniform) and masturbating. Roe's supervisor discovered this online business and notified superiors, including a police captain. The captain passed this information on to the department's internal affairs unit, which used an undercover officer to solicit a custom tape of Roe masturbating after a fictitious police stop. The department then confronted Roe about his activities and told him that he had violated policies involving conduct unbecoming an officer, outside employment, and immoral conduct. He was ordered to stop selling sexually explicit materials. Though Roe stopped selling some of the items, his eBay seller's profile still listed the pornographic videos and their prices, as well as the availability of custom videos. The department discovered this information and fired Roe for the original violations of department policies as well as for disobedience of a lawful order.

Roe filed a civil rights lawsuit in federal court, alleging that his dismissal violated his First Amendment right to free speech. The federal district court dismissed his lawsuit, ruling that his activities were not protected by the First Amendment. The U.S. Court of Appeals for the Ninth Circuit reversed the district court's ruling, concluding that Roe's activities fell within the Supreme Court's prior rulings protecting government employee free speech rights. The appeals court found that Roe's conduct had not concerned internal grievances with the police department, that it had taken place while Roe had been off-duty and not on government property, and that it had been unrelated to his police work.

The U.S. Supreme Court, in a unanimous decision, reversed the Ninth Circuit's decision. In a per curiam opinion (i.e., an opinion not signed by any of the justices), the Court found that the Ninth Circuit had misread Supreme Court precedent concerning the free speech rights of government employees. Government employers may impose restraints on the speech of their employees, but employees are allowed to "speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large." However, when government employees speak or write on their own time on matters unrelated to their employment, the speech can be protected by the First Amendment "absent some government justification 'far stronger that mere speculation' in regulating it."

The Ninth Circuit had concluded that Roe's actions were unrelated to his police employment and that they had no effect on the mission and purpose of the SDPD. The Supreme Court disagreed, finding that the SPPD had shown that his conduct had compromised the "legitimate and substantial interests" of the department. The fact that Roe referenced his police work in his eBay sellers profile and that he had dressed in a police uniform for his "debased parody of an officer performing indecent acts," hurt the mission of the department and brought into disrepute "the professionalism of its officers."

The Supreme Court cited the balancing test in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) as the proper way to evaluate Roe's First Amendment rights. This test balances the employee's right to comment on matters of "public concern" and the government employer's interest in "promoting the efficiency of the public services it performs through its employees." However, this test could only be applied if the employee could show that the speech in question touched on a matter of public concern. The Supreme Court concluded that public concern is "something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." Applying this threshold inquiry, the Court found "no difficulty" in finding that Roe's conduct did not constitute a matter of public concern. Therefore, the First Amendment did not protect his actions, and the SDPD had grounds to fire him.

Third Circuit Blocks Enforcement of the Solomon Amendment

In a case that pitted the policies of most law schools against United States military recruitment practices, the U.S. Court of Appeals for the Third Circuit ruled in November 2004 that the Solomon Amendment, which prevents colleges and universities from barring military recruiters on campus, violates the schools' First Amendment rights. Organizations representing law schools and law professors cheered the decision, which allows them to prohibit discrimination on the part of recruiters on the basis of sexual orientation. Supporters of military recruitment efforts, on the other hand, called the decision unjust.

During the 1970s, law schools began to include policies that prohibited discrimination against gays and lesbians by campus recruiters. In 1990, the Association of American Law Schools (AALS) unanimously approved the inclusion of sexual orientation as a category protected against discrimination. Most law schools now require recruiters to sign statements indicating that the recruiters will not discriminate on the basis of race, color, national origin, sex, handicap or disability, age, or sexual orientation.

The United States military has formally excluded gays and lesbians from service since World War I. Current regulations specify that any person who is openly gay or lesbian will not be permitted to serve. During the 1980s, law schools began to deny access to military recruiters due to the military's discrimination on the basis of sexual orientation. In 1994, Representative Gerald Solomon (R.-N.Y.) introduced what has become known as the Solomon Amendment, 10 U.S.C.A. §983 (West Supp. 2005). The statute requires the Defense Department to withhold funds from schools that do not permit military recruiters or ROTC programs on campus. Subsequent amendments banned funds from other government agencies.

After the September 11th attacks in 2001, the military stepped up its recruitment efforts. The Department of Defense sent letters to several institutions indicating that these institutions would violate the Solomon Amendment unless they provided the same level of assistance to military recruiters as they gave to other recruiters. By 2003, each law school suspended its nondiscrimination policy as it pertained to military recruiters, out of fear that the application of this policy could result in a loss of federal funding. In 2004, Congress enacted the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, 118 Stat. 1811 (2004), which provided for penalties against both a law school and its parent institution for violating the Solomon Amendment. Under this act, institutions are required to allow access to military recruiters "in a manner that is at least equal in quality and scope to the [degree of] access to campuses and to students that is provided to any other employer." 10 U.S.C.A. §983(b) (West Supp. 2005).

The new policies regarding military recruitment spawned four federal lawsuits that challenged the constitutionality of the Solomon Amendment. Law professors and students at Yale Law School brought suits in Connecticut, while law professors at the University of Pennsylvania brought another in Philadelphia. Several organizations and individuals brought a fourth suit in federal court in New Jersey. Plaintiffs in the latter case include the Forum for Academic and Institutional Rights, the Society of American Law Teachers, the Coalition for Equality, and the Rutgers Gay and Lesbian Caucus.

In the New Jersey district court , the plaintiffs argued that the statute violated their First Amendment right to oppose discrimination by the military on the grounds of sexual orientation. The plaintiffs also argued that the statute constituted viewpoint discrimination and that the statute was unconstitutionally vague. The court rejected each of these arguments. U.S. District Judge John C. Lifland rejected the plaintiffs' free-speech argument because the statute "does not compel law schools to say anything" about the government's policy. Rather, law schools are free to speak their views about discrimination against sexual orientation, and "the presence of the military on campus does not significantly intrude upon the law schools' ability to express their views…." Similarly, the court held that the Solomon Amendment does not discriminate against the viewpoint of the law schools or law professors because the statute does not punish these viewpoints. Accordingly, the court denied the plaintiffs' request for an injunction to prevent the application of the Solomon Amendment. Forum for Academic and Institutional Rights, Inc. v. Rumsfeld, 291 F. Supp. 2d 269 (D.N.J. 2003).

The plaintiffs appealed the decision to a panel of the U.S. Court of Appeals for the Third Circuit, which heard oral arguments on June 30, 2004. In a 2-1 decision, with an opinion written by Circuit Judge Thomas L. Ambro, the panel reversed the district court's opinion. "The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives," Ambro wrote. The court determined that the government had not proven a "compelling need" to restrict the schools' free speech rights. "The government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal," the opinion said. "And not only might other methods of recruitment yield acceptable results, they might actually fare better than the current system." Thus, because the court found that the Solomon Amendment violates the First Amendment rights of the law schools and law professors, the court reversed the district court's decision and ordered the district court to grant an injunction in favor of the plaintiffs. Forum for Academic & Institutional Rights v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004).

Many law schools cheered the decision. "Unless this gets reversed by the Third Circuit or the United States Supreme Court on review, I'd say this is the end of the Solomon Amendment," said University of Pennsylvania law professor David Rudovsky. Others decried the decision as a violation of the military recruiters' free speech rights. "It's a great injustice for college administrators to set rules that violate free speech and deny students the chance to hear from our country's military branches," said Senator John Ensign (R.-Nev.).

Acting U.S. Solicitor General Paul D. Clement filed a petition for writ of certiorari with the U.S. Supreme Court on February 28, 2005. The Court granted certiorari on May 2, 2005, and it will hear the case during its 2005-06 term.

Tory v. Cochran

On May 31, 2005, the U.S. Supreme Court issued an opinion in a significant freedom of speech case involving famous attorney Johnnie L. Cochran and a former client. The Court held that an injunction that a California state court had imposed on Cochran's former client was no longer necessary because it did not serve its original purpose due to Cochran's death. In rendering its decision, the Court avoided some important questions about the use of injunctions in defamation actions involving public figures.

Ulysses Tory and Javier Gutierrez retained Cochran's services in 1983 in a personal-injury action filed against the city of Los Angeles and other defendants. The case stemmed from a shoot-out with the Los Angeles Police Department. Cochran settled Gutierrez's claim but did not settle Tory's claim. Tory became upset with Cochran's representation. In 1985, Tory accused Cochran of covering up "criminal and immoral activities of private citizens for political gains…." Tory said that he would "refrain from any public discussions of conspiracy and scandal" if Cochran would pay him $10 million. Cochran refused and withdrew as Tory's attorney.

