Encyclopedia Of First Amendment Set: Encyclopedia of The First Amendment [vol 1, 2, 1 ed.] 0872893111, 9780872893115
From public aid to parochial schools to censorship of library books, Americans are intensely interested in their express
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Table of contents :
Cover......Page 1
Copyright......Page 5
About the Editors......Page 6
Contents......Page 8
Alphabetical Table of Contents......Page 10
Topical Table of Contents......Page 29
Case Table of Contents......Page 38
Essays and Entries......Page 69
Using This Encyclopedia......Page 70
Acknowledgments......Page 71
Contributors......Page 72
Birth of the First Amendment......Page 76
The Alien and Sedition Acts and Nineteenth-Century Developments......Page 77
From Civil War to World War I......Page 78
Civil Rights,Vietnam, and Church and State......Page 80
Ongoing Developments......Page 81
Chronology: Development and History of the First Amendment......Page 83
First Amendment Overview......Page 94
The Established Church and Postrevolutionary Developments......Page 96
Framing the First Amendment and Application to the States......Page 98
The Constitutional Debate......Page 99
Religion, Schools, and Public Displays......Page 100
Settled First Amendment Principles......Page 103
Substantial Changes in First Amendment Law......Page 106
Freedom of the Press......Page 111
The Free Press Tested......Page 112
Free Press and First Amendment Jurisprudence......Page 113
The Future of Freedom of the Press......Page 114
Associational Rights......Page 115
Petitioning for Redress......Page 118
Incorporation of the First Amendment......Page 120
Public Attitudes......Page 125
Constitutional Provisions......Page 126
Conclusion......Page 131
Freedom of Speech and the Press......Page 132
Religion Clauses......Page 134
Conclusion......Page 135
Entries......Page 136
Abington School District v. Schempp (1963)......Page 138
Abolitionists and Free Speech......Page 139
Abood v. Detroit Board of Education (1977)......Page 140
Abortion Protests......Page 141
Abrams, Floyd......Page 143
Absolutists......Page 144
Academic Bill of Rights......Page 145
Academic Freedom......Page 146
Access to Courtrooms......Page 148
Accommodationism and Religion......Page 149
Actual Malice......Page 151
Adams, John......Page 152
Adams, John Quincy......Page 153
Adderly v. Florida (1966)......Page 154
Adler v. Board of Education (1952)......Page 155
Adventures of Huckleberry Finn......Page 156
Advertising......Page 157
Affirmative Action......Page 158
Agostini v. Felton (1997)......Page 159
Aguilar v. Felton (1985)......Page 160
Aid to Parochial Schools......Page 161
Aid to Religious Colleges and Universities......Page 163
Alberts v. California (1957)......Page 164
Alcohol Advertising......Page 165
Alexander v. United States (1993)......Page 166
Aliens......Page 168
Alito, Samuel A., Jr.......Page 169
American Academy of Religion v. Chertoff (S.D.N.Y. 2006)......Page 170
American Association of University Professors......Page 172
American Aurora......Page 173
American Booksellers Association v. Hudnut (7th Cir. 1985)......Page 174
American Booksellers Foundation for Free Expression......Page 175
American Civil Liberties Union......Page 176
American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich. 2006)......Page 178
American Committee for Protection of Foreign Born v. Subversive Activities Control Board (1965)......Page 179
American Federation of Labor v. American Sash and Door Co. (1949)......Page 180
American Friends Service Committee......Page 181
American Library Association......Page 183
American Nazi Party and Related Groups......Page 185
American Radio Association, AFL-CIO v. Mobile Steamship Association (1974)......Page 186
American Society of Newspaper Editors......Page 187
Americans United for Separation of Church and State......Page 188
Amish and Mennonites......Page 189
Anarchy Statutes......Page 190
Anderson v. Dunn (1821)......Page 191
Anderson v. Liberty Lobby (1986)......Page 192
Animal Sacrifice......Page 193
Anonymous Speech......Page 194
Anti-Dial-a-Porn Act of 1989......Page 195
Anti-Federalists......Page 196
Anti-mask Laws......Page 197
Appropriation......Page 198
Aptheker v. Secretary of State (1964)......Page 199
A Quantity of Books v. Kansas (1964)......Page 200
Arkansas Educational Television Commission v. Forbes (1998)......Page 201
Art Censorship......Page 202
As-applied Challenges......Page 204
Ashcroft v. American Civil Liberties Union (2002) (2004)......Page 205
Ashton v. Kentucky (1966)......Page 206
Associated Press v. National Labor Relations Board (1937)......Page 207
Associated Press v. Walker (1967)......Page 208
Atheism......Page 209
Attorney Advertising......Page 210
Attorney General’s Commission on Pornography......Page 211
Austin v. Michigan Chamber of Commerce (1990)......Page 212
Autopsies and Treatment of the Dead......Page 213
Avis Rent-a-Car System v. Aguilar (2000)......Page 214
Bachellar v. Maryland (1970)......Page 216
Backus, Isaac......Page 217
Bad Tendency Test......Page 218
Baggett v. Bullitt (1964)......Page 219
Baker v. Nachtrieb (1856)......Page 220
Bakery and Pastry Drivers and Helpers Local v. Wohl (1942)......Page 221
Baldwin, Roger......Page 222
Ballot Access......Page 223
Banned Books Week......Page 225
Bantam Books, Inc. v. Sullivan (1963)......Page 226
Baptists......Page 227
Bar Admissions......Page 228
Barenblatt v. United States (1959)......Page 229
Barnes v. Glen Theatre, Inc. (1991)......Page 230
Barr v. Matteo (1959)......Page 231
Barrett v. Rosenthal (Cal. S. Ct. 2006)......Page 232
Barron v. Baltimore (1833)......Page 233
Bartnicki v. Vopper (2001)......Page 234
Bates v. State Bar of Arizona (1977)......Page 235
BE and K Construction Co. v. National Labor Relations Board (2002)......Page 236
Beard v. Banks (2006)......Page 237
Beauharnais v. Illinois (1952)......Page 238
Beilan v. Board of Education (1958)......Page 239
Bell v. Wolfish (1979)......Page 240
Benbow, William......Page 241
Benevolent Neutrality......Page 242
Berkeley Free Speech Movement......Page 243
Bethel School District No. 403 v. Fraser (1986)......Page 244
Beussink v. Woodland School District (E.D. Mo. 1998)......Page 245
Biddle, Francis......Page 246
Bigelow v. Virginia (1975)......Page 247
Billboards......Page 248
Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board (1983)......Page 249
Bill of Rights......Page 250
Bipartisan Campaign Reform Act of 2002......Page 252
Birth Control......Page 254
The Birth of a Nation......Page 255
Black, Hugo L.......Page 256
Blacklists......Page 257
Blackmun, Harry A.......Page 259
Blackstone, William......Page 260
Blaine Amendments......Page 261
Blasphemy......Page 262
Blogging......Page 263
Blood Transfusions and Medical Care against Religious Beliefs......Page 264
Blue Sky Laws......Page 266
Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. (1987)......Page 267
Board of County Commissioners v. Umbehr (1996)......Page 268
Board of Education v. Allen (1968)......Page 269
Board of Education, Island Trees Union Free School District v. Pico (1982)......Page 270
Board of Education of Kiryas Joel Village School District v. Grumet (1994)......Page 271
Board of Education of the City of Cincinnati v. Minor (Ohio S. Ct. 1872)......Page 272
Board of Regents of the University of Wisconsin System v. Southworth (2000)......Page 274
Board of Trustees of Scarsdale v. McCreary (1985)......Page 275
Board of Trustees of State University of New York v. Fox (1989)......Page 276
Bob Jones University v. United States (1983)......Page 277
Bolger v.Youngs Drug Products Corp. (1983)......Page 278
Bond v. Floyd (1966)......Page 279
Book Banning......Page 280
Borgner v. Florida Board of Dentistry (2002)......Page 282
Bork, Robert......Page 283
Boudin, Leonard......Page 284
Bowdler, Thomas......Page 285
Bowen v. Roy (1986)......Page 286
Boycotts......Page 287
Boyle v. Landry (1971)......Page 288
Boy Scouts of America v. Dale (2000)......Page 289
Brandeis, Louis D.......Page 290
Brandenburg v. Ohio (1969)......Page 292
Branti v. Finkel (1980)......Page 293
Branzburg v. Hayes (1972)......Page 294
Braunfeld v. Brown (1961)......Page 295
Breach of the Peace Laws......Page 296
Breard v. Alexandria (1951)......Page 298
Brennan, William J., Jr.......Page 299
Breyer, Stephen G.......Page 301
Bridges v. California (1941)......Page 302
Broadrick v. Oklahoma (1973)......Page 303
Brockett v. Spokane Arcades, Inc. (1985)......Page 304
Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar (1964)......Page 305
Brown v. Hartlage (1982)......Page 306
Brown v. Louisiana (1966)......Page 307
Bruce, Lenny......Page 308
Buckley v. American Constitutional Law Foundation (1999)......Page 310
Buckley v. Valeo (1976)......Page 311
Bumper Stickers......Page 312
Burdick v. Takushi (1992)......Page 313
Burger, Warren E.......Page 314
Burns v. United States (1927)......Page 315
Burson v. Freeman (1992)......Page 316
Burstyn v. Wilson (1952)......Page 317
Butterworth v. Smith (1990)......Page 318
Byrne v. Karalexis (1969) (1971)......Page 319
Cable Communications Policy Act of 1984......Page 320
Cafeteria Employees Union v. Angelos (1943)......Page 321
California v. LaRue (1972)......Page 322
California Democratic Party v. Jones (2000)......Page 323
Cameras in the Courtroom......Page 324
Cammarano v. United States (1959)......Page 326
Campaign Regulation......Page 327
Campbell v. Acuff-Rose Music, Inc. (1994)......Page 329
Campus Speech Codes......Page 330
Canady v. Bozzier Parish School Board (5th Cir. 2001)......Page 331
Cantwell v. Connecticut (1940)......Page 332
Capitol Square Review and Advisory Board v. Pinette (1995)......Page 333
Captive Audience......Page 334
Cardozo, Benjamin N.......Page 335
Carey v. Brown (1980)......Page 336
Carey v. Population Services International (1977)......Page 337
Carlin, George......Page 338
Carlson v. Landon (1952)......Page 339
Carolene Products Footnote Four......Page 340
Carroll v. President and Commissioners of Princess Anne (1968)......Page 341
Catholics, Roman......Page 342
Cato’s Letters......Page 343
Censorship......Page 345
Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)......Page 348
Chafee, Zechariah, Jr.......Page 349
Chandler v. Florida (1981)......Page 350
Chaplains......Page 351
Charitable Solicitation......Page 353
Chemerinsky, Erwin......Page 354
Chicago Teachers Union v. Hudson (1986)......Page 355
Child Benefit Theory......Page 356
Child Custody......Page 357
Child Online Protection Act of 1998......Page 358
Child Pornography......Page 359
Child Pornography Prevention Act of 1996......Page 360
Child Protection Restoration and Penalties Enhancement Act of 1990......Page 361
Chilling Effect......Page 362
Christian Amendment......Page 363
Christian Scientists......Page 364
Church of Jesus Christ of Latter-day Saints......Page 365
Church of the Holy Trinity v. United States (1892)......Page 367
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)......Page 368
Churchill, Ward......Page 369
Citizen Publishing Co. v. United States (1969)......Page 370
Citizens Against Rent Control v. Berkeley (1981)......Page 371
City Council of Los Angeles v. Taxpayers for Vincent (1984)......Page 372
City of Boerne v. Flores (1997)......Page 373
City of Chicago v. Morales (1999)......Page 374
City of Cincinnati v. Discovery Network (1993)......Page 375
City of Edmond v. Robinson (1996)......Page 376
City of Houston v. Hill (1987)......Page 377
City of Ladue v. Gilleo (1994)......Page 378
City of Lakewood v. Plain Dealer Publishing Co. (1988)......Page 379
City of Los Angeles v. Alameda Books (2002)......Page 380
City of Los Angeles v. Preferred Communications (1986)......Page 381
City of Newport v. Iacobucci (1986)......Page 382
City of Renton v. Playtime Theatres, Inc. (1986)......Page 383
City of San Diego v. Roe (2005)......Page 384
Civil Religion......Page 385
Civil Rights Movement......Page 386
Civil War, U.S.......Page 388
Clark v. Community for Creative Non-Violence (1984)......Page 390
Classified Documents......Page 391
Clear and Present Danger Test......Page 393
Clergy, Bans on Holding Office by......Page 395
Clingman v. Beaver (2005)......Page 396
Cochran v. Board of Education (1930)......Page 397
Coercion Test......Page 398
Cohen v. Cowles Media Co. (1991)......Page 399
Cohn, Roy......Page 400
Cole v. Oroville Union High School District (9th Cir. 2000)......Page 401
Collins, Ron......Page 402
Columbia Broadcasting System v. Democratic National Committee (1991)......Page 403
Commercial Speech......Page 404
Commission on Obscenity and Pornography......Page 405
Committee for Public Education and Religious Liberty v. Nyquist (1973)......Page 406
Committee on Public Information......Page 407
Commonwealth v. Blanding (Mass. 1825)......Page 408
Commonwealth v. Cooke (Mass. 1859)......Page 409
Commonwealth v. Kneeland (Mass. 1838)......Page 410
Commonwealth v. Lesher (Pa. 1828)......Page 411
Communications Act of 1934......Page 412
Communications Decency Act of 1996......Page 413
Communist Control Act of 1954......Page 414
Communist Party of Indiana v. Whitcomb (1974)......Page 415
Communist Party of the United States......Page 416
Community Standards......Page 418
Compelled Speech......Page 419
Compelling State Interest......Page 421
Comstock, Anthony......Page 422
Confederate Flag......Page 423
Confidential Sources......Page 424
Congress......Page 425
Congressional Investigations......Page 427
Connick v. Myers (1983)......Page 428
Conscientious Objection to Military Service......Page 429
Consolidated Edison Co. v. Public Service Commission (1980)......Page 430
Constitution of the Confederate States of America......Page 431
Constitutional Amending Process......Page 432
Constitutional Convention of 1787......Page 433
Contempt of Court......Page 435
Content Based......Page 436
Continental Congress: Declaration and Resolves......Page 437
Cooley, Thomas M.......Page 438
Copyright......Page 439
Copyright Act of 1790......Page 440
Cornelius v. NAACP Legal Defense and Educational Fund (1985)......Page 441
Corporate Speech......Page 442
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos (1987)......Page 444
County of Allegheny v. American Civil Liberties Union (1989)......Page 445
Cox v. Louisiana (1965)......Page 446
Cox v. New Hampshire (1941)......Page 447
Cox Broadcasting Corp. v. Cohn (1975)......Page 448
Craig v. Hecht (1923)......Page 449
Creationism......Page 450
Criminal Defamation......Page 451
Criminal Syndicalism Laws......Page 453
Critical Race Theory......Page 454
Cross Burning......Page 456
Cruz v. Beto (1972)......Page 457
C-SPAN......Page 458
Curtis Publishing Co. v. Butts (1967)......Page 459
Cutler, Lloyd N.......Page 460
Cybersquatting......Page 461
Cyberstalking......Page 462
Dancing, Nude......Page 464
Darrow, Clarence......Page 465
Dartmouth College v. Woodward (1819)......Page 466
Davenport v. Washington Education Association (2007)......Page 467
Davis v. Beason (1890)......Page 468
Dawson v. Delaware (1992)......Page 469
Dean v. Utica Community Schools (E.D. Mich. 2004)......Page 470
Debs, Eugene V.......Page 471
Declaration of Independence......Page 473
DeGregory v. Attorney General of New Hampshire (1966)......Page 474
De Jonge v. Oregon (1937)......Page 475
Democratic Party of United States v. Wisconsin ex rel. LaFollette (1981)......Page 476
Dennis v. United States (1951)......Page 477
Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996)......Page 478
De Scandalis Magnatum......Page 479
Detached Memoranda......Page 480
Dietemann v. Time (9th Cir. 1971)......Page 481
Disclaimers......Page 482
Disclosure Requirements......Page 483
Discrimination Laws......Page 484
Dixie Chicks......Page 485
Doe v. Gonzales (2005)......Page 486
Donaldson v. Read Magazine (1948)......Page 487
Door-to-Door Solicitation......Page 488
Doran v. Salem Inn (1975)......Page 489
Dorsen, Norman......Page 490
Douglas v. City of Jeannette (1943)......Page 491
Douglas, William O.......Page 492
Draft Card Mutilation Act of 1965......Page 493
Dress Codes......Page 494
Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985)......Page 496
Dworkin, Andrea......Page 497
Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961)......Page 498
Edenfield v. Fane (1993)......Page 499
Edwards v. Aguillard (1987)......Page 500
Eldred v. Ashcroft (2003)......Page 501
Electioneering......Page 502
Electronic Privacy Information Center......Page 503
Elk Grove Unified School District v. Newdow (2004)......Page 504
Ellis v. Brotherhood of Railway, Airline and Steamship Clerks (1984)......Page 505
Elrod v. Burns (1976)......Page 506
Emerson, Thomas......Page 507
Employment Division, Department of Human Resources of Oregon v. Smith (1990)......Page 508
Encryption......Page 509
Engel v. Vitale (1962)......Page 510
English Bill of Rights......Page 511
Epperson v. Arkansas (1968)......Page 512
Equal Access Act of 1984......Page 513
Equal Time Rule......Page 514
Espionage Act of 1917......Page 516
Established Churches in Early America......Page 517
Estes v. Texas (1965)......Page 518
Eu v. San Francisco County Democratic Central Committee (1989)......Page 519
Everson v. Board of Education (1947)......Page 520
Evolution......Page 521
Ex parte Curtis (1882)......Page 523
Ex parte Vallandigham (1863)......Page 524
Express Advocacy......Page 525
Expressive Conduct......Page 527
Fairness Doctrine......Page 528
Fair Use......Page 529
Faith-based Organizations and Government Aid......Page 530
False Light......Page 531
Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc. (1959)......Page 532
Federal Bureau of Investigation......Page 533
Federal Communications Commission......Page 534
Federal Communications Commission v. League of Women Voters of California (1984)......Page 536
Federal Communications Commission v. National Citizens Committee for Broadcasting (1978)......Page 537
Federal Communications Commission v. Pacifica Foundation (1978)......Page 538
Federal Election Campaign Act of 1971......Page 539
Federal Election Commission v. Beaumont (2003)......Page 540
Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001)......Page 541
Federal Election Commission v. National Conservative PAC (1985)......Page 542
Federal Election Commission v. National Right to Work Committee (1982)......Page 543
Federal Election Commission v. Wisconsin Right to Life, Inc. (2007)......Page 544
Federalism......Page 545
Federalists......Page 546
Federal Radio Commission......Page 547
Federal Theatre Project......Page 548
Federal Trade Commission......Page 549
Feiner v. New York (1951)......Page 550
Feminist Theory......Page 551
Fighting Words......Page 552
Film......Page 553
First Amendment Center......Page 555
First National Bank of Boston v. Bellotti (1978)......Page 556
Fiske v. Kansas (1927)......Page 557
Flag Desecration......Page 558
Flast v. Cohen (1968)......Page 559
Fleishman, Stanley......Page 560
Florida Star v. B.J.F. (1989)......Page 561
Flower v. United States (1972)......Page 562
Flynt, Larry......Page 563
Folsom v. Marsh (C.C.D. Mass. 1841)......Page 564
Food and Drug Administration......Page 565
Foreign Languages, Right to Learn and Teach......Page 566
Forsyth County, Georgia v. Nationalist Movement (1992)......Page 567
Fortas, Abe......Page 568
Fortune Telling......Page 569
44 Liquormart, Inc. v. Rhode Island (1996)......Page 570
Foundation for Individual Rights in Education......Page 571
Four Freedoms......Page 572
Fox v. Washington (1915)......Page 573
Frankfurter, Felix......Page 574
Franklin, Benjamin......Page 576
Freedman v. Maryland (1965)......Page 578
Freedom of Access to Clinic Entrances Act of 1994......Page 579
Freedom of Information Act of 1966......Page 580
Free Flow of Information Act......Page 582
Free Speech League......Page 583
Free Speech Zones......Page 584
Freund, Paul......Page 585
Friendly, Fred......Page 586
Frisby v. Schultz (1988)......Page 587
Frohwerk v. United States (1919)......Page 588
Funeral Protests......Page 589
FW/PBS, Inc. v. City of Dallas......Page 590
Gag Orders......Page 592
Gallagher v. Crown Kosher Super Market of Massachusetts (1961)......Page 593
Gallatin, Albert......Page 594
Gannett Co. v. DePasquale (1979)......Page 595
Garbus, Martin......Page 596
Garner v. Board of Public Works of Los Angeles (1951)......Page 597
Garrison v. Louisiana (1964)......Page 598
General Media Communications v. Cohen (2d Cir. 1997)......Page 599
Gerende v. Board of Supervisors of Elections of Baltimore (1951)......Page 600
Gertz v. Robert Welch, Inc. (1974)......Page 601
Gibson v. Florida Legislative Investigation Committee (1963)......Page 602
Gilbert v. Minnesota (1920)......Page 603
Gillette v. United States (1971)......Page 604
Ginsburg, Ruth Bader......Page 605
Ginzburg v. United States (1966)......Page 606
Girouard v. United States (1946)......Page 607
Gitlow v. New York (1925)......Page 608
Givhan v. Western Line Consolidated School District (1979)......Page 609
Globe Newspaper Co. v. Superior Court (1982)......Page 610
Goldberg, Arthur J.......Page 611
Goldman, Emma......Page 612
Gompers v. Buck’s Stove and Range Co. (1911)......Page 614
Gonzales v. O Centro Espírita Beneficente União Do Vegetal (2006)......Page 615
Gooding v. Wilson (1972)......Page 616
Good News Club v. Milford Central School (2001)......Page 617
Gore, Tipper......Page 618
Government Funding and Free Speech......Page 619
Graduation Speech Controversies......Page 621
Grand Rapids School District v. Ball (1985)......Page 622
Gravity of the Evil Test......Page 623
Grayned v. City of Rockford (1972)......Page 624
Greenbelt Cooperative Publishing Association v. Bresler (1970)......Page 625
Greer v. Spock (1976)......Page 626
Gregory v. City of Chicago (1969)......Page 627
Griswold v. Connecticut (1965)......Page 628
Griswold, Erwin......Page 629
Grosjean v. American Press Co. (1936)......Page 630
Group Libel......Page 631
Grove Press v. Maryland State Board of Censors (1971)......Page 632
Gurfein, Murray Irwin......Page 633
Hague v. Committee for Industrial Organization (1939)......Page 634
Hair......Page 635
Hair Length and Style......Page 636
Hamilton v. Regents of the University of California (1934)......Page 637
Hamilton, Alexander......Page 638
Hamling v. United States (1974)......Page 639
Hand, Learned......Page 640
Harisiades v. Shaughnessy (1952)......Page 641
Harlan, John Marshall, I......Page 642
Harlan, John Marshall, II......Page 643
Harmful to Minors Laws......Page 644
Harper v. Poway Unified School District (9th Cir. 2006)......Page 646
Hartman v. Moore (2006)......Page 648
Hartzel v. United States (1944)......Page 649
Hatch Act of 1939......Page 650
Hate Speech......Page 651
Haynes, Charles C.......Page 652
Hazelwood School District v. Kuhlmeier (1988)......Page 653
Headlight Flashing......Page 654
Healy v. James (1972)......Page 655
Heffron v. International Society for Krishna Consciousness (1981)......Page 656
Hefner, Hugh......Page 657
Hein v. Freedom from Religion Foundation (2007)......Page 658
Hennington v. Georgia (1896)......Page 659
Henry, Patrick......Page 660
Herbert v. Lando (1979)......Page 661
Hernandez v. Commissioner of Internal Revenue (1989)......Page 662
Hess v. Indiana (1973)......Page 663
Hicklin Test......Page 664
Hill v. Colorado (2000)......Page 665
Hit Man Manual......Page 666
Hobbie v. Unemployment Appeals Commission of Florida (1987)......Page 667
Holidays, Religious......Page 668
Holmes, Oliver Wendell, Jr.......Page 669
Holocaust Denial......Page 670
Hoover, J. Edgar......Page 672
Horn Honking......Page 673
Hosty v. Carter (7th Cir. 2005)......Page 674
Houchins v. KQED (1978)......Page 675
House Un-American Activities Committee......Page 676
Hughes v. Superior Court of California (1950)......Page 677
Hughes, Charles Evans......Page 678
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)......Page 679
Hustler Magazine v. Falwell (1988)......Page 680
Hutchinson v. Proxmire (1979)......Page 681
Hynes v. Mayor of Oradell (1976)......Page 682
Ibanez v. Florida Department of Business and Professional Regulation Board (1994)......Page 684
Illinois ex rel. McCollum v. Board of Education (1948)......Page 685
Illinois State Board of Elections v. Socialist Workers Party (1979)......Page 686
Incitement......Page 687
Indecency and the Electronic Media......Page 688
Indian Appropriations Act of 1896......Page 690
Ingersoll, Robert......Page 691
In re Anastaplo (1961)......Page 692
In re Primus (1978)......Page 693
In re Rapier (1892)......Page 694
In re Stolar (1971)......Page 695
In re Summers (1945)......Page 696
Intelligent Design......Page 697
International Association of Machinists v. Street (1961)......Page 698
International Brotherhood of Teamsters Union v. Hanke (1950)......Page 699
International Religious Freedom Act of 1998......Page 700
International Society for Krishna Consciousness v. Lee (1992)......Page 701
Internet......Page 702
Interstate Circuit, Inc. v. Dallas (1968)......Page 703
Intrusion......Page 704
Islam......Page 705
Issue Advocacy......Page 707
Jackson, Robert H.......Page 710
Jacobellis v. Ohio (1964)......Page 711
Jefferson, Thomas......Page 712
Jehovah’s Witnesses......Page 714
Jenness v. Fortson (1971)......Page 717
Johanns v. Livestock Marketing Association (2005)......Page 718
Johnson v. Robison (1974)......Page 719
Joint Anti-Fascist Refugee Committee v. McGrath (1951)......Page 720
Jones v. North Carolina Prisoners’ Union (1977)......Page 721
Jones v. Wolf (1979)......Page 722
Judaism......Page 723
Judicial Campaign Speech......Page 725
Kaplan v. California (1973)......Page 728
Karlan v. City of Cincinnati (1974)......Page 729
Kedroff v. Saint Nicholas Cathedral (1952)......Page 730
Kelley v. Johnson (1976)......Page 731
Kennedy, Anthony M.......Page 732
Kimm v. Rosenberg (1960)......Page 734
Kingsley Books, Inc. v. Brown (1957)......Page 735
Kinoy, Arthur......Page 736
Konigsberg v. State Bar (1961)......Page 737
Kovacs v. Cooper (1949)......Page 738
Ku Klux Klan......Page 739
Kunz v. New York (1951)......Page 741
Lamb’s Chapel v. Center Moriches Union Free School District (1993)......Page 744
Lamont v. Postmaster General (1965)......Page 745
Landmark Communications, Inc. v. Virginia (1978)......Page 746
Larkin v. Grendel’s Den, Inc. (1982)......Page 747
The Last Temptation of Christ......Page 748
Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890)......Page 749
Lavine v. Blaine School District (9th Cir. 2001)......Page 750
Law Student Research Council v. Wadmond (1971)......Page 751
Least Restrictive Means......Page 752
Leathers v. Medlock (1991)......Page 753
Lee v. Weisman (1992)......Page 754
Legal Services Corp. v. Velazquez (2001)......Page 755
Lehman v. City of Shaker Heights (1974)......Page 756
Lehnert v. Ferris Faculty Association (1991)......Page 757
Leland, John......Page 758
Lemon v. Kurtzman (1973)......Page 759
Lemon Test......Page 760
Levitt v. Committee for Public Education and Religious Liberty (1973)......Page 761
Lewis v. City of New Orleans (1974)......Page 762
Libel and Slander......Page 763
Liberty Legal Institute......Page 765
Liberty Model......Page 766
Libraries and Intellectual Freedom......Page 767
Licensing Laws......Page 768
Lilburne, John......Page 770
Lincoln, Abraham......Page 771
Linmark Associates, Inc. v. Township of Willingboro (1977)......Page 773
Linn v. United Plant Guard Workers of America (1966)......Page 774
Locke v. Davey (2004)......Page 775
Locke, John......Page 776
Loitering Laws......Page 777
Lo-Ji Sales, Inc. v. New York(1979)......Page 778
Lorain Journal Co. v. United States (1951)......Page 779
Lorillard Tobacco Co. v. Reilly (2001)......Page 780
Louisiana ex rel. Gremillion v. NAACP (1961)......Page 781
Lovejoy, Elijah......Page 782
Lowe v. Securities and Exchange Commission (1985)......Page 783
Loyalty Oaths......Page 784
Lynch v. Donnelly (1984)......Page 786
Lyng v. International Union, UAW (1988)......Page 787
Lyon, Matthew......Page 788
MacKinnon, Catharine......Page 790
Madigan v. Telemarketing Associates, Inc. (2003)......Page 791
Madison, James......Page 792
Madsen v. Women’s Health Center, Inc. (1994)......Page 795
Magna Carta......Page 796
Mail......Page 797
Mann, Horace......Page 798
Manual Enterprises v. Day (1962)......Page 799
Marcus v. Search Warrant (1961)......Page 800
Marketplace of Ideas......Page 801
Marsh v. Alabama (1946)......Page 802
Marsh v. Chambers (1983)......Page 803
Marshall, John......Page 804
Marshall, Thurgood......Page 805
Martin v. City of Struthers (1943)......Page 806
Maryland Toleration Act of 1649......Page 807
Mason, George......Page 808
Masses Publishing Co. v. Patten (S.D.N.Y. 1917)......Page 809
Masson v. New Yorker Magazine (1991)......Page 810
Mayflower Compact......Page 811
McCarran Act of 1950......Page 812
McCarthyism......Page 813
McConnell v. Federal Election Commission (2003)......Page 815
McConnell, Michael......Page 816
McCreary County v. American Civil Liberties Union (2005)......Page 817
McDonald v. Smith (1985)......Page 818
McGowan v. Maryland (1961)......Page 819
McIntyre v. Ohio Elections Commission (1995)......Page 820
McKinney v. Alabama (1976)......Page 821
Media Concentration......Page 822
Media Exemption to Antitrust Laws......Page 823
Meek v. Pittenger (1975)......Page 825
Meese v. Keene (1987)......Page 826
Meiklejohn, Alexander......Page 827
Membership Lists......Page 828
Memoirs v. Massachusetts (1966)......Page 829
“Memorial and Remonstrance”......Page 830
Metro Broadcasting, Inc. v. Federal Communications Commission (1990)......Page 831
Metromedia, Inc. v. City of San Diego (1981)......Page 832
Meyer v. Grant (1988)......Page 833
Miami Herald Publishing Co. v. Tornillo (1974)......Page 834
Military Personnel, Rights of......Page 835
Milk Wagon Drivers Union v. Meadowmoor (1941)......Page 837
Mill, John Stuart......Page 838
Miller v. California (1973)......Page 839
Miller, Arthur......Page 840
Miller, Judith......Page 841
Mills v. Alabama (1966)......Page 842
Milton, John......Page 843
Minersville School District v. Gobitis (1940)......Page 844
Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983)......Page 845
Mishkin v. New York (1966)......Page 846
Monitor Patriot Co. v. Roy (1971)......Page 847
Morse v. Frederick (2007)......Page 848
Mount Healthy City School District Board of Education v. Doyle (1977)......Page 850
Mueller v. Allen (1983)......Page 851
Munro v. Socialist Workers Party (1986)......Page 852
Murdock v. Pennsylvania (1943)......Page 853
Murphy, Francis W.......Page 854
Murphy, Paul L.......Page 855
Murray, John Courtney......Page 856
Music Censorship......Page 857
Must-Carry Rules......Page 859
Mutual Film Corp. v. Industrial Commission of Ohio (1915)......Page 860
NAACP v. Alabama (1958)......Page 862
NAACP v. Button (1963)......Page 863
NAACP v. Claiborne Hardware Co. (1982)......Page 864
Narrowly Tailored Laws......Page 865
National Do Not Call Registry......Page 866
National Endowment for the Arts v. Finley (1998)......Page 867
National Identification Cards......Page 868
National Labor Relations Board v. Fruit and Vegetable Packers (1964)......Page 869
National Prayer Breakfast......Page 870
National Security......Page 871
National Society of Professional Engineers v. United States (1978)......Page 873
Native Americans......Page 874
Natural Law......Page 875
Natural Rights......Page 876
Near v. Minnesota (1931)......Page 877
Nebraska Press Association v. Stuart (1976)......Page 878
Neutrality, Religion......Page 879
Neutrality, Speech......Page 880
Neutral Reportage Privilege......Page 881
Newspaper Preservation Act of 1970......Page 882
New York v. Cathedral Academy (1977)......Page 883
New York v. P.J. Video, Inc. (1986)......Page 884
New York ex rel. Bryant v. Zimmerman (1928)......Page 885
New York State Liquor Authority v. Bellanca (1981)......Page 886
New York Times Co. v. Sullivan (1964)......Page 887
New York Times Co. v. United States (1971)......Page 888
Nike v. Kasky (2003)......Page 889
Nimmer, Melville B.......Page 890
Nixon, Richard M.......Page 891
Nizer, Louis......Page 893
Nonpreferentialism......Page 894
Norman v. Reed (1992)......Page 895
Northwest Ordinance of 1787......Page 896
Norwood v. Harrison (1973)......Page 897
Noto v. United States (1961)......Page 898
Nude Dancing......Page 899
Obscenity and Pornography......Page 900
O’Connor v. Washburn University (10th Cir. 2005)......Page 902
O’Connor, Sandra Day......Page 903
Oh! Calcutta!......Page 904
O’Hair, Madalyn Murray......Page 905
O’Hare Truck Service v. City of Northlake (1996)......Page 906
Ohralik v. Ohio State Bar Association (1978)......Page 907
Oklahoma Publishing Co. v. Oklahoma County District Court(1977)......Page 908
O’Lone v. Estate of Shabazz (1987)......Page 909
One, Inc. v. Olesen (9th Cir. 1957)......Page 910
On Liberty......Page 911
Open Meeting Laws and Freedom of Speech......Page 912
Order of St. Benedict v. Steinhauser(1914)......Page 913
Original Intent......Page 914
Osborne v. Ohio (1990)......Page 916
Overbreadth......Page 917
Overton v. Bazzetta (2003)......Page 918
Pacific Gas and Electric Co. v. Public Utilities Commission (1986)......Page 920
Paine, Thomas......Page 921
Palmer, A. Mitchell......Page 922
Pandering......Page 923
Panhandling Laws......Page 924
Paparazzi......Page 925
Papish v. Board of Curators of the University of Missouri (1973)......Page 926
Parades......Page 927
Paris Adult Theatre I v. Slaton (1973)......Page 928
Parker v. Levy (1974)......Page 929
Paulson, Ken......Page 930
Peel v. Attorney Disciplinary Commission of Illinois (1990)......Page 931
PEN American Center......Page 932
Pennekamp v. Florida (1946)......Page 933
Pentagon Papers......Page 934
People v. Phillips (N.Y. 1813)......Page 936
People v. Ruggles (N.Y. 1811)......Page 937
Perjury......Page 938
Permoli v. New Orleans (1845)......Page 939
Perry Education Association v. Perry Local Educators’ Association (1983)......Page 940
Personal Responsibility and Work Opportunity Reconciliation Act of 1996......Page 941
Pfeiffer v. Board of Education......Page 942
Philadelphia Newspapers, Inc. v. Hepps (1986)......Page 943
Pickering v. Board of Education (1968)......Page 944
Picketing......Page 945
Pierce v. Society of Sisters (1925)......Page 946
Pinkus v. United States (1978)......Page 947
Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973)......Page 948
Planned Parenthood of the Columbia/Williamette, Inc. v. American Coalition of Life Activists (9th Cir. 2002)......Page 949
Pledge of Allegiance......Page 950
Police Department of Chicago v. Mosley (1972)......Page 951
Political Correctness......Page 952
Political Parties......Page 953
Political Patronage......Page 955
Polygamy......Page 956
Pope v. Illinois (1987)......Page 958
Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986)......Page 959
Poulos v. New Hampshire (1953)......Page 960
Powell, Lewis F., Jr.......Page 961
Prayer at Public Events......Page 962
Prayer at Public School Events......Page 963
Preferred Position Doctrine......Page 964
President’s Task Force on Communications Policy......Page 965
Prettyman, E. Barrett, Jr.......Page 966
Priestley, Joseph......Page 967
Prince v. Massachusetts (1944)......Page 968
Printing Ordinance of 1643......Page 969
Prior Restraint......Page 970
Prisons......Page 971
Privacy......Page 973
Private Property, Expression on......Page 974
Proclamations of National Days of Prayer or Thanksgiving......Page 975
Procunier v. Martinez (1974)......Page 976
Protection of Children against Sexual Exploitation Act of 1977......Page 977
Protests in Neighborhoods......Page 978
PruneYard Shopping Center v. Robins (1980)......Page 979
Prynne, William......Page 980
Public Buildings and Religious Use......Page 981
Public Employees......Page 982
Public Figures and Officials......Page 983
Public Forum Doctrine......Page 984
Public Health Cigarette Smoking Act of 1969......Page 985
Public Nudity......Page 986
Public Radio......Page 987
Public Television......Page 988
Puritans......Page 990
Quakers......Page 992
Quick Bear v. Leupp (1908)......Page 993
R.A.V. v. St. Paul (1992)......Page 996
Rabe v. Washington (1972)......Page 997
Rabinowitz,Victor......Page 998
Radio Act of 1927......Page 999
Randall v. Sorrell (2006)......Page 1000
Rankin v. McPherson (1987)......Page 1001
Redish, Martin......Page 1002
Red Lion Broadcasting Co. v. Federal Communications Commission (1969)......Page 1003
Redrup v. New York (1967)......Page 1004
Red Scare......Page 1005
Reformation, Protestant......Page 1006
Regan v. Time, Inc. (1984)......Page 1007
Rehnquist, William H.......Page 1008
Rein, David......Page 1009
Released Time......Page 1010
Religious Discrimination......Page 1012
Religious Freedom Restoration Act of 1993......Page 1013
Religious Land Use and Institutionalized Persons Act of 2000......Page 1014
Religious Right......Page 1015
Religious Tests......Page 1017
Reno v. American Civil Liberties Union (1997)......Page 1018
Reporters’ Privilege......Page 1019
Republican Party of Minnesota v. White (2002)......Page 1020
Retraction......Page 1021
Richardson v. Goddard (1859)......Page 1022
Richmond Newspapers, Inc. v. Virginia (1980)......Page 1023
Right to Respond......Page 1024
Riley v. National Federation of the Blind (1988)......Page 1025
Roberts v. United States Jaycees (1984)......Page 1026
Roberts, John G., Jr.......Page 1027
Roberts, Owen J.......Page 1028
Roemer v. Bd. of Public Works of Maryland (1976)......Page 1029
Romantic and Transcendental Movements......Page 1030
Rosen v. United States (1896)......Page 1031
Rosenberger v. Rectors and Visitors of the University of Virginia (1995)......Page 1032
Rosenblatt v. Baer (1966)......Page 1033
Rosenfeld v. New Jersey (1972)......Page 1034
Roth v. United States (1957)......Page 1035
Rubin v. Coors Brewing Co. (1995)......Page 1036
Rumsfeld v. Forum for Academic and Institutional Rights (2006)......Page 1037
Rust v. Sullivan (1991)......Page 1038
Ruthenberg v. Michigan (1927)......Page 1039
Rutherford Institute......Page 1040
Sable Communications of California v. Federal Communications Commission (1989)......Page 1042
Safety Valve Theory......Page 1043
Saia v. New York (1948)......Page 1044
Salem Witch Trials......Page 1045
Samuels v. Mackell (1971)......Page 1047
San Francisco Arts and Athletics v. U.S. Olympic Committee (1987)......Page 1048
Satire......Page 1049
Sawyer, Henry W., III......Page 1050
Scales v. United States (1961)......Page 1051
Scalia, Antonin......Page 1052
Scarcity Rationale......Page 1053
Schad v. Mount Ephraim (1981)......Page 1054
Schaefer v. United States (1920)......Page 1055
Scheidler v. National Organization for Women (2006)......Page 1056
Schenck v. Pro-Choice Network of Western New York (1997)......Page 1058
Schenck v. United States (1919)......Page 1059
School Violence......Page 1060
School Vouchers......Page 1061
Schroeder, Theodore......Page 1062
Scopes Monkey Trial......Page 1063
Seattle Times Co. v. Rhinehart (1984)......Page 1064
Secondary Effects Doctrine......Page 1065
Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984)......Page 1066
Secretary of the Navy v. Huff (1980)......Page 1067
Securities and Exchange Commission......Page 1068
Sedition Act of 1798......Page 1069
Sedition Act of 1918......Page 1070
Seditious Libel......Page 1071
Sekulow, Jay Alan......Page 1072
Self-government Rationale......Page 1073
Senn v. Tile Layers Protective Union (1937)......Page 1074
Separation of Church and State......Page 1075
Serbian Eastern Orthodox Diocese v. Milivojevich (1976)......Page 1076
Seres v. Lerner (Nev. 2004)......Page 1077
Seventh-day Adventists......Page 1078
Sexual Harassment Laws......Page 1079
Shaw v. Murphy (2001)......Page 1080
Shelton v. Tucker (1960)......Page 1081
Sherbert v. Verner (1963)......Page 1082
Shield Laws......Page 1083
Shuttlesworth v. Birmingham (1969)......Page 1084
Sidney, Algernon......Page 1085
Simon and Schuster v. Members of the New York State Crime Victims Board (1991)......Page 1086
Sirkin, H. Louis......Page 1087
SLAPP Suits......Page 1088
Sloan v. Lemon (1973)......Page 1089
Smith v. Daily Mail Publishing Co. (1979)......Page 1090
Smith v. Goguen (1974)......Page 1091
Smith, Joseph......Page 1092
Smith Act of 1940......Page 1093
Smolla, Rodney A.......Page 1094
Snake Handling......Page 1095
Son of Sam Laws......Page 1096
Souter, David H.......Page 1097
Southeastern Promotions, Ltd. v. Conrad (1975)......Page 1098
Spam......Page 1099
Specialty License Plates......Page 1100
Speech and Debate Clause......Page 1101
Speiser, Lawrence......Page 1102
Spence v. Washington (1974)......Page 1103
Sports Logos and Mascots......Page 1104
Stamp Act of 1765......Page 1105
Stanford v. Texas (1965)......Page 1106
Stanley v. Georgia (1969)......Page 1107
State v. Chandler (Del. 1837)......Page 1108
State v. McKee (Conn. 1900)......Page 1109
State v. Willson (S.C. App. 1823)......Page 1110
State Constitutional Provisions on Religion......Page 1111
State ex rel. Weiss v. City of Edgerton (Wis. 1890)......Page 1112
Staub v. City of Baxley (1958)......Page 1113
Stevens, John Paul......Page 1114
Stewart, Potter......Page 1116
Stone v. Graham (1980)......Page 1117
Stone, Harlan Fiske......Page 1118
Storer v. Brown (1974)......Page 1120
Street v. New York (1969)......Page 1121
Stromberg v. California (1931)......Page 1122
Student Activity Fees......Page 1123
Student Press Law Center......Page 1124
Students, Rights of......Page 1125
Students for a Democratic Society......Page 1126
Subversive Activities Control Act of 1950......Page 1127
Sunday Blue Laws......Page 1128
Sunday Mail......Page 1129
Sunshine Acts, Federal and State......Page 1130
Swearingen v. United States (1896)......Page 1131
Sweezy v. New Hampshire (1957)......Page 1132
Symbolic Speech......Page 1133
Taft, William Howard......Page 1136
Taft-Hartley Act of 1947......Page 1137
Talley v. California (1960)......Page 1138
Tattoos......Page 1139
Taxation of Newspapers......Page 1140
Taxation of Religious Entities......Page 1141
Teachers, Rights of......Page 1142
Teitel Film Corp. v. Cusack (1968)......Page 1143
Telecommunications Act of 1996......Page 1144
Telemarketing......Page 1145
Ten Commandments......Page 1146
Tennessee Secondary School Athletic Association v. Brentwood Academy (2007)......Page 1148
Terrett v. Taylor (1815)......Page 1149
Texas Monthly, Inc. v. Bullock (1989)......Page 1150
Thomas v. Board of Education, Granville (2d Cir. 1979)......Page 1151
Thomas v. Collins (1945)......Page 1152
Thomas v. Review Board of Indiana Employment Security Division (1981)......Page 1153
Thomas, Clarence......Page 1154
Thomas Jefferson Center for the Protection of Free Expression......Page 1155
Thornburgh v. Abbott (1989)......Page 1156
Thornhill v. Alabama (1940)......Page 1157
Tillman Act of 1907......Page 1158
Tilton v. Richardson (1971)......Page 1159
Time, Inc. v. Hill (1967)......Page 1160
Time, Inc. v. Pape (1971)......Page 1161
Time, Place, and Manner Restrictions......Page 1162
Times Film Corp. v. City of Chicago (1961)......Page 1163
Times Square......Page 1164
Tinker v. Des Moines Independent Community School District (1969)......Page 1165
Tobacco Advertising......Page 1166
Tocqueville, Alexis de......Page 1167
Toledo Newspaper Co. v. United States (1918)......Page 1168
Tolerance Theory......Page 1169
Torcaso v. Watkins (1961)......Page 1170
Tory v. Cochran (2005)......Page 1171
Trans World Airlines v. Hardison (1977)......Page 1172
True Threats......Page 1173
Tucker v. Texas (1946)......Page 1175
Turner Broadcasting System, Inc. v. Federal Communications Commission (1994) (1997)......Page 1176
Two Guys from HarrisonAllentown, Inc. v. McGinley (1961)......Page 1177
2 Live Crew......Page 1178
Ulysses......Page 1180
Unconstitutional Conditions Doctrine......Page 1181
United Association of Journeymen Plumbers and Steamfitters v. Graham (1953)......Page 1182
United Public Workers of America v. Mitchell (1947)......Page 1183
United States v. Albertini (1985)......Page 1184
United States v. American Library Association (2003)......Page 1185
United States v. Ballard (1944)......Page 1186
United States v. Cruikshank (1876)......Page 1187
United States v. Edge Broadcasting Co. (1993)......Page 1188
United States v. Eichman (1990)......Page 1189
United States v. Grace (1983)......Page 1190
United States v. Hudson and Goodwin (1812)......Page 1191
United States v. Lee (1982)......Page 1192
United States v. Morison (4th Cir. 1988)......Page 1193
United States v. National Treasury Employees Union (1995)......Page 1194
United States v. O’Brien (1968)......Page 1195
United States v. Playboy Entertainment Group (2000)......Page 1196
United States v. Press Publishing Co. (1911)......Page 1197
United States v. Reidel (1971)......Page 1198
United States v. Rumely (1953)......Page 1199
United States v. Schwimmer (1929)......Page 1200
United States v. Smith (Ind. 1909)......Page 1201
United States v. The Progressive (W.D. Wis. 1979)......Page 1202
United States v. Twelve 200-Ft. Reels of Film (1973)......Page 1203
United States v. United Foods, Inc. (2001)......Page 1204
United States Civil Service Commission v. National Association of Letter Carriers (1973)......Page 1205
United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921)......Page 1206
United States ex rel. Turner v. Williams (1904)......Page 1207
United Steelworkers of America v. Sadlowski (1982)......Page 1208
University of Pennsylvania v. EEOC (1990)......Page 1209
Updegraph v. Commonwealth (Pa. 1824)......Page 1210
Uphaus v. Wyman (1959) (1960)......Page 1211
USA Patriot Act of 2001......Page 1212
Vagueness......Page 1214
Valentine v. Chrestensen (1942)......Page 1215
Valley Forge Christian College v. Americans United for Separation of Church and State (1982)......Page 1216
Van Orden v. Perry (2005)......Page 1217
Vatican City, U.S. Recognition of......Page 1218
Vidal v. Girard’s Executors (1844)......Page 1219
Video Games......Page 1220
Vietnam War......Page 1222
Viewpoint Discrimination......Page 1223
Village of Skokie v. National Socialist Party of America (Ill. 1978)......Page 1225
Vinson, Frederick M.......Page 1226
Virginia v. American Booksellers Association (1988)......Page 1227
Virginia v. Black (2003)......Page 1228
Virginia v. Hicks (2003)......Page 1229
Virginia and Kentucky Resolutions of 1798......Page 1230
Virginia Declaration of Rights......Page 1231
Virginia Report of 1800......Page 1232
Virginia Statute for Religious Freedom......Page 1234
Volokh, Eugene......Page 1236
Voltaire......Page 1237
Vouchers......Page 1238
Walker v. City of Birmingham (1967)......Page 1240
Wallace v. Jaffree (1985)......Page 1241
Wall of Separation......Page 1242
Ward v. Rock against Racism (1989)......Page 1244
Ward, Nathaniel......Page 1245
Warren, Earl......Page 1246
Washington, George......Page 1248
Watchtower Bible and Tract Society v. Village of Stratton (2002)......Page 1249
Watkins v. United States (1957)......Page 1250
Watson v. Jones (1871)......Page 1251
Watts v. United States (1969)......Page 1252
Webster, Noah......Page 1253
Weinberger, Harry......Page 1255
West v. Derby Unified School District (10th Cir. 2000)......Page 1256
West Virginia State Board of Education v. Barnette (1943)......Page 1257
Whistleblowers......Page 1258
White v. Nicholls (1845)......Page 1260
White, Byron R.......Page 1261
Whitney v. California (1927)......Page 1262
Wicca......Page 1263
Widmar v. Vincent (1981)......Page 1264
Wilkes, John......Page 1265
Wilkinson v. United States (1961)......Page 1266
Williams v. Rhodes (1968)......Page 1267
Williams, Roger......Page 1268
Wilson v. Layne (1999)......Page 1269
Winters v. New York (1948)......Page 1270
Wireless Ship Act of 1910......Page 1271
Wiretapping and Freedom of Expression......Page 1273
Wisconsin v. Mitchell (1993)......Page 1274
Witherspoon, John......Page 1275
Witters v. Washington Department of Services for the Blind (1986)......Page 1276
Wolman v. Walter (1977)......Page 1277
Wolston v. Reader’s Digest Association (1979)......Page 1278
Wooley v. Maynard (1977)......Page 1279
World War I......Page 1280
World War II......Page 1283
Wortman, Tunis......Page 1285
Wright, J. Skelly......Page 1286
Wulf, Melvin......Page 1287
Yates v. United States (1957)......Page 1288
Yellow Journalism......Page 1289
Younger v. Harris (1971)......Page 1290
Zacchini v. Scripps-Howard Broadcasting Co. (1977)......Page 1292
Zelman v. Simmons-Harris (2002)......Page 1293
Zemel v. Rusk (1965)......Page 1294
Zenger, John Peter......Page 1295
Zobrest v. Catalina Foothills School District (1993)......Page 1296
Zoning Laws......Page 1297
Zorach v. Clauson (1952)......Page 1298
Zwickler v. Koota (1967)......Page 1299
Appendix......Page 1302
Online Resources on the First Amendment......Page 1304
Select Bibliography......Page 1306
Image Credits......Page 1310
Case Index......Page 1312
Subject Index......Page 1323
Citation preview
ENCYCLOPEDIA OF THE FIRST AMENDMENT
ENCYCLOPEDIA OF THE FIRST AMENDMENT
Edited by John R.Vile David L. Hudson Jr. David Schultz
A Division of SAGE Washington, D.C.
CQ Press 2300 N Street, NW, Suite 800 Washington, DC 20037 Phone: 202-729-1900; toll-free, 1-866-4CQ-PRESS (1-866-427-7737) Web: www.cqpress.com Copyright © 2009 by CQ Press, a division of SAGE. CQ Press is a registered trademark of Congressional Quarterly Inc. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Interior photo credits appear on pages 1217–1218, which are considered an extension of the copyright page. Cover design: Matthew Simmons, www.MyselfIncluded.com Cover photos: Corbis Composition: Judy Myers, Graphic Design The paper used in this publication exceeds the requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992. Printed and bound in the United States of America 12 11 10 09 08
1 2 3 4 5
Library of Congress Cataloging-in-Publication Data Encyclopedia of the First Amendment / edited by John R.Vile, David L. Hudson Jr., David Schultz. p. cm. Includes bibliographical references and index. ISBN 978-0-87289-311-5 (alk. paper) 1. Freedom of expression—United States—Encyclopedias. 2. Freedom of speech—United States—Encyclopedias. 3. Freedom of the press—United States—Encyclopedias. 4. Freedom of religion—United States—Encyclopedias. 5. United States. Constitution. 1st Amendment—Encyclopedias. I.Vile, John R. II. Hudson, David L., III. Schultz, David A. (David Andrew) KF4770.E53 2008 342.7308'503—dc22 2008036077
About the Editors
JOHN R. VILE is a professor of political science and dean of the University Honors College at Middle Tennessee State University. He is the author of numerous books, including Presidential Winners and Losers:Words of Victory and Concession (2002), The Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789‒2002 (2d ed., 2003), The Constitutional Convention of 1787: An Encyclopedia of America’s Founding (2005), and A Companion to the United States Constitution and Its Amendments (4th ed., 2006).Vile is a member of the board of the American Mock Trial Association, a recipient of the Congressman Neal Smith award for contributions to law-related education, and a 2008 inductee into the American Mock Trial Coaches Hall of Fame. DAVID L. HUDSON JR. is a scholar at the First Amendment Center at Vanderbilt University. He teaches First Amendment classes at the Nashville School of Law and Vanderbilt Law School. He also teaches at Middle Tennessee State University. Hudson is a contributing editor to the American Bar Association’s Preview of United States Supreme Court Cases. He is the author or co-author of twenty books, among them The Handy Supreme Court Answer Book (2008), The Rehnquist Court: Understanding Its Impact and Legacy (2006), The Silencing of Student Voices: Preserving Free Speech in America’s Schools (2003), and The Bill of Rights:The First Ten Amendments of the Constitution (2002). DAVID SCHULTZ is a professor in the School of Business at Hamline University and a senior fellow and professor in the Institute of Law and Politics at the University of Minnesota School of Law. He is the author or editor of more than twenty-five books, including The Encyclopedia of the United States Constitution (2008) and The Encyclopedia of the Supreme Court (2005). Schultz is a past vice president of the Texas and Minnesota chapters of the American Civil Liberties Union.
v
Contents
Alphabetical Table of Contents Topical Table of Contents Case Table of Contents
ix
xxviii xxxvii
Foreword:The First Forty-five Words Preface
lxii
lxviii
Contributors
lxxi
Introduction
lxxv
Chronology: Development and History of the First Amendment
lxxxii
First Amendment Overview The Establishment and Free Exercise Clauses Freedom of Speech Freedom of the Press
3
10 18 Assembly, Association,
and Petition
22 Incorporation of the First
Amendment
27
The First Amendment around the World The Future of the First Amendment
32
39
Entries A–Z
45‒1207
Appendix Online Resources on the First Amendment Select Bibliography 1213
1211
Image Credits 1217 Index, following page 1218
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Alphabetical Table of Contents
Abington School District v. Schempp (1963) / 45 Abolitionists and Free Speech / 46 Abood v. Detroit Board of Education (1977) / 47 Abortion Protests / 48 Abrams v. United States (1919) / 50 Abrams, Floyd / 51 Absolutists / 51 Academic Bill of Rights / 52 Academic Freedom / 53 Access to Courtrooms / 55 Accommodationism and Religion / 56 Action for Children’s Television v. Federal Communications Commission (D.C. Cir. 1995) / 58 Actual Malice / 58 Adams, John / 59 Adams, John Quincy / 60 Adderly v. Florida (1966) / 61 Ad Hoc Balancing / 62 Adler v. Board of Education (1952) / 62 Adult Film Association of America / 63 Adventures of Huckleberry Finn / 63 Advocacy of Illegal Conduct / 65 Affirmative Action / 65 Agostini v. Felton (1997) / 66 Aguilar v. Felton (1985) / 67 Aid to Parochial Schools / 68 Aid to Religious Colleges and Universities / 70 Alberts v. California (1957) / 71 Alcohol Advertising / 72 Alexander v. United States (1993) / 73 Aliens / 75 Alito, Samuel A., Jr. / 76 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968) / 77 American Academy of Religion v. Chertoff (S.D.N.Y. 2006) / 77 American Amusement Machine Association v. Kendrick (7th Cir. 2001) / 79
American Association of University Professors / 79 American Aurora / 80 American Booksellers Association v. Hudnut (7th Cir. 1985) / 81 American Booksellers Foundation for Free Expression / 82 American Center for Law and Justice / 83 American Civil Liberties Union / 83 American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich. 2006) / 85 American Committee for Protection of Foreign Born v. Subversive Activities Control Board (1965) / 86 American Communications Association v. Douds (1950) / 87 American Federation of Labor v. American Sash and Door Co. (1949) / 87 American Federation of Labor v. Swing (1941) / 88 American Friends Service Committee / 88 American Indian Religious Freedom Act of 1978 as Amended in 1994 / 90 American Library Association / 90 American Life League v. Reno (4th Cir. 1995) / 92 American Nazi Party and Related Groups / 92 American Radio Association, AFL-CIO v. Mobile Steamship Association (1974) / 93 American School of Magnetic Healing v. McAnnulty (1902) / 94 American Society of Newspaper Editors / 94 Americans United for Separation of Church and State / 95 Amish and Mennonites / 96 Anarchy Statutes / 97 Anderson v. Celebrezze (1983) / 98 Anderson v. Dunn (1821) / 98 Anderson v. Liberty Lobby (1986) / 99 Animal Sacrifice / 100 Anonymous Speech / 101 Ansonia Board of Education v. Philbrook (1986) / 102
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Anti-Dial-a-Porn Act of 1989 / 102 Anti-Federalists / 103 Anti-mask Laws / 104 Appropriation / 105 Aptheker v. Secretary of State (1964) / 106 A Quantity of Books v. Kansas (1964) / 107 Arcara v. Cloud Books, Inc. (1986) / 108 Arkansas Educational Television Commission v. Forbes (1998) / 108 Arkansas Writers’ Project, Inc. v. Ragland (1987) / 109 Art Censorship / 109 As-applied Challenges / 111 Ashcroft v. American Civil Liberties Union (2002) (2004) / 112 Ashcroft v. Free Speech Coalition (2002) / 113 Ashton v. Kentucky (1966) / 113 Associated Press v. National Labor Relations Board (1937) / 114 Associated Press v. United States (1945) / 115 Associated Press v.Walker (1967) / 115 Atheism / 116 Attorney Advertising / 117 Attorney General’s Commission on Pornography / 118 Attorney General’s List of Subversive Organizations / 119 Austin v. Michigan Chamber of Commerce (1990) / 119 Autopsies and Treatment of the Dead / 120 Avis Rent-a-Car System v. Aguilar (2000) / 121
Bache, Benjamin Franklin / 123 Bachellar v. Maryland (1970) / 123 Backus, Isaac / 124 Bad Tendency Test / 125 Baggett v. Bullitt (1964) / 126 Baird v. State Bar of Arizona (1971) / 127 Baker v. Nachtrieb (1856) / 127 Baker, C. Edwin / 128 Bakery and Pastry Drivers and Helpers Local v.Wohl (1942) / 128 Baldwin, Luther / 129 Baldwin, Roger / 129 Ballot Access / 130 Balzac v. People of Porto Rico (1922) / 132 Banned Books Week / 132 Bantam Books, Inc. v. Sullivan (1963) / 133 Baptists / 134
Bar Admissions / 135 Barber v.Time (Mo. 1942) / 136 Barenblatt v. United States (1959) / 136 Barnes v. Glen Theatre, Inc. (1991) / 137 Barr v. Matteo (1959) / 138 Barrett v. Rosenthal (Cal. S. Ct. 2006) / 139 Barron v. Baltimore (1833) / 140 Bartnicki v.Vopper (2001) / 141 Bates v. Little Rock (1960) / 142 Bates v. State Bar of Arizona (1977) / 142 BE and K Construction Co. v. National Labor Relations Board (2002) / 143 Beard v. Banks (2006) / 144 Beauharnais v. Illinois (1952) / 145 Behind the Green Door / 146 Beilan v. Board of Education (1958) / 146 Bell v. Maryland (1964) / 147 Bell v.Wolfish (1979) / 147 Benbow,William / 148 Bender v.Williamsport Area School District (1986) / 149 Benevolent Neutrality / 149 Berkeley Free Speech Movement / 150 Bethel School District No. 403 v. Fraser (1986) / 151 Beussink v.Woodland School District (E.D. Mo. 1998) / 152 Bickel, Alexander / 153 Biddle, Francis / 153 Bigelow v.Virginia (1975) / 154 Billboards / 155 Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board (1983) / 156 Bill of Rights / 157 Bipartisan Campaign Reform Act of 2002 / 159 Birth Control / 161 The Birth of a Nation / 162 Black, Hugo L. / 163 Blacklists / 164 Blackmun, Harry A. / 166 Blackstone,William / 167 Blaine Amendments / 168 Blasi,Vincent / 169 Blasphemy / 169 Blogging / 170 Blood Transfusions and Medical Care against Religious Beliefs / 171
Alphabetical Table of Contents Blount v. Rizzi (1971) / 173 Blue Sky Laws / 173 Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. (1987) / 174 Board of County Commissioners v. Umbehr (1996) / 175 Board of Directors of Rotary International v. Rotary Club of Duarte (1987) / 176 Board of Education v. Allen (1968) / 176 Board of Education, Island Trees Union Free School District v. Pico (1982) / 177 Board of Education of Kiryas Joel Village School District v. Grumet (1994) / 178 Board of Education of Oklahoma City v. National Gay Task Force (1985) / 179 Board of Education of the City of Cincinnati v. Minor (Ohio S. Ct. 1872) / 179 Board of Education of the Westside Community Schools v. Mergens (1990) / 181 Board of Regents of the University of Wisconsin System v. Southworth (2000) / 181 Board of Trustees of Scarsdale v. McCreary (1985) / 182 Board of Trustees of State University of New York v. Fox (1989) / 183 Bobbs Merrill Co. v. Straus (1908) / 184 Bob Jones University v. United States (1983) / 184 Bolger v.Youngs Drug Products Corp. (1983) / 185 Bollinger, Lee C. / 186 Bond v. Floyd (1966) / 186 Book Banning / 187 Boos v. Barry (1988) / 189 Borgner v. Florida Board of Dentistry (2002) / 189 Bork, Robert / 190 Bose Corp. v. Consumers Union of United States, Inc. (1984) / 191 Boudin, Leonard / 191 Bowdler,Thomas / 192 Bowen v. Kendrick (1988) / 193 Bowen v. Roy (1986) / 193 Boycotts / 194 Boyle v. Landry (1971) / 195 Boy Scouts of America v. Dale (2000) / 196 Braden v. United States (1961) / 197 Bradfield v. Roberts (1899) / 197 Brandeis, Louis D. / 197
Brandenburg v. Ohio (1969) / 199 Branti v. Finkel (1980) / 200 Branzburg v. Hayes (1972) / 201 Braunfeld v. Brown (1961) / 202 Bray v. Alexandria Women’s Health Clinic (1993) / 203 Breach of the Peace Laws / 203 Breard v. Alexandria (1951) / 205 Breen, Joseph I. / 206 Brennan,William J., Jr. / 206 Breyer, Stephen G. / 208 Bridges v. California (1941) / 209 Broadcast Decency Enforcement Act of 2005 / 210 Broadrick v. Oklahoma (1973) / 210 Brockett v. Spokane Arcades, Inc. (1985) / 211 Brotherhood of Railroad Trainmen v.Virginia ex rel.Virginia State Bar (1964) / 212 Brown v. Glines (1980) / 213 Brown v. Hartlage (1982) / 213 Brown v. Louisiana (1966) / 214 Brown v. Socialist Workers ’74 Campaign Committee (1982) / 215 Bruce, Lenny / 215 Bryan,William Jennings / 215 Buckley v. American Constitutional Law Foundation (1999) / 217 Buckley v.Valeo (1976) / 218 Building Service Employees International Union v. Gazzam (1950) / 219 Bumper Stickers / 219 Burdick v.Takushi (1992) / 220 Burger,Warren E. / 221 Burns v. United States (1927) / 222 Burnside v. Byars (5th Cir. 1966) / 223 Burson v. Freeman (1992) / 223 Burstyn v.Wilson (1952) / 224 Butler v. Michigan (1957) / 225 Butterworth v. Smith (1990) / 225 Byrne v. Karalexis (1969) (1971) / 226
Cable Communications Policy Act of 1984 / 227 Cable Television Consumer Protection and Competition Act of 1992 / 228 Cafeteria Employees Union v. Angelos (1943) / 228
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Alphabetical Table of Contents
Cain v. Kentucky (1970) / 229 California v. LaRue (1972) / 229 California Democratic Party v. Jones (2000) / 230 California Motor Transport Co. v.Trucking Unlimited (1972) / 231 Cameras in the Courtroom / 231 Cameron v. Johnson (1965) (1968) / 233 Cammarano v. United States (1959) / 233 Campaign Regulation / 234 Campbell v. Acuff-Rose Music, Inc. (1994) / 236 Campus Speech Codes / 237 Canady v. Bozzier Parish School Board (5th Cir. 2001) / 238 Cantrell v. Forest City Publishing Co. (1974) / 239 Cantwell v. Connecticut (1940) / 239 Capitol Square Review and Advisory Board v. Pinette (1995) / 240 Captive Audience / 241 Cardozo, Benjamin N. / 242 Carey v. Brown (1980) / 243 Carey v. Population Services International (1977) / 244 Carey,Warden v. Musladin (2006) / 245 Carlin, George / 245 Carlson v. California (1940) / 246 Carlson v. Landon (1952) / 246 Carolene Products Footnote Four / 247 Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Café (1942) / 248 Carroll v. President and Commissioners of Princess Anne (1968) / 248 Carter, Robert L. / 249 The Catcher in the Rye / 249 Catholics, Roman / 249 Cato’s Letters / 250 CBS, Inc. v. Federal Communications Commission (1981) / 252 Censorship / 252 Central Hudson Gas and Electric Corp. v. Public Service Commission (1980) / 255 Chafee, Zechariah, Jr. / 256 Chamberlin v. Public Instruction Board (1964) / 257 Chandler v. Florida (1981) / 257 Chandler v. McMinnville School District (9th Cir. 1992) / 258
Chaplains / 258 Chaplinsky v. New Hampshire (1942) / 260 Charitable Solicitation / 260 Chemerinsky, Erwin / 261 Chicago Seven Trial / 262 Chicago Teachers Union v. Hudson (1986) / 262 Child Benefit Theory / 263 Child Custody / 264 Child Online Protection Act of 1998 / 265 Child Pornography / 266 Child Pornography Prevention Act of 1996 / 267 Child Protection and Obscenity Enforcement Act of 1988 / 268 Child Protection Restoration and Penalties Enhancement Act of 1990 / 268 Children’s Internet Protection Act of 2000 / 269 Chilling Effect / 269 The Chocolate War / 270 Christian Amendment / 270 Christian Legal Society / 271 Christian Scientists / 271 Church of Jesus Christ of Latter-day Saints / 272 Church of the Holy Trinity v. United States (1892) / 274 Church of the Lukumi Babalu Aye v. City of Hialeah (1993) / 275 Churchill,Ward / 276 The CIA and the Cult of Intelligence / 277 Citizen Publishing Co. v. United States (1969) / 277 Citizens Against Rent Control v. Berkeley (1981) / 278 Citizens for Decent Literature / 279 City Council of Los Angeles v.Taxpayers for Vincent (1984) / 279 City of Boerne v. Flores (1997) / 280 City of Chicago v. Morales (1999) / 281 City of Cincinnati v. Discovery Network (1993) / 282 City of Dallas v. Stanglin (1989) / 283 City of Edmond v. Robinson (1996) / 283 City of Erie v. Pap’s A.M. (2000) / 284 City of Houston v. Hill (1987) / 284 City of Ladue v. Gilleo (1994) / 285 City of Lakewood v. Plain Dealer Publishing Co. (1988) / 286 City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004) / 287 City of Los Angeles v. Alameda Books (2002) / 287 City of Los Angeles v. Preferred Communications (1986) / 288
Alphabetical Table of Contents City of Madison v.Wisconsin Employment Relations Commission (1976) / 289 City of Newport v. Iacobucci (1986) / 289 City of Renton v. Playtime Theatres, Inc. (1986) / 290 City of San Diego v. Roe (2005) / 291 Civil Religion / 292 Civil Rights Movement / 293 Civil War, U.S. / 295 Clark v. Community for Creative Non-Violence (1984) / 297 Clark,Tom C. / 298 Classified Documents / 298 Clay v. United States (1971) / 300 Clear and Present Danger Test / 300 Clergy, Bans on Holding Office by / 302 Cleveland v. United States (1946) / 303 Clingman v. Beaver (2005) / 303 Coates v. City of Cincinnati (1971) / 304 Cochran v. Board of Education (1930) / 304 Coercion Test / 305 Cohen v. California (1971) / 306 Cohen v. Cowles Media Co. (1991) / 306 Cohen v. San Bernardino Valley College (9th Cir. 1996) / 307 Cohn, Roy / 307 Cole v. Oroville Union High School District (9th Cir. 2000) / 308 Cole v. Richardson (1972) / 309 Collins, Ron / 309 Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996) / 310 Columbia Broadcasting System v. Democratic National Committee (1973) / 310 Commercial Speech / 311 Commission on Obscenity and Pornography / 312 Committee for Public Education and Religious Liberty v. Nyquist (1973) / 313 Committee for Public Education and Religious Liberty v. Regan (1980) / 314 Committee on Public Information / 314 Commonwealth v. Blanding (Mass. 1825) / 315 Commonwealth v. Clapp (Mass. 1808) / 316 Commonwealth v. Cooke (Mass. 1859) / 316 Commonwealth v. Kneeland (Mass. 1838) / 317 Commonwealth v. Lesher (Pa. 1828) / 318
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Commonwealth v. Sharpless (Pa. 1815) / 319 Communications Act of 1934 / 319 Communications Decency Act of 1996 / 320 Communist Control Act of 1954 / 321 Communist Party of Indiana v.Whitcomb (1974) / 322 Communist Party of the United States / 323 Communist Party of the United States v. Subversive Activities Control Board (1961) / 325 Community Standards / 325 Compelled Speech / 326 Compelling State Interest / 328 Comstock Act of 1873 / 329 Comstock, Anthony / 329 Confederate Flag / 330 Confidential Sources / 331 Congress / 332 Congressional Investigations / 334 Connell v. Higginbotham (1971) / 335 Connick v. Myers (1983) / 335 Conscientious Objection to Military Service / 336 Consolidated Edison Co. v. Public Service Commission (1980) / 337 Conspiracy Laws / 338 Constitution of the Confederate States of America / 338 Constitutional Amending Process / 339 Constitutional Convention of 1787 / 340 Contempt of Court / 342 Content Based / 343 Content Neutral / 344 Continental Congress: Declaration and Resolves / 344 Continental Congress: Letter to the Inhabitants of the Province of Quebec / 345 Cooley,Thomas M. / 345 Cooper v. Pate (1964) / 346 Copyright / 346 Copyright Act of 1790 / 347 Copyright Act of 1976 / 348 Cornelius v. NAACP Legal Defense and Educational Fund (1985) / 348 Corn-Revere, Robert / 349 Corporate Speech / 349 Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos (1987) / 351 Counterspeech Doctrine / 352
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Alphabetical Table of Contents
County of Allegheny v. American Civil Liberties Union (1989) / 352 Covington, Hayden C. / 353 Cox v. Louisiana (1965) / 353 Cox v. New Hampshire (1941) / 354 Cox, Archibald / 355 Cox Broadcasting Corp. v. Cohn (1975) / 355 Craig v. Harney (1947) / 356 Craig v. Hecht (1923) / 356 Cramp v. Board of Public Instruction of Orange County (1961) / 357 Creationism / 357 Criminal Defamation / 358 Criminal Syndicalism Laws / 360 Critical Race Theory / 361 Cross Burning / 363 Cruz v. Beto (1972) / 364 C-SPAN / 365 Curfews / 366 Curtis Publishing Co. v. Butts (1967) / 366 Cutler, Lloyd N. / 367 Cutter v.Wilkinson (2005) / 368 Cybersquatting / 368 Cyberstalking / 369
Dancing, Nude / 371 Darrow, Clarence / 372 Dartmouth College v.Woodward (1819) / 373 Davenport v.Washington Education Association (2007) / 374 Davis v. Beason (1890) / 375 Davis v. Massachusetts (1897) / 376 Dawson v. Delaware (1992) / 376 Dean v. Utica Community Schools (E.D. Mich. 2004) / 377 Debs v. United States (1919) / 378 Debs, Eugene V. / 378 Declaration of Independence / 380 Deep Throat / 381 DeGregory v. Attorney General of New Hampshire (1966) / 381 De Jonge v. Oregon (1937) / 382 Deleting Online Predators Act / 383 Democratic Party of United States v.Wisconsin ex rel. LaFollette (1981) / 383
Dennis v. United States (1951) / 384 Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996) / 385 De Scandalis Magnatum / 386 Detached Memoranda / 387 The Devil in Miss Jones / 388 Dietemann v.Time (9th Cir. 1971) / 388 Digital Millennium Copyright Act of 1998 / 389 Disclaimers / 389 Disclosure Requirements / 390 Discrimination Laws / 391 Dixie Chicks / 392 Doe v. Gonzales (2005) / 393 Dombrowski v. Pfister (1965) / 394 Donaldson v. Read Magazine (1948) / 394 Don’t Ask, Don’t Tell / 395 Door-to-Door Solicitation / 395 Doran v. Salem Inn (1975) / 396 Doremus v. Board of Education (1952) / 397 Dorsen, Norman / 397 Dot Kids Implementation and Efficiency Act of 2002 / 398 Douglas v. City of Jeannette (1943) / 398 Douglas,William O. / 399 Draft Card Mutilation Act of 1965 / 400 Dress Codes / 401 Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) / 403 Dworkin, Andrea / 404
Eagle Forum / 405 Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961) / 405 Ecstasy / 406 Edenfield v. Fane (1993) / 406 Edwards v. Aguillard (1987) / 407 Edwards v. South Carolina (1963) / 408 Eldred v. Ashcroft (2003) / 408 Electioneering / 409 Electronic Frontier Foundation / 410 Electronic Privacy Information Center / 411 Elfbrandt v. Russell (1966) / 411 Elk Grove Unified School District v. Newdow (2004) / 411
Alphabetical Table of Contents Ellis v. Brotherhood of Railway, Airline and Steamship Clerks (1984) / 412 Ellsberg, Daniel / 413 Elrod v. Burns (1976) / 413 Ely, John Hart / 414 Emerson,Thomas / 414 Employment Division, Department of Human Resources of Oregon v. Smith (1990) / 415 Encryption / 416 Endorsement Test / 417 Engel v.Vitale (1962) / 417 English Bill of Rights / 418 English-Only Laws / 419 Epperson v. Arkansas (1968) / 419 Epton v. New York (1968) / 420 Equal Access Act of 1984 / 420 Equal Time Rule / 421 Erznoznik v. City of Jacksonville (1975) / 423 Espionage Act of 1917 / 423 Established Churches in Early America / 424 Estes v.Texas (1965) / 425 Eu v. San Francisco County Democratic Central Committee (1989) / 426 Evans v. Selma Union High School District of Fresno County (Cal. 1924) / 427 Everson v. Board of Education (1947) / 427 Evolution / 428 Exit Polling / 430 Ex parte Curtis (1882) / 430 Ex parte Jackson (1877) / 431 Ex parte Vallandigham (1863) / 431 Express Advocacy / 432 Expressive Conduct / 434
Facial Challenges / 435 Fairness Doctrine / 435 Fair Use / 436 Faith-based Organizations and Government Aid / 437 False Light / 438 Fanny Hill / 439 Farmers Educational and Cooperative Union of America, North Dakota Division v.WDAY, Inc. (1959) / 439 Federal Bureau of Investigation / 440
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Federal Communications Commission / 441 Federal Communications Commission v. League of Women Voters of California (1984) / 443 Federal Communications Commission v. Midwest Video Corp. (1979) / 444 Federal Communications Commission v. National Citizens Committee for Broadcasting (1978) / 444 Federal Communications Commission v. Pacifica Foundation (1978) / 445 Federal Election Campaign Act of 1971 / 446 Federal Election Commission v. Beaumont (2003) / 447 Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) / 448 Federal Election Commission v. Massachusetts Citizens for Life (1986) / 449 Federal Election Commission v. National Conservative PAC (1985) / 449 Federal Election Commission v. National Right to Work Committee (1982) / 450 Federal Election Commission v.Wisconsin Right to Life, Inc. (2007) / 451 Federalism / 452 Federalists / 453 Federal Radio Commission / 454 Federal Theatre Project / 455 Federal Trade Commission / 456 Federal Trade Commission v. Superior Court Trial Lawyers Association (1990) / 457 Feiner v. New York (1951) / 457 Feminist Theory / 458 Fighting Words / 459 Film / 460 First Amendment Center / 462 First Amendment Lawyers Association / 463 First Amendment Project / 463 First National Bank of Boston v. Bellotti (1978) / 463 Fiske v. Kansas (1927) / 464 Flag Desecration / 465 Flag Protection Acts of 1968 and 1989 / 466 Flast v. Cohen (1968) / 466 Fleishman, Stanley / 467 Florida Bar v.Went for It, Inc. (1995) / 468 Florida Star v. B.J.F. (1989) / 468 Flower v. United States (1972) / 469
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Flynt, Larry / 470 Follett v.Town of McCormick (1944) / 471 Folsom v. Marsh (C.C.D. Mass. 1841) / 471 Food and Drug Administration / 472 Foreign Languages, Right to Learn and Teach / 473 Forer, Joseph / 474 Forsyth County, Georgia v. Nationalist Movement (1992) / 474 Fort Wayne Books, Inc. v. Indiana (1989) / 475 Fortas, Abe / 475 Fortune Telling / 476 44 Liquormart, Inc. v. Rhode Island (1996) / 477 Foundation for Individual Rights in Education / 478 Four Freedoms / 479 Fowle, Daniel / 480 Fowler v. Rhode Island (1953) / 480 Fox v.Washington (1915) / 480 Fraenkel, Osmond / 481 Frankfurter, Felix / 481 Franklin, Benjamin / 483 Frazee v. Illinois Department of Employment Security (1989) / 485 Freedman v. Maryland (1965) / 485 Freedom of Access to Clinic Entrances Act of 1994 / 486 Freedom of Information Act of 1966 / 487 Freedom to Display the American Flag Act of 2006 / 489 Free Expression Network / 489 Free Flow of Information Act / 489 Free Speech League / 490 Free Speech Zones / 491 Freund, Paul / 492 Friedman v. Rogers (1979) / 493 Friendly, Fred / 493 Frisby v. Schultz (1988) / 494 Frohwerk v. United States (1919) / 495 Funeral Protests / 496 FW/PBS, Inc. v. City of Dallas (1990) / 497
Gag Orders / 499 Gag Rule in Congress / 500 Gallagher v. Crown Kosher Super Market of Massachusetts (1961) / 500 Gallatin, Albert / 501 Gandia v. Pettingill (1912) / 502
Gannett Co. v. DePasquale (1979) / 502 Garbus, Martin / 503 Garcetti v. Ceballos (2006) / 504 Garner v. Board of Public Works of Los Angeles (1951) / 504 Garner v. Louisiana (1961) / 505 Garrison v. Louisiana (1964) / 505 Gelling v.Texas (1952) / 506 General Media Communications v. Cohen (2d Cir. 1997) / 506 Gentile v. State Bar of Nevada (1991) / 507 Gerende v. Board of Supervisors of Elections of Baltimore (1951) / 507 Gertz v. Robert Welch, Inc. (1974) / 508 Gibbons v. District of Columbia (1886) / 509 Giboney v. Empire Storage and Ice Co. (1949) / 509 Gibson v. Florida Legislative Investigation Committee (1963) / 509 Gilbert v. Minnesota (1920) / 510 Gillette v. United States (1971) / 511 Ginsberg v. New York (1968) / 512 Ginsburg, Ruth Bader / 512 Ginzburg v. United States (1966) / 513 Girouard v. United States (1946) / 514 Gitlow v. New York (1925) / 515 Givhan v.Western Line Consolidated School District (1979) / 516 Glickman v.Wileman Brothers and Elliott, Inc. (1997) / 517 Globe Newspaper Co. v. Superior Court (1982) / 517 Goldberg, Arthur J. / 518 Goldman v.Weinberger (1986) / 519 Goldman, Emma / 519 Goldstein, Alvin / 521 Goldstein,Thomas C. / 521 Gompers v. Buck’s Stove and Range Co. (1911) / 521 Gonzales v. O Centro Espírita Beneficente União Do Vegetal (2006) / 522 Goodale, James C. / 523 Gooding v.Wilson (1972) / 523 Good News Club v. Milford Central School (2001) / 524 Gore,Tipper / 525 Government Funding and Free Speech / 526 Government Speech Doctrine / 528 Graduation Speech Controversies / 528 Grand Rapids School District v. Ball (1985) / 529 Gravity of the Evil Test / 530
Alphabetical Table of Contents Grayned v. City of Rockford (1972) / 531 Greater New Orleans Broadcasting Association v. United States (1999) / 532 Greenbelt Cooperative Publishing Association v. Bresler (1970) / 532 Green River Ordinances / 533 Greer v. Spock (1976) / 533 Gregory v. City of Chicago (1969) / 534 Grimm v. United States (1895) / 535 Griswold v. Connecticut (1965) / 535 Griswold, Erwin / 536 Grosjean v. American Press Co. (1936) / 537 Group Libel / 548 Grove Press v. Gerstein (1964) / 539 Grove Press v. Maryland State Board of Censors (1971) / 539 Gurfein, Murray Irwin / 540
Hague v. Committee for Industrial Organization (1939) / 541 Haig v. Agee (1981) / 542 Hair / 542 Hair Length and Style / 543 Halter v. Nebraska (1907) / 544 Hamilton v. Regents of the University of California (1934) / 544 Hamilton, Alexander / 545 Hamling v. United States (1974) / 546 Hand, Learned / 547 Hannegan v. Esquire (1946) / 548 Harisiades v. Shaughnessy (1952) / 548 Harlan, John Marshall, I / 549 Harlan, John Marshall, II / 550 Harmful to Minors Laws / 551 Harper and Row v. Nation Enterprises (1985) / 553 Harper v. Poway Unified School District (9th Cir. 2006) / 553 Harte-Hanks Communications v. Connaughton (1989) / 555 Hartman v. Moore (2006) / 555 Hartzel v. United States (1944) / 556 Hatch Act of 1939 / 557 Hate Speech / 558 Hay, George / 559 Haynes, Charles C. / 559 Hays, Arthur Garfield / 560 Hazelwood School District v. Kuhlmeier (1988) / 560
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Headlight Flashing / 561 Healy v. James (1972) / 562 Heckler’s Veto / 563 Heffron v. International Society for Krishna Consciousness (1981) / 563 Hefner, Hugh / 564 Hein v. Freedom from Religion Foundation (2007) / 565 Heller v. New York (1973) / 566 Hennington v. Georgia (1896) / 566 Henry v. Collins (1965) / 567 Henry, Patrick / 567 Hentoff, Nat / 568 Herbert v. Lando (1979) / 568 Hernandez v. Commissioner of Internal Revenue (1989) / 569 Herndon v. Lowry (1937) / 570 Hess v. Indiana (1973) / 570 Hicklin Test / 571 Hill v. Colorado (2000) / 572 Hirsh v. City of Atlanta (1990) / 573 Hit Man Manual / 573 Hobbie v. Unemployment Appeals Commission of Florida (1987) / 574 Holidays, Religious / 575 Holmes, Oliver Wendell, Jr. / 576 Holocaust Denial / 577 Homeschooling / 579 Hoover, J. Edgar / 579 Horn Honking / 580 Hosty v. Carter (7th Cir. 2005) / 581 Hotel and Restaurant Employees’ International Alliance v. Wisconsin Employment Relations Board (1942) / 582 Houchins v. KQED (1978) / 582 House Un-American Activities Committee / 583 Hudgens v. National Labor Relations Board (1976) / 584 Hughes v. Superior Court of California (1950) / 584 Hughes, Charles Evans / 585 Hunt v. McNair (1973) / 586 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) / 586 Hustler Magazine v. Falwell (1988) / 587 Hutchinson v. Proxmire (1979) / 588 Hutchinson, Anne / 589 Hynes v. Mayor of Oradell (1976) / 589
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Ibanez v. Florida Department of Business and Professional Regulation Board (1994) / 591 Illinois ex rel. Madigan v.Telemarketing Associates, Inc. (2003) / 592 Illinois ex rel. McCollum v. Board of Education (1948) / 592 Illinois State Board of Elections v. Socialist Workers Party (1979) / 593 Incitement / 594 Indecency and the Electronic Media / 595 Indian Appropriations Act of 1896 / 597 Ingersoll, Robert / 598 In God We Trust / 599 In re Anastaplo (1961) / 599 In re Primus (1978) / 600 In re R.M.J. (1982) / 601 In re Rapier (1892) / 601 In re Sawyer (1959) / 602 In re Stolar (1971) / 602 In re Summers (1945) / 603 Intelligent Design / 604 International Association of Machinists v. Street (1961) / 605 International Brotherhood of Electrical Workers v. National Labor Relations Board (1951) / 606 International Brotherhood of Teamsters Union v. Hanke (1950) / 606 International Brotherhood of Teamsters Union v.Vogt (1957) / 607 International Religious Freedom Act of 1998 / 607 International Society for Krishna Consciousness v. Lee (1992) / 608 Internet / 609 Interstate Circuit, Inc. v. Dallas (1968) / 610 Intrusion / 611 Islam / 612 Issue Advocacy / 614
Jackson, Robert H. / 617 Jacobellis v. Ohio (1964) / 618 Jamison v.Texas (1943) / 619 Jefferson,Thomas / 619 Jehovah’s Witnesses / 621 Jenkins v. Georgia (1974) / 624 Jenness v. Fortson (1971) / 624
Jimmy Swaggart Ministries v. Board of Equalization of California (1990) / 625 Johanns v. Livestock Marketing Association (2005) / 625 Johnson v. Avery (1969) / 626 Johnson v. Robison (1974) / 626 Joint Anti-Fascist Refugee Committee v. McGrath (1951) / 627 Jones v. City of Opelika (1942) (1943) / 628 Jones v. North Carolina Prisoners’ Union (1977) / 628 Jones v.Wolf (1979) / 629 Judaism / 630 Judicial Campaign Speech / 632
Kalven, Harry, Jr. / 635 Kaplan v. California (1973) / 635 Karlan v. City of Cincinnati (1974) / 636 Katzev v. County of Los Angeles (Cal. 1959) / 637 Kedroff v. Saint Nicholas Cathedral (1952) / 637 Keller v. State Bar of California (1990) / 638 Kelley v. Johnson (1976) / 638 Kennedy, Anthony M. / 639 Keyishian v. Board of Regents (1967) / 641 Kimm v. Rosenberg (1960) / 641 Kingsley Books, Inc. v. Brown (1957) / 642 Kingsley International Pictures v. Board of Regents (1959) / 643 Kinoy, Arthur / 643 Kleindienst v. Mandel (1972) / 644 Konigsberg v. State Bar (1961) / 644 Kovacs v. Cooper (1949) / 645 Kozinski, Alex / 646 Ku Klux Klan / 646 Kunstler,William / 648 Kunz v. New York (1951) / 648
Laird v.Tatum (1972) / 651 Lamb’s Chapel v. Center Moriches Union Free School District (1993) / 651 Lamont v. Postmaster General (1965) / 652 Landmark Communications, Inc. v.Virginia (1978) / 653 Largent v.Texas (1943) / 654 Larkin v. Grendel’s Den, Inc. (1982) / 654 Larson v.Valente (1982) / 655
Alphabetical Table of Contents The Last Temptation of Christ / 655 Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890) / 656 Lavine v. Blaine School District (9th Cir. 2001) / 657 Lawson, Evan / 658 Law Students Research Council v.Wadmond (1971) / 658 Leach v. Carlile (1922) / 659 Least Restrictive Means / 659 Leathers v. Medlock (1991) / 660 Lee v. International Society for Krishna Consciousness (1992) / 661 Lee v.Weisman (1992) / 661 Lee Art Theatre v.Virginia (1968) / 662 Legal Services Corp. v.Velazquez (2001) / 662 Lehman v. City of Shaker Heights (1974) / 663 Lehnert v. Ferris Faculty Association (1991) / 664 Leland, John / 665 Lemon v. Kurtzman (1971) / 666 Lemon v. Kurtzman (1973) / 666 Lemon Test / 667 Levitt v. Committee for Public Education and Religious Liberty (1973) / 668 Levy, Leonard / 669 Lewis v. City of New Orleans (1974) / 669 Lewis Publishing Co. v. Morgan (1913) / 670 Libel and Slander / 670 Liberty Legal Institute / 672 Liberty Model / 673 Libraries and Intellectual Freedom / 674 Licensing Laws / 675 Lilburne, John / 677 Liles v. Oregon (1976) / 678 Lincoln, Abraham / 678 Lincoln Federal Labor Union v. Northwestern Iron and Metal Co. (1949) / 680 Linmark Associates, Inc. v.Township of Willingboro (1977) / 680 Linn v. United Plant Guard Workers of America (1966) / 681 Lloyd Corporation, Ltd. v.Tanner (1972) / 682 Locke v. Davey (2004) / 682 Locke, John / 683 Loitering Laws / 684 Lo-Ji Sales, Inc. v. New York (1979) / 685 London, Ephraim / 686 Lorain Journal Co. v. United States (1951) / 686
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Lorillard Tobacco Co. v. Reilly (2001) / 687 Los Angeles Police Department v. United Reporting Publishing Co. (1999) / 688 Louisiana ex rel. Gremillion v. NAACP (1961) / 688 Lovejoy, Elijah / 689 Lovell v. City of Griffin (1938) / 690 Lowe v. Securities and Exchange Commission (1985) / 690 Loyalty Oaths / 691 Lucas v. Arkansas (1974) / 693 Lynch v. Donnelly (1984) / 693 Lyng v. International Union, UAW (1988) / 694 Lyng v. Northwest Indian Cemetery Protective Association (1988) / 695 Lyon, Matthew / 695
Mabee v.White Plains Publishing Co. (1946) / 697 MacKinnon, Catharine / 697 Madigan v.Telemarketing Associates, Inc. (2003) / 698 Madison, James / 699 Madsen v.Women’s Health Center, Inc. (1994) / 702 Magna Carta / 703 Mail / 704 Mann, Horace / 705 Manual Enterprises v. Day (1962) / 706 Mapplethorpe, Robert / 707 Marcus v. Search Warrant (1961) / 707 Marketplace of Ideas / 708 Marks v. United States (1977) / 709 Marsh v. Alabama (1946) / 709 Marsh v. Chambers (1983) / 710 Marshall, John / 711 Marshall,Thurgood / 712 Martin v. City of Struthers (1943) / 713 Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg (1970) / 714 Maryland Toleration Act of 1649 / 714 Mason, George / 715 Massachusetts v. Oakes (1989) / 716 Masses Publishing Co. v. Patten (S.D.N.Y. 1917) / 716 Masson v. New Yorker Magazine (1991) / 717 Mayflower Compact / 718 McAuliffe v. Mayor of New Bedford (Mass. 1892) / 719 McCarran Act of 1950 / 719
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McCarthyism / 720 McConnell v. Federal Election Commission (2003) / 722 McConnell, Michael / 723 McCreary County v. American Civil Liberties Union (2005) / 724 McDaniel v. Paty (1978) / 725 McDonald v. Smith (1985) / 725 McGowan v. Maryland (1961) / 726 McIntyre v. Ohio Elections Commission (1995) / 727 McKinney v. Alabama (1976) / 728 McMasters, Paul K. / 729 Media Concentration / 729 Media Exemption to Antitrust Laws / 730 Media Institute / 732 Media Law Resource Center / 732 Meek v. Pittenger (1975) / 732 Meese v. Keene (1987) / 733 Meiklejohn, Alexander / 734 Melton v.Young (6th Cir. 1972) / 735 Membership Lists / 735 Memoirs v. Massachusetts (1966) / 736 “Memorial and Remonstrance” / 737 Metro Broadcasting, Inc. v. Federal Communications Commission (1990) / 738 Metromedia, Inc. v. City of San Diego (1981) / 739 Meyer v. Grant (1988) / 740 Meyer v. Nebraska (1923) / 741 Miami Herald Publishing Co. v.Tornillo (1974) / 741 Military Personnel, Rights of / 742 Milkovich v. Lorain Journal Co. (1990) / 744 Milk Wagon Drivers Union v. Meadowmoor (1941) / 744 Mill, John Stuart / 745 Miller v. California (1973) / 746 Miller, Arthur / 747 Miller, Judith / 748 Mills v. Alabama (1966) / 749 Milton, John / 750 Minarcini v. Strongsville City School District (6th Cir. 1976) / 751 Minersville School District v. Gobitis (1940) / 751 Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983) / 752 Minnesota Board for Community Colleges v. Knight (1984) / 753
Mishkin v. New York (1966) / 753 Mitchell v. Helms (2000) / 754 Monitor Patriot Co. v. Roy (1971) / 754 Morrill Anti-bigamy Act of 1862 / 755 Morse v. Frederick (2007) / 755 Motion Picture Ratings / 757 Mount Healthy City School District Board of Education v. Doyle (1977) / 757 Mueller v. Allen (1983) / 758 Municipality of Ponce v. Roman Catholic Apostolic Church in Porto Rico (1908) / 759 Munro v. Socialist Workers Party (1986) / 759 Murdock v. Pennsylvania (1943) / 760 Murphy v. Ramsey (1885) / 761 Murphy, Francis W. / 761 Murphy, Paul L. / 762 Murray, John Courtney / 763 Murrow, Edward R. / 764 Music Censorship / 764 Must-Carry Rules / 766 Mutual Film Corp. v. Industrial Commission of Ohio (1915) / 767
NAACP v. Alabama (1958) / 769 NAACP v. Button (1963) / 770 NAACP v. Claiborne Hardware Co. (1982) / 771 Narrowly Tailored Laws / 772 National Broadcasting Co. v. United States (1943) / 773 National Coalition Against Censorship / 773 National Do Not Call Registry / 773 National Endowment for the Arts v. Finley (1998) / 774 National Identification Cards / 775 National Labor Relations Board v. Catholic Bishop of Chicago (1979) / 776 National Labor Relations Board v. Fruit and Vegetable Packers (1964) / 776 National Labor Relations Board v.Virginia Electric and Power (1941) / 777 National Prayer Breakfast / 777 National Press Club / 778 National Security / 778 National Society of Professional Engineers v. United States (1978) / 780
Alphabetical Table of Contents Native Americans / 781 Natural Law / 782 Natural Rights / 783 Near v. Minnesota (1931) / 784 Nebraska Press Association v. Stuart (1976) / 785 Neutrality, Religion / 786 Neutrality, Speech / 787 Neutral Reportage Privilege / 788 Newseum / 789 Newspaper Preservation Act of 1970 / 789 New York v. Cathedral Academy (1977) / 790 New York v. Ferber (1982) / 791 New York v. P.J.Video, Inc. (1986) / 791 New York ex rel. Bryant v. Zimmerman (1928) / 792 New York State Club Association, Inc. v. City of New York (1988) / 793 New York State Liquor Authority v. Bellanca (1981) / 793 New York Times Co. v. Sullivan (1964) / 794 New York Times Co. v. United States (1971) / 795 Niemotko v. Maryland (1951) / 796 Nike v. Kasky (2003) / 796 Nimmer, Melville B. / 797 Nixon v. Shrink Missouri Government PAC (2000) / 798 Nixon, Richard M. / 798 Nizer, Louis / 800 Noerr-Pennington Doctrine / 801 Nonpreferentialism / 801 Norman v. Reed (1992) / 802 Northwest Ordinance of 1787 / 803 Norton v. Discipline Committee of East Tennessee State University (1970) / 804 Norwood v. Harrison (1973) / 804 Nostrand v. Little (1960) / 805 Noto v. United States (1961) / 805
Obscenity and Pornography / 807 Ocala Star-Banner Co. v. Damron (1971) / 809 O’Connor v.Washburn University (10th Cir. 2005) / 809 O’Connor, Sandra Day / 810 Oh! Calcutta! / 811 O’Hair, Madalyn Murray / 812 O’Hare Truck Service v. City of Northlake (1996) / 813 Ohralik v. Ohio State Bar Association (1978) / 814
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Oklahoma Press Publishing Co. v.Walling (1946) / 815 Oklahoma Publishing Co. v. Oklahoma County District Court (1977) / 815 Old Deluder Satan Act of 1647 / 816 O’Lone v. Estate of Shabazz (1987) / 816 One, Inc. v. Olesen (9th Cir. 1957) / 817 O’Neil, Robert M. / 818 On Liberty / 818 Open Meeting Laws and Freedom of Speech / 819 Order of St. Benedict v. Steinhauser (1914) / 820 Organization for a Better Austin v. Keefe (1971) / 821 Original Intent / 821 Osborne v. Ohio (1990) / 823 Overbreadth / 824 Overton v. Bazzetta (2003) / 825
Pacific Gas and Electric Co. v. Public Utilities Commission (1986) / 827 Paine,Thomas / 828 Palko v. Connecticut (1937) / 829 Palmer, A. Mitchell / 829 Pandering / 830 Panhandling Laws / 831 Paparazzi / 832 Papish v. Board of Curators of the University of Missouri (1973) / 833 Parades / 834 Paris Adult Theatre I v. Slaton (1973) / 835 Parker v. Levy (1974) / 836 Patterson v. Colorado (1907) / 837 Paulson, Ken / 837 Peel v. Attorney Disciplinary Commission of Illinois (1990) / 838 Pell v. Procunier (1974) / 839 PEN American Center / 839 Penn,William / 840 Pennekamp v. Florida (1946) / 840 Pennsylvania v. Nelson (1956) / 841 Pentagon Papers / 841 People v. Croswell (N.Y. 1804) / 843 People v. Phillips (N.Y. 1813) / 843 People v. Ruggles (N.Y. 1811) / 844 People for the American Way / 845