Cochran gained national fame as one of O.J. Simpson's lawyers in Simpson's murder trial. In July 1995, while Simpson's trial continued, Tory sent Cochran another letter, demanding that Cochran return money that Tory had paid to Earl E. Evans. Evans was one of Cochran's tenants and performed limited legal services for Cochran. Evans represented Tory in some family law matters but was not, as Tory claimed, one of Cochran's associates. Cochran did not respond to Tory's letter.

Tory and some others began to picket outside of Cochran's law office and outside of the Los Angeles Superior Court during the late 1990s. The group carried signs with such as statements as "Unless You have O.J.'s Millions—You'll be Screwed if You USE J.L. Cochran, Esq.," and "Johnnie Cochran, I Know WHAT You, the County and city DID to my CASE." Tory provided transportation and food for members of the group that joined him in the demonstration. In October 2000, Tory demanded that Cochran pay him more than $21,000 for legal fees paid to Evans and for purported compensation for Tory's "time and efforts to bring this entire matter to closure."

Cochran filed an action against Tory in October 2000, alleging defamation and invasion of privacy. Tory represented himself at the trial. The trial court determined that Tory had made false statements with the knowledge that those statements were false and that he had acted "maliciously and with reckless disregard for the truth [and] for the purpose of inducing Cochran to pay Tory various amounts of money to which Tory was not entitled." The court issued an injunction that barred Tory, along with his "employees, agents, representatives, and all persons acting in concert," from engaging in a number of activities associated with Tory's previous demonstrations. Among the restrictions was one that forbade Tory from "orally uttering statements about Cochran [or] Cochran's law firm in a public forum."

When a plaintiff is successful in a defamation action, the court usually awards monetary damages, although in some instances courts will issue injunctions that prohibit certain activities or speech. Appellate courts will uphold injunctions that limit or prohibit speech under some circumstances. However, courts often find that these types of injunctions constitute prior restraints, which are presumptively unconstitutional. For instance, in Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971), the U.S. Supreme Court invalidated an injunction that prevented a community organization from distributing informational leaflets that were critical of a real estate broker. According to the Court, the injunction was a prior restraint of expression and violated the First Amendment rights of the organization.

Tory, then represented by counsel, appealed the trial court's decision to the California Court of Appeal , Second District. He argued that the injunction barring him from conducting demonstrations was a prior restraint. According to Tory's argument, he could not, for example, "[t]ell friends, at a picnic in a public park: 'Johnnie Cochran was not very nice to me."' Thus, Tory asserted that the injunction was overly broad and restricted speech that was protected by the First Amendment.

Judge Miriam A. Vogel, writing for the appeals court, disagreed. The court noted that while "prior restraint can be presumptively unconstitutional, that rule has no application [here]" because the injunction was issued to redress a private wrong. The court also recognized that the injunction was necessary because money damages would not have provided an adequate remedy. Moreover, Tory's admission that he would continue the demonstrations were it not for the injunction provided further support for the injunction. According to the appeals court, "Based upon his prior unlawful conduct and his admissions in court that, absent restraint by the court, he would continue to picket Cochran, Tory has no basis for his challenge to the breadth of the injunction." The court of appeal thus affirmed the trial court's ruling. Cochran v. Tory, No. B159437, 2003 WL 22451378 (Cal App. Oct. 29, 2003).

Tory sought to appeal the ruling to the California Supreme Court, but the state's highest court denied the petition for review on January 28, 2004. Tory then petitioned the U.S. Supreme Court for review, and the Court granted certiorari on September 28. At oral argument on March 22, Cochran's counsel referred to Tory's actions as constituting extortion, such that Tory's conduct does not deserve First Amendment protection. Tory's lawyer, Duke University law professor Erwin Chemerinsky, disagreed, claiming that the Court's affirmation of the injunction would "open the door to injunctions in defamation cases across the country."

Cochran died of a brain tumor on March 29, 2005. The Court was notified of his death and asked the parties whether his death rendered the case moot. If so, then the Court could dismiss the suit without addressing the substantive questions. In a decision by Justice Stephen Breyer, the Court ruled that the case was not moot. The Court noted that the injunction remained valid, despite Cochran's death, and that Cochran's representatives could enforce the injunction if they so desired. The Court allowed Cochran's widow to replace Cochran as the respondent .

The Court refused, however, to address questions regarding whether the First Amendment allowed the issuance of a permanent injunction against a public figure or whether the injunction against Tory was improperly tailored. The Court instead determined that the injunction no longer served its original purpose. "Since picketing Cochran and his law offices while engaging in injunction-forbidding speech could no longer achieve the objective that the trial court had in mind…, the grounds for the injunction are much diminished, if they have not disappeared altogether," Breyer wrote. The Court ruled that the injunction was overly broad and that it violated the First Amendment, ordering the California appellate court to issue a ruling not inconsistent with the opinion.

Justice Clarence Thomas argued in a dissenting opinion that the Court should have dismissed the writ of certiorari because Cochran's death "renders the case an inappropriate vehicle for resolving the question presented." Thomas argued that the Court would only cause more confusion and invite further litigation with its opinion because it did not adequately resolve issues regarding the use of permanent injunctions in defamation suits involving public figures.

FIRST AMENDMENT

The First Amendment to the U.S. Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

At first glance, the First Amendment appears to be written in clear, unequivocal, and facile terms: "Congress shall make no law" (emphasis added) in contravention of certain religious and political principles. After a closer reading, and upon further reflection, the amendment's underlying complexities rise to the surface in the form of persistent questions that have nagged the legal system over the last two centuries.

What kind of law "respect[s] the establishment of religion"? Does the First Amendment include here only laws that would establish an official national religion, as the Anglican Church was established in England prior to the American Revolution? Or does it also include laws that recognize or endorse religious activities such as the celebration of Christmas? More importantly, can people agree on what is meant by the word religion so that judges may know when religion is being "established" or when the right to its "free exercise" has been infringed?

In the area of free speech, does the right to speak your mind include the right to use offensive language that could start a fight or incite a riot? Is freedom of speech synonymous with freedom of expression, such that the right to condemn the U.S. government extends to offensive symbolic actions involving no written or spoken words, like burning the U.S. flag? Does freedom of the press protect the right to publish scurrilous, defamatory, and libelous material? If not, can the government prohibit the publication of such material before it goes to print?

The U.S. Supreme Court has confronted most of these questions. Its answers have not always produced unanimous, or even widespread, agreement around the United States. But the Court's decisions have provided a prism through which U.S. citizens have examined the appropriate limitations society may place on the freedoms protected by the First Amendment, and have sparked colorful and spirited discussions among friends and family members, as well as politicians and their constituents.

Freedom of Speech

The Founding Fathers were intimately familiar with government suppression of political speech. Prior to the American Revolution, the Crown imprisoned, pilloried, mutilated, exiled, and even killed men and women who belonged to minority political parties in England, in order to extinguish dissenting views. Many of these dissenters left England in search of more freedom in the New World, where they instead found colonial governments that stifled political dissidence with similar fervor. Maryland, for example, passed a law prohibiting "all speeches, practices and attempts relating to [the British Crown], that shall be thought mutinous and seditious," and provided punishments that included whipping, branding, fines, imprisonment, banishment, and death. The Free Speech Clause of the Constitution was drafted to protect such political dissenters from a similar fate in the newly founded United States.

In light of this background, the U.S. Supreme Court has afforded dissident political

speech unparalleled constitutional protection. However, all speech is not equal under the First Amendment. The high court has identified five areas of expression that the government may legitimately restrict under certain circumstances. These areas are speech that incites illegal activity and subversive speech, fighting words, obscenity and pornography, commercial speech, and symbolic expression.

The Court has also made clear that states cannot restrict the free speech rights of candidates for judicial office. Unlike federal judges, most state judges must stand for election. in their codes of judicial conduct, states have imposed restrictions on what candidates or sitting judges may say about issues, in hopes of preserving judicial independence and assuring the public that the justice system is impartial. The Court, in Republican Party of Minnesota v.White, 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed.2d 694 (2002), rejected this approach as incompatible with the First Amendment. The restrictions were unconstitutional because they regulated speech based on content and burdened an important category of speech.

Speech that Incites Illegal Activity and Subversive Speech Some speakers intend to arouse their listeners to take constructive steps to alter the political landscape. Every day in the United States, people hand out leaflets imploring neighbors to write to Congress about a particular subject, or to vote in a certain fashion on a referendum, or to contribute financially to political campaigns and civic organizations. For other speakers, existing political channels provide insufficient means to effectuate the type of change desired. These speakers may encourage others to take illegal and subversive measures to change the status quo. Such measures include resisting the draft during wartime, threatening public officials, and joining political organizations aimed at overthrowing the U.S. government.