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Alphabetical Table of Contents
Perez v. Ledesma (1971) / 845 Perjury / 845 Permoli v. New Orleans (1845) / 846 Perry v. Sindermann (1972) / 847 Perry Education Association v. Perry Local Educators’ Association (1983) / 847 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 / 848 Pfeffer, Leo / 849 Pfeiffer v. Board of Education (Mich. S. Ct. 1898) / 849 Philadelphia Newspapers, Inc. v. Hepps (1986) / 850 Phillips et al. (Simon’s Executors) v. Gratz (Pa. 1831) / 851 Pickering v. Board of Education (1968) / 851 Picketing / 852 Pierce v. Society of Sisters (1925) / 853 Pierce v. United States (1920) / 854 Pinkus v. United States (1978) / 854 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) / 855 Planned Parenthood of the Columbia/Williamette, Inc. v. American Coalition of Life Activists (9th Cir. 2002) / 856 Pledge of Allegiance / 857 Police Department of Chicago v. Mosley (1972) / 858 Policinski, Gene / 859 Political Correctness / 859 Political Parties / 860 Political Patronage / 862 Pollak,Walter / 863 Polygamy / 863 Pope v. Illinois (1987) / 865 Posadas de Puerto Rico Associates v.Tourism Company of Puerto Rico (1986) / 866 Posner, Richard A. / 867 Poulos v. New Hampshire (1953) / 867 Powell, Lewis F., Jr. / 868 Prayer at Public Events / 869 Prayer at Public School Events / 870 Preferred Position Doctrine / 871 Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) / 872 President’s Task Force on Communications Policy / 872 Press-Enterprise Co. v. Superior Court of California (1984) (1986) / 873 Prettyman, E. Barrett, Jr. / 873
Priestley, Joseph / 874 Priest-Penitent Privilege / 875 Prince v. Massachusetts (1944) / 875 Printing Ordinance of 1643 / 876 Prior Restraint / 877 Prisons / 878 Privacy / 880 Private Property, Expression on / 881 Proclamations of National Days of Prayer or Thanksgiving / 882 Procunier v. Martinez (1974) / 883 Profanity / 884 Protection of Children against Sexual Exploitation Act of 1977 / 884 Protests in Neighborhoods / 885 Prudential Insurance Co. of America v. Cheek (1922) / 886 PruneYard Shopping Center v. Robins (1980) / 886 Prynne,William / 887 Public Buildings and Religious Use / 888 Public Employees / 889 Public Figures and Officials / 890 Public Forum Doctrine / 891 Public Health Cigarette Smoking Act of 1969 / 892 Publicity, Right of / 893 Public Nudity / 893 Public Radio / 894 Public Television / 895 Public Utilities Commission v. Pollak (1952) / 897 Puritans / 897
Quakers / 899 Quebec Act of 1774 / 900 Quick Bear v. Leupp (1908) / 900
R.A.V. v. St. Paul (1992) / 903 Rabban, David / 904 Rabe v.Washington (1972) / 904 Rabeck v. New York (1968) / 905 Rabinowitz,Victor / 905 Radio Act of 1912 / 906 Radio Act of 1927 / 906 Railway Employees’ Department v. Hanson (1956) / 907
Alphabetical Table of Contents Randall v. Sorrell (2006) / 907 Rankin v. McPherson (1987) / 908 Rauh, Joseph L., Jr. / 909 Redish, Martin / 909 Red Lion Broadcasting Co. v. Federal Communications Commission (1969) / 910 Redrup v. New York (1967) / 911 Red Scare / 912 Reformation, Protestant / 913 Regan v.Taxation With Representation of Washington (1983) / 914 Regan v.Time, Inc. (1984) / 914 Rehnquist,William H. / 915 Rein, David / 916 Reindeer Rule / 917 Released Time / 917 Religious Discrimination / 919 Religious Freedom Restoration Act of 1993 / 920 Religious Land Use and Institutionalized Persons Act of 2000 / 921 Religious Liberty and Charitable Donation Protection Act of 1998 / 922 Religious Right / 922 Religious Tests / 924 Reno v. American Civil Liberties Union (1997) / 925 Reporters Committee for Freedom of the Press / 926 Reporters’ Privilege / 926 Republican Party of Minnesota v.White (2002) / 927 Retraction / 928 Reynolds v. United States (1879) / 929 Richardson v. Goddard (1859) / 929 Richmond Newspapers, Inc. v.Virginia (1980) / 930 RICO Laws / 931 Right to Respond / 931 Riley v. National Federation of the Blind (1988) / 932 Roaden v. Kentucky (1973) / 933 Roberts v. United States Jaycees (1984) / 933 Roberts, John G., Jr. / 934 Roberts, Owen J. / 935 Roemer v. Bd. of Public Works of Maryland (1976) / 936 Romantic and Transcendental Movements / 937 Rosen v. United States (1896) / 938 Rosenberger v. Rectors and Visitors of the University of Virginia (1995) / 939
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Rosenblatt v. Baer (1966) / 940 Rosenbloom v. Metromedia, Inc. (1971) / 941 Rosenfeld v. New Jersey (1972) / 941 Roth v. United States (1957) / 942 Rowan v. U.S. Post Office Department (1970) / 943 Rubin v. Coors Brewing Co. (1995) / 943 Rumsfeld v. Forum for Academic and Institutional Rights (2006) / 944 Rust v. Sullivan (1991) / 945 Rutan v. Republican Party of Illinois (1990) / 946 Ruthenberg v. Michigan (1927) / 946 Rutherford Institute / 947
Sable Communications of California v. Federal Communications Commission (1989) / 949 Sack, Robert D. / 950 Safety Valve Theory / 950 Saia v. New York (1948) / 951 St. Amant v.Thompson (1968) / 952 Salem Witch Trials / 952 Samuels v. Mackell (1971) / 954 Sanford, Bruce / 955 San Francisco Arts and Athletics v. U.S. Olympic Committee (1987) / 955 Santa Fe Independent School District v. Doe (2000) / 956 Satire / 956 Sawyer, Henry W., III / 957 Saxbe v.Washington Post Co. (1974) / 958 Scales v. United States (1961) / 958 Scalia, Antonin / 959 Scarcity Rationale / 960 Schacht v. United States (1970) / 961 Schad v. Mount Ephraim (1981) / 961 Schaefer v. United States (1920) / 962 Schauer, Frederick / 963 Schaumburg v. Citizens for a Better Environment (1980) / 963 Scheidler v. National Organization for Women (2006) / 963 Schenck v. Pro-Choice Network of Western New York (1997) / 965 Schenck v. United States (1919) / 966 Schneider v. State (1939) / 967 School Violence / 967 School Vouchers / 968
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Alphabetical Table of Contents
Schroeder,Theodore / 969 Scientology / 970 Scopes Monkey Trial / 970 Seattle Times Co. v. Rhinehart (1984) / 971 Secondary Effects Doctrine / 972 Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984) / 973 Secretary of the Navy v. Avrech (1974) / 974 Secretary of the Navy v. Huff (1980) / 974 Securities and Exchange Commission / 975 Sedition Act of 1798 / 976 Sedition Act of 1918 / 977 Seditious Libel / 978 Seigenthaler, John / 979 Sekulow, Jay Alan / 979 Selective Draft Law Cases (1918) / 980 Self-government Rationale / 980 Senn v.Tile Layers Protective Union (1937) / 981 Separation of Church and State / 982 Serbian Eastern Orthodox Diocese v. Milivojevich (1976) / 983 Seres v. Lerner (Nev. 2004) / 984 Settle v. Dickson County School Board (6th Cir. 1995) / 985 Seventh-day Adventists / 985 Sexual Harassment Laws / 986 Shapero v. Kentucky Bar Association (1988) / 987 Shaw v. Murphy (2001) / 987 Shelton v.Tucker (1960) / 988 Sheppard v. Maxwell (1966) / 989 Sherbert v.Verner (1963) / 989 Shield Laws / 990 Shuttlesworth v. Birmingham (1969) / 991 Sicurella v. United States (1955) / 992 Sidney, Algernon / 992 Simon and Schuster v. Members of the New York State Crime Victims Board (1991) / 993 Sirkin, H. Louis / 994 SLAPP Suits / 995 Slaughterhouse Cases (1873) / 996 Sloan v. Lemon (1973) / 996 Smith v. Arkansas State Highway Employees (1979) / 997 Smith v. California (1959) / 997 Smith v. Daily Mail Publishing Co. (1979) / 997 Smith v. Goguen (1974) / 998 Smith v. United States (1977) / 999
Smith, Joseph / 999 Smith Act of 1940 / 1000 Smolla, Rodney A. / 1001 Smothers Brothers Comedy Hour / 1002 Snake Handling / 1002 Snepp v. United States (1980) / 1003 Son of Sam Laws / 1003 Souter, David H. / 1004 Southeastern Promotions, Ltd. v. Conrad (1975) / 1005 Spam / 1006 Specialty License Plates / 1007 Speech and Debate Clause / 1008 Speiser v. Randall (1958) / 1009 Speiser, Lawrence / 1009 Spence v.Washington (1974) / 1010 Spies v. Illinois (Ill. 1887) / 1011 Sports Logos and Mascots / 1011 Stamp Act of 1765 / 1012 Stanford v.Texas (1965) / 1013 Stanley v. Georgia (1969) / 1014 Star Chamber / 1015 State v. Chandler (Del. 1837) / 1015 State v. Gruber (Md., Cty. Ct, 1819) / 1016 State v. McKee (Conn. 1900) / 1016 State v.Willson (S.C. App. 1823) / 1017 State Constitutional Provisions on Expressive Rights / 1018 State Constitutional Provisions on Religion / 1018 State ex rel.Weiss v. City of Edgerton (Wis. 1890) / 1019 Staub v. City of Baxley (1958) / 1020 Stern, Howard / 1021 Stevens, John Paul / 1021 Stewart v. McCoy (2002) / 1023 Stewart, Potter / 1023 Stone v. Graham (1980) / 1024 Stone, Geoffrey R. / 1025 Stone, Harlan Fiske / 1025 Storer v. Brown (1974) / 1027 Story, Joseph / 1028 Street v. New York (1969) / 1028 Stromberg v. California (1931) / 1029 Student Activity Fees / 1030 Student Press Law Center / 1031 Students, Rights of / 1032
Alphabetical Table of Contents Students for a Democratic Society / 1033 Subversive Activities Control Act of 1950 / 1034 Sugarman v. United States (1919) / 1035 Sunday Blue Laws / 1035 Sunday Mail / 1036 Sunshine Acts, Federal and State / 1037 Superior Films v. Department of Education (1954) / 1038 Swearingen v. United States (1896) / 1038 Sweezy v. New Hampshire (1957) / 1039 Symbolic Speech / 1040
Taft,William Howard / 1043 Taft-Hartley Act of 1947 / 1044 Talley v. California (1960) / 1045 Tashjian v. Republican Party of Connecticut (1986) / 1046 Tattoos / 1046 Taxation of Newspapers / 1047 Taxation of Religious Entities / 1048 Taylor v. Mississippi (1943) / 1049 Teachers, Rights of / 1049 Teitel Film Corp. v. Cusack (1968) / 1050 Telecommunications Act of 1996 / 1051 Telemarketing / 1052 Ten Commandments / 1053 Tennessee Secondary School Athletic Association v. Brentwood Academy (2007) / 1055 Terminiello v. Chicago (1949) / 1056 Terrett v.Taylor (1815) / 1056 Texas v. Johnson (1989) / 1057 Texas Monthly, Inc. v. Bullock (1989) / 1057 Thomas v. Board of Education, Granville (2d Cir. 1979) / 1058 Thomas v. Chicago Park District (2002) / 1059 Thomas v. Collins (1945) / 1059 Thomas v. Review Board of Indiana Employment Security Division (1981) / 1060 Thomas, Clarence / 1061 Thomas Jefferson Center for the Protection of Free Expression / 1062 Thompson v.Western States Medical Center (2002) / 1063 Thornburgh v. Abbott (1989) / 1063 Thornhill v. Alabama (1940) / 1064 Thornton v. Caldor (1985) / 1065 Tillman Act of 1907 / 1065
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Tilton v. Richardson (1971) / 1066 Time, Inc. v. Firestone (1976) / 1067 Time, Inc. v. Hill (1967) / 1067 Time, Inc. v. Pape (1971) / 1068 Time, Place, and Manner Restrictions / 1069 Times Film Corp. v. City of Chicago (1961) / 1070 Times Square / 1071 Timmons v.Twin Cities Area New Party (1997) / 1072 Tinker v. Des Moines Independent Community School District (1969) / 1072 Tobacco Advertising / 1073 Tocqueville, Alexis de / 1074 Toledo Newspaper Co. v. United States (1918) / 1075 Tolerance Theory / 1076 Tony and Susan Alamo Foundation v. Secretary of Labor (1985) / 1077 Torcaso v.Watkins (1961) / 1077 Tort Liability of Religious Groups / 1078 Tory v. Cochran (2005) / 1078 Trans World Airlines v. Hardison (1977) / 1079 Tribe, Laurence / 1080 True Threats / 1080 Trustees of Philadelphia Baptist Association v. Hart’s Executors (1819) / 1082 Tucker v.Texas (1946) / 1082 Turner v. Safley (1987) / 1083 Turner Broadcasting System, Inc. v. Federal Communications Commission (1994) (1997) / 1083 Two Guys from Harrison-Allentown, Inc. v. McGinley (1961) / 1084 2 Live Crew / 1085
Ulysses / 1087 Unconstitutional Conditions Doctrine / 1088 Unitarianism / 1089 United Association of Journeymen Plumbers and Steamfitters v. Graham (1953) / 1089 United Mine Workers of America, District 12 v. Illinois State Bar Association (1967) / 1090 United Public Workers of America v. Mitchell (1947) / 1090 United States v. Albertini (1985) / 1091 United States v. American Library Association (2003) / 1092 United States v. Auto Workers (1957) / 1093
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United States v. Ballard (1944) / 1093 United States v. Congress of Industrial Organizations (1948) / 1094 United States v. Cruikshank (1876) / 1094 United States v. Edge Broadcasting Co. (1993) / 1095 United States v. Eichman (1990) / 1096 United States v. Grace (1983) / 1097 United States v. Harriss (1954) / 1098 United States v. Hudson and Goodwin (1812) / 1098 United States v. Kokinda (1990) / 1099 United States v. Lee (1982) / 1099 United States v. Macintosh (1931) / 1100 United States v. Morison (4th Cir. 1988) / 1100 United States v. National Treasury Employees Union (1995) / 1101 United States v. O’Brien (1968) / 1102 United States v. Orito (1973) / 1103 United States v. Playboy Entertainment Group (2000) / 1103 United States v. Press Publishing Co. (1911) / 1104 United States v. Reidel (1971) / 1105 United States v. Robel (1967) / 1106 United States v. Rumely (1953) / 1106 United States v. Schwimmer (1929) / 1107 United States v. Seeger (1965) / 1108 United States v. Smith (Ind. 1909) / 1108 United States v.The Progressive (W.D.Wis. 1979) / 1109 United States v.Thirty-seven Photographs (1971) / 1110 United States v.Twelve 200-Ft. Reels of Film (1973) / 1110 United States v. United Foods, Inc. (2001) / 1111 United States v.Williams (2008) / 1112 United States Civil Service Commission v. National Association of Letter Carriers (1973) / 1112 United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921) / 1113 United States ex rel.Turner v.Williams (1904) / 1114 United States Postal Service v. Greenburgh Civic Associations (1981) / 1115 United Steelworkers of America v. Sadlowski (1982) / 1115 United Transportation Union v. State Bar of Michigan (1971) / 1116 University of Pennsylvania v. EEOC (1990) / 1116 Updegraph v. Commonwealth (Pa. 1824) / 1117 Uphaus v.Wyman (1959) (1960) / 1118 USA Patriot Act of 2001 / 1119
Vagueness / 1121 Valentine v. Chrestensen (1942) / 1122 Valley Forge Christian College v. Americans United for Separation of Church and State (1982) / 1123 Vance v. Universal Amusement Co., Inc. (1980) / 1124 Van Orden v. Perry (2005) / 1124 Vatican City, U.S. Recognition of / 1125 Vidal v. Girard’s Executors (1844) / 1126 Video Games / 1127 Vietnam War / 1129 Viewpoint Discrimination / 1130 Village of Hoffman Estates v. Flipside (1982) / 1132 Village of Skokie v. National Socialist Party of America (Ill. 1978) / 1132 Vinson, Frederick M. / 1133 Virginia v. American Booksellers Association (1988) / 1134 Virginia v. Black (2003) / 1135 Virginia v. Hicks (2003) / 1136 Virginia and Kentucky Resolutions of 1798 / 1137 Virginia Declaration of Rights / 1138 Virginia Report of 1800 / 1139 Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976) / 1141 Virginia Statute for Religious Freedom / 1141 El Vocero de Puerto Rico v. Puerto Rico (1993) / 1143 Volokh, Eugene / 1143 Voltaire / 1144
W.E.B. DuBois Clubs of America v. Clark (1967) / 1147 Walker v. City of Birmingham (1967) / 1147 Wallace v. Jaffree (1985) / 1148 Wall of Separation / 1149 Walz v.Tax Commission of the City of New York (1970) / 1151 Ward v. Rock against Racism (1989) / 1151 Ward, Nathaniel / 1152 Warren, Earl / 1153 Washington, George / 1155 Watchtower Bible and Tract Society v.Village of Stratton (2002) / 1156 Waters v. Churchill (1994) / 1157 Watkins v. United States (1957) / 1157 Watson v. Jones (1871) / 1158
Alphabetical Table of Contents Watts v. United States (1969) / 1159 Wayte v. United States (1985) / 1160 Webster, Noah / 1160 Wechsler, Herbert / 1162 Weinberger, Harry / 1162 Welsh v. United States (1970) / 1163 West v. Derby Unified School District (10th Cir. 2000) / 1163 West Virginia State Board of Education v. Barnette (1943) / 1164 Wheaton v. Peters (1834) / 1165 Whistleblowers / 1165 White v. Nicholls (1845) / 1167 White, Byron R. / 1168 Whitehill v. Elkins (1967) / 1169 Whitney v. California (1927) / 1169 Wicca / 1170 Widmar v.Vincent (1981) / 1171 Wieman v. Updegraff (1952) / 1172 Wilkes, John / 1172 Wilkinson v. United States (1961) / 1173 Williams v. Rhodes (1968) / 1174 Williams, Elisha / 1175 Williams, Roger / 1175 Wilson v. Layne (1999) / 1176 Winters v. New York (1948) / 1177 Winthrop, John / 1178 Wireless Ship Act of 1910 / 1178 Wiretapping and Freedom of Expression / 1180 Wisconsin v. Mitchell (1993) / 1181 Wisconsin v.Yoder (1972) / 1182 Witherspoon, John / 1182 Witters v.Washington Department of Services for the Blind (1986) / 1183
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Wolff v. McDonnell (1974) / 1184 Wolman v.Walter (1977) / 1184 Wolston v. Reader’s Digest Association (1972) / 1185 Wood v. Georgia (1962) / 1186 Wooley v. Maynard (1977) / 1186 Workplace Religious Freedom Act / 1187 World War I / 1187 World War II / 1190 Wortman,Tunis / 1192 Wright, J. Skelly / 1193 Wulf, Melvin / 1194
Yates v. United States (1957) / 1195 Yellow Journalism / 1196 Young v. American Mini Theatres (1976) / 1197 Younger v. Harris (1971) / 1197
Zacchini v. Scripps-Howard Broadcasting Co. (1977) / 1199 Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985) / 1200 Zelman v. Simmons-Harris (2002) / 1200 Zemel v. Rusk (1965) / 1201 Zenger, John Peter / 1202 Zeran v. America Online, Inc. (4th Cir. 1997) / 1203 Zobrest v. Catalina Foothills School District (1993) / 1203 Zoning Laws / 1204 Zorach v. Clauson (1952) / 1205 Zurcher v. Stanford Daily (1978) / 1206 Zwickler v. Koota (1967) / 1207
Topical Table of Contents
Concepts and Legal Terms General Compelling State Interest / 328 Least Restrictive Means / 659 Natural Law / 782 Natural Rights / 783 Original Intent / 821 Public Forum Doctrine / 891 Related to Religion Accommodationism and Religion / 56 Benevolent Neutrality / 149 Child Benefit Theory / 263 Civil Religion / 262 Endorsement Test / 417 Lemon Test / 667 Neutrality, Religion / 786 Nonpreferentialism / 801 Reindeer Rule / 917 Released Time / 917 Separation of Church and State / 982 Wall of Separation / 1149 Related to Speech, Press, Assembly, or Petition Absolutists / 51 Ad Hoc Balancing / 62 Actual Malice / 58 Advocacy of Illegal Conduct / 65 Appropriation / 105 As-applied Challenges / 111 Bad Tendency Test / 125 Blasphemy / 169 Captive Audience / 241 Censorship / 252 Chilling Effect / 269 Clear and Present Danger Test / 300 Coercion Test / 305 Commercial Speech / 311 Community Standards / 325
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Compelled Speech / 326 Contempt of Court / 342 Content Based / 343 Content Neutral / 344 Copyright / 346 Corporate Speech / 349 Counterspeech Doctrine / 352 Criminal Defamation / 358 Cybersquatting / 368 Cyberstalking / 369 Disclaimers / 389 Disclosure Requirements / 390 Don’t Ask, Don’t Tell / 395 Encryption / 416 Equal Time Rule / 421 Express Advocacy / 432 Expressive Conduct / 434 Facial Challenges / 435 Fairness Doctrine / 435 Fair Use / 436 False Light / 438 Fighting Words / 459 Free Speech Zones / 491 Gag Orders / 499 Government Speech Doctrine / 528 Gravity of the Evil Test / 530 Group Libel / 548 Harmful to Minors Laws / 551 Hate Speech / 558 Heckler’s Veto / 563 Hicklin Test / 571 Incitement / 594 Indecency and the Electronic Media / 595 Intrusion / 611 Issue Advocacy / 614 Libel and Slander / 670 Liberty Model / 673
Topical Table of Contents Marketplace of Ideas / 708 Must-Carry Rules / 766 Narrowly Tailored Laws / 772 Neutral Reportage Privilege / 788 Neutrality, Speech / 787 Obscenity and Pornography / 807 Overbreadth / 824 Pandering / 830 Perjury / 845 Preferred Position Doctrine / 871 Prior Restraint / 877 Public Figures and Officials / 890 Publicity, Right of / 893 Retraction / 924 Right to Respond / 931 Safety Valve Theory / 950 Satire / 956 Scarcity Rationale / 960 Secondary Effects Doctrine / 972 Seditious Libel / 978 Self-government Rationale / 980 SLAPP Suits / 995 Spam / 1006 Speech and Debate Clause / 1008 Symbolic Speech / 1040 Time, Place and Manner Restrictions / 1069 Tolerance Theory / 1076 True Threats / 1080 Unconstitutional Conditions / 1088 Vagueness / 1121 Viewpoint Discrimination / 1130 Whistleblowers / 1165 Controversial Works Adventures of Huckleberry Finn / 63 American Aurora / 80 Behind the Green Door / 146 The Birth of a Nation / 162 The Catcher in the Rye / 249 The Chocolate War / 270 The CIA and the Cult of Intelligence / 277 Deep Throat / 381 The Devil in Miss Jones / 388 Ecstasy / 406
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Fanny Hill / 439 Hair / 542 Hit Man Manual / 573 The Last Temptation of Christ / 655 Oh! Calcutta! / 811 Ulysses / 1087 Documents Academic Bill of Rights / 52 Attorney General’s List of Subversive Organizations / 119 Bill of Rights / 157 Carolene Products Footnote Four / 247 Cato’s Letters / 250 Classified Documents / 298 Constitution of the Confederate States of America / 338 Continental Congress: Declaration and Resolves / 344 Continental Congress: Letter to the Inhabitants of the Province of Quebec / 345 Declaration of Independence / 380 Detached Memoranda / 387 English Bill of Rights / 418 Four Freedoms / 479 Magna Carta / 703 Maryland Toleration Act of 1649 / 714 Mayflower Compact / 718 “Memorial and Remonstrance” / 737 Northwest Ordinance of 1787 / 803 On Liberty / 818 Pentagon Papers / 841 State Constitutional Provisions on Expressive Rights / 1018 State Constitutional Provisions on Religion / 1018 Ten Commandments / 1053 Virginia and Kentucky Resolutions of 1798 / 1137 Virginia Declaration of Rights / 1138 Virginia Report of 1800 / 1139 Virginia Statute for Religious Freedom / 1141 Events Banned Books Week / 132 Berkeley Free Speech Movement / 150 Chicago Seven Trial / 262
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Topical Table of Contents Civil Rights Movement / 293 Civil War, U.S. / 295 Constitutional Convention of 1787 / 340 McCarthyism / 720 National Prayer Breakfast / 777 Red Scare / 912 Reformation, Protestant / 913 Salem Witch Trials / 952 Scopes Monkey Trial / 970 Vietnam War / 1129 World War I / 1187 World War II / 1190
Governmental Entities and Activities Attorney General’s Commission on Pornography / 118 Congress / 332 Congressional Investigations / 334 Constitutional Amending Process / 339 Established Churches in Early America / 424 Federal Bureau of Investigation / 440 Federal Communications Commission / 441 Federalism / 452 Federal Radio Commission / 454 Federal Theatre Project / 455 Federal Trade Commission / 456 Food and Drug Administration / 472 House Un-American Activities Committee / 583 President’s Task Force on Communications Policy / 872 Securities and Exchange Commission / 975 Star Chamber / 1015 Groups and Organizations (Non-Religious) Abolitionists and Free Speech / 46 Adult Film Association of America / 63 American Association of University Professors / 79 American Booksellers Foundation for Free Expression / 82 American Center for Law and Justice / 83 American Civil Liberties Union / 83 American Friends Service Committee / 88 American Library Association / 90 American Nazi Party and Related Groups / 92 American Society of Newspaper Editors / 94
Americans United for Separation of Church and State / 95 Anti-Federalists / 103 Christian Legal Society / 271 Citizens for Decent Literature / 279 Commission on Obscenity and Pornography / 312 Committee on Public Information / 314 Communist Party of the United States / 323 Eagle Forum / 405 Electronic Frontier Foundation / 410 Electronic Privacy Information Center / 411 Federalists / 453 First Amendment Center / 462 First Amendment Lawyers Association / 463 First Amendment Project / 463 Foundation for Individual Rights in Education / 478 Free Expression Network / 489 Free Speech League / 490 Ku Klux Klan / 646 Liberty Legal Institute / 672 Media Institute / 732 Media Law Resource Center / 732 National Press Club / 778 PEN American Center / 839 People for the American Way / 845 Reporters Committee for Freedom of the Press / 926 Rutherford Institute / 947 Student Press Law Center / 1031 Students for a Democratic Society / 1033 Thomas Jefferson Center for the Protection of Free Expression / 1062 Issues Related to Religion Aid to Parochial Schools / 68 Aid to Religious Colleges and Universities / 70 Aliens / 75 Animal Sacrifice / 100 Autopsies and Treatment of the Dead / 120 Blasphemy / 169
Topical Table of Contents Blood Transfusions and Medical Care against Religious Beliefs / 171 Chaplains / 258 Child Custody / 264 Clergy, Bans on Holding Office by / 302 Conscientious Objection to Military Service / 336 Creationism / 357 Evolution / 428 Faith-based Organizations and Government Aid / 437 Graduation Speech Controversies / 528 Holidays, Religious / 575 In God We Trust / 599 Intelligent Design / 604 Polygamy / 863 Prayer at Public Events / 869 Prayer at Public School Events / 870 Priest-Penitent Privilege / 875 Prisons / 878 Public Buildings and Religious Use / 888 Public Employees / 889 Religious Discrimination / 919 Religious Tests / 924 School Vouchers / 968 Snake Handling / 1002 Student Activity Fees / 1030 Students, Rights of / 1032 Sunday Mail / 1036 Taxation of Religious Entities / 1048 Teachers, Rights of / 1049 Ten Commandments / 1053 Vatican City, U.S. Recognition of / 1125 Related to Speech, Press, Assembly, or Petition Abortion Protests / 48 Academic Freedom / 53 Access to Courtrooms / 55 Affirmative Action / 65 Alcohol Advertising / 72 Aliens / 75 Anonymous Speech / 101 Art Censorship / 109 Attorney Advertising / 117 Ballot Access / 130
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Bar Admissions / 135 Billboards / 155 Birth Control / 161 Blacklists / 164 Blogging / 170 Book Banning / 187 Boycotts / 194 Bumper Stickers / 219 Cameras in the Courtroom / 231 Campaign Regulation / 234 Campus Speech Codes / 237 Charitable Solicitation / 260 Child Pornography / 266 Confederate Flag / 330 Confidential Sources / 331 Congress / 332 Congressional Investigations / 334 Cross Burning / 363 Dancing, Nude / 371 Door-to-Door Solicitation / 395 Electioneering / 409 Exit Polling / 430 Flag Desecration / 465 Foreign Languages, Right to Learn and Teach / 473 Fortune Telling / 476 Funeral Protests / 496 Government Funding and Free Speech / 526 Graduation Speech Controversies / 528 Hair Length and Style / 543 Headlight Flashing / 561 Holocaust Denial / 577 Homeschooling / 579 Horn Honking / 580 Internet / 609 Judicial Campaign Speech / 632 Libraries and Intellectual Freedom / 674 Loyalty Oaths / 691 Mail / 704 Media Concentration / 729 Media Exemption to Antitrust Laws / 730 Membership Lists / 735 Military Personnel, Rights of / 742 Music Censorship / 764
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Topical Table of Contents National Identification Cards / 775 National Security / 778 Noerr-Pennington Doctrine / 801 Obscenity and Pornography / 807 Parades / 834 Picketing / 852 Pledge of Allegiance / 857 Political Correctness / 859 Political Parties / 860 Political Patronage / 862 Prisons / 878 Privacy / 880 Private Property, Expression on / 881 Profanity / 884 Protests in Neighborhoods / 885 Public Employees / 889 Public Nudity / 893 Reporters’ Privilege / 926 Specialty License Plates / 1007 Sports Logos and Mascots / 1011 Student Activity Fees / 1030 Students, Rights of / 1032 Tattoos / 1046 Taxation of Newspapers / 1047 Teachers, Rights of / 1049 Telemarketing / 1052 Tobacco Advertising / 1073 Tort Liability of Religious Groups / 1078 Video Games / 1127 Wiretapping and Freedom of Expression / 1180
Laws and Proposed Laws Pre-First Amendment Copyright Act of 1790 / 347 De Scandalis Magnatum / 386 Detached Memoranda / 387 Maryland Toleration Act of 1649 / 714 Northwest Ordinance of 1787 / 803 Old Deluder Satan Act of 1647 / 816 Printing Ordinance of 1643 / 876 Quebec Act of 1774 / 900 Stamp Act of 1765 / 1012
1791–1899 Blaine Amendments / 168 Christian Amendment / 270 Comstock Act of 1873 / 329 Indian Appropriations Act of 1896 / 597 Morrill Anti-bigamy Act of 1862 / 755 1900–1950 Communications Act of 1934 / 319 Espionage Act of 1917 / 423 Hatch Act of 1939 / 557 McCarran Act of 1950 / 719 Smith Act of 1940 / 1000 Subversive Activities Control Act of 1950 / 1034 Taft-Hartley Act of 1947 / 1044 Tillman Act of 1907 / 1065 Wireless Ship Act of 1910 / 1178 1951–2007 American Indian Religious Freedom Act of 1978 as Amended in 1994 / 90 Anti-Dial-a-Porn Act of 1989 / 102 Bipartisan Campaign Reform Act of 2002 / 159 Broadcast Decency Enforcement Act of 2005 / 210 Cable Communications Policy Act of 1984 / 227 Cable Television Consumer Protection and Competition Act of 1992 / 228 Child Online Protection Act of 1998 / 265 Child Pornography Prevention Act of 1996 / 267 Child Protection and Obscenity Enforcement Act of 1988 / 268 Child Protection Restoration and Penalties Enhancement Act of 1990 / 268 Communications Decency Act of 1996 / 320 Communist Control Act of 1954 / 321 Copyright Act of 1976 / 348 Deleting Online Predators Act / 383 Digital Millennium Copyright Act of 1998 / 389 Dot Kids Implementation and Efficiency Act of 2002 / 398
Topical Table of Contents Draft Card Mutilation Act of 1965 / 400 Equal Access Act of 1984 / 420 Federal Election Campaign Act of 1971 / 446 Flag Protection Acts of 1968 and 1989 / 466 Freedom of Access to Clinic Entrances Act of 1994 / 486 Freedom of Information Act of 1966 / 487 Freedom to Display the American Flag Act of 2006 / 489 Free Flow of Information Act / 489 International Religious Freedom Act of 1998 / 607 National Do Not Call Registry / 773 Newspaper Preservation Act of 1970 / 789 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 / 848 Protection of Children against Sexual Exploitation Act of 1977 / 884 Public Health Cigarette Smoking Act of 1969 / 892 Radio Act of 1912 / 906 Radio Act of 1927 / 906 Religious Freedom Restoration Act of 1993 / 920 Religious Land Use and Institutionalized Persons Act of 2000 / 921 Religious Liberty and Charitable Donation Protection Act of 1998 / 922 Telecommunications Act of 1996 / 1051 USA Patriot Act of 2001 / 1119 Workplace Religious Freedom Act / 1187 Laws and Proposed Laws (Categories) Anarchy Statutes / 97 Anti-mask Laws / 104 Blue Sky Laws / 173 Breach of the Peace Laws / 203 Campus Speech Codes / 237 Conspiracy Laws / 338 Curfews / 366 Discrimination Laws / 391 Dress Codes / 401 English-Only Laws / 419 Gag Rule in Congress / 500
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Green River Ordinances / 533 Licensing Laws / 675 Loitering Laws / 684 Loyalty Oaths / 691 Open Meeting Laws and Freedom of Speech / 819 Panhandling Laws / 831 Proclamations of National Days of Prayer or Thanksgiving / 882 RICO Laws / 931 Sedition Act of 1798 / 976 Sedition Act of 1918 / 977 Sexual Harassment Laws / 986 Shield Laws / 990 Son of Sam Laws / 1003 Sunday Blue Laws / 1035 Sunshine Acts, Federal and State / 1037 Zoning Laws / 1204 Media C-SPAN / 365 Film / 460 Motion Picture Ratings / 757 Newseum / 789 Paparazzi / 832 Public Radio / 894 Public Television / 895 Times Square / 1071 Yellow Journalism / 1196 Methods of Interpretation Critical Race Theory / 361 Feminist Theory / 458 Original Intent / 821 People Americans Prominently Involved with First Amendment Issues Adams, John / 59 Adams, John Quincy / 60 Backus, Isaac / 124 Biddle, Francis / 153 Gallatin, Albert / 501 Hamilton, Alexander / 545 Hay, George / 559 Henry, Patrick / 567
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Topical Table of Contents
Hutchinson, Anne / 589 Ingersoll, Robert / 598 Jefferson,Thomas / 619 Leland, John / 665 Madison, James / 699 Mason, George / 715 Murray, John Courtney / 763 Paine,Thomas / 828 Penn,William / 840 Romantic and Transcendental Movements (Hawthorne, Melville,Thoreau and Whitman) / 937 Smith, Joseph / 999 Ward, Nathaniel / 1152 Washington, George / 1155 Webster, Noah / 1160 Williams, Elisha / 1175 Williams, Roger / 1175 Winthrop, John / 1178 Witherspoon, John / 1182 Wortman,Tunis / 1192 Zenger, John Peter / 1202 Foreign Advocates of Freedoms Lilburne, John / 677 Locke, John / 683 Mill, John Stuart / 745 Milton, John / 750 Priestley, Joseph / 874 Sidney, Algernon / 992 Tocqueville, Alexis de / 1074 Voltaire / 1144 Wilkes, John / 1172 Heads or Founders of Organizations Baldwin, Roger / 129 Breen, Joseph I. / 206 Hoover, J. Edgar 579 O’Hair, Madalyn Murray / 812 Palmer, A. Mitchell / 829 Schroeder,Theodore / 969 Journalists Haynes, Charles C. / 559 Hentoff, Nat / 568 McMasters, Paul K. / 729 Miller, Judith / 748
Murrow, Edward R. / 764 Policinski, Gene / 859 Seigenthaler, John / 979 Judges and Justices Alito, Samuel A., Jr. / 76 Black, Hugo L. / 163 Blackmun, Harry A. / 166 Brandeis, Louis D. / 197 Brennan,William J., Jr. / 206 Breyer, Stephen G. / 208 Burger,Warren E. / 221 Cardozo, Benjamin N. / 242 Clark,Tom C. / 298 Douglas,William O. / 399 Fortas, Abe / 475 Frankfurter, Felix / 481 Friendly, Fred / 493 Ginsburg, Ruth Bader / 512 Goldberg, Arthur J. / 518 Hand, Learned / 547 Harlan, John Marshall, I / 549 Harlan, John Marshall, II / 550 Holmes, Oliver Wendell, Jr. / 576 Hughes, Charles Evans / 585 Jackson, Robert H. / 617 Kennedy, Anthony M. / 639 Kozinski, Alex / 646 Marshall, John / 711 Marshall,Thurgood / 712 McConnell, Michael / 723 Murphy, Francis W. / 761 O’Connor, Sandra Day / 810 Pollak,Walter / 863 Posner, Richard A. / 867 Powell, Lewis F., Jr. / 868 Rehnquist,William H. / 915 Roberts, John G., Jr. / 934 Roberts, Owen J. / 935 Scalia, Antonin / 959 Souter, David H. / 1004 Stevens, John Paul / 1021 Stewart, Potter / 1023 Stone, Harlan Fiske / 1025 Story, Joseph / 1028
Topical Table of Contents Taft,William Howard / 1043 Thomas, Clarence / 1061 Vinson, Frederick M. / 1133 Warren, Earl / 1153 White, Byron R. / 1168 Wright, J. Skelly / 1193 Lawyers Abrams, Floyd / 51 Blasi,Vincent / 169 Bollinger, Lee C. / 186 Boudin, Leonard / 191 Bryan,William Jennings / 215 Carter, Robert L. / 249 Cohn, Roy / 307 Corn-Revere, Robert / 349 Covington, Hayden C. / 353 Cox, Archibald / 355 Cutler, Lloyd N. / 367 Darrow, Clarence / 372 Fleishman, Stanley / 467 Forer, Joseph / 474 Fraenkel, Osmond / 481 Garbus, Martin / 503 Goldstein,Thomas C. / 521 Goodale, James C. / 523 Gurfein, Murray Irwin / 540 Hays, Arthur Garfield / 560 Kinoy, Arthur / 643 Kunstler,William / 648 Lawson, Evan / 658 London, Ephraim / 686 Nimmer, Melville B. / 797 Nizer, Louis / 800 Paulson, Ken / 837 Prettyman, E. Barrett, Jr. / 873 Rabban, David / 904 Rabinowitz,Victor / 905 Rauh, Joseph L., Jr. / 909 Redish, Martin / 909 Rein, David / 916 Sack, Robert D. / 950 Sanford, Bruce / 955 Sawyer, Henry W., III / 957 Sekulow, Jay Alan / 979
Sirkin, H. Louis / 994 Speiser, Lawrence / 1009 Tribe, Laurence / 1080 Wulf, Melvin / 1194 Presidents Adams, John / 59 Adams, John Quincy / 60 Jefferson,Thomas / 619 Lincoln, Abraham / 678 Madison, James / 699 Nixon, Richard M. / 798 Taft,William Howard / 1043 Washington, George / 1155 Publishers or Subjects of Attempted Censorship Bache, Benjamin Franklin / 123 Baldwin, Luther / 129 Benbow,William / 148 Bowdler,Thomas / 192 Bruce, Lenny / 215 Carlin, George / 245 Churchill,Ward / 276 Dixie Chicks / 392 Ellsberg, Daniel / 413 Flynt, Larry / 470 Fowle, Daniel / 480 Franklin, Benjamin / 483 Goldstein, Alvin / 521 Hefner, Hugh / 564 Lovejoy, Elijah / 689 Lyon, Matthew / 695 Mapplethorpe, Robert / 707 Miller, Arthur / 747 Smothers Brothers Comedy Hour / 1002 Stern, Howard / 1021 2 Live Crew / 1085 Reformers Comstock, Anthony / 329 Debs, Eugene V. / 378 Goldman, Emma / 529 Gore,Tipper / 525 Mann, Horace / 705 Scholars Baker, C. Edwin / 128 Bickel, Alexander / 153
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Topical Table of Contents Blackstone,William / 167 Bork, Robert / 190 Chafee, Zechariah, Jr. / 256 Chemerinsky, Erwin / 261 Collins, Ron / 309 Cooley,Thomas M. / 345 Dorsen, Norman / 397 Dworkin, Andrea / 404 Ely, John Hart / 414 Emerson,Thomas / 414 Freund, Paul / 492 Griswold, Erwin / 536 Kalven, Harry Jr. / 635 Levy, Leonard / 669 MacKinnon, Catharine / 697 McConnell, Michael / 723 Meiklejohn, Alexander / 734 Murphy, Paul L. / 762 O’Neil, Robert M. / 818 Pfeffer, Leo / 849 Posner, Richard A. / 867 Schauer, Frederick / 963 Smolla, Rodney A. / 1001
Stone, Geoffrey R. / 1025 Tribe, Laurence / 1080 Volokh, Eugene / 1143 Wechsler, Herbert / 1162 Weinberger, Harry / 1162 Religious Perspectives and Churches Amish and Mennonites / 96 Atheism / 116 Baptists / 134 Catholics, Roman / 249 Christian Scientists / 271 Church of Jesus Christ of Latter-day Saints / 272 Islam / 612 Jehovah’s Witnesses / 621 Judaism / 630 Native Americans / 781 Puritans / 897 Quakers / 899 Religious Right / 922 Scientology / 970 Seventh-day Adventists / 985 Unitarianism / 1089 Wicca / 1170
Case Table of Contents U.S. Supreme Court Unless Otherwise Noted
Abortion / Anti-Abortion Protests American Life League v. Reno (4th Cir. 1995) / 92 Bray v. Alexandria Women’s Health Clinic (1993) / 203 Hill v. Colorado (2000) / 572 Hirsh v. City of Atlanta (1990) / 573 Madsen v.Women’s Health Center, Inc. (1994) / 702 Scheidler v. National Organization for Women (2006) / 963 Schenck v. Pro-Choice Network of Western New York (1997) / 965 Academic Freedom Cohen v. San Bernardino Valley College (9th Cir. 1996) / 307 Keyishian v. Board of Regents (1967) / 641 Sweezy v. New Hampshire (1957) / 1039 Adult Entertainment Barnes v. Glen Theatre, Inc. (1991) / 137 California v. LaRue (1972) / 229 City of Erie v. Pap’s A.M. (2000) / 284 City of Los Angeles v. Alameda Books (2002) / 287 City of Renton v. Playtime Theatres, Inc. (1986) / 290 Doran v. Salem Inn (1975) / 396 Schad v. Mount Ephraim (1981) / 961 Young v. American Mini Theatres (1976) / 1197 Animal Sacrifice Laws Church of the Lukumi Babalu Aye v. City of Hialeah (1993) / 275 Anonymous Speech McIntyre v. Ohio Elections Commission (1995) / 727 Talley v. California (1960) / 1045 Zwickler v. Koota (1967) / 1207 Anti-Discrimination Laws Avis Rent-a-Car System v. Aguilar (2000) / 121 Bob Jones University v. United States (1983) / 184 Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos (1987) / 351 Hughes v. Superior Court of California (1950) / 584 New York State Club Association, Inc. v. City of New York (1988) / 793 Roberts v. United States Jaycees (1984) / 933 University of Pennsylvania v. EEOC (1990) / 1116 Anti-Slavery Speech State v. Gruber (Md., Cty. Ct., 1819) / 1016
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Case Table of Contents Antitrust Laws Associated Press v. United States (1945) / 115 Citizen Publishing Co. v. United States (1969) / 277 Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961) / 405 Federal Trade Commission v. Superior Court Trial Lawyers Association (1990) / 457 Lorain Journal Co. v. United States (1951) / 686 National Society of Professional Engineers v. United States (1978) / 780 Artistic Displays O’Connor v.Washburn University (10th Cir. 2005) / 809 Assembly, Freedom of Bates v. Little Rock (1960) / 142 Carroll v. President and Commissioners of Princess Anne (1968) / 248 Coates v. City of Cincinnati (1971) / 304 De Jonge v. Oregon (1937) / 382 Edwards v. South Carolina (1963) / 408 Thomas v. Collins (1945) / 1059 United States v. Cruikshank (1876) / 1094 Association, Freedom of Beilan v. Board of Education (1958) / 146 Board of Directors of Rotary International v. Rotary Club of Duarte (1987) / 176 Boy Scouts of America v. Dale (2000) / 196 City of Dallas v. Stanglin (1989) / 283 Dawson v. Delaware (1992) / 376 Gentile v. State Bar of Nevada (1991) / 507 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) / 586 Louisiana ex rel. Gremillion v. NAACP (1961) / 688 Lyng v. International Union, UAW (1988) / 694 NAACP v. Alabama (1958) / 769 NAACP v. Button (1963) / 770 New York ex rel. Bryant v. Zimmerman (1928) / 792 Shelton v.Tucker (1960) / 988 Attorney Advertising Bates v. State Bar of Arizona (1977) / 142 Florida Bar v.Went for It, Inc. (1995) / 468 In re R.M.J. (1982) / 601 Ohralik v. Ohio State Bar Association (1978) / 814 Peel v. Attorney Disciplinary Commission of Illinois (1990) / 838 Shapero v. Kentucky Bar Association (1988) / 987 Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985) / 1200 Bad Tendency Test Fox v.Washington (1915) / 480 Gitlow v. New York (1925) / 515 Bar Admissions and Discipline Baird v. State Bar of Arizona (1971) / 127 In re Anastaplo (1961) / 599 In re Primus (1978) / 600
Case Table of Contents
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In re Sawyer (1959) / 602 In re Stolar (1971) / 602 In re Summers (1945) / 603 Keller v. State Bar of California (1990) / 638 Konigsberg v. State Bar (1961) / 644 Law Students Research Council v.Wadmond (1971) / 658 Peel v. Attorney Disciplinary Commission of Illinois (1990) / 838 Blacklists Joint Anti-Fascist Refugee Committee v. McGrath (1951) / 627 Blasphemy Burstyn v.Wilson (1952) / 224 Commonwealth v. Kneeland (Mass. 1838) / 317 People v. Ruggles (N.Y. 1811) / 844 State v. Chandler (Del. 1837) / 1015 Updegraph v. Commonwealth (Pa. 1824) / 1117 Blue Laws Braunfeld v. Brown (1961) / 202 Gallagher v. Crown Kosher Super Market of Massachusetts (1961) / 500 Hennington v. Georgia (1896) / 566 McGowan v. Maryland (1961) / 726 Two Guys from Harrison-Allentown, Inc. v. McGinley (1961) / 1084 Book Banning A Quantity of Books v. Kansas (1964) / 107 Board of Education, Island Trees Union Free School District v. Pico (1982) / 177 Kingsley Books, Inc. v. Brown (1957) / 642 Broadcasting Regulations Action for Children’s Television v. Federal Communications Commission (D.C. Cir. 1995) / 58 Arkansas Educational Television Commission v. Forbes (1998) / 108 CBS, Inc. v. Federal Communications Commission (1981) / 252 Columbia Broadcasting System v. Democratic National Committee (1973) / 310 Denver Area Educational Area Telecommunications Consortium v. Federal Communications Commission (1996) / 385 Federal Communications Commission v. League of Women Voters of California (1984) / 443 Federal Communications Commission v. Midwest Video Corp. (1979) / 444 Federal Communications Commission v. National Citizens Committee for Broadcasting (1978) / 444 Federal Communications Commission v. Pacifica Foundation (1978) / 445 Greater New Orleans Broadcasting Association v. United States (1999) / 532 Metro Broadcasting, Inc. v. Federal Communications Commission (1990) / 738 National Broadcasting Co. v. United States (1943) / 773 Red Lion Broadcasting Co. v. Federal Communications Commission (1969) / 910 Turner Broadcasting System, Inc. v. Federal Communications Commission (1994) (1997) / 1083 United States v. Edge Broadcasting Co. (1993) / 1095 United States v. Playboy Entertainment Group (2000) / 1103
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Case Table of Contents Campaign Expenditure, Finance, and Election Regulations Anderson v. Celebrezze (1983) / 98 Arkansas Educational Television Commission v. Forbes (1998) / 108 Austin v. Michigan Chamber of Commerce (1990) / 119 Brown v. Hartlage (1982) / 213 Brown v. Socialist Workers ’74 Campaign Committee (1982) / 215 Buckley v. American Constitutional Law Foundation (1999) / 217 Buckley v.Valeo (1976) / 218 Burdick v.Takushi (1992) / 220 Burson v. Freeman (1992) / 223 California Democratic Party v. Jones (2000) / 230 CBS, Inc. v. Federal Communications Commission (1981) / 252 Citizens Against Rent Control v. Berkeley (1981) / 278 Clingman v. Beaver (2005) / 303 Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996) / 310 Democratic Party of United States v.Wisconsin ex rel. LaFollette (1981) / 383 Eu v. San Francisco County Democratic Central Committee (1989) / 426 Federal Election Commission v. Beaumont (2003) / 447 Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) / 448 Federal Election Commission v. Massachusetts Citizens for Life (1986) / 449 Federal Election Commission v. National Conservative PAC (1985) / 449 Federal Election Commission v. National Right to Work Committee (1982) / 450 Federal Election Commission v.Wisconsin Right to Life, Inc. (2007) / 451 First National Bank of Boston v. Bellotti (1978) / 463 Gerende v. Board of Supervisors of Elections of Baltimore (1951) / 507 Illinois State Board of Elections v. Socialist Workers Party (1979) / 593 Jenness v. Fortson (1971) / 624 McConnell v. Federal Election Commission (2003) / 722 McIntyre v. Ohio Elections Commission (1995) / 727 Munro v. Socialist Workers Party (1986) / 759 Nixon v. Shrink Missouri Government PAC (2000) / 798 Norman v. Reed (1992) / 802 Randall v. Sorrell (2006) / 907 Republican Party of Minnesota v.White (2002) / 927 Storer v. Brown (1974) / 1027 Tashjian v. Republican Party of Connecticut (1986) / 1046 Timmons v.Twin Cities Area New Party (1997) / 1072 United States v. Auto Workers (1957) / 1093 United States v. Congress of Industrial Organizations (1948) / 1094 Williams v. Rhodes (1968) / 1174 Zwickler v. Koota (1967) / 1207 Charitable Solicitations Illinois ex rel. Madigan v.Telemarketing Associates, Inc. (2003) / 592 International Society for Krishna Consciousness v. Lee (1992) / 608 Larson v.Valente (1982) / 655 Madigan v.Telemarketing Associates, Inc. (2003) / 698
Case Table of Contents Riley v. National Federation of the Blind (1988) / 932 Schaumburg v. Citizens for a Better Environment (1980) / 963 Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984) / 973 Child Benefit Theory Cochran v. Board of Education (1930) / 304 Child Pornography Ashcroft v. Free Speech Coalition (2002) / 113 New York v. Ferber (1982) / 791 Osborne v. Ohio (1990) / 823 United States v.Williams (2008) / 1112 Church Property and Governance Baker v. Nachtrieb (1856) / 127 Jones v.Wolf (1979) / 629 Kedroff v. Saint Nicholas Cathedral (1952) / 637 Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890) / 656 Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg (1970) / 714 Municipality of Ponce v. Roman Catholic Apostolic Church in Porto Rico (1908) / 759 Order of St. Benedict v. Steinhauser (1914) / 820 Permoli v. New Orleans (1845) / 846 Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) / 872 Serbian Eastern Orthodox Diocese v. Milivojevich (1976) / 983 Terrett v.Taylor (1815) / 1056 Trustees of Philadelphia Baptist Association v. Hart’s Executors (1819) / 1082 Watson v. Jones (1872) / 1158 Civil Rights Movement Adderly v. Florida (1966) / 61 Bond v. Floyd (1966) / 186 Cox v. Louisiana (1965) / 353 Edwards v. South Carolina (1963) / 408 Garner v. Louisiana (1961) / 505 Gibson v. Florida Legislative Investigation Committee (1963) / 509 NAACP v. Alabama (1958) / 769 NAACP v. Button (1963) / 770 New York Times Co. v. Sullivan (1964) / 794 Shuttlesworth v. Birmingham (1969) / 991 Walker v. City of Birmingham (1967) / 1147 Clear and Present Danger Test Brandenburg v. Ohio (1969) / 199 Dennis v. United States (1951) / 384 Ruthenberg v. Michigan (1927) / 946 Schaefer v. United States (1920) / 962 Schenck v. United States (1919) / 966
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Case Table of Contents Commercial Speech Bigelow v.Virginia (1975) / 154 Board of Trustees of State University of New York v. Fox (1989) / 183 Borgner v. Florida Board of Dentistry (2002) / 189 Carey v. Population Services International (1977) / 244 Central Hudson Gas and Electric Corp. v. Public Service Commission (1980) / 255 Edenfield v. Fane (1993) / 406 44 Liquormart, Inc. v. Rhode Island (1996) / 477 Friedman v. Rogers (1979) / 493 Glickman v.Wileman Brothers and Elliott, Inc. (1997) / 517 Ibanez v. Florida Department of Business and Professional Regulation Board (1994) / 591 Linmark Associates, Inc. v.Township of Willingboro (1977) / 680 Lorillard Tobacco Co. v. Reilly (2001) / 687 Los Angeles Police Department v. United Reporting Publishing Co. (1999) / 688 Pacific Gas and Electric Co. v. Public Utilities Commission (1986) / 827 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) / 855 Posadas de Puerto Rico Associates v.Tourism Company of Puerto Rico (1986) / 866 Thompson v.Western States Medical Center (2002) / 1063 United States v. United Foods, Inc. (2001) / 1111 Valentine v. Chrestensen (1942) / 1122 Village of Hoffman Estates v. Flipside (1982) / 1132 Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976) / 1141 Communist Party American Committee for Protection of Foreign Born v. Subversive Activities Control Board (1965) / 86 Communist Party of Indiana v.Whitcomb (1974) / 322 Communist Party of the United States v. Subversive Activities Control Board (1961) / 325 Dennis v. United States (1951) / 384 Harisiades v. Shaughnessy (1952) / 548 Konigsberg v. State Bar (1961) / 644 Noto v. United States (1961) / 805 Scales v. United States (1961) / 958 Stanford v.Texas (1965) / 1013 United States v. Robel (1967) / 1106 W.E.B. Dubois Clubs of America v. Clark (1967) / 1147 Yates v. United States (1957) / 1195 Compelled Speech Abood v. Detroit Board of Education (1977) / 47 Glickman v.Wileman Brothers and Elliott, Inc. (1997) / 517 Johanns v. Livestock Marketing Association (2005) / 625 Keller v. State Bar of California (1990) / 638 Rumsfeld v. Forum for Academic and Institutional Rights (2006) / 944 United States v. United Foods, Inc. (2001) / 1111 West Virginia State Board of Education v. Barnette (1943) / 1164 Wooley v. Maynard (1977) / 1186
Case Table of Contents Confederate Flag Melton v.Young (6th Cir. 1972) / 735 West v. Derby Unified School District (10th Cir. 2000) / 1163 Conscientious Objection Clay v. United States (1971) / 300 Gilbert v. Minnesota (1920) / 510 Gillette v. United States (1971) / 511 Girouard v. United States (1946) / 514 Hamilton v. Regents of the University of California (1934) / 544 In re Summers (1945) / 603 Johnson v. Robison (1974) / 626 Sicurella v. United States (1955) / 992 United States v. Macintosh (1931) / 1100 United States v. Seeger (1965) / 1108 Welsh v. United States (1970) / 1163 Contempt of Court Anderson v. Dunn (1821) / 98 Bridges v. California (1941) / 209 Craig v. Harney (1947) / 356 Craig v. Hecht (1923) / 356 Gompers v. Buck’s Stove and Range Co. (1911) / 521 Patterson v. Colorado (1907) / 837 Pennekamp v. Florida (1946) / 840 Copyright Bobbs Merrill Co. v. Straus (1908) / 184 Campbell v. Acuff-Rose Music, Inc. (1994) / 236 Eldred v. Ashcroft (2003) / 408 Folsom v. Marsh (C.C.D. Mass.1841) / 471 Harper and Row v. Nation Enterprises (1985) / 553 San Francisco Arts and Athletics v. U.S. Olympic Committee (1987) / 955 Wheaton v. Peters (1834) / 1165 Corporations Austin v. Michigan Chamber of Commerce (1990) / 119 BE and K Construction Co. v. National Labor Relations Board (2002) / 143 Cammarano v. United States (1959) / 233 Consolidated Edison Co. v. Public Service Commission (1980) / 337 First National Bank of Boston v. Bellotti (1978) / 463 National Labor Relations Board v.Virginia Electric and Power (1941) / 777 Nike v. Kasky (2003) / 796 Prudential Insurance Co. of America v. Cheek (1922) / 886 Counterspeech Doctrine Linmark Associates, Inc. v.Township of Willingboro (1977) / 680 Whitney v. California (1927) / 1169 Creationism / Intelligent Design Edwards v. Aguillard (1987) / 407 Epperson v. Arkansas (1968) / 419
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Case Table of Contents Criminal Syndicalism Laws Burns v. United States (1927) / 222 Fiske v. Kansas (1927) / 464 Herndon v. Lowry (1937) / 570 Ruthenberg v. Michigan (1927) / 946 Stromberg v. California (1931) / 1029 Whitney v. California (1927) / 1169 Cross Burning R.A.V. v. St. Paul (1992) / 903 Virginia v. Black (2003) / 1135 Door-to-Door Solicitation or Sales Breard v. Alexandria (1951) / 205 Cantwell v. Connecticut (1940) / 239 Follett v.Town of McCormick (1944) / 471 Hynes v. Mayor of Oradell (1976) / 589 Largent v.Texas (1943) / 654 Lovell v. City of Griffin (1938) / 690 Martin v. City of Struthers (1943) / 713 Murdock v. Pennsylvania (1943) / 760 Prince v. Massachusetts (1944) / 875 Schneider v. State (1939) / 967 Staub v. City of Baxley (1958) / 1020 Watchtower Bible and Tract Society v.Village of Stratton (2002) / 1156 Dress and Hair Regulations Canady v. Bozzier Parish School Board (5th Cir. 2001) / 238 Goldman v.Weinberger (1986) / 519 Kelley v. Johnson (1976) / 638 Melton v.Young (6th Cir. 1972) / 735 Schacht v. United States (1970) / 961 Economic Boycott NAACP v. Claiborne Hardware Co. (1982) / 771 Espionage Debs v. United States (1919) / 378 Pierce v. United States (1920) / 854 United States v. Morison (4th Cir. 1988) / 1100 Fairness Doctrine Columbia Broadcasting System v. Democratic National Committee (1973) / 310 Faith-based Groups, Aid to (Nonschool) Bowen v. Kendrick (1988) / 193 Fighting Words Chaplinsky v. New Hampshire (1942) / 260 City of Houston v. Hill (1987) / 284 Cohen v. California (1971) / 306 Gooding v.Wilson (1972) / 523 Karlan v. City of Cincinnati (1974) / 636
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Lewis v. New Orleans (1974) / 669 Lucas v. Arkansas (1974) / 693 R.A.V. v. St. Paul (1992) / 903 Flag, Treatment of Halter v. Nebraska (1907) / 544 Melton v.Young (6th Cir. 1972) / 735 Smith v. Goguen (1974) / 998 Spence v.Washington (1974) / 1010 Street v. New York (1969) / 1028 Stromberg v. California (1931) / 1029 Texas v. Johnson (1989) / 1057 United States v. Eichman (1990) / 1096 Flag Salute Elk Grove Unified School District v. Newdow (2004) / 411 Minersville School District v. Gobitis (1940) / 751 Taylor v. Mississippi (1943) / 1049 West Virginia State Board of Education v. Barnette (1943) / 1164 Gag Orders Gentile v. State Bar of Nevada (1991) / 507 Nebraska Press Association v. Stuart (1976) / 785 Oklahoma Publishing Co. v. Oklahoma County District Court (1977) / 815 Governmental Funding Restrictions Board of Regents of the University of Wisconsin System v. Southworth (2000) / 181 Johanns v. Livestock Marketing Association (2005) / 625 Legal Services Corp. v.Velazquez (2001) / 662 National Endowment for the Arts v. Finley (1998) / 774 Rosenberger v. Rectors and Visitors of the University of Virginia (1995) / 939 Rumsfeld v. Forum for Academic and Institutional Rights (2006) / 944 Rust v. Sullivan (1991) / 945 United States v. American Library Association (2003) / 1092 Wisconsin v. Mitchell (1993) / 1181 Government Investigations Barenblatt v. United States (1959) / 136 Braden v. United States (1961) / 197 DeGregory v. Attorney General of New Hampshire (1966) / 381 Gibson v. Florida Legislative Investigation Committee (1963) / 509 Sweezy v. New Hampshire (1957) / 1039 United States v. Rumely (1953) / 1106 Uphaus v.Wyman (1959) (1960) / 1118 Watkins v. United States (1957) / 1157 Wilkinson v. United States (1961) / 1173 Grand Jury Proceedings Butterworth v. Smith (1990) / 225 Wood v. Georgia (1962) / 1186 Gravity of the Evil Test Dennis v. United States (1951) / 384
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Case Table of Contents Hate Speech R.A.V. v. St. Paul (1992) / 903 Terminiello v. City of Chicago (1949) / 1056 Wisconsin v. Mitchell (1993) / 1181 Immigrants / Naturalization Abrams v. United States (1919) / 50 American Academy of Religion v. Chertoff (S.D.N.Y. 2006) / 77 Girouard v. United States (1946) / 514 Harisiades v. Shaughnessy (1952) / 548 Kimm v. Rosenberg (1960) / 641 Kleindienst v. Mandel (1972) / 644 United States ex rel.Turner v.Williams (1904) / 1114 United States v. Macintosh (1931) / 1100 United States v. Schwimmer (1929) / 1107 Incitement / Seditious Speech Abrams v. United States (1919) / 50 Brandenburg v. Ohio (1969) / 199 Epton v. New York (1968) / 420 Feiner v. New York (1951) / 457 Frohwerk v. United States (1919) / 495 Hess v. Indiana (1973) / 570 NAACP v. Claiborne Hardware Co. (1982) / 771 Spies v. Illinois (Ill. 1887) / 1011 Terminiello v. Chicago (1949) / 1056 Incorporation / Application of the Bill of Rights to the States Barron v. Baltimore (1833) / 140 Cantwell v. Connecticut (1940) / 239 De Jonge v. Oregon (1937) / 382 Everson v. Board of Education (1947) / 427 Fiske v. Kansas (1927) / 464 Gitlow v. New York (1925) / 515 Hamilton v. Regents of the University of California (1934) / 544 Palko v. Connecticut (1937) / 829 Slaughterhouse Cases (1873) / 996 Internet Ashcroft v. American Civil Liberties Union (2002) (2004) / 112 Beussink v.Woodland School District (E.D. Mo. 1998) / 152 Reno v. American Civil Liberties Union (1997) / 925 United States v. American Library Association (2003) / 1092 Jailhouse Lawyers Johnson v. Avery (1969) / 626 Shaw v. Murphy (2001) / 987 Jehovah’s Witnesses Cantwell v. Connecticut (1940) / 239 Chaplinsky v. New Hampshire (1942) / 260 Cox v. New Hampshire (1941) / 354
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Fowler v. Rhode Island (1953) / 480 Jamison v.Texas (1943) / 619 Jones v. City of Opelika (1942) (1943) / 628 Largent v.Texas (1943) / 654 Marsh v. Alabama (1946) / 709 Martin v. City of Struthers (1943) / 713 Minersville School District v. Gobitis (1940) / 751 Murdock v. Pennsylvania (1943) / 760 Niemotko v. Maryland (1951) / 796 Poulos v. New Hampshire (1953) / 867 Saia v. New York (1948) / 951 Schneider v. State (1939) / 967 Sicurella v. United States (1955) / 992 Taylor v. Mississippi (1949) / 1049 Tucker v.Texas (1946) / 1082 Watchtower Bible and Tract Society v.Village of Stratton (2002) / 1156 West Virginia State Board of Education v. Barnette (1943) / 1164 Wooley v. Maynard (1977) / 1186 Jurisdictional and Standing Issues Bender v.Williamsport Area School District (1986) / 149 Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board (1983) / 156 Bose Corp. v. Consumers Union of United States, Inc. (1984) / 191 Doe v. Gonzales (2005) / 393 Doran v. Salem Inn (1975) / 396 Doremus v. Board of Education (1952) / 397 Douglas v. City of Jeannette (1943) / 398 Elk Grove Unified School District v. Newdow (2004) / 411 Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc. (1959) / 439 Flast v. Cohen (1968) / 466 Hein v. Freedom from Religion Foundation (2007) / 565 Liles v. Oregon (1976) / 678 Pennsylvania v. Nelson (1956) / 841 Perez v. Ledesma (1971) / 845 Samuels v. Mackell (1971) / 954 United States v. Smith (Ind. 1909) / 1108 Valley Forge Christian College v. Americans United for Separation of Church and State (1982) / 1123 W.E.B. DuBois Clubs of America v. Clark (1967) / 1147 Younger v. Harris (1971) / 1197 Jury Issues Butterworth v. Smith (1990) / 225 Commonwealth v. Lesher (Pa. 1828) / 318 State v.Willson (S.C. App. 1823) / 1017 Sugarman v. United States (1919) / 1035 Libel and Slander Anderson v. Liberty Lobby (1986) / 99 Ashton v. Kentucky (1966) / 113
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Case Table of Contents Associated Press v.Walker (1967) / 115 Balzac v. People of Porto Rico (1922) / 132 Barr v. Matteo (1959) / 138 Barrett v. Rosenthal (Cal. S. Ct. 2006) / 139 Beauharnais v. Illinois (1952) / 145 Cantrell v. Forest City Publishing Co. (1974) / 239 Commonwealth v. Blanding (Mass. 1825) / 315 Commonwealth v. Clapp (Mass. 1808) / 316 Curtis Publishing Co. v. Butts (1967) / 366 Dun and Bradstreet, Inc., v. Greenmoss Builders, Inc. (1985) / 403 Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY (1959) / 439 Gandia v. Pettingill (1912) / 502 Garrison v. Louisiana (1964) / 505 Gertz v. Robert Welch, Inc. (1974) / 508 Greenbelt Cooperative Publishing Association v. Bresler (1970) / 532 Harte-Hanks Communications v. Connaughton (1989) / 555 Henry v. Collins (1965) / 567 Herbert v. Lando (1979) / 568 Hustler Magazine v. Falwell (1988) / 587 Hutchinson v. Proxmire (1979) / 588 Linn v. United Plant Guard Workers of America (1966) / 681 McDonald v. Smith (1985) / 725 Masson v. New Yorker Magazine (1991) / 717 Milkovich v. Lorain Journal Co. (1990) / 744 Monitor Patriot Co. v. Roy (1971) / 754 New York Times Co. v. Sullivan (1964) / 794 Ocala Star-Banner Co. v. Damron (1971) / 809 People v. Croswell (N.Y. 1804) / 843 Philadelphia Newspapers, Inc. v. Hepps (1986) / 850 Rosenblatt v. Baer (1966) / 940 Rosenbloom v. Metromedia, Inc. (1971) / 941 St. Amant v.Thompson (1968) / 952 Seattle Times Co. v. Rhinehart (1984) / 971 Time, Inc. v. Firestone (1976) / 1067 Time, Inc. v. Hill (1967) / 1067 Time, Inc. v. Pape (1971) / 1068 Tory v. Cochran (2005) / 1078 United States v. Hudson and Goodwin (1812) / 1098 United States v. Press Publishing Co. (1911) / 1104 United States v. Smith (Ind. 1909) / 1108 White v. Nicholls (1845) / 1167 Wolston v. Reader’s Digest Association (1972) / 1185 Zeran v. America Online, Inc. (4th Cir. 1997) / 1203 Library Acquisitions and Holdings Board of Education, Island Trees Union Free School District v. Pico (1982) / 177 Evans v. Selma Union High School District of Fresno County (Cal.1924) / 427 Minarcini v. Strongsville City School District (6th Cir. 1976) / 751
Case Table of Contents License Plates Wooley v. Maynard (1977) / 1186 Licensing Requirements City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004) / 287 Freedman v. Maryland (1965) / 485 FW/PBS, Inc. v. City of Dallas (1990) / 497 Jones v. City of Opelika (1942) (1943) / 628 Largent v.Texas (1943) / 654 Murdock v. Pennsylvania (1943) / 760 Thomas v. Chicago Park District (2002) / 1059 Times Film Corp. v. City of Chicago (1961) / 1070 Liquor Licenses and Regulation California v. LaRue (1972) / 229 44 Liquormart, Inc. v. Rhode Island (1996) / 477 Larkin v. Grendel’s Den, Inc. (1982) / 654 New York State Liquor Authority v. Bellanca (1981) / 793 Rubin v. Coors Brewing Co. (1995) / 943 Lobbying United States v. Harriss (1954) / 1098 Loitering Ordinances City of Chicago v. Morales (1999) / 281 Lotteries Ex parte Jackson (1877) / 431 In re Rapier (1892) / 601 United States v. Edge Broadcasting Co. (1993) / 1095 Loyalty Oaths Baggett v. Bullitt (1964) / 126 Beilan v. Board of Education (1958) / 146 Cole v. Richardson (1972) / 309 Communist Party of Indiana v.Whitcomb (1974) / 322 Connell v. Higginbotham (1971) / 335 Cramp v. Board of Public Instruction of Orange County (1961) / 357 Elfbrandt v. Russell (1966) / 411 Garner v. Board of Public Works of Los Angeles (1951) / 504 Gibson v. Florida Legislative Investigation Committee (1963) / 509 Keyishian v. Board of Regents (1967) / 641 Nostrand v. Little (1960) / 805 Speiser v. Randall (1958) / 1009 Whitehill v. Elkins (1967) / 1169 Wieman v. Updegraff (1952) / 1172 Mail American School of Magnetic Healing v. McAnnulty (1902) / 94 Blount v. Rizzi (1971) / 173 Bolger v.Youngs Drug Products Corp. (1983) / 185 Donaldson v. Read Magazine (1948) / 394 Ex parte Jackson (1877) / 431
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Case Table of Contents Grimm v. United States (1895) / 535 Hannegan v. Esquire (1946) / 548 Hartman v. Moore (2006) / 555 In re Rapier (1892) / 601 Lamont v. Postmaster General (1965) / 652 Leach v. Carlile (1922) / 659 Lewis Publishing Co. v. Morgan (1913) / 670 Masses Publishing Company v. Patten (S.D.N.Y. 1917) / 716 Rowan v. U.S. Post Office Department (1970) / 943 Swearingen v. United States (1896) / 1038 Tennessee Secondary School Athletic Association v. Brentwood Academy (2007) / 1055 United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921) / 1113 United States Postal Service v. Greenburgh Civic Associations (1981) / 1115 Marketplace of Ideas Abrams v. United States (1919) / 50 Media Access Chandler v. Florida (1981) / 257 Estes v.Texas (1965) / 425 Globe Newspaper Co. v. Superior Court (1982) / 517 Press-Enterprise Co. v. Superior Court of California (1984) (1986) / 873 Richmond Newspapers, Inc. v.Virginia (1980) / 930 Sheppard v. Maxwell (1966) / 989 El Vocero de Puerto Rico v. Puerto Rico (1993) / 1143 Wilson v. Layne (1999) / 1176 Military Brown v. Glines (1980) / 213 Ex parte Vallandigham (1863) / 431 Flower v. United States (1972) / 469 General Media Communications v. Cohen (2d Cir. 1997) / 506 Goldman v.Weinberger (1986) / 519 Greer v. Spock (1976) / 533 Laird v.Tatum (1972) / 651 Parker v. Levy (1974) / 836 Schacht v. United States (1970) / 961 Secretary of the Navy v. Avrech (1974) / 974 Secretary of the Navy v. Huff (1980) / 974 United States v. Albertini (1985) / 1091 Movies,Video Games, and Comics American Amusement Machine Association v. Kendrick (7th Cir. 2001) / 79 Burstyn v.Wilson (1952) / 224 Byrne v. Karalexis (1969) (1971) / 226 Freedman v. Maryland (1965) / 485 Gelling v.Texas (1952) / 506 Grove Press v. Maryland State Board of Censors (1971) / 539 Interstate Circuit, Inc. v. Dallas (1968) / 610 Jenkins v. Georgia (1974) / 624
Case Table of Contents Katzev v. County of Los Angeles (Cal. 1959) / 637 Kingsley International Pictures v. Board of Regents (1959) / 643 Lee Art Theatre v.Virginia (1968) / 662 Meese v. Keene (1987) / 733 Mutual Film Corp. v. Industrial Commission of Ohio (1915) / 767 Rabe v.Washington (1972) / 904 Superior Films v. Department of Education (1954) / 1038 Teitel Film Corp. v. Cusack (1968) / 1050 Times Film Corp. v. City of Chicago (1961) / 1070 Vance v. Universal Amusement Co., Inc. (1980) / 1124 Native American Religion Employment Division, Department of Human Resources of Oregon v. Smith (1990) / 415 Lyng v. Northwest Indian Cemetery Protective Association (1988) / 695 Noise Regulations Grayned v. City of Rockford (1972) / 531 Kovacs v. Cooper (1949) / 645 Public Utilities Commission v. Pollak (1952) / 897 Saia v. New York (1948) / 951 Ward v. Rock against Racism (1989) / 1151 Nude Dancing Barnes v. Glen Theatre, Inc. (1991) / 137 California v. LaRue (1972) / 229 City of Erie v. Pap’s A.M. (2000) / 284 City of Newport v. Iacobucci (1986) / 289 Doran v. Salem Inn (1975) / 396 New York State Liquor Authority v. Bellanca (1981) / 793 Schad v. Mount Ephraim (1981) / 961 Obscenity and Pornography Alberts v. California (1957) / 71 Alexander v. United States (1993) / 73 American Booksellers Association v. Hudnut (7th Cir. 1985) / 81 Arcara v. Cloud Books, Inc. (1986) / 108 Ashcroft v. American Civil Liberties Union (2002) (2004) / 112 Ashcroft v. Free Speech Coalition (2002) / 113 Bantam Books, Inc. v. Sullivan (1963) / 133 Blount v. Rizzi (1971) / 173 Brockett v. Spokane Arcades, Inc. (1985) / 211 Butler v. Michigan (1957) / 225 Byrne v. Karalexis (1969) (1971) / 226 Cain v. Kentucky (1970) / 229 Commonwealth v. Sharpless (Pa. 1815) / 319 Erznoznik v. City of Jacksonville (1975) / 423 Fort Wayne Books, Inc. v. Indiana (1989) / 475 Ginsberg v. New York (1968) / 512 Ginzburg v. United States (1966) / 513 Grimm v. United States (1895) / 535 Grove Press v. Maryland State Board of Censors (1971) / 539
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Case Table of Contents Hamling v. United States (1974) / 546 Heller v. New York (1973) / 566 Jacobellis v. Ohio (1964) / 618 Jenkins v. Georgia (1974) / 624 Kaplan v. California (1973) / 635 Kingsley Books, Inc. v. Brown (1957) / 642 Lo-Ji Sales, Inc. v. New York (1979) / 685 Manual Enterprises v. Day (1962) / 706 Marcus v. Search Warrant (1961) / 707 Marks v. United States (1977) / 709 Massachusetts v. Oakes (1989) / 716 McKinney v. Alabama (1976) / 728 Memoirs v. Massachusetts (1966) / 736 Miller v. California (1973) / 746 Mishkin v. New York (1966) / 753 New York v. Ferber (1982) / 791 New York v. P.J.Video, Inc. (1986) / 791 One, Inc. v. Olesen (9th Cir. 1957) / 817 Osborne v. Ohio (1990) / 823 Paris Adult Theatre I v. Slaton (1973) / 835 Pinkus v. United States (1978) / 854 Pope v. Illinois (1987) / 865 Rabeck v. New York (1968) / 905 Redrup v. New York (1967) / 911 Roaden v. Kentucky (1973) / 933 Rosen v. United States (1896) / 938 Roth v. United States (1957) / 942 Smith v. California (1959) / 997 Smith v. United States (1977) / 999 Stanley v. Georgia (1969) / 1014 Swearingen v. United States (1896) / 1038 United States v. American Library Association (2003) / 1092 United States v. Orito (1973) / 1103 United States v. Reidel (1971) / 1105 United States v.Thirty-seven Photographs (1971) / 1110 United States v.Twelve 200-Ft. Reels of Film (1973) / 1110 United States v.Williams (2008) / 1112 Virginia v. American Booksellers Association (1988) / 1134 Winters v. New York (1948) / 1177 Overbreadth Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. (1987) / 174 City of Houston v. Hill (1987) / 284 Dombrowski v. Pfister (1965) / 394 Gooding v.Wilson (1972) / 523 Simon and Schuster v. Members of the New York State Crime Victims Board (1991) / 993 United States v. Orito (1973) / 1103
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Parochial Schools Agostini v. Felton (1997) / 66 Aguilar v. Felton (1985) / 67 Board of Education v. Allen (1968) / 176 Cochran v. Board of Education (1930) / 304 Committee for Public Education and Religious Liberty v. Regan (1980) / 314 Everson v. Board of Education (1947) / 427 Grand Rapids School District v. Ball (1985) / 529 Lemon v. Kurtzman (1971) / 666 Lemon v. Kurtzman (1973) / 666 Levitt v. Committee for Public Education and Religious Liberty (1973) / 668 Locke v. Davey (2004) / 682 Meek v. Pittenger (1975) / 732 Mitchell v. Helms (2000) / 754 New York v. Cathedral Academy (1977) / 790 Norwood v. Harrison (1973) / 804 Pierce v. Society of Sisters (1925) / 853 Sloan v. Lemon (1973) / 996 Witters v.Washington Department of Services for the Blind (1986) / 1183 Wolman v.Walter (1977) / 1184 Zobrest v. Catalina Foothills School District (1993) / 1203 Petition, Right to Brown v. Glines (1980) / 213 McDonald v. Smith (1985) / 725 Meyer v. Grant (1988) / 740 Picketing Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968) / 77 American Federation of Labor v. Swing (1941) / 88 American Radio Association, AFL-CIO v. Mobile Steamship Association (1974) / 93 Bakery and Pastry Drivers and Helpers Local v.Wohl (1942) / 128 Boos v. Barry (1988) / 189 Building Service Employees International Union v. Gazzam (1950) / 219 Cafeteria Employees Union v. Angelos (1943) / 228 California Motor Transport Co. v.Trucking Unlimited (1972) / 231 Cameron v. Johnson (1965) (1968) / 233 Carey v. Brown (1980) / 243 Carlson v. California (1940) / 246 Carlson v. Landon (1952) / 246 Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Café (1942) / 248 Frisby v. Schultz (1988) / 494 Giboney v. Empire Storage and Ice Co. (1949) / 509 Grayned v. City of Rockford (1972) / 531 Hotel and Restaurant Employees' International Alliance v.Wisconsin Employment Relations Board (1942) / 582 Hughes v. Superior Court of California (1950) / 584 International Brotherhood of Electrical Workers v. National Labor Relations Board (1951) / 606 International Brotherhood of Teamsters Union v. Hanke (1950) / 606
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Case Table of Contents International Brotherhood of Teamsters Union v.Vogt (1957) / 607 Milk Wagon Drivers Union v. Meadowmoor (1941) / 744 National Labor Relations Board v. Fruit and Vegetable Packers (1964) / 776 Police Department of Chicago v. Mosley (1972) / 858 Senn v.Tile Layers Protective Union (1937) / 981 Thornhill v. Alabama (1940) / 1064 Tory v. Cochran (2005) / 1078 United Association of Journeymen Plumbers and Steamfitters v. Graham (1953) / 1089 Polygamy Cleveland v. United States (1946) / 303 Davis v. Beason (1890) / 375 Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890) / 656 Murphy v. Ramsey (1885) / 761 Reynolds v. United States (1879) / 929 Prayer, Public Marsh v. Chambers (1983) / 710 Preferred Position Doctrine Thomas v. Collins (1945) / 1059 Presidential Proclamations of Thanksgiving Richardson v. Goddard (1859) / 929 Press, Freedom of the Associated Press v. National Labor Relations Board (1937) / 114 Associated Press v. United States (1945) / 115 Barber v.Time (Mo. 1942) / 136 Grosjean v. American Press Co. (1936) / 537 Grove Press v. Gerstein (1964) / 539 Hartzel v. United States (1944) / 556 Landmark Communications, Inc. v.Virginia (1978) / 653 Lowe v. Securities and Exchange Commission (1985) / 690 Mabee v.White Plains Publishing Co. (1946) / 697 Masses Publishing Company v. Patten (S.D.N.Y. 1917) / 716 Mills v. Alabama (1966) / 749 Near v. Minnesota (1931) / 784 New York Times Co. v. United States (1971) / 795 Oklahoma Press Publishing Co. v.Walling (1946) / 815 Organization for a Better Austin v. Keefe (1971) / 821 Patterson v. Colorado (1907) / 837 Regan v.Time, Inc. (1984) / 914 Schaefer v. United States (1920) / 962 Smith v. Daily Mail Publishing Co. (1979) / 997 State v. McKee (Conn. 1900) / 1016 Toledo Newspaper Co. v. United States (1918) / 1075 United States v.The Progressive (W.D.Wis. 1979) / 1109 Zurcher v. Stanford Daily (1978) / 1206
Case Table of Contents Press Access Gannett Co. v. DePasquale (1979) / 502 Houchins v. KQED (1978) / 582 Pell v. Procunier (1974) / 839 Saxbe v.Washington Post Co. (1974) / 958 Prior Restraint Near v. Minnesota (1931) / 784 Nebraska Press Association v. Stuart (1976) / 785 New York Times Co. v. United States (1971) / 795 Patterson v. Colorado (1907) / 837 Teitel Film Corporation v. Cusack (1968) / 1050 Prisoners’ Rights Beard v. Banks (2006) / 144 Bell v.Wolfish (1979) / 147 Cooper v. Pate (1964) / 346 Cruz v. Beto (1972) / 364 Johnson v. Avery (1969) / 626 Jones v. North Carolina Prisoners’ Union (1977) / 628 O’Lone v. Estate of Shabazz (1987) / 816 Overton v. Bazzetta (2003) / 825 Pell v. Procunier (1974) / 839 Procunier v. Martinez (1974) / 883 Shaw v. Murphy (2001) / 987 Stewart v. McCoy (2002) / 1023 Thornburgh v. Abbott (1989) / 1063 Turner v. Safley (1987) / 1083 Wolff v. McDonnell (1974) / 1184 Privacy Barber v.Time (Mo. 1942) / 136 Bartnicki v.Vopper (2001) / 141 Cantrell v. Forest City Publishing Co. (1974) / 239 Cox Broadcasting Corp. v. Cohn (1975) / 355 Dietemann v.Time (9th Cir. 1971) / 388 Florida Star v. B.J.F. (1989) / 468 Griswold v. Connecticut (1965) / 535 Smith v. Daily Mail Publishing Co. (1979) / 997 Time, Inc. v. Hill (1967) / 1067 Private Property Hudgens v. National Labor Relations Board (1976) / 584 Lloyd Corporation, Ltd. v.Tanner (1972) / 682 PruneYard Shopping Center v. Robins (1980) / 886 Probate Vidal v. Girard’s Executors (1844) / 1126 Profane or Indecent Speech Chaplinsky v. New Hampshire (1942) / 260 City of Houston v. Hill (1987) / 284 Cohen v. California (1971) / 306
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Case Table of Contents Federal Communications Commission v. Pacifica Foundation (1974) / 445 Gooding v.Wilson (1972) / 523 Lewis v. City of New Orleans (1974) / 669 Lucas v. Arkansas (1974) / 693 Papish v. Board of Curators of the University of Missouri (1973) / 833 Reno v. American Civil Liberties Union (1997) / 925 Rosenfeld v. New Jersey (1972) / 941 Sable Communications of California v. Federal Communications Commission (1989) / 949 Public Employees Board of County Commissioners v. Umbehr (1996) / 175 Branti v. Finkel (1980) / 200 Broadrick v. Oklahoma (1973) / 210 City of San Diego v. Roe (2005) / 291 Connick v. Myers (1983) / 335 Cornelius v. NAACP Legal Defense and Educational Fund (1985) / 348 Elrod v. Burns (1976) / 413 Ex parte Curtis (1882) / 430 Garcetti v. Ceballos (2006) / 504 Givhan v.Western Line Consolidated School District (1979) / 516 McAuliffe v. Mayor of New Bedford (Mass. 1892) / 719 Mount Healthy City School District Board of Education v. Doyle (1977) / 757 O’Hare Truck Service v. City of Northlake (1996) / 813 Pickering v. Board of Education (1968) / 851 Rankin v. McPherson (1987) / 908 Rutan v. Republican Party of Illinois (1990) / 946 Snepp v. United States (1980) / 1003 United Public Workers of America v. Mitchell (1947) / 1090 United States v. National Treasury Employees Union (1995) / 1101 United States Civil Service Commission v. National Association of Letter Carriers (1973) / 1112 Waters v. Churchill (1994) / 1157 Public Forum Cornelius v. NAACP Legal Defense and Educational Fund (1985) / 348 Frisby v. Schultz (1988) / 494 Hague v. Committee for Industrial Organization (1939) / 541 Hazelwood School District. v. Kuhlmeier (1988) / 560 Lee v. International Society for Krishna Consciousness (1992) / 661 Perry Education Association v. Perry Local Educators’ Association (1983) / 847 Rosenberger v. Rectors and Visitors of the University of Virginia (1995) / 939 Southeastern Promotions, Ltd. v. Conrad (1975) / 1005 United States v. Grace (1983) / 1097 United States v. Kokinda (1990) / 1099 Widmar v.Vincent (1983) / 1171 Public Schools and Religion Abington School District v. Schempp (1963) / 45 Board of Education of Kiryas Joel Village School District v. Grumet (1994) / 178 Board of Education of the City of Cincinnati v. Minor (Ohio S. Ct. 1872) / 179
Case Table of Contents Board of Education of the Westside Community Schools v. Mergens (1990) / 181 Chamberlin v. Public Instruction Board (1964) / 257 Cole v. Oroville Union High School District (9th Cir. 2000) / 308 Committee for Public Education and Religious Liberty v. Nyquist (1973) / 313 Engel v.Vitale (1962) / 417 Good News Club v. Milford Central School (2001) / 524 Illinois ex rel. McCollum v. Board of Education (1948) / 592 Lamb’s Chapel v. Center Moriches Union Free School District (1993) / 651 Lee v.Weisman (1992) / 661 Pfeiffer v. Board of Education (Mich. S. Ct. 1898) / 849 Santa Fe Independent School District v. Doe (2000) / 956 State ex rel.Weiss v. City of Edgerton (Wisc. 1890) / 1019 Wallace v. Jaffree (1985) / 1148 Widmar v.Vincent (1981) / 1171 Wisconsin v.Yoder (1972) / 1182 Zorach v. Clauson (1952) / 1205 Religious Colleges and Universities Dartmouth College v.Woodward (1819) / 373 Hunt v. McNair (1973) / 586 Roemer v. Bd. of Public Works of Maryland (1976) / 936 Tilton v. Richardson (1971) / 1066 Religious Displays or Symbols on Public Property Board of Trustees of Scarsdale v. McCreary (1985) / 182 Capitol Square Review and Advisory Board v. Pinette (1995) / 240 City of Edmond v. Robinson (1996) / 283 County of Allegheny v. American Civil Liberties Union (1989) / 352 Lynch v. Donnelly (1984) / 693 Religious Oaths McDaniel v. Paty (1978) / 725 Torcaso v.Watkins (1961) / 1077 Reporters’ Privilege Branzburg v. Hayes (1972) / 201 Cohen v. Cowles Media Co. (1991) / 306 Right of Publicity Zacchini v. Scripps-Howard Broadcasting Co. (1977) / 1199 Right of Reply Miami Herald Publishing Co. v.Tornillo (1974) / 741 Rights of Religious Adherents Cutter v.Wilkinson (2005) / 368 Gonzales v. O Centro Espírita Beneficente União Do Vegetal (2006) / 522 People v. Phillips (N.Y. 1813) / 843 Right to Work Laws Abood v. Detroit Board of Education (1977) / 47 American Federation of Labor v. American Sash and Door Co. (1949) / 87 International Association of Machinists v. Street (1961) / 605
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Case Table of Contents Lincoln Federal Labor Union v. Northwestern Iron and Metal Co. (1949) / 680 Railway Employees’ Department v. Hanson (1956) / 907 Sabbath and Other Religious Observances Ansonia Board of Education v. Philbrook (1986) / 102 Frazee v. Illinois Department of Employment Security (1989) / 485 Hobbie v. Unemployment Appeals Commission of Florida (1987) / 574 Phillips et al. (Simon's Executors) v. Gratz (Pa. 1831) / 851 Sherbert v.Verner (1963) / 989 Thomas v. Review Board of Indiana Employment Security Division (1981) / 1060 Thornton v. Caldor (1985) / 1065 Trans World Airlines v. Hardison (1977) / 1079 Secondary Effects Doctrine City of Erie v. Pap’s A.M. (2000) / 284 City of Los Angeles v. Alameda Books (2002) / 287 City of Los Angeles v. Preferred Communications (1986) / 288 City of Renton v. Playtime Theatres, Inc. (1986) / 290 Young v. American Mini Theatres (1976) / 1197 Selective Service Wayte v. United States (1985) / 1160 Signs, Billboards, and Newsracks City Council of Los Angeles v.Taxpayers for Vincent (1984) / 279 City of Cincinnati v. Discovery Network (1993) / 282 City of Ladue v. Gilleo (1994) / 285 City of Lakewood v. Plain Dealer Publishing Co. (1988) / 286 Metromedia, Inc. v. City of San Diego (1981) / 739 Social Security Bowen v. Roy (1986) / 193 United States v. Lee (1982) / 1099 Son of Sam Laws Seres v. Lerner (Nev. 2004) / 984 Simon and Schuster v. Members of the New York State Crime Victims Board (1991) / 993 Speech on Public Property Bachellar v. Maryland (1970) / 123 Commonwealth v. Cooke (Mass. 1859) / 316 Cox v. Louisiana (1965) / 353 Davis v. Massachusetts (1897) / 376 Edwards v. South Carolina (1963) / 408 Flower v. United States (1972) / 469 Forsyth County, Georgia v. Nationalist Movement (1992) / 474 Fowler v. Rhode Island (1953) / 480 Gregory v. City of Chicago (1969) / 534 Hague v. Committee for Industrial Organization (1939) / 541 Heffron v. International Society for Krishna Consciousness (1981) / 563 Jamison v.Texas (1943) / 619
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Kunz v. New York (1951) / 648 Lee v. International Society for Krishna Consciousness (1992) / 661 Lehman v. City of Shaker Heights (1974) / 663 Marsh v. Alabama (1946) / 709 Niemotko v. Maryland (1951) / 796 Perry Education Association v. Perry Local Educators’ Association (1983) / 847 Poulos v. New Hampshire (1953) / 867 Schneider v. State (1939) / 967 Shuttlesworth v. Birmingham (1969) / 991 Southeastern Promotions, Ltd. v. Conrad (1975) / 1005 United States v. Grace (1983) / 1097 United States v. Kokinda (1990) / 1099 Virginia v. Hicks (2003) / 1136 Walker v. City of Birmingham (1967) / 1147 State Secrets American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich. 2006) / 85 New York Times Co. v. United States (1971) / 795 Students’ Rights Bethel School District No. 403 v. Fraser (1986) / 151 Beussink v.Woodland School District (E.D. Mo. 1998) / 152 Burnside v. Byars (5th Cir. 1966) / 223 Canady v. Bozzier Parish School Board (5th Cir. 2001) / 238 Chandler v. McMinnville School District (9th Cir. 1992) / 258 Dean v. Utica Community Schools (E.D. Mich. 2004) / 377 Harper v. Poway Unified School District (9th Cir. 2006) / 553 Hazelwood School District v. Kuhlmeier (1988) / 560 Healy v. James (1972) / 562 Hosty v. Carter (7th Cir. 2005) / 581 Lavine v. Blaine School District (9th Cir. 2001) / 657 Melton v.Young (6th Cir. 1972) / 735 Morse v. Frederick (2007) / 755 Norton v. Discipline Committee of East Tennessee State University (1970) / 804 Papish v. Board of Curators of the University of Missouri (1973) / 833 Rosenberger v. Rectors and Visitors of the University of Virginia (1995) / 939 Settle v. Dickson County School Board (6th Cir. 1995) / 985 Thomas v. Board of Education, Granville (2d Cir. 1979) / 1058 Tinker v. Des Moines Independent Community School District (1969) / 1072 West v. Derby Unified School District (10th Cir. 2000) / 1163 Symbolic Speech Clark v. Community for Creative Non-Violence (1984) / 297 Cox v. New Hampshire (1941) / 354 Stromberg v. California (1931) / 1029 Texas v. Johnson (1989) / 1057 Tinker v. Des Moines Independent Community School District (1969) / 1072 United States v. O’Brien (1968) / 1102 Village of Skokie v. National Socialist Party of America (Ill. 1978) / 1132 Virginia v. Black (2003) / 1135
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Case Table of Contents Tax Policy Arkansas Writers’ Project, Inc. v. Ragland (1987) / 109 Bob Jones University v. United States (1983) / 184 Bradfield v. Roberts (1899) / 197 Cammarano v. United States (1959) / 233 Gibbons v. District of Columbia (1886) / 509 Hernandez v. Commissioner of Internal Revenue (1989) / 569 Jimmy Swaggart Ministries v. Board of Equalization of California (1990) / 625 Leathers v. Medlock (1991) / 660 Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983) / 752 Mueller v. Allen (1983) / 758 Quick Bear v. Leupp (1908) / 900 Regan v.Taxation With Representation of Washington (1983) / 914 Speiser v. Randall (1958) / 1009 Texas Monthly, Inc. v. Bullock (1989) / 1057 Tony and Susan Alamo Foundation v. Secretary of Labor (1985) / 1077 Walz v.Tax Commission of the City of New York (1970) / 1151 Teachers’ Rights Adler v. Board of Education (1952) / 62 Board of Education of Oklahoma City v. National Gay Task Force (1985) / 179 City of Madison v.Wisconsin Employment Relations Commission (1976) / 289 Keyishian v. Board of Regents (1967) / 641 Meyer v. Nebraska (1923) / 741 Mount Healthy City School District Board of Education v. Doyle (1977) / 757 Perry v. Sindermann (1972) / 847 Settle v. Dickson County School Board (6th Cir. 1995) / 985 Shelton v.Tucker (1960) / 988 Sweezy v. New Hampshire (1957) / 1039 Ten Commandments McCreary County v. American Civil Liberties Union (2005) / 724 Stone v. Graham (1980) / 1024 Van Orden v. Perry (2005) / 1124 Travel Aptheker v. Secretary of State (1964) / 106 Haig v. Agee (1981) / 542 Zemel v. Rusk (1965) / 1201 Trespassing and Sit-ins Adderly v. Florida (1966) / 61 Bell v. Maryland (1964) / 147 Brown v. Louisiana (1966) / 214 Garner v. Louisiana (1961) / 505 Trial, Free Speech during Carey,Warden v. Musladin (2006) / 245 True Threats Boyle v. Landry (1971) / 195