The U.S. Supreme Court has held that government may not prohibit speech that advocates illegal or subversive activity unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v. Ohio, 395U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). Applying the Brandenburg test, the Court ruled that the government could not punish an anti-war protester who yelled, "[W]e'll take the fucking street later," because such speech "amounted to nothing more than advocacy of illegal action at some indefinite future time" (Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L. Ed. 2d 303[1973]). Nor could the government punish someone who, in opposition to the draft during the vietnam war, proclaimed, "[I]f they ever make me carry a rifle, the first man I want in my sights is [the president of the United States]L.B.J." (Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 [1969]). Such politically charged rhetoric, the Court held, was mere hyperbole and not a threat intended to be acted on at a definite point in time.

Fighting Words Fighting words are words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" or have a "direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed" (Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031[1942]). Whereas subversive advocacy exhorts large numbers of people to engage in lawless conduct, fighting words are directed at provoking a specific individual. Generally, only the most inflammatory and derisive epithets will be characterized as fighting words.

Fighting words also should be distinguished from speech that is merely offensive. Crude or insensitive language may be heard in a variety of contexts—at work, on television, even at home. The U.S. Supreme Court has ruled that speech that merely offends, or hurts the feelings of, another person—without eliciting a more dramatic response—is protected by the First Amendment. The Court has also underscored the responsibility of receivers to ignore offensive speech. Receivers can move away or divert their eyes from an offensive speaker, program, image, or message. In one case, the Court ruled that a young man had the right to wear, in a state courthouse, a jacket with the slogan Fuck the Draft emblazoned across the back, because persons at the courthouse could avert their eyes if offended (Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 [1971]). "One man's vulgarity," the Court said, "is another's lyric," and the words chosen in this case conveyed a stronger message than would a sublimated variation such as Resist the Draft.

Obscenity and Pornography State and federal laws attempt to enforce societal norms by encouraging acceptable depictions of human sexuality and eliding unacceptable portrayals. Over the years, libidinous books such as Lady Chatterly's Lover (1951–1975) and adult movies such as Deep Throat (1972) have rankled communities, which have struggled to determine whether such works should be censored as immoral, or protected as art.

The U.S. Supreme Court has always had difficulty distinguishing obscene material, which is not protected by the First Amendment, from material that is merely salacious or titillating. Justice potter stewart admitted that he could not define obscenity, but quipped, "I know it when I see it." Nonetheless, the Court has articulated a three-part test to determine when sexually oriented material is obscene. Material will not be declared obscene unless (1) the average person, applying contemporary community standards, would find that its predominant theme appeals to a "prurient" interest;(2) it depicts or describes sexual activity in a "patently offensive" manner; and (3) it lacks, when taken as a whole, serious literary, artistic, political, or scientific value (miller v. california, 413 U.S. 15 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]).

Although the U.S. Supreme Court has failed to adequately define words like prurient, patently offensive, and serious artistic value, literary works that involve sexually related material are strongly protected by the First Amendment, as are magazines like Playboy and Penthouse. More difficult questions are presented in the area of adult cinema. Courts generally distinguish hard-core pornography, which graphically depicts copulation and oral sex, from soft-core pornography, which displays nudity and human sexuality short of these sex acts. In close cases that fall somewhere in the gray areas of pornography, the outcome may turn on the community standards applied by a jury in a particular locale. Thus, pornography that could be prohibited as obscene in a small rural community might receive First Amendment protection in Times Square.

The reach of the internet has led to the distribution of sexually explicit materials through cyberspace. The federal government has sought to regulate this material, but the U.S. Supreme Court has found First Amendment violations. In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed.2d 403(2002), the Court struck down provisions of the Child Pornography Prevention Act of 1996 (CPPA) because they censored legally protected speech as well as unprotected speech. It noted that the law sought to ban "virtual child pornography," which is produced through computer-generated imaging or youthful-looking adults. The greatest constitutional problems came from the failure of Congress to comply with each element of the Miller test. Congress had not required that the material be "offensive" or that it "appealed to prurient interests" in order to violate the law. This made the law overbroad under the First Amendment because all material depicting sexual conduct of persons under 18 years of age would be prohibited, despite any underlying merit or value.

Commercial Speech Commercial speech, such as advertising, receives more First Amendment protection than fighting words and obscenity, but less protection than political oratory. Advertising deserves more protection than the first three categories of expression because of the consumer's interest in the free flow of market information (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 [1976]). In a free-market economy, consumers depend on information regarding the quality, quantity, and price of various goods and services. Society is not similarly served by the free exchange of obscenity.

The U.S. Supreme Court has continued to review commercial speech restrictions with a wary eye. In Lorillard Tobacco Corp. v. Reilly,, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed.2d 532(2001), it struck down state regulations that sought to restrict outdoor and indoor tobacco advertising that targeted minors. The Court found that the provisions were too broad and that they did not advance the state's interests in discouraging tobacco consumption. In another case, Thompson v. Western States Medical Center,, 535 U.S. 357, 122 S. Ct. 1497, 152 L. Ed.2d 563(2002), the Court struck down advertising restrictions on pharmacies and pharmacists, imposed by food and drug administration (FDA) regulations. The Court found that the FDA had other means of regulating certain products and that regulating speech should be the last option rather than the first. In U.S. v. United Foods, 533 U.S. 405, 121 S. Ct. 2334, 150L. Ed.2d 438 (2001), the Court barred a government-sponsored agricultural product board from assessing fees from producers to be used in product advertisement. It concluded that the First Amendment not only addresses the banning of speech; it also prevents the government from forcing persons to express views they not agree with.

At the same time, commercial speech deserves less protection than do political orations because society has a greater interest in receiving accurate commercial information and may be less savvy in flushing out false and deceptive rhetoric. The average citizen is more prone, the U.S. Supreme Court has suggested, to discount the words of a politician than to discount the words of a Fortune 500 company. The average citizen may be more vulnerable to misleading advertising as well. Even during an election year, most people view more commercial advertisements than political advertisements, and they rely on those advertisements when purchasing the clothes they wear, the food they eat, and the automobiles they drive. Thus, the U.S. Supreme Court permits government regulation of commercial speech that is intended to prevent misleading and deceptive advertising.

Symbolic Expression Not all forms of expression involve words. The nod of a head, the wave of a hand, and the wink of an eye all communicate something without language. The television image of a defenseless Chinese student facing down a line of tanks during protests in support of democracy near Tiananmen Square in 1989 will be forever seared into the minds of viewers.

Not all symbolic conduct is considered speech for First Amendment purposes. If an individual uses a symbolic expression with the intent to communicate a specific message and under circumstances in which the audience is likely to understand its meaning, the government may not regulate that expression unless the regulation serves a significant societal interest unrelated to the suppression of ideas (Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 [1974]; United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 [1968]). Applying this standard, the U.S. Supreme Court overturned the conviction of a person who had burned the American flag in protest over the policies of President ronald reagan (texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]), and reversed the suspension of a high-school student for wearing a black armband in protest of the Vietnam War (tinkerv. des moines independent school district, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731[1969]), but upheld federal legislation that prohibited the burning of draft cards (O'Brien). Of the government interests asserted in these three cases, maintaining the integrity of the selective service system was the only interest of sufficient weight to overcome the First Amendment right to engage in symbolic expression.

In City of Erie v. Pap's A. M., 529 U.S. 277, 120S. Ct. 1382, 146 L. Ed.2d 265 (2000), the U.S. Supreme Court ruled that a zoning ordinance that barred nude-dancing establishments did not violate the First Amendment, again using the symbolic-expression standard. In that case, the city of Erie, Pennsylvania, had not sought to ban the expressive conduct itself (nude dancing), thus the zoning law was content-neutral. The city had a right under its police powers to protect public health and safety. It also had a legitimate reason for the law: the harmful, secondary effects of nude dancing establishments in a community. Finally, the government interest was unrelated to the suppression of free expression,

Freedom of the Press

The American Revolution was a revolution of literature as well as politics. The colonists published a profusion of newspaper articles, books, essays, and pamphlets in opposition to various forms of British tyranny. Thomas Paine's Common Sense (1776) and Thomas Jefferson's Declaration of Independence (1776) are two well-known and influential examples of revolutionary literature published in the colonies. A free press, the Founding Fathers believed, was an essential check against despotism, and integral to advancing human understanding of the sciences, arts, and humanities.