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Lavine v. Blaine School District (9th Cir. 2001) / 657 NAACP v. Claiborne Hardware Co. (1982) / 771 Planned Parenthood of the Columbia/Williamette, Inc. v. American Coalition of Life Activists (9th Cir. 2002) / 856 Rankin v. McPherson (1987) / 908 Virginia v. Black (2003) / 1135 Watts v. United States (1969) / 1159 Truth or Falsity of Religious Beliefs United States v. Ballard (1944) / 1093 Union Regulations American Communications Association v. Douds (1950) / 87 Brotherhood of Railroad Trainmen v.Virginia ex rel.Virginia State Bar (1964) / 212 Chicago Teachers Union v. Hudson (1986) / 262 City of Madison v.Wisconsin Employment Relations Commission (1976) / 289 Davenport v.Washington Education Association (2007) / 374 Ellis v. Brotherhood of Railway, Airline and Steamship Clerks (1984) / 412 Lehnert v. Ferris Faculty Association (1991) / 664 Minnesota Board for Community Colleges v. Knight (1984) / 753 National Labor Relations Board v. Catholic Bishop of Chicago (1979) / 776 Smith v. Arkansas State Highway Employees (1979) / 997 United Mine Workers of America, District 12 v. Illinois State Bar Association (1967) / 1090 United Steelworkers of America v. Sadlowski (1982) / 1115 United Transportation Union v. State Bar of Michigan (1971) / 1116 Vietnam War Bond v. Floyd (1966) / 186 New York Times Co. v. United States (1971) / 795 Tinker v. Des Moines Independent Community School District (1969) / 1072 United States v. O’Brien (1968) / 1102 Watts v. United States (1969) / 1159 Vouchers, School Zelman v. Simmons-Harris (2002) / 1200 Wall of Separation Church of the Holy Trinity v. United States (1892) / 274 Everson v. Board of Education (1947) / 427 Wallace v. Jaffree (1985) / 1148 Zoning City of Boerne v. Flores (1997) / 280 City of Los Angeles v. Alameda Books (2002) / 287 City of Los Angeles v. Preferred Communications (1986) / 288 City of Renton v. Playtime Theatres, Inc. (1986) / 290 Young v. American Mini Theatres (1976) / 1197
Foreword:The First Forty-five Words
The words are plain, blunt and unequivocal—without literary frill or poetic flourish—a directive intended to put the natural rights of citizens above and beyond the punitive power of the new federal government: “Congress shall make no law . . . ” Read aloud, this opening phrase of what would become the First Amendment to the newly ratified Constitution of the United States has almost a ring of harshness in the admonition to officials of the new government. Hands off, the amendment says. Hands off religion! Hands off dissent! Let the people speak out. Let them publish critically about their elected officials, and petition to right whatever wrongs they perceive done them. Let them assemble peaceably to protest injustice. That was the message the members of the First Congress sent in 1789 as they drafted that amendment and the others that would make up the Bill of Rights. If the people of the states decided to ratify the amendments, there indeed could be a “more perfect Union.” No one should have been surprised by the strong tone and prohibitive tenor of the first forty-five words of the Bill of Rights. Two years earlier, meeting in Philadelphia from May until mid-September 1787, the members of the Constitutional Convention had blundered when they refused to include in the proposed national charter specific language that would bar the new government from stripping away the powers of the states or ripping away individual liberties that American citizens claimed were “unalienable.” There were a handful of delegates who favored such a measure to protect the rights of the states and the people. Luther Martin of Maryland had written a version of a bill of rights but did not introduce it after gauging the negative feelings of the overwhelming majority of his convention peers. Charles Pinckney of South Carolina and Elbridge Gerry of Massachusetts had made a pass, on August 20, at pushing through a provision assuring freedom of the press, but it was overwhelmingly voted down, as Edward Dumbauld recounts in The Bill of Rights and What It Means Today (1957). Then, a few days before the convention adjourned, George Mason of Virginia warned his colleagues
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that public discontent was building in opposition to their work and that they needed to add a bill of rights. Anxious to complete their work, the delegates rebuffed Mason, but the four months of secret sessions had taken their toll on the people’s blind support for a new constitution. Americans had fought a revolution to rid themselves of an all-powerful, oppressive central government, insensitive to citizens’ rights. Now, Mason warned, folks were fearful that the fiftyfive delegates, meeting with doors barred and drapes drawn, were drafting a blueprint for the same sort of autocratic bureaucracy. Although there were no formal reports on the convention’s progress, the walls—as is the case whenever government relies on secret deliberations—had ears. Inevitable leaks must have occurred regarding what was going on behind closed doors. Individual delegates had their own ideas about issues. Some of them had come to Philadelphia merely to improve on the ineffective Articles of Confederation—the country’s initial constitution that failed to provide sufficient power to the central government.There had been a Virginia Plan, a New Jersey Plan, and a Connecticut Compromise for the new government; these related to the structure of the government and congressional representation for the people. There had been the “completely daft” suggestion from Alexander Hamilton, the New York delegate, for a sort of mini-monarchy, mirrored after the British government—which he called “the best in the world.” No wonder, given the delay and uncertainty, that public anxiety, as Mason said, was building. A bill of rights that protected specific individual rights was what the Constitution needed, he said. It would “give great quiet to the people.” It would still the growing public unrest. Mason realized that his associates were tired from long weeks of work that included emotional discussions.They all had made sacrifices to participate in the convention. Many had traveled long distances to Philadelphia, and they were neglecting familial and business obligations.They were tired. They wanted to wrap up their business and go home. But, Mason argued, composing a federal bill of rights would not be time consuming. Five state constitutions included protec-
Foreword:The First Forty-five Words tions of citizen rights against government oppression. As the chief architect of such a declaration in the Virginia charter, he assured the convention that the addition, based on the bills of several states, could be drafted and grafted onto the proposed constitution “in a few hours.” Gerry made a motion that a committee be selected to draft such a bill. Mason seconded. When the vote was taken, a majority of every state delegation opposed it. Mason, his fellow Virginian Edmund Randolph, and Gerry refused to sign the Constitution. Mason later declared he would chop off his right hand before he put it to such an imperfect document. In fact, on September 17, 1787, only thirty-nine of the fifty-five convention delegates put their names to the proposed constitution before George Washington, who had presided over the deliberations, sent the draft to the Continental Congress to be transmitted to the thirteen state conventions for ratification. Mason, Gerry, and Randolph flatly and unapologetically stated their reasons for refusal. The other thirteen delegates already had left the convention. No doubt some, drawn home by pressing business or financial obligations, simply left before all the “I”s were dotted and “T”s crossed. Others could have left their proxy favorable votes—as did John Dickinson of Delaware—but for their own reasons decided not to do so.There were, no doubt, a few among the fifty-five who worried that the document upon which they finally agreed went far beyond a simple revision of the Articles of Confederation, for which they thought they had convened. Others may have felt that the proposed charter’s language went too far in endangering states’ rights or did not go far enough in assuring citizen liberties. Before adjournment, Benjamin Franklin, the oldest delegate, pleaded with his colleagues to endorse the document. “I confess,” he said in a personally written entreaty that was read on his behalf,“that there are several parts of this constitution which I do not approve at present.” Franklin added, however, that “with all its faults,” he thought it the very best the convention could create, given the disagreements among the delegates. So with thirty-nine signatures, the proposed constitution was transmitted to the states in hopes that each would call a convention and ratify it.With that, the political campaign either to adopt the draft or to defeat it was on, with newspapers reporting opinions on both sides. There was intense debate in many state capitals, much of it centering on the absence of a bill of rights. Mason went home to Virginia to join with Patrick Henry in an effort to kill the Constitution there. From France,
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Thomas Jefferson, the U.S. minister, sent a letter to James Madison asserting that “a bill of rights is what people are entitled to.” Later he wrote to fellow American diplomat David Humphreys: “There are rights that are useless to surrender to the government, and which yet, governments have always been fond to invade.These are the rights of thinking and publishing our thoughts by speaking or writing.” Madison, who turned his back on fellow Virginian Mason when the older man pleaded in the convention for a bill of rights, had committed himself to help get the Constitution ratified as it had been drafted. He must have felt uncomfortable when he realized that Jefferson, his political mentor, agreed with Mason. Madison was less than candid in responding to Jefferson’s letter. Convinced that a bill of rights was not a crucial ingredient for the Constitution, Madison put his considerable political writing skills into the media campaign for ratification. A bill of rights, he maintained, simply was not needed to protect freedoms that were natural. Madison joined with Hamilton (who had abandoned his nonsensical monarchical affectations early on) and with John Jay (who would soon become first chief justice of the United States) to draft what came to be known as The Federalist Papers. They published the essays under the pen name “Publius,” with Hamilton carrying most of the writing load, Madison sharing some of the heavy lifting, and Jay contributing little.Addressed to “the People of the State of New York,” these eighty-five well-reasoned essays promoted the values and virtues of the proposed constitution and comprise what Edward Mead Earle has described in The Federalist (1941) as “frankly, a campaign document.”They first were published in New York newspapers in October 1787, just a month after the convention, and continued well into May 1788.They were republished and circulated elsewhere as newspaper articles and in book form. Mason (sometimes writing as “Cato”) and fellow Virginians Richard Henry Lee and Patrick Henry, while not so prolific as Madison’s team, launched their own media propaganda campaign against ratification of the Constitution. A contentious partisan press was evolving in the land, and Republican editors welcomed articles and letters from constitutional opponents like Mason, just as Federalist publications took the work of “Publius.” Mason knew that a patriot press had earned the confidence of the people during the revolution, and he warned that without an amendment for protection, newspapers that criticized government would be endangered. At the Virginia ratifying convention, Mason stated,“Now, suppose oppressions should
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Foreword:The First Forty-five Words
arise under this Government, and any writer should dare to stand forth, and expose to the community at large the abuses of those powers; could not Congress, under the idea of providing for the general welfare . . . say that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not . . . lay a dangerous restriction on the press?” The rhetorical questions needed no verbalization in the minds of many patriots. The opening words of one of Mason’s articles highlighted what he considered the most glaring defect in the drafted constitution. “There is no Bill of Rights,” he wrote,“and the Laws of the General government being paramount to the Laws and Constitutions of the several States, the Declaration of Rights in the separate states are no Security.” He expressed particular concern that there was no statement “of any kind, preserving the Liberty of the Press.” Mason concluded with a dire prediction that without protection for individual liberties, the government would “commence in a moderate Aristocracy. It is at present impossible to tell whether it will, in its Operation, produce . . . a corrupt oppressive monarchy.” Henry, at the Virginia ratifying convention, warned his fellow Virginians to be “extremely cautious, watchful, jealous of your liberties; for, instead of securing your rights, you may lose them forever.” On the other side, Hamilton waited until his penultimate Federalist essay before he dealt directly with the needling issue that would not go away—a bill of rights. He asserted that “bills of rights, in the sense . . . which they are contended for, are not only unnecessary, but would even be dangerous.” He defined the “zeal” for such restraints on government as “injudicious.” He was particularly critical of any suggestion that press liberty could be assured.“Whatever fine declarations may be inserted in any constitution respecting it,” he said, “must altogether depend on public opinion and the general spirit of the people and the government.” These contentious points of view, and others on diverse civil liberties questions, found their way into the floor fights at many state conventions before New Hampshire became the ninth state to ratify, the bar that the delegates had set for ratification. Opposition in many states was heated. Rhode Island, the smallest of the states and fearful of an all-powerful central government, had boycotted the Constitutional Convention; it was the only state to do so.The leaders of tiny “Rogue Island” now refused to call a state conference to consider ratification. Instead, they conducted a town-bytown referendum, and the citizens turned out to vote the Constitution down by a stunning ten-to-one margin.
North Carolina, where negative views were also strong, called a convention, but participants spent little time talking about ratification. Instead, they mostly discussed the need for a bill of rights and what should be in it. There was heated agitation in Massachusetts, New York, and Virginia—large states where there was strong sentiment for a second national convention to correct the imperfections of the draft so recently completed. In New York, the vote was close; ratification carried by only three votes. Had 6 more of the 368 delegates followed Henry and Mason in Virginia, the Constitution would have been lost there. In Massachusetts, there were predictions that the state convention would refuse to embrace the Constitution. It was John Hancock who offered a compromise that saved ratification in the Bay State. Hancock, whose scrolled signature was the most prominent among signatories to the rebellious Declaration of Independence, was a strong advocate for a bill of rights. He had served as president of the Continental Congress, and he knew that operating the government under the provisions of the Articles of Confederation was damaging its credibility. He proposed therefore that Massachusetts ratify the Constitution but that its delegates insist that the First Congress, or a new federal convention, draft a bill of rights to be approved by the states. Had 6 delegates among the 168 in Massachusetts failed to follow Hancock’s advice, the Constitution would have failed there. Of all the founders, Madison played the most important role in helping guide the Constitution through the quagmire of political dissent, then pushing the Bill of Rights through the First Congress. History regards him as the “father of the Bill of Rights.” Having helped craft the seven articles of the Constitution that divide powers between the central government and the states and created three branches of a new government, Madison was determined to be an active player in its affairs.To do so, he had to become an active candidate for the House of Representatives. He faced opposition from another rising political star, James Monroe. All of Virginia knew that Madison had turned his back when Mason had made his case for a bill of rights in the national convention. Many were aware that he had a hand in writing The Federalist Papers, which called a bill of rights “dangerous.” As he and Monroe campaigned in their congressional district, the voters knew that Monroe was an outspoken proponent for a bill of rights. Now, under pressure of complaints from constituents, including Baptist leaders whose small but growing “sect” had felt the sting of religious persecution in Virginia, Madison flip-flopped. He publicly
Foreword:The First Forty-five Words endorsed amending the Constitution and said that if he were elected to Congress, he would work to provide a bill that assured citizen freedoms. A month before the election, he declared in a letter to George Eve his “sincere opinion that the Constitution ought to be revised, and the first Congress . . . ought to prepare and recommend to the states for ratification the most satisfactory provisions for all essential rights.” He specifically called for religious liberty “to the fullest latitude” and freedom of the press. Madison defeated Monroe by 366 votes. George Washington, the new president, stated in his inaugural address on April 30, 1789, his preference for the Constitution to be amended by Congress, squelching once and for all the idea of a second constitutional convention. The debate that had raged in many state conventions resulted in eight states submitting as many as 200 proposed constitutional amendments for consideration by the new Congress. Madison went to work examining them and establishing priorities. After duplicate recommendations were consolidated, the number was reduced by about half. When Congress met in April, Madison discovered that approximately 80 of the 100 requested changes were favored by four or fewer states. From the remaining list, he culled 22 issues and finally proposed that Congress consider 14 amendments. In early May, Madison told his fellow House members that he would have a list of proposed amendments ready for their consideration in a month. Other members of the House and Senate were in no hurry. Many of them had other legislative priorities that dealt with making functional the national government, which had been paralyzed under the now discarded Articles of Confederation. It was clear that many members of Congress would drag their legislative feet on constitutional amendments in favor of government business they thought more important, including the budget, how to fund it, and international affairs. To convince them that a bill of rights was a pressing issue, Madison borrowed a paragraph from the lecture Mason had given the Constitutional Convention during its deliberations. The people were expecting Congress to act, he said, noting the 200 separate demands of amendments that had come in from the states. He spoke to his colleagues, as Mason had spoken to him, of the “anxiety” among citizens that their liberties were unprotected. Members of the public, he said, were waiting for assurances that this government would not abuse their inalienable rights. “I believe that the great mass of people who opposed the Constitution disliked it because it did not contain effectual
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provisions against encroachments on particular rights,” he declared. He focused on what he called “the choicest rights”: free expression—speech and press—and religious liberty. Members of the government, he warned, should not assume that such rights were secure “while a great number of our fellow citizens think these securities necessary.” Five weeks later, Madison presented the House with his honed list of proposals. With some House members still grousing, he again warned them of the feeling among many citizens that the government had let them down. A bill of rights drafted by Congress, he said, “would extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they so valiantly fought and honorably bled.” It also would help unify the land. By this time, Madison’s conversion to the cause for amendments to protect citizen liberties was absolute, and he was well on his way toward becoming “the father of the Bill of Rights.”Among the arguments he relied on to convince his colleagues in Congress was his assertion that a nation of eleven states well might become a nation of thirteen with a bill of rights, since Rhode Island and North Carolina had not yet embraced the Constitution. Both, he accurately predicted, would be favorably impressed by the amendments. Congressional approval, however, was hardly immediate or assured. The debate rattled around the House and then the Senate until late September 1789, when Congress then approved and sent the amendments to the states for ratification. In the resolution offering the bill of rights to the states, Congress candidly acknowledged that public expectations had driven their action; Congress had heard and responded to the voice of the people.The resolution’s preamble stated, The conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution, be it resolved . . . Now the people would consider Congress’s recommendations. What ultimately emerged as the First Amendment was actually the third amendment of the twelve proposed to the states by Congress.The first two—one dealing with con-
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Foreword:The First Forty-five Words
gressional salaries (ratified in 1992 as the Twenty-seventh Amendment) and the other with apportionment—were rejected by the states. Thus, the third proposed amendment—the forty-five words protecting the freedoms of religion, speech, press, assembly, and petition—became the First Amendment. Within nine months, the Bill of Rights had been ratified; “Rogue Island” became the deciding state on June 7, 1791.With ratification, rights of free expression and the other vital civil liberties set out in the Bill of Rights were made secure.The founders who served in the First Congress were certain of that, but they could not have been more wrong. The emergence of a competing and politically divided partisan press raised the hackles of politicians who suffered sharp and caustic criticism. Beginning with the second term of George Washington, those in government felt growing resentment toward editors who condemned their actions. Washington, for all his popularity, bristled and sometimes in cabinet meetings exploded at what he believed were unfair criticisms of his leadership by journalists he called “infamous scribblers.” It took only seven years for the Federalist Congress, during the administration of President John Adams, to pass the Sedition Act of 1798. By then, the nation’s relationship with France had deteriorated. Fearing an invasion,Adams sent a request to Congress for funding to enlarge the nation’s military. His actions were criticized sharply by some of the nation’s anti-administration newspapers. In response, Congress made a law abridging freedom of the press. The government thereby declared war on editors and newspaper owners whose publications belittled, ridiculed, mocked, or denigrated Adams and his administration. There followed a series of federal Sedition Act and common law prosecutions that sent editors to jail, fined them, closed down some publications, and created an environment of hostility among Adams supporters. Gordon Belt, in his essay “The Sedition Act of 1798,” provides detailed scholarship on the litany of abuses the government unloaded on critics of the president and the Federalist Congress. According to Belt, editors were harassed and harried, slugged, indicted, jailed, and fined. The intimidation even extended to a number of the clergy and to ordinary citizens who erected on their property “liberty poles” emblazoned with posters that urged early retirement for Adams and long life to Vice President Thomas Jefferson, already Adams’s rival in the 1800 presidential election. In one notorious incident, Jacob Schneider, a Pennsylvania editor, was grabbed by troops at his place of business, taken to the public whipping
post, and beaten with a lash, without any formal judicial hearing or trial. The most famous prosecution was that of a member of Congress, Matthew Lyon, who also was a Vermont publisher. Lyon, while campaigning for election to the House in 1798, wrote a piece condemning Adams’s “continual grasp for power” and describing the president’s “unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice.” Indicted, Lyon was sentenced by a jury to four months in prison and fined $1,000. A neighboring Vermont editor, Anthony Haswell, attacked the administration for its action against the congressman and called for a lottery to raise money to help Lyon pay his fine.This, the Federalist prosecutor decided, was in violation of the Sedition Act. Haswell was sentenced to two months in jail and a $200 fine. The most outrageous prosecution involved a group of convivial fellows in a Newark bar, lifting their glasses in a round of toasts. They heard the echo of gunfire as Adams arrived in town to the welcome of a sixteen-gun salute. One of them, Luther Baldwin, who was “a little merry” according to press accounts, declared (and there is some question about his direct quote) that he would not mind at all if some of the shot lodged in the president’s buttocks. Baldwin and his two pub mates were prosecuted and fined. They were jailed until the fines and court costs were satisfied. Congress’s law abridging freedom of expression expired with the election of 1800. The new president, Jefferson, pardoned those who had suffered conviction under it. Regardless, that 1798 act would not be the last law made that infringed on free expression. In times of war (both hot and cold) or national crises or national distress, criticism of the government has often not been welcomed by officials. The government has imposed laws or policies limiting rights of free expression, free association, and access to information needed by a self-governing citizenry. More recently, in the wake of the al-Qaida attacks of September 11, 2001, the government passed the USA Patriot Act of 2001, giving itself extraordinary powers impinging on citizen rights. Presidential executive orders created increased government secrecy. Actions were taken to monitor the telephone conversations of some citizens without warrants. Other measures closed off public and press access to trials in which alleged terrorist “suspects” were secretly deported. One of the aspects of the Patriot Act that raised protests is the power the law gives the government to review what citizens read. The law requires libraries and bookstores to report what publications a person has checked out or bought
Foreword:The First Forty-five Words if the information is requested by the Federal Bureau of Investigation during an official investigation. In addition, the act allows the use of so-called national security letters to prohibit librarians or booksellers from disclosing such requests. Just as the Sedition Act of 1798 had nothing to do with sedition, some question what the Patriot Act of 2001 has to do with patriotism. Both were rushed through Congress in a time of war fever with little or no public protest by a fearful citizenry. In both instances, there was support for the government, but that gradually dissipated as the breadth of the laws became known. A striking difference, however, can be found in the public’s understanding, then and now, as to what is at stake when freedom of expression comes under attack. Matthew Lyon was reelected in 1798 while sitting in his jail cell.Two years later, Adams was not.The voters came to understand that they needed to regain the rights of freedom of expression. Most recently, a series of public opinion polls reveal a remarkable absence of support among U.S. citizens for First Amendment rights—and, what is worse—a disturbing lack of knowledge about First Amendment values.These results reflect a marked departure from the public attitudes that changed the mind of Madison and shook the founders from their political complacency in the 1780s. They also starkly contrast the public opinion that resulted in Adams’s defeat.
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These polls document that only 3 in 100 Americans can name all five freedoms in the First Amendment. Only 15 percent know that it guarantees freedoms of press and assembly. More than 80 percent fail to list freedom of religion as part of the amendment, and 36 percent do not identify freedom of speech as a First Amendment right. In a separate survey of 100,000 high school students, 36 percent were convinced that journalists should not be allowed to report news without government approval. One in three had no opinion about whether religious liberty, freedoms of speech and the press, and the rights to peaceably assemble and petition the government to correct wrongs were constitutional rights. Some of the surveys’ results can be explained by the terror that lingers from the September 11 attacks, but regardless, the ignorance that pervades society with regard to rights of free expression is disturbing and dangerous. At such a time, this encyclopedia detailing and defining First Amendment rights could not be more valuable. These volumes, the work of three distinguished First Amendment scholars—John R. Vile, David L. Hudson Jr., and David Schultz—provide an indispensable and lasting resource. In a real sense, their work serves the public interest. John Seigenthaler Founder, First Amendment Center
Preface
As the editors of Encyclopedia of the First Amendment and authors of numerous entries in it, we have particular reason to appreciate our First Amendment liberties, but we also value these rights as individuals and as private citizens. The framers of the Constitution viewed these rights as being grounded in timeless principles that precede their articulation in the Bill of Rights. In much the same way, our appreciation of these rights is informed and enhanced by knowledge of the larger story of which they are a part. In Encyclopedia of the First Amendment, we have sought to publish a work that is unique in its breadth and its depth.Two of us—John Vile and David Schultz—have previously published a set of volumes on civil liberties in the United States with broad coverage of First Amendment issues. With so much ground to cover, however, such volumes only hit the high points. By contrast, Encyclopedia of the First Amendment provides exhaustive treatment of expressive and religious rights. Exceeding 1,400 entries and 700,000 words, this twovolume set contains more entries on the First Amendment than any other work of its kind. No other encyclopedia devotes such attention to First Amendment freedoms.
Essays and Entries When we began this project, we were uncertain about covering the entire First Amendment.We gave some thought to focusing instead on freedom of speech and freedom of the press. In time, however, and with the help of CQ Press, we decided that the other rights established in the First Amendment were so closely related that we could not offer an encyclopedic account of one set of rights without comparable coverage of the others. Concerned nonetheless that the topics might be so disparate that the result would seem more like a dictionary than an encyclopedia, we decided to open the first volume with a series of introductory essays to provide overviews of each of the provisions of the amendment.We are honored that individuals of national and international stature agreed to contribute these pieces; we are all honored that John Seigenthaler, the founder of the First Amendment Center, penned the foreword to the volume.
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The introductory essays address the two religion clauses, freedom of speech, freedom of the press, and freedom of assembly, petition, and association. Other topics include the application of the First Amendment to the states via Supreme Court decisions interpreting the Fourteenth Amendment, the influence of the First Amendment around the world, and the future of the amendment. The essays along with the Introduction frame the entire project, and a chronology offers further perspective on the provisions of the First Amendment by succinctly tracing their development through the centuries. The topical entries appear in alphabetical order and typically range from 250 to 1,500 words, depending on the significance or complexity of the subject. Each is designed to provide a succinct portrait of a fairly limited topic. Some of these entries would be suitable topics for an entire book, but we have tailored this encyclopedia toward individuals who want a handy source for broad research on First Amendment issues. Most entries fall into one of several distinct categories.
Court Decisions and Doctrines Entries concerning Supreme Court decisions are the most numerous.We have included all decisions that we thought to be important.We chose, however, to omit cases in which the Court, without a written opinion, refused to intervene and let stand existing opinions, as well as cases in which a decision might have implications for the First Amendment but the Court did not specifically cite it. In general, cases that were consolidated for argument and opinion when they reached the high court are covered in a single entry. Because the Supreme Court in the nineteenth century decided relatively few First Amendment cases, many of which are not easily accessible, we have included notable cases from other courts during this period. We also present some of the more important state and lower federal court decisions from the twentieth century and the current one. With time and changes in American society, the increasing number of judicial decisions in First Amendment cases generated a number of legal doctrines, which can be somewhat arcane. Numerous entries in this encyclopedia thus also
Preface examine doctrines and standards, among them actual malice, captive audiences, fighting words, least restrictive means, overbreadth, vagueness, public forums, government speech, viewpoint discrimination, public figures, and prior restraint. All are essential to understanding modern First Amendment jurisprudence.
People, Laws, and Events Like most advances in human freedom, those involving the First Amendment usually originated with and were perpetuated by individuals.We have chosen here to highlight some of the more important and sometimes notorious such individuals while emphasizing contemporary First Amendment controversies and developments. This encyclopedia thus includes entries on authors of seminal laws or treatises, leaders of movements that implicate First Amendment freedoms, judges and justices whose reasoning and decisions have had particular influence on First Amendment jurisprudence, individuals involved in First Amendment controversies, and lawyers, scholars, and leaders of organizations devoted to the protection of First Amendment rights. Surprisingly few federal laws deal specifically with the First Amendment, but those that do are exceptionally important. Developments in the scope of government programs and advances in modern technology have increased the number of such laws that have been adopted in recent years. This work provides brief overviews of these laws and their relation to previous legislation. New statutes are often tied to significant events, so this encyclopedia provides brief summaries of landmark events, paying special attention to wars, eras, and movements that raised First Amendment issues and concerns.
Issues and Organizations As courts expanded the application of the First Amendment to state and local governments as well as to Congress, they embraced an increasing number of issues, some of which are yet to reach the Supreme Court. In addition to detailing decisions in individual cases, we have included entries on congressional investigations, charitable solicitation, campaign regulation, and the like that tie together cases and series of cases. Also included are a number of contributions on religious groups that have had particular influence on interpretation of the First Amendment. The intention was not to analyze doctrine, but to take note of those denominations— among them Baptists, Jehovah’s Witnesses, Jews, Mormons, and Quakers—whose doctrines or participation in litigation
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have especially influenced judicial and statutory treatment of the amendment. Like religious denominations, advocacy groups have influenced First Amendment protections.This encyclopedia thus devotes entries to nineteenth-century abolitionists as well as to modern organizations, such as the American Center for Law and Justice, the American Civil Liberties Union, People for the American Way, and the Rutherford Institute.We could not of course include all such groups, but we have tried to include organizations from across the political spectrum.
Using This Encyclopedia Readers can take some measure of the breadth of this encyclopedia by examining the two topical tables of contents, focusing on subjects and cases.These are useful aids for readers, as are the professionally compiled indexes and select bibliography. As authors of other reference volumes, we understand the need to make these works as user friendly as possible. This is one of the reasons we commissioned the indepth introductory essays. In addition, we asked authors to provide cross-references to relevant entries in the volume and to include at least one primary or secondary source for further research. Because there is no substitute for reading original sources, we have provided the standard citation for each court case that is the subject of an entry. We designed Encyclopedia of the First Amendment for use by students in a variety of disciplines. It is ideal for high school and public libraries seeking a single, comprehensive guide on First Amendment protections and their history. It was also developed with college and university libraries in mind, including those specializing in history, law, journalism, and theology.We are especially grateful to the librarians who so faithfully serve these institutions; we are confident that those who field questions at reference desks will find this two-volume set to be particularly useful. Many scholars will rely on libraries for access to these modestly priced volumes, but we hope that others will consider adding them to their personal collections. Those who frequently consult this work will find that its interdisciplinary perspectives, like the varied provisions of the First Amendment itself, complement and strengthen each other. Two of us—David L. Hudson Jr. and David Schultz— have law degrees, and the other, John R.Vile, is the father of a lawyer, so we are well aware of the special needs of legal practitioners. This encyclopedia is at once comprehensive
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Preface
and suitably organized to be a real resource for anyone litigating First Amendment cases and thus in need of a ready reference. In navigating complex areas of the law relative to the First Amendment, journalists as well require quick reference to cases that are not always easy to read or comprehend. Although this encyclopedia can hardly substitute for good legal advice, many newsroom denizens will find its volumes to be an indispensable reference as they carry out their daily tasks. All of us teach university classes on aspects of the legal system, and David Hudson works at a center devoted exclusively to the study of First Amendment freedoms and to educating students about them. We accordingly recognize the needs of others who teach and of students and have tried therefore to tailor this encyclopedia to their needs as well. It should be an aid to people preparing for classes and to those writing about the First Amendment who need a quick reference to an obscure case or a thumbnail sketch of an important legal concept.
Acknowledgments Encyclopedia of the First Amendment, reflecting in part our scholarship as well as our personal commitment to First Amendment values, would not have been possible—at least not in this decade!—without the help and cooperation of scholars from across the United States. Contributors include professors of political science, journalism, law, history, and theology, as well as librarians, legal practitioners, and freelance writers. Most authors approached their contributions as labors of love; some took on essays at the last minute so that we could stay on track.We owe them our gratitude.