The Founding Fathers did not agree on how best to protect the press from arbitrary government action. A majority of the Founding Fathers adhered to the English common-law view that equated a free press with the doctrine of no prior restraint. This doctrine provided that no publication could be suppressed by the government before it is released to the public, and that the publication of something could not be conditioned upon judicial approval before its release. On the other hand, the English common law permitted prosecution for libelous and seditious material after publication. Thus, the law protected vituperative political publications only insofar as the author was prepared to serve time in jail or to pay a fine for wrongful published attacks.

A minority of Founding Fathers adhered to the view articulated by james madison: "The security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws." Madison was concerned that authors would be deterred from writing articles that assailed government activity if the government were permitted to prosecute them following release of their works to the public.

Before 1964, the Madisonian concept of a free press found very little support among the fifty states. Not only was subsequent punishment permitted for seditious and libelous publications, but in many states, truth was not a defense to allegations of defamation. If a story tended to discredit the reputation of a public official, the publisher could be held liable for money damages even if the story were accurate. In states where truth was allowed as a defense, the publisher often carried the burden of demonstrating its veracity. Newspapers and other media outlets soon flooded the courts with lawsuits alleging that these libel laws violated their First Amendment rights by "chilling" the pens of writers with the specter of civil liability for money damages.

In the seminal case new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the U.S. Supreme Court extended First Amendment protection for print and electronic media far beyond the protection envisioned by the English common law. Before money damages can be assessed against a member of the media for a libelous or defamatory statement, the Court held, the injured party, not the publisher, must demonstrate by "clear and convincing" evidence that the statement not only was false but also was published with "actual malice." Actual malice may be established only by proof that the media member recklessly published a statement without regard to its veracity or that it had actual knowledge of its falsity. In arriving at this standard, the Court balanced society's need for an uninhibited flow of information about public figures, particularly elected officials, against an individual's right to protect the integrity and value of his or her reputation.

The twentieth century also saw the U.S. Supreme Court strengthen the doctrine of no prior restraint. In near v. minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court ruled that there is a constitutional presumption against prior restraint that may not be overcome unless the government can demonstrate that censorship is necessary to prevent a "clear and present danger" of a national security breach. In new york times v. united states, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822(1971), the Court applied this presumption against the U.S. department of justice, which had sought an injunction to prevent the publication of classified material that would reveal the government's secrecy and deception behind the U.S. involvement in the Vietnam War. If this classified material, also known as the Pentagon Papers, had threatened U.S. troops by disclosing their location or movement, the Court said, publication would not have been permitted.

In Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753, 149 L. Ed.2d 787 (2001), Court confronted an intriguing issue involving the privacy of wireless phone conversations and the right of the press to report these conversations. It had to consider whether the government could punish the publication because the information was obtained in violation of the wiretapping laws. The government had argued that the laws sought to protect the privacy and to minimize the harm to persons whose conversations had been illegally intercepted. The Court ultimately concluded that these privacy interests were outweighed by the "interest in publishing matters of public importance." Because the people involved in the intercepted call were public figures, engaged in public matters, they had surrendered some of their privacy rights.

Freedom of Religion

Establishment Clause Prior to the American Revolution, the English designated the Anglican Church as the official church of their country. The church was supported by taxation, and all English people were required to attend its services. No marriage or baptism was sanctioned outside of the church. Members of religious minorities who failed to abide by the strictures of the church were forced to endure civil and criminal penalties, including banishment and death. Some American colonies were also ruled by persecutorial theocrats, such as the Puritans in Massachusetts.

These English and colonial experiences influenced the Founding Fathers, including Jefferson and Madison. Jefferson supported a high wall of separation between church and state. Furthermore, Jefferson, a student of the Enlightenment (an eighteenth-century philosophical movement whose members rejected traditional values and embraced rationalism), opposed religious influence on the business of government. In turn, Madison, a champion of religious minorities, opposed government interference with religion. For Madison, the establishment of a national church differed from the Spanish Inquisition "only in degree," and he vociferously attacked any legislation that would have led the colonies down that path. For example, Madison led the fight against a Virginia bill that would have levied taxes to subsidize Christianity.

The thoughts and intentions of Madison have been the subject of rancorous discord among the U.S. Supreme Court justices who have attempted to interpret the Establishment Clause in a variety of contexts. Some justices, for example, cite Madison's opposition to the Virginia bill as evidence that he opposed only discriminatory government assistance to particular religious denominations, but that he favored nonpreferential aid in order to cultivate a diversity in faiths. Thus, the left posterity with three considerations regarding religious establishments: (1) a wall of separation that protects government from religion and religion from government; (2) a separation of church and state that permits nondiscriminatory government assistance to religious groups; and (3) government assistance that preserves and promotes a diversity of religious beliefs.

The U.S. Supreme Court attempted to incorporate these three considerations under a single test in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). In Lemon, the Court held that state and federal government may enact legislation that concerns religion or religious organizations so long as the legislation has a secular purpose, and a primary effect that neither advances nor inhibits religion nor otherwise fosters an excessive entanglement between church and state. Under this test, the U.S. Court of Appeals for the Fifth Circuit invalidated a Mississippi statute that permitted public school students to initiate nonsectarian prayers at various compulsory and noncompulsory school events (Ingebretsen v. Jackson Public School District, 88 F.3d 274 [1996]). By contrast, the Court has permitted state legislatures to open their sessions with a short prayer—because, the Court says, history and tradition have secularized this otherwise religious act (Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 [1983]).

The Court has made seemingly inconsistent rulings in other areas, as well. For instance, it permitted a municipality to include a Nativity scene in its annual Christmas display (Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604 [1984]), whereas it prohibited a county courthouse from placing a crèche on its staircase during the holiday season (Allegheny v. ACLU, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472[1989]). In Allegheny, the Court said that nothing in the county courthouse indicated that the crèche was anything other than a religious display, whereas in Lynch, the Nativity scene was part of a wider celebration of the winter holidays. Such inconsistencies will continue to plague the Court as the justices attempt to reconcile the language of the Establishment Clause with the different considerations of the Founding Fathers.

Free Exercise Clause The Establishment Clause and the Free Exercise Clause represent flip sides of the same coin. Whereas the Establishment Clause focuses on government action that would create, support, or endorse an official national religion, the Free Exercise Clause focuses on the pernicious effects that government action may have on an individual's religious beliefs or practices. Like the Establishment Clause, the Free Exercise Clause was drafted in response to the Framers' desire to protect members of religious minorities from persecution.

The Framers' understanding of the Free Exercise Clause is illustrated by the new york constitution of 1777, which stated,

[T]he free exercise and enjoyment of religious … worship, without discrimination or preference, shall forever … be allowed … to all mankind: Provided, that the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. (N.Y. Const. Art. 1 § 3)

The New Hampshire Constitution of 1784 similarly provided that "[every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt … in his person, liberty or estate for worshipping God" in a manner "most agreeable" to those dictates, "provided he doth not disturb the public peace" (N.H. Const. Pt. 1, Art. 5).

These state constitutional provisions not only provide insight into the Founding Fathers' original understanding of the First Amendment, but they also embody the fundamental tenets of modern free exercise jurisprudence. The U.S. Supreme Court has identified three principles underlying the Free Exercise Clause: (1) no individual may be compelled by law to accept any particular religion or form of worship; (2) all individuals are constitutionally permitted to choose a religion freely in accordance with their conscience and spirituality, and the government may not inhibit their religious practices; and (3) the government may enforce its criminal norms against persons whose religious practices would thwart a compelling societal interest.

Rarely is a law that infringes upon someone's religious beliefs or practices supported by a compelling state interest. The U.S. Supreme Court has held that no compelling societal interest would be served by actions that conflict with deeply held religious beliefs, such as coercing members of the Jehovah's Witnesses to salute the U.S. flag in public schools (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63S. Ct. 1178, 87 L. Ed. 1628 [1943]); denying unemployment benefits to Seventh-Day Adventists who refuse to work on Saturdays (Sherbertv. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 [1963]); or requiring Amish families to keep their children in state schools until the age of 16 (Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 [1972]). However, a compelling government interest is served by the federal revenue system, so no member of any religious sect can claim exemption from taxation (United States v. Lee, 455 U.S. 252, 102 S. Ct. 1051, 71 L. Ed. 2d 127 [1982]).

A different question is presented when the government disputes whether a particular belief or practice is religious in nature. This typically happens when conscientious objectors resist the federal government's attempt to conscript them during wartime. Some draft resisters object to war on moral or ethical grounds that are unrelated to orthodox or doctrinal religions. If a conscientious objector admits to being atheistic or agnostic, the government asks, then how can that objector avoid conscription by relying on the First Amendment, which protects the free exercise of religion?

In an effort to answer this question, the U.S. Supreme Court explained that the government cannot "aid all religions against non-believers," any more than it can aid one religion over another (Torasco v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 [1961]). Thus, as long as a person "deeply and sincerely holds beliefs which are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs" are protected by the First Amendment (welsh v. united states, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 [1970]). A belief—religious, moral, or ethical—that manifests itself in a person's selective opposition to only certain

wars or military conflicts is not protected by the Free Exercise Clause.

further readings

Bailyn, Bernard. 1992. The Ideological Origins of the American Revolution. Cambridge, Mass.: Harvard Univ. Press.

Corwin, Edwin S. 1978. The Constitution and What It Means Today. Princeton, N.J.: Princeton Univ. Press.

Hickok, Eugene W., Jr., ed. 1991. The Bill of Rights: Original Meaning and Current Understanding. Charlottesville, Va.: Univ. Press of Virginia.

Levy, Leonard W. 1988. Original Intent and the Framers Constitution. New York: Macmillan.

Meyers, Marvin, ed. 1981. The Mind of the Founder: Sources of Political Thought of James Madison. Rev. ed. Hanover, N.H.: Univ. Press of New England.

Stephens, Otis H., Jr., and John M. Scheb III. 1993. American Constitutional Law. St. Paul, Minn.: West.

cross-references

Abington School District v. Schempp; Engel v. Vitale; School Prayer.

First Amendment

Davenport v. Washington Education Association

The U.S. Supreme Court in June 2007 ruled that under the First Amendment, a state may properly require its public sector labor unions to receive affirmative authorization from a nonmember before spending the nonmember's fees for election-related purposes. In doing so, the unanimous Court reversed the holding of two Washington state courts that had determined that the statute was unconstitutional.

The National Labor Relations Act (NLRA), 29 U.S.C. §152(2) allows states to regulate their labor relationships with public employees. Many states, including Washington, have enacted states that allow unions and government employers to enter into so-called "agency-shop" agreements. These agreements allow unions to impose fees on the government employees who are not members of the union but who are still represented by a union during the collective bargaining process. The purpose behind these agreements is to prevent employees who are not members of the union to share the benefits of collective bargaining without having to share the costs of this bargaining.

In the past, the Supreme Court has considered objections to these types of agreements. Nonunion employees have argued that the agreements violate the First Amendment because they require these employees to contribute money as a condition of their government employment. In one case, the Court held that public-sector unions could not use fees of nonunion employees for certain ideological purposes unrelated to the union's collective bargaining duties, where the employee objects to such use of the fees. Abbod v. Detroit Bd. of Educ., 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977). Another case established procedural requirements that public-sector unions must follow to ensure that an objecting nonmember can prevent the fees from being used for im-proper purposes. Teachers v. Hudson, 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986).

About 12 million workers in both the public and the private sector must pay union fees even if these members do not decide to join a union. Opponents of unions have argued that mandating payment of these dues is unconstitutional, and Republicans have supported limitations on the political use of union dues. These funds have traditionally been a major source of funding for Democratic candidates.

Under Washington law, a union may charge nonmembers a fee that is equivalent to the dues paid by union members, and the union can collect this fee from the employer through payroll deductions. The statute also provides that a union "may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual." Wash. Rev. Code §42.17.760.

The Washington Education Association (WEA) served as the exclusive bargaining agent for about 70,000 state employees in public education in the state of Washington. Pursuant to the requirements of the Supreme Court's decision in Hudson, the union sent a packet to all nonmembers twice per year, informing these nonmembers that they had the right to object to certain expenditures. According to the packet, nonmembers had several options that would allow them to object to these expenditures.

Both the State of Washington and non-members of the union brought actions against the WEA. Both suits alleged that the WEA had violated the Washington statute because the union had used nonmember dues for election-related purposes without receiving authorization from the nonmembers. Two trial courts ruled against the WEA, holding that the WEA had indeed violated the statute.

An intermediate appellate court reversed the trial court's decision, and the plaintiffs appealed to the Washington Supreme Court. The state's high court determined that the U.S. Supreme Court's prior decisions had balanced the constitutional rights of both unions and non-members, focusing on language that requires nonmembers to objecting to the expenditures before the union could be barred from spending the fees. According to the Washington Supreme Court, the Washington statute infringed on the union's First Amendment rights because it re-quired the union to send the packet of information to the nonmembers and to confirm that each nonmember does not object to the use of the fees. The state court decided that these requirements imposed an unconstitutional burden on the union. State ex rel. Wash. State Public Disclosure Comm'n v. Wash. Ed. Ass'n, 130 P.3d 352 (Wash. 2006).

A unanimous Supreme Court reversed the Washington Supreme Court. In an opinion by Justice Antonin Scalia, the Court determined that the Washington Supreme Court's interpretation of the previous agency-fee cases "extends them well beyond their proper ambit." According to Scalia, the cases never balanced the rights of unions with the rights of nonmember employees, and the Court has never established a principle that a union has a constitutional entitlement to the nonmember fees. Because the requirements of the Washington statute did not implicate the First Amendment rights of the WEA, the Court determined that the statute was constitutional. Davenport v. Wash. Educ. Ass'n Nos. 05-1589, 05-1657, 2007 WL 1703022 (2007).

Leonard v. Robinson

The First Amendment gives citizens the right to voice their views about politics, religion, morality, and other matters without fear of prosecution by the government. However, freedom of speech is not unlimited and the courts have ruled that "fighting words," which are intended to inflict injury or incite an immediate breach of the peace, are not protected by the First Amendment. These narrow restrictions on freedom of speech demonstrate that most speech is protected, even if it is libelous or profane. The Seventh Circuit Court of Appeals reaffirmed these principles in Leonard v. Robinson, 477 F.3d 347 (7th Cir.2006), ruling that a police officer who arrested a man at a township board meeting after he uttered the phrase "God damn" could be sued for violating the man's First Amendment rights.

Sarah Leonard owned a towing company in the township of Montrose, Michigan. Leonard's Auto Works was the exclusive towing company for the township for a number of years but she lost her business with the township after she had a falling out with the township Chief of Police, Charles Abraham. Abraham had sought to extend township police jurisdiction to include the city of Montrose as well as the surrounding township. Leonard's mother was on the city council and opposed this plan. After Leonard refused Abraham's request that she lobby her mother to support the plan, Auto Works lost its business with the township. Leonard sued the township and Abraham for violating her First Amendment rights and secured a settlement with both parties in 2003. As a result, Leonard and her husband Thomas Leonard believed Abraham hated them. In October 2002, before the settlement of the lawsuit, the Leonards attended a township board meeting. Abraham ordered one of his officers, Stephen Robinson, to attend the meeting. Robinson sat at the back of the meeting hall and when asked by another attendee why he was there, lied, saying he just liked to see what was going on. Sarah Leonard addressed the council and complained about the losses her business had suffered since losing the towing contract. Thomas then addressed the council and made several emotionally-charged statements that culminated in him telling a council member that "That's why you're in a God damn lawsuit." After he sat down Officer Robinson directed him to leave the meeting room. Once outside Robinson placed him under arrest, charging him with violations of Michigan state law involving disorderly conduct and obscenity. Leonard was released after one hour in detention and one month later the charges were dismissed.

Thomas Leonard filed a federal civil rights lawsuit under 42 U.S.C.A. §1983 against Robinson, alleging that he violated his First and Fourth Amendment rights when he arrested him. Robinson filed a motion with the federal district court, arguing that he was entitled to qualified immunity. Qualified immunity is a doctrine developed by the U.S. Supreme Court that protects police officers when the officers' actions were reasonable and the constitutional right supposedly violated was not clearly established under the law. Robinson contended that the arrest was reasonable under the Fourth Amendment because the laws supporting the charges had not been invalidated by the Michigan Supreme Court. The court agreed with Robinson, concluding that he had probable cause to arrest Leonard because he had violated the plain language of those statutes and Robinson was "to enforce laws until and unless they are declared unconstitutional." The district court also denied Leonard's First Amendment retaliation claim because there was no causal connection between Leonard's protected speech and his arrest. The court ignored Leonard's allegations that his wife's lawsuit against Abraham was the motive behind the arrest.