In addition to thanking our spouses for their extraordinary patience, we owe special recognition to the individuals at CQ Press who worked with us to make this project possible. We offer special thanks to acquiring editor Doug Goldenberg-Hart, development editor Timothy Arnquist, and intrepid interns Jon Bornstein, Elyse Franko, Vedonia Ingram, Isaac Levey, Katrina Overland, and Paige Maslen for their photo research and countless hours spent on a myriad of administrative tasks. Also indispensable in bringing this project to fruition are managing editor Joan Gossett, project editor Robin Surratt, and a superlative team of copy editors: Joanne Ainsworth, Jennifer Campi, Ann Davies, Elaine Dunn, Debbie Hardin, Kathryn Krug, Margot Harris, Sabra Bissette Ledent, Nancy Matuszak, Lorna Notsch, and Tracy Villano. We are grateful to Jon Preimesberger for handling production, to Inge Lockwood for proofreading the pages, and to Enid Zafran for indexing the two volumes.The editors also wish to extend special thanks to the talented Gina Logue, at Middle Tennessee State University, who helped correspond with the contributors and keep track of the entries. We are all privileged to work at institutions that value our work. John R.Vile thanks his colleagues at Middle Tennessee State University. David L. Hudson Jr. thanks his at the First Amendment Center and the Freedom Forum. David Schultz thanks his colleagues at Hamline University for their continuing support. In the course of writing and editing this book, we have gained greater appreciation for one another’s skills and dedication to First Amendment values.We trust that this encyclopedia will continue to perpetuate the ideals of freedom that the First Amendment represents in the United States and throughout the world. John R.Vile David L. Hudson Jr. David Schultz
Contributors
jason abe l University of Pennsylvania
monica be ll New Haven, Connecticut
winston calve rt St. Louis, Missouri
pre ston adair Texarkana,Texas
jame s be lpe dio Becker College
christophe r capozzola Massachusetts Institute of Technology
alex aichinge r Northwestern State University
alvin k. be nson Indiana University
david carleton Middle Tennessee State University
kare n aichinge r Natchitoches, Louisiana
jason d. be rggre n University of Georgia
brian cate rino Rochester, New York
mark alcorn, Avon, Minnesota
david e. be rnstein George Mason University School of Law
matthew m. cave rly University of North Florida
jame s r. alexande r University of Pittsburgh, Johnstown
michae l j. bitz e r Catawba College
bruce altschule r State University of New York, Oswego
ryan c. black Washington University in St. Louis
e rwin cheme rinsky University of California, Irvine School of Law
ojan aryanfard Warren, Michigan
mike bobic Emmanuel College
frank askin, Rutgers School of Law, Newark
chad r. bowman Washington, D.C.
david asp Minnetonka, Minnesota
kristi l. bowman Drake University
mary w. atwe ll Radford University
christina l. boyd Washington University in St. Louis
bruce aue rbach Albright College
brandi snow bozarth Middle Tennessee State University
john aughe nbaugh Virginia Commonwealth University
jon brudvig University of Mary, Bismarck
john s. bake r Louisiana State University Law Center
kevin buckle r Georgia Southern University
danie l baracskay Valdosta State University
gary bugh Texas A&M University
e lizabeth beaumont University of Minnesota
brandon r. burnette Southeastern Oklahoma State University
francis j. beckwith Baylor University
mark e. byrne s Middle Tennessee State University
patrick w. chinne ry Middle Tennessee State University kane m. click University of Nebraska, Lincoln frank j. colucci Purdue University, Calumet paul j. cornish Grand Valley State University je sse d. covington Westmont College marcie k. cowley Michigan State University brett w. curry Georgia Southern University de re k h. davis University of Mary Hardin, Baylor kevin r. davis Vanderbilt University chris demaske University of Washington,Tacoma heathe r k. demato s Port Richey, Florida
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Contributors
kevin de n dulk Grand Valley State University
wi lliam gi lle spie Kennesaw State University
katrina hoch University of California, San Diego
anuj de sai University of Wisconsin
paul gowde r Stanford University
walte r hube r Muskingum College
douglas dow University of Texas, Dallas
wi lliam c. gre e n Morehead State University
timothy s. hue bne r Rhodes College
phi lip a. dynia Loyola University, New Orleans
ivan gre e nbe rg San Francisco, California
geoffrey hull Middle Tennessee State University
jonathan e llz ey University of Florida
martin grube rg University of Wisconsin
rache l m. janutis Capital University Law School
ste fano fait Trento, Italy
michae l w. hai l Morehead State University
scott p. johnson Frostburg State University
john fe rguson Howard Payne University
h.l. hall Hendersonville,Tennessee
pete r a. joy Washington University in St. Louis
cleve land fe rguson iii Florida Coastal School of Law
scott m. hammack North Bethesda, Maryland
robe rt a. kahn University of St.Thomas
paul d. fische r Middle Tennessee State University
upohar haroon University of Florida
ronald kahn Oberlin College
michae l p. fix University of Kentucky
matt l. harris Colorado State University, Pueblo
e ric t. kaspe r University of Wisconsin, Barron County
roy b. f lemming Texas A&M University
thurman hart New Jersey City University
danie l martin katz Anne Arbor, Michigan
jame s c. fo ste r Oregon State University, Cascades
robb harvey Nashville,Tennessee
matthew a. ke rn Miami University, Ohio
se kou franklin Middle Tennessee State University
judith hayde l Lafayette, Louisiana
mark ke ssle r Texas Women’s University
jason frie dman Michigan State University
allison r. hayward George Mason University
jane e. kirtley University of Minnesota
lynne chandle r-garcia University of Maryland
shawn healy University of Illinois at Chicago
heidi kitro sse r University of Minnesota
patrick m. garry University of South Dakota
ve ronica he fne r University of Illinois, Urbana-Champaign
ke nneth j. knirck California State University at Chico
ge ne c. ge rard Tarrant County College
roge r heinrich Middle Tennessee State University
he nry j. knowle s State University of New York, Oswego
chris l. gibson Georgia Southern University
craig hemme ns Boise State University
emi le s. kraft Birmingham, Alabama
jame s t. gibson Birmingham, Alabama
john alle n he ndricks Southeastern Oklahoma State University
danie l c. krame r College of Staten Island, CUNY
tobias t. gibson Monmouth College
john r. he rmann Trinity University, San Antonio
kyle l. kreide r Wilkes University
Contributors
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ste phanie kunz e Flagstaff, Arizona
tom n. mcinnis University of Central Arkansas
david ray papke Marquette University
julie lantrip Georgetown University
pete r mcnamara Utah State University
richard a. parke r Northern Arizona University
maurice leach Rosedale, New York
richard j. meaghe r Marymount Manhattan College
ke nneth payne Texas A&M University,Texarkana
je remy leaming Greenville,Tennessee
tim meinke Lynchburg College
leonard w. peck Texas A&M University,Texarkana
doug le e Dixon, Illinois
linda me rola George Mason University
wi lliam d. pe de rson Louisiana State University, Shreveport
abigai l leib New York, New York
susan gluck mez ey Loyola University Chicago
audrey pe rry Washington, D.C.
howard leib New York, New York.
de nnis b. mi le s Southeastern Oklahoma State University
kare n k. pete rse n Middle Tennessee State University
vince leibowitz Mineola,Texas
dale mine shima-lowe Shefford, Bedfordshire, United Kingdom
ge ne f. policinski Nashville,Tennessee
scott lemieux Hunter College, CUNY
sara z. morris Georgia Southern University
bob pondi llo Middle Tennessee State University
gina ke rra logue Middle Tennessee State University
sharon l. morrison Durant, Oklahoma
paul jame s pope Weber State University
matthew manwe lle r Central Washington University
ke nneth f. mott Gettysburg College
norman proviz e r Metropolitan State College of Denver
ste phe n g. mason Orlando, Florida
mary-beth moylan University of the Pacific, McGeorge School of Law
marc-george s pufong Valdosta State
john h. mathe son University of Minnesota Law School tony mauro Washington, D.C. david a. may Eastern Washington University michae l mcconne ll University of Utah thomas mccoy Vanderbilt University School of Law shannon k. mccraw Southeastern Oklahoma State University robb mcdanie l Middle Tennessee State University geoffrey mcgove rn Binghamton University, State University of New York
caryn e. neumann Miami University, Ohio lynette noblitt Eastern Kentucky University kathyrn l. oate s University of Florida john omachonu Middle Tennessee State University kevin francis o ’ nei ll Cleveland State University robe rt m. o ’ nei ll University of Virginia timothy j. o ’ nei ll Southwestern University richard l. pace lle jr. Georgia Southern University
e lizabeth purdy LaGrange, Georgia dara e. purvis New Haven, Connecticut jane g. rainey, Eastern Kentucky University nei l ralston Western Kentucky University ne d ramage Nashville,Tennessee sande e p c. rame sh New Haven, Connecticut mitzi ramo s University of Illinois at Chicago john david rausch West Texas A&M University
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Contributors
frank s. ravitch Michigan State University
john seige nthale r First Amendment Center
euge ne volokh UCLA School of Law
jame s h. read University of Minnesota
joey se nat Oklahoma State University
kevin j. wagne r Florida Atlantic University
anne reynolds Durant, Oklahoma
salmon a. shomade University of New Orleans
carol walke r Georgia State Univerity
robe rt d. richards Pennsylvania State University
gregory sisk University of St.Thomas
jame s walke r Wright State University
wi lliam w. riggs Texas A&M International University
ronald l. steine r Chapman University
artemus ward Northern Illinois University
john r. rink University of Wisconsin, Platteville
simon ste rn University of Toronto
susan l. we bb Southeastern Oklahoma State University
jo se ph robe rts University of Utah
e dward sti ll Birmingham School of Law
steve robe rtson Middle Tennessee State University
ruth ann strickland Appalachian State University
ste phe n j. we rmie l American University,Washington College of Law
e ric p. robinson New York, New York
tara w. stricko-neubaue r Kennesaw State University
jo se ph ro se nblum Boulder, Colorado
neal tate Vanderbilt University School of Law
danie lle ro se ngarte n Washington, D.C.
alan taube r University of South Carolina
kristy rothe nbuhle r
gabrie l h. te ninbaum Suffolk University
carrie arche r russe ll Vanderbilt University hana m. ryman Palm City, Florida anthony b. sande rs Chicago, Illinois jo se ph e. sandle r Washington, D.C. patrick schmidt Southern Methodist University kyle scott University of North Florida
olive r thomas Greenville,Tennessee sandra l. thomas Southeastern Oklahoma State University alexande r thomson Schoolcraft College jurij toplak University of Maribor, Slovenia margaret m. tullai University at Albany, State University of New York virginia vi le Alexandria,Virginia
john we rtheime r Davidson College keith we solowski Alexandria,Virginia we ndy m. whitman University of Florida cary s. wiggins Atlanta, Georgia leonard wi lliams Manchester College clyde e. wi llis Middle Tennessee State University laura witte rn-ke lle r University at Albany, State University of New York victoria s. woe ste West Lafayette, Indiana raymond b. wrabley jr. University of Pittsburgh, Johnstown sara l. z eigle r Eastern Kentucky University
Introduction
Few Americans would question the importance of the amendment to the Constitution that serves as the blueprint for personal liberty and the subject of this encyclopedia. However imperfectly Americans understand or honor the principles embodied in the core First Amendment freedoms, most would express pride in them—in worshiping or not worshiping according to the dictates of their conscience, expressing their opinions, assembling and associating with whomever they please, and petitioning the government. Hardly anyone would restrict any of these rights as they apply to themselves however much they might be tempted to constrain their application to others whose beliefs or behaviors they find distasteful or even abhorrent. Americans generally share this heritage with their English forebears, whose roots in turn drew from Reformation theology and Greek and Roman ideals of democratic citizenship. Individuals who believed they were directly accountable to God wanted to be able to pursue spiritual truth wherever it led them, and some colonists, such as Roger Williams, challenged the religious establishments of some denominations brought to the New World. To influence government, citizens needed access to information. To participate in government, citizens needed to be able to express their opinions.The 1735 trial of John Peter Zenger in New York was reported throughout the colonies and indicated that while freedom of speech and press did not necessarily exempt colonial-era publishers from prosecution, the truth of their accusations was a defense, and defendants would be entitled to allow juries of their own peers to decide on such truth. As American colonists approached independence, freedoms later embodied in the First Amendment assumed increasing importance. After ratification of the Constitution, citizens demanded that these rights be embodied in a bill of rights. Each subsequent period in U.S. history has added context to these guarantees, allowing contemporaries to draw valuable lessons not only from those times when such rights triumphed but also from times when they were jeopardized.
Birth of the First Amendment A vigorous exercise of speech and press that the British considered to be treasonous preceded the American Revolution. Even before the revolt, American air seemed freer than that in England, which was as free as that of any nation. Almost uniformly Protestant, the American colonies nonetheless contained an increasing number of religious sects; settler communities that needed labor welcomed them. In part because colonists desired to be able to read Scripture for themselves, literacy rates were relatively high. Newspapers multiplied, and pamphleteers flourished. Thomas Jefferson declared in the Declaration of Independence that all men are equally entitled to the rights of “life, liberty, and the pursuit of happiness,” and in that spirit, a number of the newly independent colonies issued declarations of rights to enshrine freedoms that are today embodied in the First Amendment. In retrospect, it is intriguing that the delegates who gathered in Philadelphia at the Constitutional Convention of 1787 and built such a wise form of government in so many other ways did not insist on a similar national bill of rights. Convention delegates apparently viewed George Mason’s belated proposal for a bill of rights as yet another motion to vote down in order to get on with the real work of formulating a more effective government to replace the Articles of Confederation. Although they did not include a bill of rights, the framers did create a secular national government with multiple checks and balances designed to protect liberties by dividing power and impeding the capacity of the majority to tyrannize the rights of minorities. As some would later argue, in this respect the entire document was a bill of rights, although it largely excluded slaves and Native Americans from its protections and did not alter the inferior status of women. It was only when delegates reported the Constitution to the states for ratification that they began to comprehend the significance of omitting a bill of rights, as the absence of one began to make ratification look problematic. Anti-Federalist opponents of the new constitution threatened to call anoth-
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er convention to rectify the omission. Federalist supporters initially argued that a national bill of rights was unnecessary, but if (as they claimed) the new government had no intention of abridging individual rights, what real harm could come from including one? The most prominent discussion of the subject is the correspondence between Thomas Jefferson, then serving as an ambassador to France, and James Madison, now recognized as the “father” of the Constitution and of the Bill of Rights. Although Jefferson was generally favorable toward the document, he considered the absence of a bill of rights a major flaw. Jefferson argued that a bill of rights would enable independent courts of justice to protect individual rights; he further asserted that statements of rights would serve to educate citizens in republican principles. Further persuaded by concerns of voters whose support he needed for election to the House of Representatives and by hopes of support that he thought the promise of a bill of rights would give to the new government, Madison served as the most vigorous champion of the bill of rights in the First Congress. In introducing these guarantes to his fellow members of Congress in June 1789, he referred to them as the “great rights of mankind.” The requisite majority of states ratified the Bill of Rights in 1791.
Placement, Wording, and Application of the First Amendment Scholars have documented the serendipity of why what is now the First Amendment became the first among the amendments of the Bill of Rights. Madison had actually hoped to incorporate the texts of the amendments within the Constitution rather than attaching them at the end as Connecticut’s Roger Sherman had insisted. Moreover, the bill of rights that Congress proposed contained twelve amendments, the first two of which the states did not initially ratify; both dealt with structural issues. In time, one putatively became the Twenty-seventh Amendment. Nonetheless, it was hardly accidental that an individual like Madison—who had helped adopt Virginia’s Statute for Religious Freedom and had consistently championed religious and political liberty throughout his life—began his list of individual rights with those enumerated in the First Amendment. Scholars have noted that Madison replaced such words as should or ought, used in earlier state declarations of rights, with bolder and less equivocal language. As abolitionist supporters later demonstrated, the language of
the amendment is succinct enough to be printed on a bread plate. Its forty-five words seem more like the “thou shalt nots” of the King James Version of the Ten Commandments than mere aspirations: 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. As unequivocal as these words are, Madison would have gone further. He had proposed including an amendment that would have guaranteed similar rights not only against congressional action, but also against state deprivation. His proposed amendment, which Madison considered his most important, read, “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” He realized that state governments often would be the greatest offenders of personal liberty, more so than the federal government. His proposal, however, became a casualty of the legislative process and would have to await later developments associated with changing views of federalism. Until adoption of the Fourteenth Amendment, U.S. courts fairly consistently recognized the principle that Supreme Court chief justice John Marshall articulated in Barron v. Baltimore (1833)—that is, “Congress shall make no law . . . ” indicates that the Bill of Rights was designed to limit the national government rather than to hobble the states. Modern scholars recognize that the First Amendment did not abolish established churches in states that had them; indeed, the amendment arguably perpetuated such establishments by prohibiting Congress from taking any action on the matter. Although no states seem to have provided for prior restraint of First Amendment freedoms, their laws varied in respect to standards for libel, obscenity, and some First Amendment issues that continue to bedevil jurists and lawmakers to this day.
The Alien and Sedition Acts and Nineteenth-Century Developments The founders, contrary to some of their own expectations, soon divided into rival political parties under the new governing system. It is one of the great historical ironies that many who had helped to ratify the powerful language of the
Introduction First Amendment ignored its principles in seeking to silence political speakers with whom they disagreed. Few milestones were more important in this development than the Federalists’ adoption of the Alien and Sedition Acts in 1798 during the United States’ undeclared war with France:The Alien Act made it more difficult for immigrants to become citizens, and the Sedition Act made it a crime to criticize the president or the government of the United States. Although the Supreme Court did not have occasion to rule on the constitutionality of these laws at the time they were adopted, scholarly consensus today recognizes the Sedition Act as a betrayal of revolutionary ideals and First Amendment freedoms. As Justice William J. Brennan Jr. wrote years later in New York Times Co. v. Sullivan (1964), “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.” The law provided fodder for a host of speeches and publications that pushed interpretations of the First Amendment in an increasingly libertarian direction. As Brennan noted, the Sedition Act “first crystallized a national awareness of the central meaning of the First Amendment.” Jefferson and Madison may have unwisely sown the seeds for future disunion when they argued in the Kentucky and Virginia Resolutions of 1798 for state “interposition” against federal legislation that interfered with First Amendment rights, but they were on target in questioning the source from which Congress derived authority for such legislation. Madison elaborated further on these arguments in his Report of 1800, in which he argued that a law that would permit congressional regulation of speech and press might also be interpreted to deny religious freedom.The so-called Revolution of 1800 was not achieved through physical force but through the ballot box.When elected president, Jefferson pardoned individuals who had been convicted under the Sedition Act, and despite some arrests during the Civil War, the national slate remained relatively free of such legislation until World War I again stirred sentiments against possible espionage and sedition. Although the Bill of Rights did not provide normative law for the states, it set a standard that increasing numbers of states would emulate over time. In 1833 Massachusetts became the last state to abolish state support for an established church. At about the same time, however, Alexis de Tocqueville observed that public opinion in the United States was so powerful that it sometimes enforced a “tyranny of the majority.” This was especially evident in the incorporation of religious teaching within the increasingly uni-
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versalized public education systems that states provided. While southern European and Roman Catholic immigrants well recognized that public schools reflected the dominant Protestant Weltanschauung, those in the majority seemed almost oblivious to their own presuppositions. In Boston, a judge ruled in Commonwealth v. Cooke (1859) that a schoolteacher was justified in beating a Roman Catholic student who had refused to recite the Lord’s Prayer and the Ten Commandments from the King James Version of the Bible. Much like fundamentalist Protestants would do in the twentieth century, Roman Catholics often withdrew their children from public schools and established their own institutions of learning. On another front, however, religion flourished without state sponsorship, providing much of the moral impetus for the anti-slavery movement and later for a national prohibition of alcohol and for woman’s suffrage.The nation’s diversity increased as more immigrants arrived and spawned a number of homegrown religions. Among them were the Latter-day Saints, whose beliefs forced courts to re-examine the lines between religious belief, advocacy, and practice.
From Civil War to World War I In Federalist No. 10, Madison argued that the diversity of a people spread throughout a geographically expansive republic would help secure liberty. He recognized that the positions of a majority and a minority race had led to injustice and that over time these injustices had become more geographically concentrated. Northerners, as they abolished slavery, increasingly viewed the institution as an abomination, and as Southerners perpetuated slavery, they increasingly defended it as a positive good. Congress’s gag order in the 1830s against anti-slavery petitions stirred fierce debates over the right of petition. Southerners conceived of such petitions as being as incendiary as the abolitionist doctrine they reflected. The abolitionist leader Elijah Lovejoy and his presses fell victim to a lynch mob, but the voices of Harriet Beecher Stowe and others were not silenced.War inevitably came. Many leaders in Congress associated the Civil War not only with the institution of slavery, but with the inadequacy of state protections for individual rights. The Fourteenth Amendment, ratified in 1868, subsequently extended to all persons born or naturalized in the United States the citizenship that the decision in Scott v. Sandford (1857) had sought to limit and guaranteed all citizens basic privileges and immunities and due process rights. Some clearly thought this
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amendment would effectively overturn the decision in Barron v. Baltimore that had limited the application of the Bill of Rights to the states. Others focused on the more immediate and pressing deprivations of the rights of former slaves. In the early twentieth century, the Supreme Court would face another set of national laws challenging First Amendment freedoms, at which point it would begin the process of “incorporation” to clearly establish that the provisions of the First Amendment equally bound state and national governmental entities. It is common for legal casebooks to open discussion of freedom of speech and freedom of the press with cases from the World War I era that began to change the nature of this debate. In the words of free speech historian Paul L. Murphy, this period in many ways witnessed the “origin of civil liberties.” It would be comforting to think that the movement was always in the direction of protecting civil liberties, but the record lays out a crooked path. During World War I, Congress enacted the Espionage Act of 1917, which criminalized attempting to foment insubordination of the war effort, willfully attempting to cause insurrection, and obstructing the recruiting or enlistment of potential volunteers. Another section of the law gave the postmaster general the power to ban from the mail any material “advocating or urging treason, insurrection, or forcible resistance to any law of the United States.” Congress then passed the Sedition Act of 1918, an amendment to the Espionage Act that further infringed on First Amendment freedoms.The law prohibited [u]ttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language intended to cause contempt, scorn . . . as regards the form of government of the United States or Constitution, or the flag or the uniform of the Army or Navy . . . urging any curtailment of the war with intent to hinder its prosecution; advocating, teaching, defending, or acts supporting or favoring the cause of any country at war with the United States, or opposing the cause of the United States. The Supreme Court first developed its body of First Amendment jurisprudence when examining Espionage Act charges leveled against political dissidents, that is, socialists, communists, and anarchists who opposed the U.S. effort in World War I. In Schenck v. United States (1919), Justice Oliver Wendell Holmes Jr. unveiled the clear and present danger test when he wrote, “The question in every case is whether
the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” Holmes wrote this famous phrase in his majority opinion affirming the conviction of socialist Charles Schenck. The Court used Holmes’s doctrine to affirm similar convictions in other cases, including Abrams v. United States (1919). Holmes and Justice Louis D. Brandeis dissented, however, with Holmes penning an opinion that introduced the marketplace of ideas metaphor that still permeates modern First Amendment law: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” The Court continued to examine free expression cases involving political dissidents, struggling to calibrate the proper balance between protecting individual liberty and safeguarding national security interests. In Gitlow v. New York (1925), it upheld another criminal conspiracy conviction of a socialist, but it also assumed that the First Amendment freedom of speech extended to the states.The Court wrote that freedom of speech and press “are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Before long, the Court was applying other provisions of the Bill of Rights to the states as well, including the free exercise clause in Cantwell v. Connecticut (1940) and the establishment clause in Everson v. Board of Education (1947). The Supreme Court had taken on relatively few cases involving the First Amendment, or the Bill of Rights in general, during the nineteenth century, but in the twentieth century the justices became key interpreters of First Amendment freedoms. Justice Brandeis broadened Justice Holmes’s justifications for freedom of expression, most notably in his classic concurring opinion in Whitney v. California (1927), introducing the counterspeech doctrine: when confronted with harmful speech, “the remedy to be applied is more speech, not enforced silence.” Holmes and Brandeis are often called the “fathers of the First Amendment.” Their legacy lived on in Justices Hugo L. Black, William O. Douglas, Harlan Fiske Stone, Frank Murphy, and William J. Brennan Jr., who carried forth their vision of vigorously protecting free expression.
Introduction
From World War I to World War II and Cold War Contrary to the hopes of Woodrow Wilson,World War I did not make the world safe for democracy. Indeed, communists took power in Russia, leading to the first red scare in the United States and creating fertile soil for the rise of Nazism in Germany. As soon as the Allies had defeated Germany, Italy, and Japan in World War II, the East and West split into rival camps, with Russia gorging on Eastern European states. Communism spread to China, and the Soviet Union and China would soon acquire the nuclear technology that the West had employed to end the war. The resulting cold war was a time when fears often trumped hopes, and political associations no longer were considered mere private matters. Congress not only adopted laws designed to punish alleged subversion, but it also conducted investigations to root out would-be subversives. It made it illegal to organize parties to overthrow the government, created blacklists of potential enemies, and enacted loyalty oaths. Although the Supreme Court sometimes bowed to popular pressure, over time it began to establish a set of precedents that increasingly protected civil rights and liberties. The Court weathered the storm when Franklin D. Roosevelt had threatened to pack it with new members in 1937 to get the New Deal off the ground.After initial resistance to New Deal legislation, the Court switched gears and only rarely struck down legislation dealing with economic matters; it required only that governments show a rational basis for such legislation and subjected it to minimal scrutiny. It also increasingly gave greater scrutiny to laws that impinged upon fundamental rights (like those of the First Amendment) or involved suspect categories (including racial and religious classifications). Many scholars trace this development to Justice Harlan Fiske Stone’s footnote four in United States v. Carolene Products Co. (1938) that contains an embryonic element of much of the Court’s subsequent agenda for applying a more stringent form of judicial review in individual liberty cases. Stone suggested that the Court should apply stricter scrutiny to legislation that violated specific provisions of the Bill of Rights and the Fourteenth Amendment, restricted political processes, or was directed at “discrete and insular minorities.”
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Civil Rights,Vietnam, and Church and State While the cold war era produced McCarthyism, communist prosecutions, and other curtailments of First Amendment freedoms, another movement presented the Court with the ideal opportunity to expand these freedoms. In The Negro and the First Amendment (1965), Harry Kalven wrote that “we may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us.” The Warren Court (1953–1969) gave impetus to the civil rights movement with its landmark decision in Brown v. Board of Education (1954), which ended de jure racial segregation in schools and virtually all areas of public accommodation. During the movement, the Supreme Court expanded protection from libel suits in New York Times Co. v. Sullivan (1964), protected the right of organizations freely to associate without undue interference from the state in NAACP v. Alabama (1958), struck down permitting schemes used to prevent demonstrators from marching on public streets in Shuttlesworth v. Birmingham (1968), and ruled that demonstrators have the right freely to assemble and march on city streets in Edwards v. South Carolina (1963). The Court also expanded First Amendment rights in a number of cases during the Vietnam War in the 1960s and 1970s. It ruled that a political protester could use crude political hyperbole without uttering a true threat in Watts v. United States (1969), decided that high school students could wear black armbands to school in protest of the war in Tinker v. Des Moines Independent Community School District (1969), held that the government could not force the press to stop printing material about the war in New York Times Co. v. United States (1971), and ruled that a state legislature could not expel a legislator for making comments critical of the U.S. war effort in Bond v. Floyd (1966). In Brandenburg v. Ohio (1969), it further made it more difficult to convict speakers for inflammatory speech that did not create the likelihood of imminent lawless action. The Supreme Court’s increased judicial scrutiny of civil liberties issues dovetailed with its ongoing application of provisions of the Bill of Rights to the states. This process peaked during the Warren Court, especially with respect to the rights of criminal defendants. Also during this tumultuous period, when the nation often counterpoised the faith of its own citizens against communist atheism—Congress
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added the words “under God” to the Pledge of Allegiance in 1954—judges gave increased scrutiny to the place of religion in public schools. As discussed above, the dispersion of progressive Protestantism in public school curricula had been so pervasive that it truly took outsiders, most typically Roman Catholic immigrants, to recognize it. Beginning in the 1940s, the Court began to insist that secular education be truly secular, and it continued to prohibit most state funding of religious education. Although the Court permitted New Jersey to provide aid for bus transportation to children in parochial schools, Justice Hugo L. Black articulated a strongly separationist position in Everson v. Board of Education (1947). Interpreting the establishment clause through the lenses of Jefferson and Madison, Black indicated that the Court would give particular scrutiny to governmental appropriations of money that seemed to benefit parochial schools. In due time, Black’s dicta was translated into the oft-criticized Lemon test—set out in Lemon v. Kurtzman (1971)—which requires that laws facing establishment clause challenges have a clear secular legislative purpose, have the primary effect of neither advancing nor inhibiting religion, and avoid creating excessive entanglement between church and state. Around this time, the Court began also to look with increasing scrutiny at religious practices within public schools. First banishing most religious instruction from public school classrooms, the Court subsequently decided that devotional prayer, Bible reading, and recitations of the Lord’s Prayer were practices to be cultivated in homes and churches, but not in classrooms or at public school events. Continuing proposals for constitutional amendments (sometimes supported by presidents) to permit voluntary prayer in schools indicate that the public may still not be altogether comfortable with these decisions.
Ongoing Developments First Amendment doctrine continues to evolve. In addition to the decisions in New York Times Co. v. Sullivan (1964) constitutionalizing libel law and New York Times Co. v. United States (1971) limiting governmental prior restraint of publication, Miller v. California (1973) established national guidelines for judging obscenity. Other decisions broadened the application of the right of association, which is tied to other First Amendment freedoms. Numerous cases have further extended the rights of symbolic speech, or expressive conduct. The decisions in Texas v. Johnson (1989) and United
States v. Eichman (1990) declared that the First Amendment protects the right to burn the American flag as a form of political protest. The Court has had greater difficulty ascertaining the constitutionality of religious displays on public property. In such cases, it generally looks to history and context to determine whether a religious display is an acceptable part of a larger holiday or historic exhibit or whether it represents an unconstitutional attempt at endorsement. Thus on one day in 2005, the Court in Van Orden v. Perry upheld the display of a monument of the Ten Commandments installed along with other monuments in an Austin,Texas, public park, but in McCreary County v. American Civil Liberties Union struck down a display of a framed copy of the Ten Commandments in a courthouse that appeared to have been surrounded with other documents to highlight the commandments. In the mid-1970s in cases such as Bigelow v. Virginia (1975), and more explicitly, in Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976), the Supreme Court ruled that commercial speech—that is, advertising—had First Amendment protection. For years, the Court had followed its precedent in Valentine v. Chrestensen (1942) that the First Amendment did not protect “purely commercial advertising.” In Virginia Pharmacy, it rejected the reasoning of this decision, noting that consumers often have a “keener” interest in price advertising than in political issues of the day. In Bates v. State Bar of Arizona (1977), the Court ruled that truthful attorney advertising was a form of commercial speech protected by the First Amendment. Beginning in the mid-1990s—with 44 Liquormart, Inc. v. Rhode Island (1996) being a prime example—the Court subjected regulations on commercial speech to even more scrutiny. Justice Clarence Thomas bluntly stated that he does not “see a historical or philosophical reason” for treating truthful commercial speech to less protection than noncommercial speech. Although the First Amendment clearly condemns laws designed to stifle religious exercise, recent years have witnessed renewed conflict over how to apply the free exercise clause to general laws, especially criminal laws, that seem to fall with force on religious minorities. Since Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Supreme Court no longer requires the state to show a compelling interest in cases in which a generally applicable law affects a religious belief. Since Smith, the Court and Congress have sparred over the proper level of protection for religious liberty with the passage of the
Introduction Religious Freedom Restoration Act (1993) and the Religious Land Use and Institutionalized Persons Act (2000). Controversies over the teaching of evolution in public schools have re-emerged with attempts either to emphasize the “theoretical” nature of the concept or to balance its teaching with variants of creationism or intelligent design. Like similar controversies over the posting of the Ten Commandments in classrooms or the display of other religious symbols in public places, such issues are often highly emotional. Efforts to restrict pornography on the Internet, to limit money in the form of campaign contributions, and to challenge the words “under God” in the Pledge of Allegiance have made front-page headlines. The Internet continues to represent a First Amendment frontier, as courts struggle not only with pornography but also anonymous speech. In Reno v. American Civil Liberties Union (1997), the Supreme Court invalidated Congress’s first foray into criminalizing speech on the Internet. Provisions of the Communications Decency
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Act of 1996 prohibited the transmission of “indecent” or “patently offensive” speech. The Court rejected these provisions, reasoning that the protection of minors did not justify a law that so severely curtailed the free speech rights of adults and even older minors. In later decisions, the Court looked with skepticism at Congress’s response, the Child Online Protection Act of 1998. The Court continues to grapple with the concept of government speech, the public forum doctrine, and the fundamental principle of viewpoint discrimination in First Amendment cases. Although the bulk of challenges have arisen under the Fourth Amendment, legislative and executive responses to the al-Qaida attacks of September 11, 2001, have also posed some First Amendment challenges, which are likely to persist for the duration of the conflict with alQaida and similar groups. John R.Vile David L. Hudson Jr. David Schultz
Chronology: Development and History of the First Amendment 313
The Roman emperor Constantine extends toleration of religions to Christianity.
1215
King John of England signs the Magna Carta, which becomes the basis for many future claims of civil liberties.
1517
Martin Luther, a German monk, posts his Ninety-five Theses, thus ushering in the Protestant Reformation.
1517
The Anabaptist Schleitheim Confession, in Switzerland, argues for greater separation of church and state.
1534
The Act of Supremacy declares the Church of England independent from Rome.
1607
Colonization begins in Virginia, which will establish the Anglican Church.
1619
The first African Americans are brought to Jamestown,Virginia, as slaves.
1620
The Pilgrims land at Massachusetts.
1641
England abolishes the notorious Star Chamber, which prosecuted individuals for libeling the king.
1643
The English Parliament establishes a restrictive printing ordinance.
1644
John Milton anonymously publishes the Areopagitica, a pamphlet opposing England’s restrictive printing ordinance.
1648
The first known use of the phrase “free exercise” appears in America in a document written by Lord Baltimore in an attempt to ensure such freedom for Roman Catholics settling in Maryland.
1660
John Bunyan, who later would write Pilgrim’s Progress, begins twelve years of intermittent imprisonment in England for his preaching.
1663
Rhode Island’s charter provides for “liberty of conscience.”
1670
William Penn publishes The Great Case of Liberty of Conscience. William Penn and William Mead are tried in England for street preaching.
1672
The British Test Act restricts public offices to Anglicans.
1687
James II of England issues a Declaration of Indulgence protecting the rights of Catholics and Protestant dissenters to worship.
1688
The Glorious Revolution deposes James II in favor of William and Mary.The Toleration Act ends British persecution of Protestant dissenters but does not disestablish the Anglican Church.
1689
The English Bill of Rights recognizes the rights of Protestants to worship. John Locke’s “Letter on Toleration” is published in England.
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1692
The Salem Witch Trials take place in New England.
1695
John Locke publishes The Reasonableness of Christianity.
1735
The trial of Peter Zenger in New York introduces truth as a defense in libel cases.
1744
Elisha Williams pleads for liberty of conscience in religious affairs.
1751
James Madison is born.
Chronology
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1758
Jonathan Edwards, an important clergyman during the Great Awakening, dies.
1762
John Wilkes begins publishing the North Briton, which will lead to his expulsion from the British Parliament.
1765
England imposes the Stamp Act on the American colonies.
1774
The Quebec Act offends Protestants in the thirteen American colonies.
1776
Virginia adopts a Declaration of Rights; James Madison insists that the law must go beyond mere “toleration.” The Second Continental Congress adopts the Declaration of Independence.
1777
Congress proposes the Articles of Confederation.
1781
The Articles of Confederation, which vests primary power in the states, is ratified.
1785
James Madison writes the “Memorial and Remonstrance Against Religious Assessments.”
1786
Virginia adopts its Statute for Religious Freedom, disestablishing the Anglican Church.
1787
The Constitutional Convention meets in Philadelphia and submits a constitution to the states for ratification. It includes a provision against test oaths for federal officeholders and allows individuals to affirm rather than to swear oaths, but makes no specific mention of God. The Northwest Ordinance indicates Congress’s desire to provide public education in the American territories.
1788
Most of the thirteen states hold conventions to ratify the Constitution; Anti-Federalists object to the absence of a bill of rights.
1789
George Washington becomes the first president of the United States. James Madison proposes a bill of rights in the first Congress. John Jay is confirmed as the first chief justice of the United States.
1790
Congress adopts the Copyright Act.
1791
The states ratify ten of the twelve amendments proposed as the Bill of Rights.
1794
Thomas Paine publishes The Age of Reason.
1798
Congress adopts the Sedition Act.The Virginia and Kentucky Resolutions challenge the constitutionality of the law.
1800
Madison writes the Virginia Report challenging the Sedition Act.
1801
John Adams appoints John Marshall as chief justice of the United States. Thomas Jefferson is elected president and pardons individuals convicted under the Sedition Act. Tunis Wortman publishes A Treatise Concerning Political Enquiry and the Liberty of the Press.
1802
Thomas Jefferson refers to “the wall of separation” between church and state in a letter to the Danbury Baptists.
1803
Chief Justice John Marshall’s opinion in Marbury v. Madison justifies judicial review of congressional legislation.
1804
In People v. Croswell, the New York supreme court reviews a libel conviction of Harry Croswell, whom Alexander Hamilton defended on the basis of the truth of Croswell’s accusations.
1811
The New York supreme court upholds a blasphemy conviction in People v. Ruggles, arguing that U.S. law incorporates British common law principles.
1812
In overturning a conviction, the Supreme Court in United States v. Hudson and Goodwin affirms that there is no federal common law of libel.
lxxxiv
Chronology 1813
In People v. Phillips, a New York court issues what is believed to be the first free exercise case upholding the priest-penitent privilege.
1815
In Commonwealth v. Sharpless, the Pennsylvania supreme court upholds the first known obscenity conviction in the United States. In Terrett v.Taylor, the Supreme Court rules that a state’s incorporation of religious bodies is permissible and that such incorporation subsequently serves as protection for land that they own.
1821
In Anderson v. Dunn, the Supreme Court makes its first explicit references to the First Amendment freedoms of speech and press.
1825
Following English precedents, the Massachusetts supreme court decides in Commonwealth v. Blanding that an individual can be guilty of libel even for statements that are truthful.
1830s
Congress debates the constitutionality of gag rules suppressing anti-slavery petitions.
1831
Congress adopts a law limiting the power of judges to issue contempt of court rulings after James H. Peck, a judge on the U.S. district court in Missouri, is thought to have abused the power by imprisoning an individual who criticized one of his opinions. John Bannister Gibson, a Pennsylvania supreme court justice decides, in Phillips et al. (Simon’s Executors) v. Gratz, that a court did not have to postpone its proceedings for a Jewish defendant who refused to appear on his Sabbath.
1833
The Supreme Court decides in Barron v. Baltimore that the provisions of the Bill of Rights do not apply to the states. Massachusetts amends its constitution to become the last state to disestablish an official religion.
1838
The Supreme Court of Massachusetts upholds the last known blasphemy conviction in the United States in Commonwealth v. Kneeland.
1844
Justice Joseph Story, while upholding a will that limited Christian teaching, affirms that Christianity is part of the common law in Vidal v. Girard’s Executors.
1845
In Permoli v. New Orleans, the Supreme Court affirms that the free exercise clause of the First Amendment does not apply to the states.
1856
In Baker v. Nachtrieb, the Supreme Court sustains an agreement between the leader and a former member of the Harmony Society.
1857
In Scott v. Sandford, the Supreme Court rules that black people in the United States are not and cannot be U.S. citizens and that laws forbidding slavery in the territories are unconstitutional.
1859
John Stuart Mill publishes On Liberty. In Commonwealth v. Cooke, a Massachusetts court rules against the state’s prosecution of a teacher who had beaten a public school child who refused to repeat the King James Version of the Lord’s Prayer and the Ten Commandments.
1860
Abraham Lincoln is elected president.
1861
The Civil War begins.
1864
Congress authorizes the addition of the phrase “In God We Trust” to U.S. coins.
1865
The Civil War ends. The Thirteenth Amendment is ratified, ending slavery.
1868
The Fourteenth Amendment, which extends citizenship and guarantees all citizens due process of law, is ratified.
1872
In Board of Education of the City of Cincinnati v. Minor, the Ohio supreme court rules that a school board can repeal a regulation requiring that public schools hold opening exercises consisting of Bible reading and singing.
Chronology
lxxxv
In Watson v. Jones, the Supreme Court establishes principles that continue to dominate resolution of internal religious disputes. 1873
Congress adopts the Comstock Act, designed to limit the distribution of obscenity. The Supreme Court gives a limited reading to the Fourteenth Amendment in the Slaughterhouse Cases.
1875
President Ulysses S. Grant proposes what becomes known as the Blaine Amendment, limiting aid to parochial schools.
1876
In United States v. Cruikshank, the Supreme Court affirms that freedom of assembly is a natural right but also states that the First Amendment offers protection only against deprivation by the national government.
1877
Reconstruction ends in the South.
1882
In Ex parte Curtis, the Supreme Court upholds the constitutionality of an 1876 act that prohibits U.S. government officials from requesting or receiving money from other government employees for political purposes.
1890
In Davis v. Beason, the Supreme Court upholds penalties against polygamists by distinguishing religious conduct from religious belief. In Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, the Supreme Court upholds the Edmunds-Tucker Act of 1887, which repealed the charter of the Mormons and seized their property for educational purposes.
1891
The Supreme Court in In re Rapier upholds a conviction prohibiting use of the U.S. mail for advertising lotteries or sending lottery tickets.
1899
In Bradfield v. Roberts, the Supreme Court upholds a federal expenditure on a religious hospital, thus turning back the first challenge to such expenditures under the establishment clause.
1902
The Free Speech League is organized.
1907
The Supreme Court in Halter v. Nebraska upholds a conviction for printing an American flag on a beer bottle. The Supreme Court in Patterson v. Colorado upholds a contempt citation against the publisher of a newspaper that had printed articles and a cartoon criticizing a Colorado court in a pending case. The Tillman Act forbids some campaign contributions.
1910
The Wireless Ship Act addresses the emerging technology of radio.
1911
In United States v. Press Publishing Co., the Supreme Court overturns a libel conviction against individuals who had alleged that Theodore Roosevelt, while president, had profited from the sale of the Panama Canal.
1915
The Birth of a Nation, a controversial movie, stirs renewed interest in the Ku Klux Klan.
1917
The Bolshevik faction of the Communist Party seizes power in Russia. Congress adopts the Espionage Act. The United States enters World War I.
1918
Congress adopts another Espionage Act.
1919
Justice Oliver Wendell Holmes Jr. formulates the clear and present danger test in Schenck v. United States. The first anticommunist “red scare” begins. In Abrams v. United States, the Supreme Court upholds the conviction of Russian immigrants for circulating anti-war documents.
lxxxvi
Chronology 1920
The Nineteenth Amendment prohibits restrictions on voting on the basis of sex. The American Civil Liberties Union is founded. Zechariah Chafee Jr. publishes Freedom of Speech.
1923
In Meyer v. Nebraska, the Supreme Court voids a state law prohibiting the teaching of modern languages to children in public schools.
1925
In Gitlow v. New York, the Supreme Court rules that freedom of speech applies to the states via the Fourteenth Amendment. The “Scopes monkey trial,” a landmark case involving the teaching of evolution in public schools, takes place in a Tennessee criminal court. In Pierce v. Society of Sisters, the Supreme Court upholds the right of parents to send children to parochial schools. The Corrupt Practices Act attempts to regulate campaign contributions.
1927
In Fiske v. Kansas, the Supreme Court reverses a conviction under a state criminal syndicalism law. Justice Louis D. Brandeis praises freedom of expression in a concurring opinion in Whitney v. California.
1930
The Supreme Court in Cochran v. Board of Education upholds the right of Louisiana state officials to provide secular textbooks to children in parochial schools.
1931
In Near v. Minnesota, the Supreme Court applies the First Amendment presumption against prior restraint of publications to the states. Green River,Wyoming, adopts laws limiting door-to-door solicitations; such laws come to be known as Green River Ordinances.
1934
Congress enacts the Communications Act.
1936
In Grosjean v. American Press Co., the Supreme Court strikes down a Louisiana law that disproportionately burdened some newspapers through taxation.
1937
Justice Benjamin N. Cardozo affirms the doctrine of selective incorporation in Palko v. Connecticut.
1938
Justice Harlan Fiske Stone, in his Carolene Products footnote four, advances a “double standard” that gives increased protection for provisions of the Bill of Rights. The Supreme Court in Schneider v. State overturns a city law limiting the distribution of handbills. The Hatch Act limits the political activities of federal employees.
1940
The Supreme Court in Cantwell v. Connecticut relies on the free exercise clause to allow door-to-door solicitation by Jehovah’s Witnesses. The Smith Act makes it a crime to advocate the violent overthrow of the government. In Minersville School District v. Gobitis, the Supreme Court rules that children may be expelled for refusing to say the Pledge of Allegiance in public schools.
1941
The United States enters World War II after the Japanese attack Pearl Harbor. Zechariah Chafee Jr. publishes Freedom of Speech in the United States
1942
The Supreme Court articulates the doctrine of “fighting words” in Chaplinsky v. New Hampshire.
1943
In Murdock v. Pennsylvania, the Supreme Court invalidates a license tax imposed on Jehovah’s Witnesses going door to door. The Supreme Court in West Virginia State Board of Education v. Barnette overturns Minersville School District v. Gobitis, which had required compulsory flag salutes in public schools.
Chronology
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1947
In Everson v. Board of Education, the Supreme Court refers to the separation of church and state while allowing for the provision of state bus transportation of students to parochial schools.This decision completes the process of “incorporation” of rights within the First Amendment.
1948
In Illinois ex rel. McCollum v. Board of Education, the Supreme Court finds that the religious provision of instruction on public school grounds violates the establishment clause.
1949
The Federal Communications Commission promulgates the fairness doctrine.