The Seventh Circuit Court of Appeals reversed the district court decision. The appeals court concluded that Robinson was not entitled to qualified immunity because First Amendment law, "established for a generation," precluded a finding of probable cause because the laws cited by Robinson were "either facially invalid, vague, or overbroad when applied to speech (as opposed to conduct) at a democratic assembly where the speaker is not out of order." Though the Michigan state court had not ruled on the constitutionality of the laws used by Robinson to justify the arrest, the federal appeals court pointed to another statute that had been ruled unconstitutional by the state supreme court. This law had made it a crime to use indecent or obscene language in the presence of women and children. The state supreme court had called the statute as so vague as to be unenforceable. The appeals court concluded that the statutes invoked by Robinson were also vague and that no reasonable police officer would believe they were constitutional "as applied to Leonard's political speech during a democratic assembly." This meant that Robinson did not have probable cause to arrest Leonard.

As to the First Amendment retaliation claim, the appeals court found that the district court had failed to properly evaluate Robinson's motive for the arrest. Although it was a close case, the court ruled that a reasonable factfinder could conclude that Leonard was arrested in retaliation for constitutionally protected conduct. The turmoil surrounding Sarah Leonard's feud with the police chief, the loss of business, and her lawsuit, all suggested that Robinson's reason for attending the meeting was to settle a score for the police chief. Therefore, Robinson was not entitled to qualified immunity and Leonard was allowed to proceed with his lawsuit.

Morse v. Frederick

In a landmark First Amendment case receiving much media attention, the U.S. Supreme Court ruled that a student's free speech rights were not violated when school officials suspended him for displaying a "Bong Hits 4 Jesus" banner. Morse v. Frederick, No. 06-278, 551 U.S. ___ (2007). The event which is the subject matter of the case took place in 2002. As of the date of the Supreme Court decision five years later, Joseph Frederick was a senior in college, still waiting for the ultimate disposition of his high school free-speech challenge. He lost.

Frederick had had previous run-ins with teachers and officials at Juneau-Douglas High School in Juneau, Alaska. He planned this particular challenge in advance, even creating an Internet page that read in part, "This is the story of a high school senior who refused to bow down in submission before an authority …'

On the day of the event, January 24, 2002, Frederick and the entire student body were released from school to attend a school-sponsored event. The Olympic Torch was passing through Juneau, part of a 50-state relay leading to the winter games in Salt Lake City, Utah. As television and media cameras rolled during the ensuing parade, Frederick and a few others jumped in front of the camera and unfurled a large banner, reading "Bong Hits 4 Jesus."

Morse, the high school principal, saw him from across the street. She perceived the message as promoting illegal drug use. Consistent with school policy prohibiting such messages at school events, she crossed the road and directed the students to take down the banner. Frederick refused. The principal confiscated the banner and later suspended him.

Frederick tried twice to administratively appeal his suspension, but both school superintendent and school board upheld the suspension. He then filed suit against Morse and the school board under 42 USC §1983, which protects persons from state actions that violate constitutional rights.

The district court granted summary judgment to defendants school board and principal, ruling that they were entitled to qualified immunity and that they had not infringed on Frederick's First Amendment rights. However, the Ninth Circuit Court of Appeals reversed. It found that, even if Frederick's action occurred during a school-authorized event, and even if the banner promoted marijuana use, there nonetheless was a First Amendment violation. Importantly, in coming to this conclusion, the Ninth Circuit relied on Tinker v. Des Moines Independent Community School District, 393 U.S. 503, a case which held that a school policy prohibiting the wearing of antiwar armbands by students violated the First Amendment. In that case, the Court ruled that student expression could not be suppressed unless school officials reasonably concluded that it would "materially and substantially disrupt the work and discipline of the school."

The Ninth Circuit reasoned that Morse could not have been concerned about disruption of school or educational activities. Therefore, she could not discipline or punish Frederick's off-site, non-disruptive expressive speech, even though he was a student entrusted to the school's care, the speech took place during a school-sponsored activity, and the speech promoted a social message contrary to that of the school. Finally, finding that Frederick's right was "clearly established by law" (a condition needed to prevail in a claim under 42 USC §1983), the appellate court held that Morse was not entitled to qualified immunity.

Not so, said the Supreme Court in reversing the Ninth Circuit. Chief Justice Roberts wrote the lengthy Court opinion. The Court held that schools have every right to safeguard students entrusted to their care from speech that can reasonably be regarded as promoting illegal drug use. Therefore, neither the confiscation of the banner nor the ensuing punishment of suspension violated Frederick's free speech.

Frederick's argument that this was not "school speech" was also rejected. The event occurred during school hours and was part of a school-sanctioned activity, supervised off-site by teachers and other school officials. Frederick stood across the street from the school and pointed the banner toward the school, making it clearly visible to most students. He could not, therefore, claim that it was not school speech.

The Court also agreed with Morse that the message conveyed on the banner would most likely be interpreted by those reading it as promoting illegal drug use. The record on appeal contained little proffered evidence of other possible meanings. Therefore, a principal may, consistent with the First Amendment, restrict speech that is reasonably perceived to promote illegal drug use.

In another previous case, Bethel School District v. Fraser, 478 U.S. 675, the Court upheld the suspension of a student who delivered a graphic and sexually-charged metaphor as part of a high school assembly speech. The lower courts found no "disruption" and therefore no basis for discipline. But in reversing, the Supreme Court held that the school was "within its permissible authority in imposing sanctions … in response to … offensively lewd and indecent speech."

Now, in the present case, the Court said there were two things that could be gleaned from the above case. First, the constitutional rights of students in public school were not automatically equal to the rights of adults in other settings. Student rights were delineated "in light of the special characteristics of the school environment," (quoting from Tinker, above). Second, the "substantial disruption" test is not absolute. Rather, while children do not shed their constitutional rights at the school's gate, the nature of those rights are defined by what is appropriate "for children in school." Thus, the "special characteristics of the school environment," in which students are entrusted to the care of others, allows schools to restrict student expression that they reasonably regard as promoting illegal drug abuse.

Justice Stevens filed a dissenting opinion, joined by Justices Ginsburg and Souter. They agreed that Morse should not be held liable. However, they rejected the school's interest in protecting students from drug-promoting speech as justification for disciplining Frederick "for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs."

Tennessee Secondary School Athletic Assn. v. Brentwood

In Tennessee Secondary School Association v. Brentwood, No. 06-427, 551 U.S. ___ (2007), the U.S. Supreme Court was asked to determine the extent to which the First Amendment might protect a private school's ability to recruit students, given an anti-recruiting rule imposed by the area's athletic association. The Supreme Court, in a plurality opinion, held that the rule, which prohibited high school coaches from recruiting middle school athletes, was constitutional. In so holding, the Court reversed a decision by the Sixth Circuit Court of Appeals.

The Tennessee Secondary School Athletic Association (TSSAA) was a voluntary association of member schools, primarily public schools, that adopted rules governing athletic competition between member schools. Brent-wood Academy was one of the few private schools that voluntarily became a member of TSSAA. In accepting membership, Brentwood agreed to abide by the association's rules.

TSSAA prohibited member schools from exercising "undue influence" in recruiting middle school students for their athletic programs. In 1997, Brentwood's football coach sent a letter to a group of eighth-grade boys inviting them to attend spring football practice sessions. The letter offered the use of all equipment and further stated that "getting involved as soon as possible would definitely be to your advantage." It was signed, "Your coach."

Although the boys receiving the letter had previously indicated their intent to attend Brentwood, the case came to the Supreme Court with the stipulation that all parties agreed that Brentwood's coach violated TSSAA's rule, and that he knew in advance that his conduct was prohibited. This stipulation was the result of two internal reviews conducted by TSSAA.

Rather, Brentwood staked its claim on two other premises. First, it filed suit against TSSAA under 42 USC §1983, claiming that enforcement of the rule was state action that violated its First Amendment rights, applicable to it through the Fourteenthamendment. Second, Brentwood alleged that TSSAA's internal review/adjudication of Brentwood's appeal deprived it of due process of law.

The district court agreed and granted relief to Brentwood, but the Sixth Circuit Court of Appeals reversed, holding that TSSAA was a private voluntary association, not acting under the color of law, i.e., not taking a "state action." On the case's first trip to the U.S. Supreme Court, that "threshold issue" determination was reversed. Brentwood Academy v. Tennessee Secondary School Association, 531 U.S. 288 (2001).

On remand, the District Court ruled for Brentwood. TSSAA appealed, and this time the Sixth Circuit affirmed, finding that the anti-recruiting rule was a content-based regulation of speech that was not narrowly tailored to serve its permissible uses. Further, it found that TSSAA's appeals procedure impermissibly considered ex parte evidence, thereby violating Brentwood's due process rights.