1950
North Korea invades South Korea, fueling concerns about the spread of international communism.The United States enters the conflict under the auspices of the United Nations. Congress adopts the Subversive Activities Control Act, or the McCarran Act. The “Hollywood Ten” begin to serve one-year prison terms for contempt after having refused on First and Fifth Amendment grounds to answer questions about their alleged communist affiliations before Congress.
1951
In Dennis v. United States, the Supreme Court upholds the convictions of American communists under provisions of the Smith Act.
1952
In Burstyn v.Wilson, the Supreme Court overrules a state supreme court decision that had attempted to censure a movie for blasphemy. In Zorach v. Clauson, the Supreme Court upholds a “released time” program for religious instruction for public school children that had taken place off the school campus.
1953
Earl Warren becomes chief justice of the United States.
1954
Congress adds the words “under God” to the Pledge of Allegiance. Sen. Joe McCarthy’s hearings on alleged communist influences in the military lead to a backlash against his red-baiting tactics. In Brown v. Board of Education, the Supreme Court declares an end to de jure racial segregation.
1957
In Roth v. United States, the Supreme Court attempts to redefine obscenity. In Watkins v. United States, the Supreme Court attempts to limit the scope of congressional investigations.
1958
In NAACP v. Alabama, the Supreme Court finds a right of association within the First Amendment through which it protects membership lists against state investigation.
1959
The Supreme Court rules in Barenblatt v. United States that Congress can require witnesses to testify as to their past associations.
1960
The Supreme Court in Torcaso v.Watkins strikes down a state law prohibiting individuals from becoming notaries public unless they have professed faith in God. The first televised presidential debates, between John F. Kennedy and Richard M. Nixon, are broadcast. John F. Kennedy becomes the first Roman Catholic to be elected president of the United States.
1961
In Garner v. Louisiana, the Supreme Court issues the first of a number of decisions voiding breach of the peace statutes as applied to civil rights demonstrations.
1962
In Engel v.Vitale, the Supreme Court declares public prayer in public schools to be in violation of the establishment clause.
1963
In Abington School District v. Schempp, the Supreme Court extends Engel to include devotional Bible reading and recitations of the Lord’s Prayer. In Sherbert v.Verner, the Supreme Court rules that a state must extend unemployment benefits to an individual who loses a job because she will not work on her Sabbath.
lxxxviii
Chronology 1964
The Supreme Court in New York Times Co. v. Sullivan establishes strict standards for a public official plaintiff in a defamation case. Berkeley, California, becomes the center of a free speech movement.
1965
Congress adopts the Draft Card Mutilation Act. The Supreme Court articulates a constitutional right to privacy in Griswold v. Connecticut.
1966
In Sheppard v. Maxwell, the Supreme Court overturns a conviction based on excessive media presence in the courtroom.
1968
In Epperson v. Arkansas, the Supreme Court invalidates a state law prohibiting the teaching of evolution in public schools. Congress adopts the Flag Protection Act. The Supreme Court in Board of Education v. Allen affirms programs that loan secular textbooks to parochial school students. In Flast v. Cohen, the Supreme Court opens the door to taxpayer suits involving the establishment clause. While upholding a congressional law banning the burning of draft cards, the Supreme Court outlines standards for cases mixing speech and conduct in United States v. O’Brien. In Pickering v. Board of Education, the Supreme Court rules that public employees retain a First Amendment right to speak on issues of public concern.
1969
In Brandenburg v. Ohio, the Supreme Court establishes a standard to determine when the advocacy of illegal conduct crosses the line into unprotected incitement of imminent lawless action. In Stanley v. Georgia, the Supreme Court strikes down a conviction for viewing pornography in one’s home. In Tinker v. Des Moines Independent Community School District, the Supreme Court rules that public school students in Iowa have a right to wear black armbands to school to protest U.S. involvement in the Vietnam War.The Court establishes a test protective of student-initiated speech.The decision is considered the high-water mark of student First Amendment rights.
1970
The Commission on Obscenity and Pornography issues its report. The Supreme Court upholds tax exemption of church property in Walz v.Tax Commission of the City of New York.
1971
In Cohen v. California, the Supreme Court invalidates a breach of the peace conviction for a young man who wore a jacket with a profane message into a California court house. The Court determines that the profane message was not fighting words because the message was not directed at any specific individual. Justice John Marshall Harlan II writes that “one man’s vulgarity is another’s lyric.” In Lemon v. Kurtzman, the Supreme Court establishes a three-part test to determine when regulations that affect religion violate the establishment clause. Despite criticism, the Lemon test is still used in establishment clause cases. The Supreme Court in Tilton v. Richardson upholds a provision allowing federal aid for construction at religious colleges and universities in some instances. The Supreme Court in New York Times Co. v. United States strikes down federal injunctions against publication of the Pentagon Papers, a classified report on the Vietnam War. Congress adopts the Federal Election Campaign Act.
1972
In Branzburg v. Hayes, the Supreme Court rules that reporters cannot shield their confidential sources from grand jury questions.
Chronology
lxxxix
The Supreme Court in Wisconsin v.Yoder allows the parents of Amish children to take their children out of school after the eighth grade. 1973
The Supreme Court’s decision in Roe v.Wade, upholding the legality of first and second trimester abortions, evokes protest. The Supreme Court in Miller v. California sets forth a three-part test for obscenity.
1974
In Gertz v. Robert Welch, Inc., the Supreme Court rules that the standard of “actual malice” does not apply to libel against an attorney. Congress further revises the Federal Election Campaign Act of 1971.
1976
In Buckley v.Valeo, the Supreme Court upholds most, but not all, post-Watergate campaign reform laws. In Nebraska Press Association v. Stuart, the Supreme Court limits the use of gag orders in controversial cases.
1978
In Federal Communications Commission v. Pacifica Foundation, the Supreme Court upholds some control over vulgar radio broadcasting. In Zurcher v. Stanford Daily, the Supreme Court upholds the use of a warrant to search a newspaper office. The Supreme Court in McDaniel v. Paty strikes down Tennessee’s ban on members of the clergy serving in political positions. Congress adopts the American Indian Religious Freedom Act.
1979
The Moral Majority is formed to promote conservative religious values.
1980
In Stone v. Graham, the Supreme Court strikes down a Kentucky law requiring the posting of the Ten Commandments in public schools.
1982
In New York v. Ferber, the Supreme Court allows for regulation of child pornography.
1983
In Marsh v. Chambers, the Supreme Court sustains the Nebraska Legislature’s practice of hiring a chaplain to say prayers at the beginning of each day’s work. In Connick v. Myers, the Supreme Court clarifies when public employees retain First Amendment rights in the workplace.
1984
Congress adopts the Cable Communications Policy Act. Congress adopts the Equal Access Act. Justice Sandra Day O’Connor articulates an endorsement test in a concurring opinion in Lynch v. Donnelly, a crèche display case.
1986
The Attorney General’s Commission on Pornography issues its report. William H. Rehnquist becomes chief justice of the United States. In Bethel School District No. 403 v. Fraser, the Supreme Court rules that public school officials can regulate student speech that is vulgar, lewd, or plainly offensive.
1987
In Turner v. Safley, the Supreme Court establishes a rational-basis standard for review of First Amendment claims by prison inmates, a standard that generally defers to prison officials. In Rankin v. McPherson, the Supreme Court rules that a clerical employee in a constable’s office has a First Amendment right to speak harshly about the attempted assassination of President Ronald Reagan.
1988
In Hazelwood School District v. Kuhlmeier, the Supreme Court rules that public school officials have authority to regulate certain school-sponsored student speech. In Hustler Magazine v. Falwell, the Supreme Court unanimously rules that evangelist Jerry Falwell cannot recover monetary damages from pornography publisher Larry Flynt for intentional infliction of emotional distress resulting from a cartoon parody.
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Chronology 1989
Congress enacts the Anti-Dial-a-Porn Act. The Berlin Wall is torn down, signaling an end to the cold war between the United States and the Soviet Union. The Supreme Court outlaws a state law against flag burning in Texas v. Johnson.
1990
Congress enacts the Child Pornography Restoration and Penalties Enhancement Act. The Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith upholds a state law affecting religious practice without requiring the state to show a compelling interest. The Supreme Court in United States v. Eichman strikes down a federal law against flag burning. Like the ruling in Texas v. Johnson (1989), the decision stirs renewed interest in a constitutional amendment to overturn it. In Board of Education of the Westside Community Schools v. Mergens, the Supreme Court affirms the constitutionality of the Equal Access Act of 1984. A U.S. district court judge rules in Skyywalker Records, Inc. v. Navarro that an earlier ruling against 2 Live Crew for obscene rap lyrics was an unconstitutional prior restraint.
1992
Congress adopts the Cable Television Consumer Protection and Competition Act. The Supreme Court in Lee v.Weisman bans public prayer at public school graduations. In R.A.V. v. St. Paul, the Supreme Court limits prosecutions under hate speech statutes.
1993
Congress adopts the Religious Freedom Restoration Act. The Supreme Court strikes down an ordinance targeting animal sacrifice in Church of the Lukumi Babalu Aye v. City of Hialeah.
1994
The Supreme Court rules in City of Ladue v. Gilleo that an Ohio woman has a First Amendment right to display an anti-war sign in her front yard and window.
1995
The Supreme Court rules that the University of Virginia cannot deny student activity fees to religious groups in Rosenberger v. Rector and Visitors of the University of Virginia. In Florida Bar v.Went for It, Inc., the Supreme Court upholds a Florida state rule that prohibits attorneys from sending solicitation letters to accident victims or their family members until thirty days after the event.
1996
Congress adopts the Telecommunications Act, part of which is the Communications Decency Act. Congress adopts the Personal Responsibility and Work Opportunity Reconciliation Act, allowing government contracts with faith-based organizations. In 44 Liquormart, Inc. v. Rhode Island, the Supreme Court strengthens protection for commercial speech while striking down restrictions on liquor prices.
1997
In City of Boerne v. Flores, the Supreme Court strikes down the application of the Religious Freedom Restoration Act to the states. In Reno v. American Civil Liberties Union, the Supreme Court strikes down two provisions of the Communications Decency Act of 1996, the first major speech restriction aimed at the Internet.
1998
Congress passes the Child Online Protection Act, the second major congressional Internet-speech law. In National Endowment for the Arts v. Finley, the Supreme Court allows the government to consider community standards in determining which art projects to fund.
2000
The Supreme Court rules in Santa Fe Independent School District v. Doe that a high school’s practice of announcing prayers over the loudspeaker at football games violates the establishment clause.
Chronology
xci
Congress passes the Children’s Internet Protection Act. Congress adopts the Religious Land Use and Institutionalized Persons Act. 2001
Al-Qaida attacks in the United States stir questions about the treatment of Muslims in the United States. Congress responds to the attacks by adopting the USA Patriot Act.
2002
Congress adopts the Bipartisan Campaign Reform Act. In Republican Party of Minnesota v.White, the Supreme Court strikes down a restriction on the free speech rights of judicial candidates.
2003
In Virginia v. Black, the Supreme Court declares that some incidents of cross burnings may transgress the First Amendment. In McConnell v. Federal Election Commission, the Supreme Court affirms the ban on soft money contributions passed in the Bipartisan Campaign Reform Act of 2002. In United States v. American Library Association, the Supreme Court upholds the Children’s Internet Protection Act of 2000, a federal law requiring Internet filtering in public libraries.
2004
A lower court decision in Elk Grove Unified School District v. Newdow raises questions about the words “under God” in the Pledge of Allegiance. The Supreme Court in Ashcroft v. American Civil Liberties Union rules that the Child Online Protection Act of 1998 is overly broad and unduly restricts the speech of adults.
2005
In Cutter v.Wilkinson, the Supreme Court upholds the application of the Religious Land Use and Institutionalized Persons Act of 2000 to Ohio prisoners. The Supreme Court issues a pair of 5-4 decisions in Ten Commandments cases, upholding a monument display in a Texas public park in Van Orden v. Perry and striking down displays in two Kentucky county courthouses in McCreary County v. American Civil Liberties Union. A district court decision in Kitzmiller v. Dover Area School District cites the establishment clause in invalidating a law requiring the teaching of intelligent design in public school. John G. Roberts Jr. is confirmed as chief justice of the United States.
2006
In a decision later vacated as moot by the Supreme Court, a U.S. circuit court rules that a high school has the right to limit the wearing of t-shirts displaying antigay messages.
2007
In Morse v. Frederick, the Supreme Court rules that school officials can censor or punish student speech seen as advocating illegal drug use. In Federal Election Commission v.Wisconsin Right to Life, Inc., the Supreme Court rules that restrictions on advertising in the Bipartisan Campaign Reform Act of 2002 are unconstitutional as applied.
2008
In United States v.Williams, the Supreme Court upholds a provision of the U.S. Code prohibiting pandering of child pornography against charges that the provision was overly broad. In Davis v.Williams, the Supreme Court invalidates the “Millionaire’s Amendment” to the Bipartisan Campaign Reform Act of 2002.
First Amendment Overview
The Establishment and Free Exercise Clauses
he first sixteen words of the First Amendment to the U.S. Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” protect the right of every person to practice religion in accordance with conscience and guard against creation of a sectarian state. But the precise meaning of these words has been a matter of dispute from the beginning; they have produced more uncertainty, internal contradiction, and changes of course than perhaps any other provision of the Constitution. There is even disagreement over whether there is one religion clause or two. On the one hand, the sixteen words form a single sentence, with the key word religion appearing only once.The same political forces—an alliance of evangelical dissenters (especially Baptists) and enlightenment thinkers (such as Thomas Jefferson)—demanded both provisions, and the two provisions may be seen as a single harmonious concept: protecting the freedom and independence of religion both from government restrictions and from government sponsorship and attendant control. On the other hand, it is logically possible to have free exercise rights even when there is an established church; indeed, several states at the time of the founding had just that, as do some modern democratic nations such as Great Britain and Germany.The modern U.S. Supreme Court has generally interpreted each of the halves of the religion clause without reference to the other, even holding that the two parts are in “tension” with each other—the free exercise clause giving special protection to religion and the establishment clause prohibiting government action that benefits religion—with the Court required to draw the appropriate “balance” between these two countervailing principles.
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The Established Church and Postrevolutionary Developments In the years since the adoption of the First Amendment, we have almost forgotten what an establishment of religion really was. But at the time of the framing, the “church by law established” in Great Britain was a living memory for every-
one (and a source of previous strife during the English Civil War). Prior to the Revolution, in 1776, eight of the thirteen colonies (plus metropolitan New York) had official religious establishments. The laws creating an establishment fell into three categories. First were the laws establishing, controlling, and maintaining the Church of England. Under the Act of Supremacy, the British monarch was the supreme governor of the church, with the right to control and direct its doctrines. The Uniformity Acts required clergy to conform to a uniform set of Articles of Faith, liturgy (the Book of Common Prayer), and scripture (the Authorized, or “King James,” version of the Bible). Among the Articles of Faith was an affirmation that the king or queen of England is the highest authority under God and is owed full allegiance in all matters civil and ecclesiastical. The Anglican colonies of America (the five southern states from Maryland to Georgia) had similar arrangements. Colonial legislatures passed their own Uniformity Acts, with varying degrees of toleration for dissenters. Virginia and Maryland were the most intolerant. At the eve of the Revolution, in 1774, James Madison decried the jailing of five or six Baptist ministers for the crime of preaching without a license. At the other extreme, the colony of Georgia welcomed not only Protestant dissenters but two Jewish congregations, one Sephardic and one Ashkenazi. Massachusetts, Connecticut, and New Hampshire, being settled by Puritan dissenters at odds with the British religious establishment, could not enact Uniformity Acts. Those colonies adopted a localized form of establishment, where each town would choose its own minister and hence its own denomination (usually, though not always, of the Congregationalist persuasion). Both Anglican and New England colonial governments enacted laws compelling church attendance and requiring the payment of church taxes, and made land grants to churches. The second category of laws—called the Penal Laws— imposed criminal punishments on practitioners of forbidden religions. In Britain the harshest penalties were prescribed for Roman Catholics and Puritans; in seventeenth-century America the leading targets were Quakers. Four Quakers
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Encyclopedia of the First Amendment
were hanged in the Massachusetts Bay colony for the effrontery of preaching Quaker doctrine after having twice previously been banished for the act. As late as 1777 John Jay (later the first chief justice of the United States) spearheaded a movement to bar Roman Catholics from civil rights, including property ownership, in the State of New York. By the time of the American Revolution, the Penal Laws were seldom enforced in England or in the colonies, though they were vigorously enforced against Catholics in Ireland. The third category of laws were the Test and Corporation Acts, which limited state offices to persons who had recently taken communion in the established church and who forswore belief in the Catholic doctrine of transubstantiation. Because the concept of state officers was broadly defined— including those in the profession of law, teaching or studying at Oxford University or Cambridge, and serving as a military officer—these provisions were effective incentives to adopt, or at least to feign, the religious practices of the established church. In America, well after the Revolution, public offices in as many as nine states were limited to those holding particular religious views: sometimes Christian, sometimes Protestant, sometimes any belief in a state of future rewards and punishments. The U.S. Constitution prohibits the federal government from enacting any of the three categories of law. The “test act” clause of Article VI prohibits the equivalent of the Test and Corporation Acts. The free exercise clause prohibits penal laws.And the establishment clause prohibits the enactment of anything like the Uniformity Acts, with their attendant requirements of compulsory attendance or financial support of the established church. The American Revolution brought an abrupt change in the religious landscape. Because of the commitment of Anglican theology to submission to royal authority, Church of England ministers found themselves in opposition to the new Patriot governments in their states, and often the target of assault by Patriot mobs. In every state where the Anglican Church had been established, it was disestablished. By the end of the Revolution, the vast majority of Anglican ministers had been dismissed and often driven into exile. Because ordination took place in England and required an oath of allegiance to the crown, they were not replaced. By contrast, the Congregationalist ministers of the New England establishment, who were Patriots without exception, emerged from the war with renewed prestige. In the months following the Declaration of Independence, all but two of the newly independent states turned their
attention to writing state constitutions based on the consent of the governed and setting forth a list of protected freedoms, called a bill of right. Every one of these contained some version of a free exercise clause—some referring to rights of “religion” or “worship” and some to freedom of “conscience.”The idea that all persons had an inalienable right to worship in accordance with their own consciences had become virtually universal in Revolutionary-era America. The question of religious establishments was more controversial. Many Americans—among them George Washington, John Adams, John Marshall, and Patrick Henry—believed that republican government required a high degree of public virtue and that this quality could be instilled only by a system of religious establishments. This conviction was often shared even by those who did not themselves adhere to Christian Protestant orthodoxy.The rationale for establishment was not based on its spiritual truth but on its political utility in the formation of public-spirited citizens. The three New England states of Massachusetts, Connecticut, and New Hampshire, plus Vermont, reformulated their colonial establishments on more liberal lines. (Rhode Island, which had been founded by Roger Williams, never had a religious establishment.) Towns would still vote on the local minister, who would conduct services in the traditional town church on the green, and everyone was required to pay a tax for the support of religious worship. But the free exercise of religion was guaranteed to everyone, and those who attended a nonestablished Protestant church (within certain limits) were permitted to direct their contributions to their own church.This may be called a “multiple” establishment, because public support extended to a variety of churches. It was also a “tolerant” establishment, because support for religion was coupled with freedom of religious practice outside the approved churches. Versions of a multiple, tolerant establishment were debated in most of the other states. In Georgia and Maryland, such systems were enacted but never actually implemented. In other states they were debated but not enacted.The most famous such debate took place in Virginia, where Thomas Jefferson and James Madison, together with the Virginia Baptists, narrowly defeated Patrick Henry’s Bill for Establishing a Provision for Teachers of the Christian Religion. Madison’s anonymous petition against the bill—called the Memorial and Remonstrance Against Religious Assessments—is the most famous American document setting forth the arguments for the free exercise of religion and against its establishment.
The Establishment and Free Exercise Clauses
Framing the First Amendment and Application to the States Having promised during the ratification struggle to support the addition of a bill of rights to the Constitution, Madison led the effort in the First Congress. For the most part, the suggested amendments were uncontroversial restatements of familiar common law principles. There were brief debates (less than five minutes) on the cruel and unusual punishments clause (Is it too vague?), on freedom of assembly (Is it too trivial and obvious to warrant mention?), and on various structural proposals that were not adopted. The House of Representatives tinkered with the wording of the protection against unreasonable searches and seizures. The only proposal that occasioned extended debate was the proposal for freedom of religion, including whether religious conscientious objectors should be exempted from compulsory militia service. A select committee of the First Congress proposed that Article 1, section 9, be amended to insert a phrase stating that “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” The First Congress kept sparse records (the Senate kept only a journal and did not permit a transcription of the debates), but it appears that the Senate engaged in the more fundamental discussion of the proposal. The Senate debate evidently resolved three important issues then in dispute. First, the Senate confined the amendment to “religion”—defined in the Virginia Declaration of Rights as “the duty which we owe to our Creator, and the manner of discharging it”—in lieu of the potentially more compendious term “conscience.” Second, Congress considered and rejected a proposed version of the establishment clause that would have prohibited only laws “establishing articles of faith or modes of worship.” If this clause had been enacted, the federal government would have been barred from passing something like a Uniformity Act but not from instituting a multiple establishment.Third, the Senate considered and rejected a proposed version of the establishment clause that would have prohibited Congress from “establishing any particular denomination of religion in preference to another.” This, too, extended the bar to multiple establishments, even if they were nonpreferential in character. The debate in the House centered on questions of federalism. Some representatives, including one from Connecticut, which then had a multiple establishment, expressed
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concern that the proposal could enable the federal courts to strike down the states’ laws for the support of ministers and places of worship and thus be “extremely hurtful to the cause of religion.” Madison responded that the purpose of the amendment was simply to prohibit a national establishment.The language ultimately adopted—that Congress pass no law “respecting an establishment of religion”—resolves this concern by prohibiting Congress both from establishing a religion and from interfering with any state establishment that may exist. So modified, the clause passed Congress on September 25, 1789, and was ratified on December 15, 1791. Thus, contrary to popular myth, the First Amendment did not disestablish religion in the states of the Union. Instead, it prevented the newly formed federal government from establishing religion or from interfering in the religious establishments of the states. Disestablishment came on a state-by-state basis over time and for a variety of local reasons. The last state establishment was repealed in 1833, in Massachusetts. For more than 150 years after the founding, state bills of rights—not the First Amendment—were the only protections of religious liberty against state governments; thus the Court did not apply the First Amendment when examining a Louisiana law in (Permoli v. New Orleans (1845) that confined Roman Catholic funerals to a single chapel. By the time of adoption of the Fourteenth Amendment in 1866, however, every state had adopted a policy of nonestablishment, and some form of separation between church and state had come to be understood as essential to religious freedom. When the Fourteenth Amendment, ratified in 1868, provided that “no state may make or enforce any law that shall abridge the privileges or immunities of citizens of the United States,” it was plausible to think that a freedom against established religion, along with the rest of the first eight amendments, was now protected against state governments. It was not until the decision in Cantwell v. Connecticut (1940), however, that the Supreme Court held that “the fundamental concept of liberty” embodied in the due process clause of the Fourteenth Amendment also embraced the free exercise of religion—in other words, that the free exercise clause now applied to state and local governments as well as to the federal government.The Court held the establishment clause applicable to the states in Everson v. Board of Education (1947). Since then, acts by state and local governments as well as those of Congress have been required to meet the standards of the establishment and free exercise clauses.
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The Constitutional Debate The principal disputed question under the free exercise clause is whether it protects all acts of religious exercise from government penalty (in the absence of a sufficiently powerful need for interference) or whether it solely prevents the government from singling out religious practices for special penalty or punishing conduct because of its religious nature. The issue was first raised in state courts in connection with state free exercise provisions. In the earliest reported decision in People v. Phillips (N.Y. 1813), a New York court held that a Catholic priest could not be compelled to testify about criminal conduct that he had learned of in the confessional, notwithstanding the general rule that all persons can be required to give evidence in court. Other state courts adopted a narrower interpretation. The Supreme Court first addressed the question in the late nineteenth century, in the controversy over the polygamy practices of the Church of Jesus Christ of Latter-day Saints, the Mormons. After Congress banned the practice, church official George Reynolds argued in court that the free exercise clause required an exception to the polygamy ban for Mormons, for whom plural marriage was at the time a religious tenet. In Reynolds v. United States (1879), the Supreme Court upheld the polygamy ban, finding that “[t]o permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” In the mid-twentieth century the Court began to change its approach toward religiously motivated conduct and civil law, requiring the government to make broader accommodations to religious practice. In a host of decisions in the 1940s and 1950s, most of them involving Jehovah’s Witnesses, the Court established free exercise of religion, along with freedom of speech, as a “preferred freedom” that could be restricted only on a strong showing by the government. In Sherbert v.Verner (1963), the Court held that a state unemployment agency must accommodate a Seventh-day Adventist who, because of religious prohibitions, could not work on Saturdays.The Court held that accommodation was required where a generally applicable law burdened religious practice, absent a “compelling state interest.” In Wisconsin v. Yoder (1972), the Court used the same framework to exempt Amish children from otherwise mandatory school attendance above the eighth grade. The doctrine of constitutionally compelled accommodation was sharply curtailed in Employment Division, Department
of Human Resources of Oregon v. Smith (1990). In Smith, the Court upheld the denial of employment benefits to an individual who had been fired from his job for ingesting peyote, an illegal hallucinogenic drug used in the worship ceremonies of the Native American Church. Justice Antonin Scalia wrote that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” Justice Sandra Day O’Connor’s concurrence, joined by three other justices, called the new language “incompatible with our Nation’s fundamental commitment to individual religious liberty.” In 1993 Congress passed the Religious Freedom Restoration Act (RFRA), which was designed to force a broader interpretation of the free exercise clause, compelling both state and federal governments to make greater accommodations to religious practice. The Supreme Court struck down the act in City of Boerne v. Flores (1997), as applied to the states, holding that Congress does not have the authority under section 5 of the Fourteenth Amendment to alter the meaning of the free exercise clause. As indicated in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), however, the RFRA remains applicable to the federal government. Although, under the Smith interpretation, the free exercise clause does not entitle religious individuals or institutions to exemption from generally applicable laws, the Court has held that legislatures may, consistent with the establishment clause, enact such exemptions. In Cutter v. Wilkinson (2005), the Court upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which prevents the government from burdening the religious exercise of a prison inmate unless the government has a compelling governmental interest and uses the least restrictive means possible.The Court concluded that the act was not an establishment of religion because it alleviated burdens on religious exercise that had been created by the government itself, and it did so without burdening nonparticipants and without discriminating among different faiths. Cases involving the establishment clause have been far more numerous, and often more controversial, than those involving the free exercise clause. The most fertile field for establishment clause litigation has been in the realm of education: the constitutionality of public assistance to schools sponsored by religious organizations and the constitutionality of prayer and other religious activities in public schools. The Supreme Court laid out a general test for determining whether government action is an “establishment” of reli-
The Establishment and Free Exercise Clauses gion in Lemon v. Kurtzman (1971). In order to be constitutional under the Lemon test, a statute must satisfy three conditions: (1) it must have a secular legislative purpose, (2) its primary effect must neither advance nor inhibit religion, and (3) it must not foster excessive government entanglement with religion. In Agostini v. Felton (1997), the Court folded the entanglement prong into the effects prong.Although the Lemon test has been criticized, tweaked, and occasionally ignored (see, for example, Marsh v. Chambers [1983], permitting state legislatures to hire chaplains to begin their sessions with prayer), it remains the framework for assessing challenges under the establishment clause.
Religion, Schools, and Public Displays In one of its earliest (pre-Lemon) cases concerning aid to religious schools, the Supreme Court addressed the constitutionality of a statute reimbursing parents—including parents of Catholic schoolchildren—for money used to bus their children to school. In this case, Everson v. Board of Education (1947), the Court upheld the funding, characterizing the expenditures as nothing more than “a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from school.” Twenty years later, in Board of Education v. Allen (1968), the Court similarly upheld the loan of free textbooks to schoolchildren in both public and nonpublic schools, including religious schools. In 1971, for the first time, the Supreme Court held, in Lemon v. Kurtzman, that public aid to education in what it called “sectarian” schools is generally unconstitutional— either on the theory that aid to the religious functions of the schools would “advance” religion or that efforts to ensure that aid was not used for religious purposes would “entangle” the government with the religious institution. For about fifteen years, the Court engaged in the hair-splitting task of applying the three-pronged Lemon test to different types of school funding.The Court invalidated tuition grants and tax credits to parents of parochial schoolchildren, Committee for Public Education and Religious Liberty v. Nyquist (1973), but it later upheld programs allowing tax credits for all parents, including those of children attending parochial schools, Mueller v. Allen (1983). It struck down the use of public school teachers to provide remedial education in religious schools, Aguilar v. Felton (1985), but then it overruled itself twelve years later, Agostini v. Felton (1997).The Court barred states from giving instructional materials to religious schools,
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Meek v. Pittenger (1975), but it permitted the lending of textbooks in Mueller. In the mid-1980s the Court began to shift to an interpretation based on “indirection” and “neutrality.” The idea was that if families were provided with education assistance on a neutral basis and were free to apply that assistance to the school of their choice, without preference for religious over secular, such funding was permissible, even if many of the families chose parochial education. Those decisions culminated in a decision, Zelman v. Simmons-Harris (2002), in which the Supreme Court ratified a system of school vouchers through which inner-city parents in Cleveland, Ohio, were given the wherewithal to send their children to private alternatives to a failing public school system. In the system under review, 96 percent of students participating in the voucher program were attending religious schools— although far more public money went to charter schools and ordinary public schools. The Court wrote that the system passed constitutional muster because the “incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government.” The Court is still divided as to whether the neutrality premise can be used to sanction direct aid to parochial schools, if that funding is calculated on a strict, per-pupil formula. The Court upheld such a program in Mitchell v. Helms (2000), but it did so in a highly fractured ruling, with only four justices supporting the idea that direct aid was permissible. While the Supreme Court wrestled with the finer points of grade school and high school funding, it allowed states a much freer hand in funding universities, permitting grants for the construction and repair of campus buildings in Tilton v. Richardson (1971). Religious social service programs have also been given wider latitude than have elementary and secondary schools. In Bowen v. Kendrick (1988), the Court upheld a law offering grants to organizations, including religious ones, for the purpose of combating teen pregnancy. The Court held that the grants were impermissible only if the grantees were “pervasively sectarian” or if the grants were used to fund “specifically religious activities.” Many of the Court’s recent funding cases have involved activity that involves the exercise of religion and also of speech. In such cases, religious speakers have successfully invoked the principle that the government may not discriminate against speech on the basis of its content, and especially of its viewpoint. In the most dramatic of these decisions,
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Rosenberger v. Rectors and Visitors of the University of Virginia (1995), the Court held that when a public university was funding the printing costs of a wide variety of organizations, it must not exclude religious ones. The Court rejected the claim that funding of a religious publication would violate the establishment clause. Both religion clauses of the First Amendment are implicated when the government involves itself with school prayer. If a school compels participation in contravention of a student’s religious principles, the school may violate the free exercise clause. When school prayer brings about government participation in or endorsement of religion, it violates the establishment clause. But if a school forbids religious expression, it can violate both the free exercise clause and the free speech clause. A 1942 West Virginia law ordered students to salute the American flag daily, on pain of expulsion. A Jehovah’s Witness named Walter Barnette sued on behalf of himself and his children, arguing that his religion forbade the practice of saluting any “graven images,” which include flags.The Supreme Court struck down the requirement in West Virginia State Board of Education v. Barnette (1943). At this time, the words “under God” had not yet been added to the Pledge of Allegiance. Almost twenty years later, in Engel v. Vitale (1962), the Court invalidated New York’s nondenominational Regents’ prayer, which was recited in all state classrooms each day.The prayer was voluntary, thus freed from the limitations of the free exercise clause, but the Court held that the prayer “officially establishes the religious beliefs embodied” therein and therefore violated the establishment clause.The Court clarified its test the next year in a case involving Bible reading. The Court wrote, in Abington School District v. Schempp (1963), that “to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” A “moment of silence” statute was struck down in Wallace v. Jaffree (1985) because the Court found that it was motivated by a religious purpose: the return of prayer to public schools. Prayers at graduations and before football games, whether given by professional clergy or by students themselves, have also been invalidated. Thus the Court invalidated the practice of having a religious figure deliver an invocation at middle school graduations, in Lee v. Weisman (1992), and the practice of prayers announced over the loudspeakers at football games, in Santa Fe Independent School District v. Doe (2000). Conversely, the
Court has consistently ruled that voluntary, student-initiated prayer and other religious activity is permissible—even constitutionally protected—on public school premises. Widmar v. Vincent (1981) applied the rule to universities and Good News Club v. Milford Central School (2001) to elementary schools. Elements of school curricula, when they have religious purposes or overtones, have been held to violate the establishment clause. In 1968 the Supreme Court struck down Arkansas’s “anti-evolution” statute, which prevented schools from teaching “the theory or doctrine that humans ascended or descended from a lower order of animals.” The Court wrote, in Epperson v. Arkansas (1968), that “there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of the doctrine as to the origin of man.” Several states attempted to circumvent this ruling by using a point-counterpoint approach; a Louisiana law required that every time evolution was taught, “creation science” had to be taught as well. The Supreme Court struck down that statute as well, finding in Edwards v. Aguillard (1987) that it served no secular purpose. The Court has yet to rule whether in-school recitation of the Pledge of Allegiance, which now includes the phrase “under God,” violates the establishment clause or whether the pledge is merely “ceremonial deism,” the phrase the Court gives to religious invocations that are so commonplace as to be stripped of religious meaning. In Elk Grove Unified School District v. Newdow (2004), the Court dismissed a challenge to the recitation of the pledge on technical grounds, and it has not had occasion to revisit the issue since. The Court has used the Lemon test to uphold less intrusive displays of religiosity outside of the school context, labeling them merely ceremonial. It invoked that rationale to uphold the opening of legislative sessions with prayer in Marsh, to justify the printing of “In God We Trust” on currency, and, indeed, to explain how the Supreme Court itself can open each yearly session with the words “God save the United States and this honorable court.” The debate has centered on what constitutes merely ceremonial religious displays, and what constitutes a true endorsement of religion. In Lynch v. Donnelly (1984), the Court has held Christmas trees and Santa Claus figurines to be devoid of religious content, while a crèche, standing alone, is impermissibly religious.The Court is concerned not only with what the religious display itself entails, but with what surrounds it. In County of Allegheny v. American Civil
The Establishment and Free Exercise Clauses Liberties Union (1989), the Court announced what has been jokingly referred to as the “three plastic animals,” or “reindeer,” rule, which held that religious displays can be sanitized by the accompanying presence of secular symbols. The Court decided that a menorah erected in downtown Pittsburgh, Pennsylvania, did not constitute an establishment of religion, in part because it was situated next to a Christmas tree. It wrote that the result “of placing a menorah next to a Christmas tree is to create an ‘overall holiday setting’ ” rather than a religious endorsement. The government’s motivation for erecting the display can also be significant.The Court has held that statues or prints of the Ten Commandments are permissible on government property when motivated by a genuine secular purpose, such as the acknowledgment “of the role of religion in American life.” That secular purpose may not be “an apparent sham” or secondary to a religious purpose. In a pair of 5-4 opinions released the same day, the Court ordered the removal of a display of the Ten Commandments when the justices found its motivation not to be genuinely secular, McCreary County v. American Civil Liberties Union (2005), but permitted one whose motivation they found to be genuinely rooted in civic education, Van Orden v. Perry (2005). Much of the uncertainty in this field of constitutional law is caused by the seeming conflict between the Court’s interpretation of the two religion clauses of the First Amendment. If, as the school aid cases seemed to hold, the state was required to deny otherwise-available benefits to religiously affiliated institutions, this appeared to violate the free exercise principle that the government could not penalize activity on account of its religious character. If, by contrast, the government may (and sometimes must) grant special accommoda-
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tion to religious practice, not available to secular activity, this appears to violate the establishment clause principle that the government may not favor or advance religion.To make matters worse, when religious activity is also speech, application of a special rule under either a free exercise or an establishment rationale seems to violate the principle of viewpoint neutrality under the free speech clause. In recent years, the Court has reduced, though not eliminated, the tension among these interpretations by holding that the free exercise clause does not require, but the establishment clause permits, accommodation of religion and that the establishment clause permits, but the free exercise clause does not require, neutral funding of religious activity. Michael W. McConnell
furthe r reading Carter, Stephen L. The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion. New York:Anchor Books, 1994. Greenawalt, Kent. Religion and the Constitution. Vol. 1, Free Exercise and Fairness. Princeton, N.J.: Princeton University Press, 2006. ———. Religion and the Constitution. Vol. 2, Establishment and Fairness. Princeton: Princeton University Press, 2008. Hamburger, Philip. Separation of Church and State. Cambridge, Mass.: Harvard University Press, 2002. McConnell, Michael W. “Establishment and Disestablishment at the Founding Period, Part I: Establishment of Religion.” William and Mary Law Review 44 (April 2003): 2105–2208. ———. “God Is Dead and We Have Killed Him!” Freedom of Religion in the Post-modern Age.” 1993 Brigham Young University Law Review (1993): 163–188. ———. “The Origins and Historical Understanding of Free Exercise of Religion.” Harvard Law Review 103 (May 1990): 1409–1517. ———. “The Origins of the Religion Clauses of the Constitution: Coercion: The Lost Element of Establishment.” William and Mary Law Review 27 (Summer 1986): 933–941. Nussbaum, Martha C. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. New York: Basic Books, 2008.
Freedom of Speech
hat was the state of the law of free speech and press in the early 1960s? While that question may only be of historical interest to most contemporary students of the First Amendment, for this author, who in 1962 was about to inaugurate a college course on that subject, the question was immediate and momentous. Shortly before I was scheduled to start a clerkship with Supreme Court justice William J. Brennan Jr., in the Court’s October 1962 term, I rashly agreed to teach a six-week summer course on freedom of speech and press at San Francisco State University. No model existed for such a course at that time, so the syllabus had to be created from what relatively little constitutional material was available barely four decades after the Court’s earliest consideration of First Amendment issues in Schenck v. United States (1919), and Abrams v. United States (1919). The now familiar catalysts for recent developments affecting free speech and press, many connected to protests against the War in Vietnam, were yet to come. Ironically, the course began within weeks of the very first of the “modern” anti-government protests and only a few miles from the San Francisco Civic Center, where a large group of demonstrators disrupted a congressional hearing and, upon refusing to disperse, were hosed down the grand marble steps and out onto the plaza. Thus, a close observer of free expression would realize that summer 1962 marked a critical turning point in the evolution of applicable constitutional law. Two paradoxical points dominate my recollections of that moment. On the one hand, only about 15 percent of the principal cases that would be included in any current First Amendment teaching materials even existed in summer 1962, which suggests how dramatically the law has evolved during the past forty-five years. On the other hand, what is striking about the cases that were already on the books is the clarity with which they established the basic principles of free expression. Thus, the corpus of First Amendment law invoked today might be divided into three fairly equal segments—issues for which constitutional protection was remarkably well settled by the early 1960s, issues for which no such protection exist-
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ed and could not even have been anticipated (though it would later develop), and issues to which the courts had spoken, but where further legal development could be expected and has indeed occurred.
Settled First Amendment Principles By 1962 a surprisingly impressive group of free speech and press issues, settled in favor of the speaker or publisher, were established law. Looking back, these precepts seem uncontroversial today—and for that matter, they were largely taken for granted in summer 1962. First and perhaps most obvious was that the First Amendment—despite its textual limitation to transgressions by “Congress”—applied as fully to state and local governments as to the national government. A single sentence in a 1925 decision had resolved that matter for all time: the majority in Gitlow v. New York (1925) casually “assum[ed] that freedom of speech and of the press . . . are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Despite serious lingering doubts by Justice Felix Frankfurter and others over the propriety of such easy assumptions about incorporation—or “absorption,” as Justice Brennan always preferred to describe it—that declaration was never to be questioned, much less revisited, even as the scope of the protected interests vastly expanded over time. Lurking not too far below the surface, however, was a more difficult issue of scope—whether the “abridging” that neither Congress nor the states may practice extends as fully to judicial decrees as it does to legislative and administrative actions. Although that issue would be summarily resolved in favor of a broad scope by the decision in New York Times Co. v. Sullivan (1964), many skeptics remain, and the subject deserves fuller treatment than the justices have ever given it. As one indication of uncertainty about judicial “abridgment,” we might note that in the 547 pages of his monumental treatise Free Speech in the United States (1941), Zechariah Chafee devoted but one half page to the prospect that civil liability might abridge freedom of expression; the
Freedom of Speech entire balance of both the 1920 and 1941 editions address legislative and administrative constraints on speech and press. Thus it is hardly surprising that some thoughtful observers continue to express doubts about Justice Brennan’s confident statement that “it matters not that the law has been applied in a civil action” rather than by statute or order. The second of the “givens” in 1962 was the clear unacceptability of any form of prior restraint of the press. Since the Supreme Court’s ruling in Near v. Minnesota (1931), the doors of the nation’s courts had been closed to injunctions that would bar the publication or dissemination of even the most scurrilous or offensive printed material. Although the Court did leave open the bare possibility of enjoining statements that posed extreme danger to national survival, the outrageously anti-Semitic material that pervaded the marginal weekly barred by the Minnesota courts did not even approach such a threshold. That much was unmistakably clear in the early 1960s and formed a cornerstone of early First Amendment law. When in the next decade the high court reaffirmed and extended the ban on prior restraint in the Pentagon Papers case, New York Times Co. v. United States (1971), the terrain was strikingly familiar. Justice Brennan’s concurring recognition that a court might prevent publication of the itinerary of a troop ship already at sea in time of war drew directly from the Near opinion. Even though much more remained to be said on the subject of prior restraint—notably that courts could not enjoin potentially damaging pre-trial publicity in high-profile criminal cases— the basic principles were so firmly settled by Near that the bar against prior restraint stood as one of the clearest of the early beacons of free speech and press. Freedom from prior restraint sometimes seems to promise an even broader protection, and in that respect confuses many journalists. Since the government abandoned its campaign against the New York Times and the Washington Post after the high court, in New York Times Co. v. United States (1971), blocked its quest for an injunction to stop publication of the Pentagon Papers, many observers assumed that the newspapers were also immune from subsequent punishment for having published highly sensitive information that had been unlawfully obtained. Thus many editors and publishers took as an article of faith that they could freely disseminate even classified material with impunity. Celebration on that account proved to be quite premature. Such an assumption would have been naïve and misleading, as even a cursory review of the majority opinions made clear. Not only Justices Potter Stewart and Byron R.White, but also Justice William
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O. Douglas stressed the difference between prior restraint and subsequent penalties. They emphasized that Congress had adopted legislation acknowledging that individuals could be prosecuted for publications, thus effectively recognizing the high bar to such prior restraint. In the period since the al-Qaida attacks of September 11, 2001, the issue of postpublication remedies has assumed a new importance and urgency. Although certain potentially applicable laws do contain specific exemptions for journalists, the abstract question of whether espionage acts may constitutionally justify postpublication sanctions remains very much open despite the Supreme Court’s consistent rejection of prior restraint. A third protection that was surprisingly clear by the early 1960s concerned coerced or compelled speech. In the remarkable process of overruling its three-year-old decision on the constitutionality of forcing students to salute the flag against conscience, the Court in West Virginia State Board of Education v. Barnette (1943) established beyond doubt that government may not demand declarations or expressions of adherence on the part of citizens, however persuasive the underlying interest in uniformity may seem. Although the judgment rested more on due process grounds than on the more specific religious freedom or free speech grounds that might have been invoked and would surely have sustained the same protective result, Justice Robert H. Jackson’s eloquent rejection of governmental authority to “prescribe what shall be orthodox . . . or force citizens to confess by word or act their faith” dramatically enhanced the safeguards for free expression in all forms. When the issue returned to the Court in Wooley v. Maynard (1977) in a slightly different form—a motorist’s objection to a state-prescribed motto on a license plate—the applicable principles emerged directly from the Barnette case and promptly stripped states of power to force drivers to turn their cars into “mobile billboards.” If anything, Barnette had gone even further, since the Court had barred the compelled declaration completely; the later case fully met the challengers’ needs simply by permitting them to tape over the objectionable license plate motto. By the early 1960s, the Court had also firmly settled on the right to speak anonymously.The city of Los Angeles had banned the posting or dissemination of anonymous handbills in the interest of averting fraud or false advertising and providing libel victims with an avenue of recourse. The California courts sustained this prohibition, but the Supreme Court ruled, in Talley v. California (1960), that so broad a ban could not be reconciled with the First Amendment. With a nod to Thomas Paine, the justices recalled that “anonymous
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pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” The Court left open the possibility that narrower types of disclosure requirements might be valid—for example, a specific requirement that political materials identify the organization distributing them. Such laws exist in most states, ostensibly serving the same interests as the ban tested in Talley—to deter fraud and to identify the authors or publishers of defamatory statements. In 1995 a nearly unanimous Supreme Court in McIntyre v. Ohio Elections Commission applied Talley’s basic safeguard for anonymity to invalidate Ohio’s ban on unsigned campaign literature, though once again leaving open the possibility of “a more limited identification requirement.”The right to speak or publish anonymously thus stands as one of the major First Amendment precepts that had been well established by the summer 1962. It has been refined and reinforced in later years, though without significant variation from the basic standard. Freedom of association—logically linked to the right of anonymous speech—was another First Amendment precept that was firmly settled by the early 1960s. Curiously, the text of the First Amendment makes no mention of “association,” focusing only on “speech,”“press,”“petition” and “assembly.” But in a group of civil rights cases in the late 1950s, the Supreme Court recognized that without constitutional protection to join controversial organizations and keep one’s membership beyond the knowledge of hostile authorities, the right to express unpopular political views could be substantially diluted. On this issue, the slate was not entirely clean. In New York ex. rel. Bryant v. Zimmerman (1928), the Court had upheld NewYork’s right to demand membership lists from the Ku Klux Klan, rejecting due process arguments advanced by Klan members and the officers who held and sought to refuse the names on such lists. The state’s interest in combating the Klan’s activities seemed to outweigh any interest the organization or its members might claim in anonymity. But when the justices revisited this question three decades later in the context of National Association for the Advancement of Colored People (NAACP) membership lists, the balance had tipped sharply the other way.The Court decided in NAACP v. Alabama (1958) that officers of that organization could not be compelled by southern states to surrender membership lists, since such mandatory disclosure of highly sensitive information would gravely jeopardize the newly recognized “freedom of association.” In this initial case and several that were to follow, the Court stressed that the interest asserted by the state was
clearly unrelated to the information that was being sought— thus offering a plausible basis on which one could distinguish the old Klan case should such a distinction ever prove necessary. The newly recognized freedom of association would soon be extended in Bates v. Little Rock (1960) to protect all public employees from having to reveal to the state agency that employed them all the organizations to which they belonged—again leaving open the possibility that government could assert a colorable, or genuine, need to know whether a named employee belonged to a particular organization that posed a particular risk to the public service. Despite this apparent loophole, the freedom of association quickly and confidently joined those expressive freedoms to which the framers had given explicit protection and since the late 1950s has been a major component of free speech. As the NAACP cases suggested, the Warren Court had become concerned about government’s capacity to impose conditions on various public benefits. For decades it had been clear that the due process clause limited a state’s power to condition access of an out-of-state corporation wishing to transact business within its borders. Curiously, the doctrine of unconstitutional conditions stopped there for many years, until Justice Brennan in 1958 perceived its potential relevance to civil liberties. California required any veteran who sought the special tax exemption granted to honorably discharged former service personnel to disclaim past or present membership in the Communist Party or other suspect organizations. Lawrence Speiser, who was both a decorated veteran and the head of the Southern California American Civil Liberties Union (ACLU), went to court asserting a First Amendment right to receive the tax exemption without signing and filing the intrusive loyalty oath. This seemed to be just the case for which Justice Brennan had been waiting; in Speiser v. Randall (1958), he managed to assemble a bare majority to declare that California had acted unconstitutionally, because “the separation of legitimate from illegitimate speech calls for more sensitive tools.”Thus was born the modern doctrine of unconstitutional conditions—now applicable as much to individual liberties such as free expression as it had long applied to interstate business entities.While the major development of this precept would await the retirement of Justice Frankfurter and the reconstitution of the Warren Court in fall 1962, its roots had been firmly planted well before 1960. One of the early and abiding guarantees of a free press that might easily be overlooked today but could not have been missed in 1962 is the principle that state and local taxes
Freedom of Speech may not constitutionally discriminate against the news media. Louisiana’s colorful former governor (then U.S. senator) Huey Long had declared war on the less-than-sympathetic New Orleans dailies and imposed a facially nondiscriminatory but onerous tax on them by singling out papers with specified circulation levels. When the media challenge reached the Supreme Court in 1936 in Grosjean v. American Press Co., even the Court’s arch-conservatives agreed that such discriminatory taxation abridged freedom of the press. The Court found the tax to be “a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled by virtue of the constitutional guarantee. A free press stands as one of the great interpreters between the government and the people.” This principle has been reaffirmed and reinforced on numerous occasions, most recently in Arkansas Writers’ Project, Inc. v. Ragland (1987). Of all the free expression principles we tend to take for granted today, perhaps the one that was most firmly ensconced in post–World War II jurisprudence was the right to express unpopular views on public property without government censorship of the message. In the late 1930s, Jersey City’s infamous Boss Hague had denied permits for union rallies in a public park soon after passage of the first federal laws that empowered workers to organize. The Supreme Court may have had other reasons for rejecting Hague’s edict, but central to the most memorable opinion by Justice Owen J. Roberts—in Hague v. Committee for Industrial Organization (1939)—was the premise that “wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” This was a quite startling declaration. Less than a half century earlier, Justice Oliver Wendell Holmes Jr. (then a judge on the Massachusetts high court) had stated in Commonwealth v. Davis (1895) with equal conviction that government prohibition of “public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” It was true that Jersey City’s permit denial reflected the most blatant type of content bias— and flouted federal labor-relations law at that. But the Hague decision marked a wholly new approach to expressive activity on public property, from which the Court has never retreated. Indeed, in Marsh v. Alabama (1946) such a right would be extended even to certain types of private proper-
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ty, thus putting Holmes’s analogy to rest for all time. Many difficult issues remained open, though: Could a fee be charged? That issue has been only partially settled by Forsyth County, Georgia v. Nationalist Movement (1992), which seems to say that any user fee must not be excessive and may not reflect content bias. May a content-neutral permit be required? That issue, amazingly, remained uncertain until a unanimous ruling in 2002 sustained the power of the Chicago Park District to regulate the time, place, and manner of speech on its property, in Thomas v. Chicago Park District (2002).This area of the law has also been vastly complicated by development of the “public forum” doctrine, which sharply divides the justices on the basic nature of public property and on the types of restrictions and conditions that may be imposed on access. But the basic principles that govern this vastly important area of First Amendment law were well settled by World War II.