Back before the Supreme Court, the Sixth Circuit was again reversed. Justice Stevens, writing for the Court, held that the rule did not violate the First Amendment. TSSAA's interest in enforcing its rules could warrant curtailing some speech, to which its voluntary members had agreed. While it did not have unbounded authority to curtail all speech as a condition of membership, it could impose those conditions necessary to managing an efficient and effective state-sponsored high school athletic league. Its rule was intended to discourage precisely the type of conduct which brought the case into litigation.

The Court also held that Brentwood's due process rights were not violated. The evidence allegedly considered on an ex parte basis (behind closed doors and involving a separate incident not related to the coach's letter), was, at best, harmless beyond a reasonable doubt. Brent-wood alleged that it would have handled the case differently at the board hearing had it been given an opportunity to object to the evidence or cross-examine witnesses. But Brentwood failed to show that any ex parte evidence presented to TSSAA was not already known to it.

Justice Kennedy wrote a separate opinion, concurring in part and concurring with the judgment. He did not agree with the majority's reliance on Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978), which had to do with an attorney's right to solicit clients. He felt that the present majority's invoking of Ohralik would be a "dramatic expansion" of Ohralik's holding, now encompassing free-standing state regulation of speech by coaches and other representatives of nonmember schools. He was joined in this concern by the Chief Justice as well as Justices Scalia and Alito.

Justice Thomas also wrote a separate opinion concurring in the judgment. His opinion also took exception to what he believed to be an expansion of the original holding in yet another case cited by the majority, Pickering v. Board of Ed. of Township H.S. District 205 Will City, 391 U.S. 563 (1968), determining the speech rights of government employees and contractors.

First Amendment

Beard v. Banks

In Beard v. Banks, No. 04-1739, 548 U.S. ___ (2006), the U.S. Supreme Court ruled that Pennsylvania prison officials did not violate First Amendment rights of a specific group of inmates by denying them access to newspapers and magazines. Although free speech and association issues under the U.S. Constitution were implicated, the Court held that state officials had shown legitimate reasons to justify the policy. The Court noted that, as mentioned in Overton v. Bazzetta, 539 U.S. 126, if faced with reviewing a de facto permanent ban involving a severe restriction on First Amendment rights, the Court might reach a different conclusion.

The Court's 6-2 majority opinion, delivered by Justice Breyer, reversed a ruling by the Third Circuit Court of Appeals. New Su-preme Court Justice Samuel Alito, who had previously served on the Third Circuit appellate court, had written the lone dissent in the underlying opinion. Although his dissent was now validated by the Supreme Court decision, he had recused himself from participating in the high-court's decision. The high court's decision was based on a record consisting of a motion for summary judgment, rather than a trial verdict.

As background, the Pennsylvania state prison system houses its most dangerous inmates in a Long Term Segregation Unit (LTSU). At the time most relevant to this case, 40 inmates were housed there, divided into two groups. Inmates are first assigned to Level 2, which has the most severe restrictions; eventually, they may advance to the less restrictive Level 1, but their tenure in Level 2 is indefinite and premised on their behavior and attitude. All 40 inmates placed in the LTSU were deemed "incorrigible" and the most dangerous and recalcitrant.

Prisoners in the LTSU must remain in their cells 23 hours a day and are limited to one familial visit per month. They are prohibited from having televisions or radios, and, at issue here, are denied access to newspapers, magazines, and photographs.

Ronald Banks was one of the 40 prisoners confined to Level 2. On behalf of himself and other prisoners of the unit, Banks filed an action in federal district court against the Secretary of the Department of Corrections, alleging that the denial of access to magazines and newspapers violated the First Amendment to the U.S Constitution. During the discovery phase of the case, Banks took the deposition of the Deputy Prison Superintendent Dickson, and the parties introduced prison policy manuals and related documents into the record. Department of Corrections Secretary Beard then filed a motion for summary judgment, with a copy of the deposition and a statement of undisputed facts attached. Rather than filing a responsive brief or opposition to the motion, Banks, instead, filed his own cross-motion for summary judgment, relying on the same undisputed facts and deposition.

Pertinent to the outcome of this matter was a 1987 Supreme Court case, Turner v. Safley, 482 U.S. 78. In that case, the U.S. Supreme Court established a four-point test to determine whether prison regulations impermissibly violated constitutional rights, even though the Constitution sometimes permitted greater restrictions on such rights than that permitted elsewhere. Therefore, under Turner, restrictive prison regulations are permissible if they are "reasonably related to legitimate penological interests." 42 U.S. at 89. The remaining factors/considerations were whether alternative means of exercising that constitutional right remained open to prisoners; the impact that accommodating the asserted right would have on guards, other inmates, and prison resources; and, whether there were "ready alternatives" for furthering the government's interest. Importantly, the Turner Court also noted that deference must be accorded to prison authorities' views with respect to matters of professional judgment.

The Secretary's summary judgment motion created the record upon which the decisions of the district court, appellate court, and Supreme Court were based. For review of a motion for summary judgment, a Court examines the record to determine whether the moving party has demonstrated "the absence of a genuine issue of material fact," in which case, the moving party is entitled to summary judgment as a matter of law. If so, then the Court would determine whether Banks ("by affidavits or as otherwise provided") set forth specific facts showing a genuine issue for trial. Inferences about disputed facts would be drawn in Bank's favor, but deference would be accorded the views of prison authorities in matters of professional judgment.

For its part, the state prison justified the ban on newspapers and magazines as being for rehabilitative and security purposes. According to them, depriving inmates of these materials provided incentive for good behavior and transfer to Level 1, where such materials were permitted. For security purposes, it also eliminated the possibility that prisoners would use the materials to light cell fires, use the materials as weapons, or use as tools to fling feces at guards.

Using the test outlined in Turner, the district court adopted the decision of the magistrate, finding that prison officials had met the requisite standard, and ruling for summary judgment in their favor. Banks then appealed to the Third Circuit.

By a 2-1 vote, the Third Circuit reversed, noting that cutting prisoners off from news of the outside world only further undermined any genuine rehabilitation.

In June 2006, the U.S. Supreme Court again reversed, reinstating the original district court determination. Justice Breyer reasoned that the very first of the Secretary's justifications, i.e., the need to motivate better behavior on the part of particularly difficult and dangerous prisoners, sufficiently satisfied Turner's re-quirements. According to him, the remaining factors added little to the first factor's logical rationale. But the important factor, noted the opinion, was not in balancing Turner factors, but rather, in determining whether the Secretary's supporting material for the summary judgment motion showed a reasonable, and not just logical, relation. The majority opinion found that the Third Circuit had placed too high an evidentiary burden on the Secretary, and afforded too little deference to the judgment of prison officials. Accordingly, because the challenged restrictions were placed only upon those prisoners with the most serious behavior problems, and only after prison authorities exercised their professional judgment in deeming such deprivation an effective tool, the state's burden was met.

Randall v. Sorrell

In three consolidated cases, captioned under Randall v. Sorrell, No. 04-1528, 548 U.S.___(2006), the U.S. Supreme Court struck down several key provisions of Virginia's "Act 64," relating to mandatory limits on campaign expenditures and contributions. The Court essentially found expenditure limits too low, in that they impermissibly hindered the ability of candidates to raise money and speak to voters, and therefore, interfered with First Amendment rights. It also found some of the contribution limits as impermissible under the First Amendment, because of a disproportionate burden between protected interest and public purpose.

However, the very narrow decision was not easy to come by. Six separate opinions were filed (including two dissenting ones), and the 6-3 plurality opinion merely held that a state may not impose mandatory limitations on campaign expenditures under Buckley v. Valeo, 424 U.S. 1(1976). The Court did not categorically preclude the possibility that some form of mandatory spending limits might meet constitutional scrutiny. Moreover, the decision did not affect or preclude voluntary expenditure limitations contained in public finance systems. Finally, the plurality decision did not strike down limitations on campaign contributions as a general matter, but only limited the ruling to the Vermont law.

Prior to 1997, Vermont's campaign finance law did not impose limitations on expenditures, but did on contributions. In 1997, the state enacted a more stringent law, Pub. Act 64, codified as Vt. Stat. Ann., Tit. 17, §§2801 et seq. The new law imposed mandatory expenditure limits on the total amount a candidate for state office could spend during any two-year general election cycle, from $300,000 for governor, down to considerably smaller amounts for other offices. On the other end, mandatory contribution ceilings were as little as $200 per election cycle for state House races.

The new law was challenged by several individuals and groups,—primarily individuals running for state office, citizens who voted and contributed to campaigns, and political parties and committees. They filed suit against state officials tasked with enforcing the Act.

The district court found that Act 64's expenditure limits violated the First Amendment under Buckley. In that case, the U.S. Supreme Court had ruled that the government's stated interest (preventing corruption and the appearance of corruption) provided sufficient justification for limitations on contributions under the Federal Election Campaign Act of 1971, but the Act's limitation on campaign expenditures violated the First Amendment. Importantly, the Court explained the difference. Expenditure limits imposed significantly more severe restrictions on protected freedoms of political expression and association, than did contribution limits. Contribution limits were more generally "marginal restrictions" that nonetheless left a contributor free to discuss candidates and issues. Conversely, expenditure limitations directly restricted the amount of money a person or group could spend on political communication "by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached …" (quoting Buckley, 424 US. at 20-21). The district court also found that Act 64's limitations on contributions from political parties was unconstitutional, but other contribution limits under the Act were constitutional.

The Second Circuit Court of Appeals found otherwise, holding that all of the Act's contribution limitations were constitutional, and that the expenditure limitations might also be constitutional because they were supported by compelling government interests. The appellate court remanded the matter to district court to determine whether the expenditure limits were narrowly tailored to those stated interests.

The U.S. Supreme Court reversed. It found that Vermont's expenditure limits violated the First Amendment under Buckley. Although state officials argued that Vermont's limitations should be distinguished (because Buckley did not consider that such limits might help to protect candidates from spending too much time raising money rather than devoting that time to campaigning), the majority found no significant basis for the distinction.

Regarding contribution limitations, the plurality opinion found that Vermont's low limit was excessively restrictive and also violated the First Amendment in its specific details. The effect was to burden protected interests in a manner disproportionate to the public purposes they were intended to advance, in other words, they were not narrowly tailored to suit the purpose. Moreover, it was virtually impossible to sever those impermissible ones from others in the Act without the Court having to rewrite the statute or leave gaping loopholes, which the Court will not do.

The plurality opinion cited five factors it found as indicative that Vermont's contribution limitations were not narrowly tailored: (1)the limits appeared to restrict the amount of money available to challengers to run competitive elections; (2)political parties were bound to the same low $200 to $400 contribution limit as individual contributors, thereby infringing on the right of association; (3) Act 64's treatment of volunteer services served to count a volunteer's expenses against the volunteer's contribution limit, disproportionately impinging on First Amendment rights of association; (4) the Act's limitations were not indexed for inflation; and (5)nowhere in the record was there an articulated justification for the low and restrictive limits.

The plurality opinion further explained that, while there was no magic number to precisely indicate an acceptable lower bound, the Court acknowledged that one does exist. Vermont's limitations were substantially lower than both the limits previously upheld by this Court, and also lower than comparable limits in other states.

Justices Thomas, Alito (in part), Kennedy, and Chief Justice Roberts concurred. Justices Thomas and Scalia wanted to overrule Buckley, saying that this case underscored the inability of the Court to apply it in any coherent and principled fashion. Justice Alito declined to reach the question of whether to overrule Buckley. Justices Souter and Ginsburg dissented; they would have followed the Second Circuit's approach and remanded for determination of whether sufficient reason existed to justify the limitations. Justice Stevens joined this dissent in part, but filed a separate dissent expressing his conviction that Buckley is wrong and it is time to overrule it.

Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

Since 1993 the U.S. military has operated under a "Don't Ask, Don't Tell" policy concerning gays and lesbians serving in the armed services. This policy bars the military from asking members if they are homosexual. However, service members must be discharged if there is evidence of homosexual conduct or orientation. It has led to the discharge of thousands of service members over the years. As a result, many law schools imposed limited campus access to military recruiters who sought to interview potential military lawyers. Congress responded in turn by enacting a federal law known as the Solomon Amendment that withholds federal funds from colleges and universities that deny military recruiters the same access to students and campuses that they provide other employers. A group of law schools challenged the law on First Amendment grounds but the Supreme Court, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,___U.S.___, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006), upheld its constitutionality.

In 1990, the American Association of Law Schools (AALS), which includes most U.S. law schools, amended its non-discrimination policy to bar employers from using their career placement facilities if they discriminated on the basis of sexual orientation. To implement this change, employers were required to sign a statement certifying compliance with the non-discrimination policy, which also barred discrimination on the basis of race or gender. The U.S. military refused to sign the compliance statements, contending that it conflicted with its "Don't ask, Don't tell" policy. Many law schools refused to allow recruiters to use their facilities to interview students for military lawyer positions. In 1994 Congress responded by passing the Solomon Amendment, named for Representative Gerald Solomon of New York. The amendment required that federal funding be withheld from any university that permitted its law school to deny military recruiters access to campus. Faced with the loss of federal funding, most law schools agreed to permit recruiters to talk with their students on campus, but they would not allow them to use the career services office. The military went along with this accommodation and the controversy disappeared.

The issue reappeared in 2002 when the Department of Defense demanded equal access to career placement services. An association of 30 law schools formed a group called the Forum for Academic and Institutional Rights (FAIR). This forum, which was concerned about the possible loss of federal funding, filed a lawsuit in 2003 that contended the Solomon Amendment violated the schools' First Amendment right of speech by forcing them to disseminate a viewpoint which they opposed. As the case proceeded in federal court, Congress amended the Solomon Amendment in 2004 to make clear that the military must have equal access to career service facilities.

A federal district court denied FAIR's request for an injunction barring enforcement of the Solomon Amendment but in November 2004 the Third Circuit Court of Appeals overturned this decision. The appeals court concluded that the amendment imposed "unconstitutional conditions" on the law schools by threatening to withhold federal funds. Such conditions violated the schools' First Amendment rights. In addition, the right of "expressive association," which allows organizations and institutions to choose with whom they care to associate, gave the schools the right to bar military recruiters. The Department of Defense then appealed to the Supreme Court, which accepted review.

The Supreme Court, in an 8-0 vote, overturned the Third Circuit decision. Writing for the Court, Chief Justice John Roberts noted that although Congress has broad authority to pass laws governing military recruiting, it chose to give military recruiters campus access indirectly, using the Constitution's Spending Clause power. In other words, Congress could have passed a law that required equal access for military recruiters without tying it to funding. Despite Congress's indirect approach, the court still believed it must give deference to the legislative body in matters of military affairs. Therefore, placing a funding condition deserved as much respect as if Congress had "imposed a mandate on universities."

As to the legality of imposing funding conditions on the law schools, the Court pointed out that it found no First Amendment violation when a private college challenged a cut off of federal funds for gender discrimination under Title IX. There was no violation because the college was free to decline federal money if it wished to express its views on gender discrimination. As to the Third Circuit's belief that the Solomon Amendment imposed "unconstitutional conditions" on the law schools, Chief Justice Roberts found the conclusion misplaced. Such conditions did not apply because the condition in the present case could have been constitutionally imposed directly by Congress without any First Amendment considerations.

The Solomon Amendment did not limit the free speech rights of law schools. Law schools may express their views on the military's sexual orientation policies while continuing to receive federal aid. Viewed this way, the Solomon Amendment governed the conduct of the law schools, not speech. The law schools argued that they were compelled under the amendment to send e-mails and post announcement about military recruiting visits. Though the court agreed these aspects of compliance were subject to First Amendment scrutiny, it concluded that this compelled speech was "incidental" to the regulation of conduct. Sending an e-mail announcement was not equivalent to forcing a school child to recite the Pledge of Allegiance.

The law schools also claimed that if they allowed military recruiters equal access they would be sending a message that implied they endorsed the military's sexual orientation policies. The court rejected this argument as well, for nothing in the amendment forbid the law schools from criticizing the military policies. It was improbable that anyone would mistakenly believe the law schools endorsed these policies just because they were legally required to give equal access to military recruiters.

The Court also found no merit in the law schools' claim that the amendment violated the First Amendment's right to freedom of association. In a 2000 decision the court had recognized a First Amendment right of "expressive association" that allowed the Boy Scouts to exclude homosexuals. To allow a homosexual to become a scoutmaster would violate the right of the Boy Scouts to associate with whom they wished. The Solomon Amendment did not implicate a law school's associational rights because recruiters were not part of the law school; they were merely guests. The amendment did not force the law schools to accept members it did not desire, as in the Boy Scouts case. Instead, the schools merely had to grant military recruiters the same access they accorded civilian law firm recruiters. Therefore, the Solomon Amendment was constitutional and laws schools had to make a choice between equal access for military recruiters or the loss of federal aid.