Substantial Changes in First Amendment Law Despite the well-settled corpus of First Amendment protections in the early 1960s, there were other interests that were—quite surprisingly, in retrospect—wholly unprotected at that time. Perhaps the best example is the law of libel. In 1942 the Supreme Court (with the full concurrence of Justices Hugo L. Black and William O. Douglas) had confidently declared in Chaplinsky v. New Hampshire (1942) that defamation enjoyed no First Amendment protection. Nothing had changed by the time the Alabama Supreme Court in 1960 sustained a libel judgment against the New York Times for running an editorial advertisement that contained false statements about several local officials. In a few states a publisher would have enjoyed a common law privilege of fair comment, but Alabama was far from alone in treating such a case just like any other libel suit, disregarding the plaintiff ’s status as a public official.The Court’s decision in the case, New York Times Co. v. Sullivan (1964), brought about a dramatic change, not only imposing on the states a federal fair comment privilege, but also requiring proof of “actual malice” to overcome that privilege, and even ruling that conceded discrepancies between the Times’ own news files and the ad copy could not as a matter of constitutional law rise to the level of “actual malice.” The basis for what is probably Justice Brennan’s most memorable and important opinion was his eloquent declaration that “debate on public issues should be uninhibited,
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Encyclopedia of the First Amendment
robust, and wide-open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”The scope of this privilege would soon be extended in Monitor Patriot Co. v. Roy (1971) in ways that were hardly apparent at the time of the initial ruling—to cover a public official’s private life, for example, as well as defamatory statements that pertained to much earlier transgressions but were still protected as far back in time as the subject matter might be of interest to readers and viewers. Only three years after the basic Sullivan ruling, the Court quietly extended the fair comment privilege to cover libel suits by “public figures” as well, in Curtis Publishing Co. v. Butts (1967). Justice Brennan’s quest to extend such protection even further, to encompass all “matters of public concern,” never managed to secure five votes in Rosenbloom v. Metromedia, Inc. (1971). Nonetheless, this most basic safeguard for press freedom has remained remarkably intact over the years, despite the expression of skepticism—even sharp criticism—by several justices and by many public officials over the years.What now seems striking in retrospect is that, as late as summer 1962, there seemed no imminent prospect that the First Amendment would ever shield publishers and editors from potential liability for defaming a public official, however modest or mighty that official might be. Equally striking from the vantage point of the twenty-first century is that the speech of public employees was wholly unprotected in the early 1960s. Justice Holmes, whose views on this matter proved as unprophetic as his treatment of public streets and parks, had declared without hesitation in McAuliffe v. Mayor of New Bedford (Mass. 1892) that an outspoken municipal police officer named McAuliffe “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” Little had happened in the ensuing seven decades to alter this dismissive view. Indeed, the Supreme Court’s one case concerning government employment, United Public Workers v. Mitchell (1947), had, if anything, seemingly reinforced the Holmes view by sustaining against constitutional challenge the Hatch Act’s ban on partisan political activity by federal civil servants. It was not until 1968 that change occurred. An Illinois public school teacher named Marvin Pickering had been summarily dismissed after writing to the local newspaper a letter that was highly critical of the school board’s fiscal policies and priorities. The Illinois Supreme Court thought Justice Holmes had it exactly right and rejected any suggestion that a public worker might have First Amendment rights in Pickering v. Board of Education (N.E. 1967).
A unanimous Supreme Court saw the issue very differently. In another of his seminal First Amendment opinions, Justice Brennan now declared in Pickering v. Board of Education (1968) that when a government employee speaks on a “matter of public concern,” he or she may be fired or otherwise sanctioned only if the offending statement showed the sort of “actual malice” that would make a publisher liable for defamatory statements about a public official or public figure. There were important exceptions. Some positions in the public sector might demand a higher duty of loyalty. Further, an employee’s statement (even on a matter of public concern) might be so disruptive to agency morale and efficiency, or so severely undermine public confidence in the agency, or take so much time and attention away from the speaker’s job, or even manifest so grave a lack of “general competence” as to warrant some sort of reprisal. Other qualifications later entered the equation in Connick v. Myers (1983), recognizing that government employers should enjoy the benefit of hindsight, and that agency heads may expect a duty of loyalty fairly far down through the civil service. Thus the Pickering decision did not confer an absolute or unqualified free speech right on people who work for government, but rather a qualified privilege in regard to matters of public concern—one that must be balanced against agency needs and interests, with the result not always readily predictable.Yet the dramatic contrast between the fate of officer McAuliffe and that of teacher Pickering illustrates the sea change that occurred in the late 1960s— another classic example of how different the state of First Amendment law was in the early 1960s from what it was soon to become. Of all the sectors of First Amendment law that have evolved in the last forty-five years, the one that may have changed most dramatically is that of commercial speech.The prevailing view in the early 1960s was the one that a unanimous Supreme Court had expressed in Valentine v. Chrestensen (1942)—that “the Constitution imposes no . . . restraint on government as respects purely commercial advertising.”Although the Court would later seek to narrow that ruling, and would even suggest that commercial speech had never been categorically placed beyond the First Amendment, the quoted language is impossible to read any other way. Subsequent history confirmed that dismal view. In 1959 Justice Douglas dissented alone from the Court’s routine refusal, in Cammarano v. United States (1959), to review a lower court’s denial of a Washington state beer distributor’s plea for First Amendment protection for the tax
Freedom of Speech deduction of advertising expenses. Three years later, one of Justice Brennan’s law clerks sought to arouse the justice’s interest in a similar case involving Alabama public utility advertising—but even the soon-to-be champion of free speech and press claims routinely joined his colleagues in refusing to consider the case. As late as its decision in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973), the Court rejected any suggestion that commercial speech—other than the “editorial advertising” that claimed protection in the New York Times libel case—might merit constitutional protection. Yet two years later the Court was ready to alter course quite dramatically and to confer at least partial or limited First Amendment protection on purely commercial speech. Although Bigelow v.Virginia (1975) involved an ad, which the state had sought to penalize, for an abortion clinic at a time when abortion was lawful in some states but not in others, any suggestion that the newfound protection that the Court offered to such advertising in this case was limited to health issues or matters of special public interest was put to rest the next year in Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976), the first case that involved routine advertising of a product or service to consumers. In extending protection to commercial speech, the Court made clear just how limited its scope was—it was inapplicable to advertising for an unlawful product or service or to deceptive or misleading claims about a lawful product. Regulation of advertising even of nondeceptive claims for lawful products might be sustained upon proof that a “substantial government interest” was being directly advanced by the challenged regulation and that such regulation was no broader than necessary to serve the asserted interests. Thus, as the Court recognized a few years later in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), to the dismay of its strongest First Amendment champions, states might still ban much truthful advertising for lawful products and services if the restrictions touched all the bases. In practice, however, virtually all the challenged advertising bans have been invalidated on First Amendment grounds; the Court has made it consistently clear in later cases that the justices would not countenance “regulations that seek to keep people in the dark for what the government perceives to be their own good.” The justices have been highly critical of “vice exceptions,” which might sustain bans or curbs on advertising for potentially harmful (though lawful) products like alcohol and tobacco. Decisions in later cases also insist that no regulatory distinction may be drawn between
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commercial and noncommercial publications, while leaving open the issue of whether some other “substantial interest” might warrant differential treatment. Clearly, whatever the limitations or qualifications—and they are substantial—the First Amendment’s partial embrace of commercial speech represents one of the most dramatic changes in the law of free speech since the early 1960s. One other subject probably belongs in the same category of latecomers, though more because the regulatory process came into being later than because the state of the law has changed. Among the major current areas of First Amendment concern—unknown as a problem or concern in the early 1960s—is the constitutionality of campaign finance reform legislation. In the pre-Watergate era, campaign finance regulation was relatively limited; some states did require disclosure of the speaker’s or publisher’s identity, but the right to anonymous speech had been well established in the Talley case in 1960. It is not clear what the preWatergate Court would have done with contribution limits, expenditure ceilings, or any of the other highly complex regulations that now constrain political campaign fund-raising and spending, simply because no such measures existed or were tested in the earlier and simpler era. The development of new communications media has posed First Amendment challenges for more than a century. Motion pictures fared very badly in their judicial debut in 1915, and by the 1950s had only partially recovered, the Supreme Court noting in Burstyn v.Wilson (1952) that each medium “presents unique problems.” Curiously, although broadcasting had been around for some time by 1962, I could find no relevant Supreme Court case for inclusion in my summer course syllabus.The Justices’ only consideration of the airwaves had been a 1959 ruling, in Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc., that broadcasters could not be held liable for defamatory statements contained in political messages the “equal time” laws compelled them to disseminate without any opportunity for review or censorship. The chance to define the scope of First Amendment protection for licensed broadcasting seems to have been presented in this case, but the Court did not address the issue until a decade later in Red Lion Broadcasting Co. v. Federal Communications Commission (1969). Other new media—cable, satellite, and the Internet—were not yet prominent, leaving until much later the daunting task of defining the scope of First Amendment protection for expressive media utterly unknown to the First Amendment’s framers.
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Encyclopedia of the First Amendment
Finally, we come to two facets of First Amendment law that were moderately well developed before the early 1960s, although in ways that presaged substantial further evolution and greater complexity. These are regulation of sexually explicit material and sanctions imposed on “advocacy” and the like. When the Chaplinsky Court in 1942 relegated to constitutional purgatory “certain well-defined and narrowly limited classes of speech,” the banishment included “the lewd and the obscene.” Until the Supreme Court first ventured into this area in the 1957 case of Roth v. United States (1957), states were essentially on their own in defining and punishing obscenity, and the applicable standards varied enormously. When the high court finally did take up the issue, it offered no fewer than eight possible definitions—so many that Justice John Marshall Harlan II, in his most important separate opinion, raised serious due process concerns about the lack of guidance Justice Brennan’s majority opinion afforded. The one thing the Roth opinion did do was to declare that obscenity claimed no constitutional protection:“implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” The Roth Court also noted the universal condemnation of such material, as well as the apparent absence from obscenity of “ideas” that might provide redemption. Now came the hard task of determining just what was and was not obscene, the challenge that led a few years later, in Jacobellis v. Ohio (1964), to Justice Stewart’s statement of utter frustration, “I know it when I see it . . . even though . . . perhaps I could never succeed in intelligibly [defining it].” By the early 1960s the Court’s standards in the obscenity area were becoming more complex. In 1959 a unanimous Court had offered modest procedural protection in Smith v. California (1959) by imposing a scienter requirement on obscenity prosecutions, rejecting the notion that this might be a strict-liability offense. That same year, in Kingsley International Pictures v. Board of Regents (1959), the Court also drew a distinction between the portrayal of sexually explicit relationships, still clearly unprotected, and advocacy of (specifically) adulterous relationships, which could not be proscribed under the First Amendment since advocacy— even of unlawful conduct—is presumptively protected. But most of the obscenity battles still lay ahead—Justice Brennan’s unsuccessful quest for a “hard core” test that would exempt all distribution of otherwise obscene material to consenting adults, the differential treatment of “pandering” and of material “harmful to minors,” the redefinition
that occurred in Miller v. California (1973), and the increasingly rigorous procedural safeguards that accompanied a still surprisingly lax view of the substantive standards. Also far in the future was the related question of the constitutional status of child pornography.When that issue finally reached the Supreme Court in 1982, many states assumed that depiction of sexual relations among children must also be obscene to be banned, while other states assumed (as the Justices eventually ruled) that nonobscene child pornography could not only be separately proscribed, but also that such material enjoyed no First Amendment protection whatever, and was thus well below obscenity. So great was the societal concern for the welfare of vulnerable children that the Court ruled in New York v. Ferber (1982) that government could take far more drastic measures to combat such abuses than were permitted in regard to merely sexually explicit depictions.The Court’s eventual ruling in Ashcroft v. Free Speech Coalition (2002) that virtual or computer-generated child pornography could not be dealt with so harshly was, of course, entirely consistent with the earlier view of the matter, since there was typically no evidence that actual children had been exploited in the simulation of digital images. From the vantage point of the early 1960s, however, all that was clear was that obscenity—whatever it might be—lay beyond the realm of First Amendment protection, even though some care must be taken in defining and forbidding such material. The final topic—one that was prominently featured on my 1962 syllabus—was that of First Amendment protection for advocacy. Much happened in the forty-three years that had passed since the Supreme Court’s initial encounter with provocative political discourse. In 1919, through a series of cases that affirmed convictions for anti-war advocacy during World War I, the Court had adopted the “clear and present danger” test beginning with Schenck v. United States (1919). Although that standard at first seemed reasonably protective of advocacy and contentious speech, Justices Holmes and Louis D. Brandeis soon realized that—in the hands of their less sensitive colleagues on the Court—so general a test afforded far less protection than their view of the First Amendment would warrant. Thus during the 1920s, they joined in several eloquent dissents, warning of the dangers of suppressing controversial and unpopular political messages. To provide the necessary protection, argued Holmes and Brandeis, a far more rigorous standard was needed—but they remained lonely dissenters for a decade, in cases such as Abrams v. United States (1919) and Whitney v. California (1927).
Freedom of Speech With the Depression came a remarkable change of emphasis. First, in 1930 the Court declared in Stromberg v. California (1931) that the peaceful display of a red flag by a communist sympathizer could not be proscribed consistent with the First Amendment. Seven years later, the volatile rhetoric of radical labor organizers turned out also to merit First Amendment protection, not only for the liberal justices but for the Court’s conservatives as well, in De Jonge v. Oregon (1937). On the eve of World War II, in Bridges v. California (1941), the “clear and present danger” test turned out to protect far more than peaceful discussion or abstract advocacy: “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” Had the law remained in that condition, the rest of the story would have been relatively straightforward. But the advent of the cold war in the mid to late 1940s, followed by McCarthyism, would complicate the narrative. By the time the Supreme Court upheld the conviction of individuals for organizing the Communist Party of the United States in Dennis v. United States (1951), the climate had changed radically and the state of First Amendment law could hardly be immune from such reversals. Thus, as Justice Douglas noted with alarm in his dissent in Dennis, conspiracy convictions were upheld on the basis of evidence no stronger than that the defendants “organize[d] people to teach and themselves teach the Marxist-Leninist doctrine contained chiefly in four books” without proof that “conditions [were] so critical that there will be no time to avoid the evil that the speech threatens,” as the clear and present danger test would seem to require. By 1962, however, Dennis no longer provided the last word on the First Amendment status of advocacy.The decision in Yates v. United States (1957) reversed a communist conspiracy and advocacy conviction because the jury might have based that judgment on proof of mere advocacy rather than on proof of a tendency to produce forcible action, which the high court now felt to be a vital prerequisite to a valid charge. In Scales v. United States and Noto v. United States, both decided in 1961, the Justices ruled that mere membership in the Communist Party could not be made unlawful; one could be punished only on the basis of knowing, active membership with the specific intent to bring about the unlawful aims of the party. In 1960 the first disclaimer-type loyalty oath was struck down in Nostrand v. Little (1960), albeit on due process more than free speech grounds. Thus the treatment of advocacy had already evolved in a substan-
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tially more protective fashion in the eleven years since the days of Dennis. Major changes still lay ahead, however. In the 1969 decision in Brandenburg v. Ohio (1969), the Supreme Court essentially revived the strongest of the Holmes-Brandeis safeguards, holding that advocacy even of the use of force could be proscribed only “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Four years later the high court went even further in Hess v. Indiana (1973), adding that before such advocacy could be punished, it must be shown to have been directed to a particular person or group, and must be both intended to produce and likely to trigger “imminent disorder.” This standard is extremely protective, building upon but going well beyond even the most speechsensitive formulation of the Holmes-Brandeis era. It is far from clear whether the latest chapter in this saga is also the last.The years since September 11, 2001, pose for the first time in a half century the inevitable question of whether the Brandenburg-Hess formula will withstand such pressures. Charges have been brought against harsh critics of U.S foreign policy on the basis of advocacy and expressive activity that clearly would not meet the standard of “direct incitement to imminent lawless action” that is highly likely to produce such action. Few if any such charges have actually been tested in court; between guilty pleas and other procedural detours, the critical challenge has thus far eluded judicial resolution. But the looming, perhaps most difficult First Amendment quandary for the first decade of the twenty-first century is whether principles forged in time of relative tranquility and security will withstand the rigors of the post-September 11 world and the mounting anxiety over international terrorism. Robert M. O’Neil
furthe r reading Chafee, Zechariah. Free Speech in the United States. Cambridge, Mass.: Harvard University Press, 1941. Emerson, Thomas. The System of Freedom of Expression. New York: Random House, 1970. Kalven, Harry, Jr. A Worthy Tradition. Freedom of Speech in America. New York: Harper and Row, 1988. Meiklejohn, Alexander. Free Speech and Its Relation to Self Government. New York: Harper Brothers Publishers, 1948. O’Neil. Robert M. The First Amendment and Civil Liability. Bloomington: Indiana University Press, 2001. Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York:W. W. Norton & Co., 2004.
Freedom of the Press
he nation’s founders believed a free press to be one of the basic freedoms necessary for a new, democratic society. They acknowledged that belief in debate, state charters and constitutions, and ultimately in a set of amendments, the Bill of Rights, to the U.S. Constitution that guaranteed certain rights of citizens and states. The Bill of Rights included a First Amendment intended to declare and protect the idea that government cannot legally control the free flow of information to citizens of the new nation. Freedom of the press remains a precious and vital liberty, ensuring that people can criticize public officials, expose government corruption, and print material on virtually any subject imaginable free from most prior restraints and other forms of censorship. As the founders incorporated a provision for the protection of freedom of the press into the First Amendment, they knew that colonial newspapers with partisan editors had engaged in often confrontational political speech. They sought to prevent censorship under the new constitution. In the founders’ day, Americans learned about political issues through newspapers and pamphlets—the print medium. Today, most learn from a variety of media conduits— radio, television, and the Internet.The same forty-five words of the First Amendment—including the “or of the press” clause (the free press clause)—ensure that the government must have an extremely compelling reason before punishing someone for the dissemination of information about matters of public concern. Throughout the nation’s history, newspapers have been the medium through which Americans have most fully realized the ideal of a free press. In his 1893 book The Making of a Newspaper, Melville Phillips wrote a plainspoken, yet eloquent, description of a newspaper that applies equally well to new media of today:“It looks so cheap and—when one has gleaned the news from it—so worthless; certainly the making of it does not seem to have cost much in time, labor, brains or money [but] the influence of American journalism reaches into every American home. . . . A popular newspaper . . . is in a sense, the voice of the people” (Phillips, 3).
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The First Amendment Center’s annual State of the First Amendment reports show Americans retain reverence for the idea of unfettered news reporting: In 2002 more than 90 percent of Americans said it was “essential” or “important” to be informed by a free press. But the surveys also show Americans may not like the performance of the press: In 2005, echoing results in previous years, about 40 percent said the press had “too much freedom.” In a totalitarian society, secret trials and imprisonment often are major tools of repression; in a democratic society, even with the occasional excesses of news media coverage— from the O. J. Simpson trial to coverage of the Monica Lewinsky scandal to whatever the latest “trial of the century” might be—a free press is positioned in every city and state to keep watch on the police, the courts, and the criminal justice system. Although some coverage merits a tag of sensationalism, a press that is not controlled by the government sits in the nation’s courtrooms as a guardian and watchdog over the people’s rights to an independent judiciary, a fair trial, and equal protection under the law. Newspapers serve as a conduit for people to debate important issues and ideas. Editorials expressing the opinion of the paper,“op-ed” pages carrying the opinions of columnists, and “letters to the editor” from readers hash out in a public forum how people feel about government, neighbors, schools, and a multitude of other subjects. Today, the town square may be too traffic-ridden to hear our neighbors’ voices, but diverse voices still reach people each day in the town square that is the editorial pages of American newspapers, call-in radio programs,Web sites, and blogs. And if, over the course of American history, the media did not represent all readers, diversity came from specialized newspapers and journals that met the needs of ethnic, religious, and racial groups.The anti-slavery North Star, created in 1847 by Frederick Douglass; El Clamor Publico, published by Francisco Ramirez beginning in 1855; the Jewish Daily Forward, begun in 1897 by Russian émigré Abraham Cahan are just a few of the first examples that gave voice to groups of Americans outside the so-called mainstream.
Freedom of the Press
Origins of a Free Press in America In a letter to Edward Carrington in 1787,Thomas Jefferson argued that “the good sense of the American people is always going to be the greatest asset of the American government. Sometimes they might go astray, but they have the ability to right themselves. The people should always have the media to express opinions through.” Jefferson’s letter then continued: The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. The idea of a free press predates the founding of the United States. Many scholars trace the first expressions of the concept of a free press in the English-speaking world to John Milton’s Aeropagitica, a speech he wrote in 1644 to persuade the English Parliament to repeal a licensing act enacted a year earlier. Milton argued that the benefits of a vigorous public debate far outweigh the dangers to society of unregulated public discourse—a theory that still has currency today. In the American rationale for a free press, Milton’s concept was characterized by others, such as U.S. Supreme Court justice Oliver Wendell Holmes Jr., as the “marketplace of ideas,” a sphere in which the truth would naturally assert itself over untruth if left uncensored or otherwise limited by authority. Over time the nature of the press changed. In the early American Republic, most newspapers were highly partisan mouthpieces. The founders provided constitutional protection in the Bill of Rights for the “new media” of their day— newspapers—even as many of the publications roasted these political figures in terms that would make today’s supermarket tabloid reports seem tame. In time, these partisan rags were overtaken by mass circulation magazines and metropolitan newspapers, as press owners became more competitive and sought to build a mass audience for their publications. These formats were later joined by the broadcast media— radio and television—and still later by the Internet Web sites and the “blogosphere” of individual contributions. Americans—and laws and interpretations of the laws regarding the free press—adjusted, adapted, and embraced these new ways of distributing news and opinion. From thin “journals of opinion” to a mass circulation “penny press” to thousands of local dailies and weeklies and
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to national newspapers and companion Web sites,Americans have relied on newspapers to learn the weather forecast, document the workings of public officials, help roust scoundrels, hold the powerful accountable and—for individuals as well as the nation—both celebrate triumphs and record moments of tragedy. Critics and supporters alike are fond of saying that newspapers are just the “first draft of history.” But for most citizens, that draft covers the most important moments of personal histories: birth announcements, a story about a youth sports or academic success, a graduation list, a marriage announcement—sometimes followed by a divorce legal notice—and an obituary—the real stuff of real lives.
The Free Press Tested An initial step in determining the vital role of a free press in society came in 1735, when a printer named John Peter Zenger went on trial for criminal libel. He had published a newspaper, the New-York Weekly Journal, with articles critical of the government and specifically of William Cosby, the colonial governor of New York. Printers in the New World had for a number of years been battling against British colonial officials, contending that the king’s power to license— and thereby control—newspapers no longer applied. Zenger was brought to trial. He was defended successfully when his lawyer, Andrew Hamilton, convinced the jury that Zenger ought not to be punished for printing what was true even though truth was not a defense to libel claims. The role and right of a free press have been tested many times. Even as the founders created the free press provision of the First Amendment, some continued to believe that government needed to control (or exert influence over) some publications. Government acts, powerful officials, and even rioting mobs would at times attempt to limit or tax newspapers and intimidate editors and reporters. In 1798 a Federalist Party–dominated Congress passed the Alien and Sedition Acts. The laws empowered John Adams’s Federalist administration to act against noncitizens it deemed dangerous and provided for criminal charges against Americans who “print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States.” Some journalists, especially those who supported the Jeffersonian Democratic-Republican Party, were jailed under the Sedition Act. Jefferson’s campaign of 1800 was
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based in part on a defense of a free press and against the acts, which Congress later allowed to expire.When Jefferson took office, he pardoned individuals who had been imprisoned under the law.
The Press During Times of Conflict Within a few decades of Jefferson’s victory, prompted by a combination of the growth of cities, changes in printing technology, and the growth of literacy and the popular franchise, the idea of a “mass press” began to take hold. Government officials, however, often believed it necessary to censor the press during times of crisis. During the Civil War, newspapers across the nation were providing news of government policy and reporting from the battlefield—sometimes to the consternation of President Abraham Lincoln, who moved to censor news reports carried by telegraph. As Lincoln (and subsequent wartime presidents) found, newspaper readers wanted all the news from the front— good and bad. Sometimes “just the news” was not enough. Editor William Story—famed for coining the slogan “A newspaper’s duty is to print the news and raise hell”—cabled his Civil War correspondents:“Telegraph fully all the news— and when there is no news send rumors.” And in the late nineteenth century, William Randolph Hearst’s newspapers played a part in propelling the nation into the SpanishAmerican War. But wartime also has afforded the press a more positive role: keeping the nation informed in time of conflict independent of the government. Wartime has brought forth some of newspapers’ most compelling writing, from early correspondents at the front lines to WWII correspondents like Ernie Pyle to reports from “embedded” journalists accompanying U.S. military forces in Iraq. The free press reported about conflict even before the Revolution. In addition to written reports, woodcut images of Redcoats firing on civilians in Boston were circulated throughout the colonies.These news reports helped solidify sentiment in still-divided American opinion about breaking with Great Britain. Most Americans have heard of the battle in which Gen. George Custer and his troops were killed at Little Big Horn. But not many may know that—as documented in the Newseum’s book Crusaders, Scoundrels, Journalists—reporter Mark Kellogg of the Bismark (N.D.) Tribune was killed in 1876 along with General Custer and 210 troopers of the Seventh U.S. Cavalry. Kellogg had responded to an
Associated Press request for a volunteer news reporter to go along with Custer.
Free Press and First Amendment Jurisprudence Much of the First Amendment’s protection of a free press was established in law during the twentieth century by a series of U.S. Supreme Court decisions. In an “Overview” of the free press clause that he published for the First Amendment Center, noted media law attorney Lee Levine noted the development of a “bundle of rights” for the press that developed through these decisions. These rights established that “the government may not prevent the publication of a newspaper, even when there is reason to believe that it is about to reveal information that will endanger our national security.” Levine observed that precedents have also established that government may not: • “Pass a law that requires newspapers to publish information against their will. • “Impose criminal penalties, or civil damages, on the publication of truthful information about a matter of public concern or even the dissemination of false and damaging information about a public person except in rare instances. • “Impose taxes on the press that it does not levy on other businesses. • “Compel journalists to reveal, in most circumstances, the identities of their sources [or] • “Prohibit the press from attending judicial proceedings and thereafter informing the public about them.” The U.S. Supreme Court decided several landmark free press cases during the twentieth century that established many fundamental First Amendment principles. Some of these decisions, many cited by Levine, include: • Near v. Minnesota (1931), in which the Court rejected the notion of prior restraint on publication and decided that freedom of the press applied to the states via the due process clause of the Fourteenth Amendment; • Grosjean v. American Press Co. (1936), in which the Court struck down a license tax that applied differentially to newspapers with large circulations in Louisiana. • New York Times Co. v. Sullivan (1964), in which the Court held the press is largely free from any adverse act or court action if it attempts truthfully to report news of public concern; and when the news involves a
Freedom of the Press public official, even erroneous reportage has a high degree of protection. • New York Times Co. v. United States (1971), the “Pentagon Papers” case, in which the Court reiterated the strong presumption against “prior restraint” of publication and rejected the Nixon administration’s attempt to block the New York Times, Washington Post, and other papers from printing largely historical documents about U.S. involvement in Vietnam, even though the government cited “national security” concerns. • Miami Herald Publishing Co. v. Tornillo (1974), which struck down a state law requiring newspapers to publish replies to articles criticizing political candidates. • Richmond Newspapers, Inc. v. Virginia (1980), in which the Court affirmed a First Amendment right for both the public and the press to attend criminal trials. The Pentagon Papers decision was particularly significant because it showed that the Court was willing to protect freedom of the press from infringement by the national executive asserting claims of national security.The justices indicated that the First Amendment ruled out prior restraint of almost all publications other than those that posed a direct threat to ongoing military operations, such as publicizing the location or movement of troops, but several justices observed that the government was not precluded from prosecuting journalists following publication. Individuals might be prosecuted for publishing materials that were obscene or libelous or for procuring such materials illegally.The prosecution of Daniel Ellsberg, who had leaked the Pentagon Papers, was eventually thwarted when it was discovered that the government had sullied its own hands by illegally breaking into his psychiatrist’s office.The failure of the Ellsberg case does not preclude the possibility that once journalists publish, they might still be prosecuted for violating court orders, illegally obtaining materials, or for violating the Espionage Act. Journalists in the early twenty-first century may yet face such an outcome. First Amendment Center scholar Ronald K. L. Collins has written: “A free press is one of the bulwarks of a free society.Without it, there can be no consent of the governed, no informed decision making and no check on the abuses of power. One of the vital roles of the press is to encourage citizens to participate in government by keeping them fully informed about life, law, politics, economics and other things that matter.” Collins relates the words that Justice Potter Stewart wrote in 1972: “Enlightened choice by an
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informed citizenry is the basic ideal upon which an open society is premised, and a free press is thus indispensable to a free society.”
The Future of Freedom of the Press With greater opportunity for a free press in an age of Internet communication, the blogosphere, and desktop publishing, and with more voices speaking freely across more media than at any other time in U.S. history, Americans are being challenged with new questions on the state of free press. Citizens are being asked to balance the value of the freedom of a largely unrestrained press against potential national security concerns, of the need for an informed public against growing worries over personal privacy, of the value of the press as government watchdog over fears over public safety, and against challenges to personal values by freely available online content and commentary. How Americans respond to those questions and those fears will determine the definition of a “free press” in the twenty-first century and whether the “marketplace of ideas” continues to function as independently as it has throughout most of American history. Gene Policinski
furthe r reading Collins, Ronald K. L. “Free Press—Bulwark of a Free Society.” First Amendment Center Online, October 8, 2003. www.firstamendmentcenter.org//analysis.aspx?id=12049. Koch, Adrienne, and William Peden, eds. The Life and Selected Writings of Thomas Jefferson. New York: Modern Library, 1998. Levine, Lee. “Freedom of the Press: Overview.” First Amendment Center Online, www.firstamendmentcenter.org/press/overview. aspx?topic=press_overview. Levy, Leonard W., ed. Freedom of the Press from Zenger to Jefferson. Durham, N.C.: Carolina Academic Press, 1966. Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York:Vintage, 1992. Miller, John C. Crisis in Freedom: The Alien and Sedition Acts. Boston: Little, Brown, 1951. Newton, Eric, ed. Crusaders, Scoundrels, Journalists: The Newseum’s Most Intriguing Newspeople. New York: Crown, 1999. Phillips, Melville, ed. The Making of a Newspaper. New York: G. P. Putnam’s Sons, 1893. Policinski, Gene.“Role of newspapers in U.S. society: a nation talking to itself.” First Amendment Center Online, October 8, 2003. www.firstamendmentcenter.org/analysis.aspx?id=12047. Smith, James Morton. Freedom’s Fetters: Alien and Sedition Laws and American Civil Liberties. Ithaca, N.Y.: Cornell University Press, 1956. Wagman, Robert J. The First Amendment Book. New York: Pharos Books, 1991.
Assembly, Association, and Petition
he First Amendment’s forty-five words reveal only a small part of the story behind the more than two centuries of history embodied in this fundamental cornerstone of freedom.The “glamour” of this premier constitutional right arguably might be found in the speech and press clauses; characterizations of the First Amendment— typified in the headlines of daily newspapers and the crawls across the screens of twenty-four-hour news networks— often center around disputes concerning the rights of individuals and groups to speak out or involving some modern governmental restraint on the media. Yet, the First Amendment extends well beyond high-profile controversies about expression. The framers astutely believed that for democracy to thrive the people would need to gather to exchanges ideas, to explore commonalities, and when necessary, to present their complaints to the appropriate sector of government. They crystallized these rights in the last two clauses of the First Amendment, granting “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The notion that the act of gathering is pivotal to a functioning democracy relates to the belief that individuals espousing ideas will tend to coalesce around their commonalities. As a result, a correlative right of association—though not enumerated in the First Amendment— evolved from the right of assembly and continues to be recognized in a growing body of case law. It also can be viewed more broadly as a corollary to the right of speech because people often bond together in speech-related activities.The rights of assembly, association, and petition have manifested themselves in a variety of wide-ranging constitutional disputes, from voluntary and compelled membership in organizations to concerted efforts by citizens to save their neighborhoods, all vital to a thriving democracy.
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Right of Assembly In the 1930s, the Supreme Court weighed in on the right of assembly, recognizing that the right to gather collectively as one voice advanced benefits warranting constitutional pro-
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tection. In De Jonge v. Oregon (1937), the Court made clear that “[t]he right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” In the case before the Court, Dirk De Jonge had been charged under an Oregon criminal syndicalism statute because he had “assisted in the conduct of a meeting which was called under the auspices of the Communist Party, an organization advocating criminal syndicalism.” During his speech at the gathering, De Jonge “protested against conditions in the county jail, the action of city police in relation to the maritime strike then in progress in Portland and numerous other matters.” In his defense, De Jonge stated that the meeting was held in public, it was orderly, and no “unlawful conduct was taught or advocated at the meeting” by him or anyone else. In fact, the Court unfavorably noted that under the Oregon statute, essentially anyone who joined in the assembly—even for purely lawful purposes—could be charged. Also, as the Court observed, the Oregon law “might be indefinitely extended to every variety of meetings under the auspices of the Communist Party although held for the discussion of political issues or to adopt protests and pass resolutions of an entirely innocent and proper character.” Discourse would clearly suffer if individuals feared prosecution for merely joining in a discussion with an unpopular group without any attempt to further illegal action. As the Court concluded,“the right [of assembly] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions—principles which the Fourteenth Amendment embodies in the general terms of its due process clause.” In short, the Court shored up the protection that the Constitution provides to those individuals and groups that espouse views repugnant to a democratic society.
Associational Rights If principles of association are embedded in the right of assembly, should there also be a right for a group to exclude
Assembly, Association, and Petition from membership those individuals that do not fit the group’s desired mission or profile? The Supreme Court began looking at this issue in 1984, when it examined whether the Jaycees, a group that admitted as “regular members” only men between the ages of eighteen and thirty-five, violated Minnesota’s Human Rights Act, which prohibits discrimination on the basis of gender and race. Two local chapters of the Jaycees claimed that the national organization’s bylaws illegally discriminated against women. The national organization argued that its right of association would be violated if forced to admit women. Justice William J. Brennan Jr., writing for the Court in Roberts v. United States Jaycees (1984), found that the Court had traditionally viewed freedom of association in two distinct ways. In one respect, individuals who choose “to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” This type of association recognizes that “certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.” Examples include rights attendant to marriage and procreation. Under these circumstances, association is a “fundamental element of personal liberty.” In another respect, associational rights should be viewed as existing for “the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for redress of grievances, and the exercise of religion.” In this instance, association is “an indispensable means of preserving other liberties.” Of significance, the scope of protection for association may vary depending upon which associational interests are at stake. The Court rejected intimate association as the applicable principle in Roberts because the chapters of the Jaycees were “large and basically unselective groups.” In fact, the group routinely admitted anyone who met the age and gender requirements. The Court’s analysis turned consequently to whether the Minnesota act interfered with the Jaycees’ expressive association rights, which enable activities protected by the First Amendment. In this regard, Brennan wrote, the Court has “long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” This type of association requires a balancing to determine whether the government has a compelling
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interest, unrelated to the suppression of ideas, that would justify an incursion. In this instance, the Court was persuaded that Minnesota’s interest in eliminating gender discrimination was sufficient to justify “the impact that application of the statute to the Jaycees may have on the male members’ associational freedoms.” Despite the Court’s ruling in Roberts and other similar cases, claims of discrimination do not always trump associational rights. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), the Court issued a ruling for a situation in which the message of one group conflicted with that of the other. In this case, pursuant to a grant of authority by the city of Boston, the South Boston Allied War Veterans Council, a private group, had been allowed to sponsor and organize the annual St. Patrick’s Day–Evacuation Day parade. Another group, comprised of gay, lesbian, and bisexual descendants of Irish immigrants, sought to march in the parade under a banner identifying its members as such and expressing pride and solidarity with similar marchers in New York’s parade.The parade’s sponsor denied the group’s application to participate, and the group filed suit, alleging violations of the state and federal constitutions and Massachusetts’s public accommodations law prohibiting discrimination at public events. The Supreme Court was not sympathetic to the gay organization’s contention that Massachusetts law required the parade’s sponsor to include the group despite its lack of affinity with the message, observing, “it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government’s power to control.” In support of its ruling, the Court observed, “[p]arades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches.” Parsed differently, here the parade sponsor’s right of expressive association was paramount. According to the Court, the Commonwealth of Massachusetts should not interfere to require the sponsor to associate with a view to which it did not subscribe. In another case involving the association rights of a private organization and a gay member, the Supreme Court similarly ruled that the Boy Scouts of America had the right to exclude a gay assistant scoutmaster. The Boy Scouts had revoked the membership of James Dale, an Eagle scout, after they discovered that he was homosexual and an activist for gay causes.The Scouts organization maintained “that homosexual conduct is inconsistent with the values it seeks to
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instill.” Dale sued, using New Jersey’s public accommodation law. In Boy Scouts of America v. Dale (2000), the Court did not agree with Dale’s argument that not all members of the Boy Scout’s organization supported its anti-gay stance, finding instead that “[t]he Boy Scouts takes an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes.” The Court further found that the Boy Scouts were an expressive association and that “the forced inclusion of Dale would significantly affect its expression.” Organizations are entitled to develop their own messages. As the Court concluded,“We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization’s expression does not justify the State’s effort to compel the organization to accept members where such acceptance would derogate from the organization’s expressive message.” More recently, the Court rejected an argument by colleges and universities that their rights of expressive association were violated by the Solomon Amendment, a congressional statute forcing them either to allow military recruiters on campus or relinquish federal funding. In Rumsfeld v. Forum for Academic and Institutional Rights (2006), the Court dismissed the notion that because the military excludes known homosexuals from its ranks, requiring a school to grant them access to campus for recruiting is tantamount to forcing the educational institutions to endorse a discriminatory message. To the contrary, the Court reasoned that “[r]ecruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association.” The educational institutions relied heavily upon the earlier opinion in Dale, but the Court saw the issue differently because the military was not part of the schools; thus its presence on campus did not affect the schools’ message. By contrast, in Dale, the assistant scoutmaster was an intricate part of the organization. As the Court in Rumsfeld noted, “Students and faculty are free to associate to voice their disapproval of the military’s message; nothing about the statute affects the composition of the group by making group membership less desirable.” Although it may be impractical for the educational institutions above to deny access to military recruiters and thus forfeit all federal funding, that choice remains.Yet, at times, individuals cannot separate themselves from a group’s mes-
sage. Moreover, in some instances the Court has upheld the group’s ability to require individuals to help finance a message despite their objection to it. In Board of Regents of the University of Wisconsin System v. Southworth (2000), a group of students at the University of Wisconsin challenged, on First Amendment grounds, the institution’s mandatory student activity fee, claiming that the funds were “used in part by the University to support student organizations engaging in political or ideological speech.” The students objected to being compelled to associate, through the fees they paid, with the expression of certain student organizations with which they disagreed. The Court found the purpose of the fee to be noble. “The University of Wisconsin exacts the fee at issue for the sole purpose of facilitating the free and open exchange of ideas by, and among, its students,” Justice Anthony M. Kennedy wrote.The distribution of fees took place by direct application or student referendum. If the objecting students are entitled, as the Court suggests, “to insist upon certain safeguards with respect to the expressive activities which they are required to support,” what workable protections must the university put it place? The Court answered this query by finding “the proper measure, and the principal standard of protection for objecting students . . . is the requirement of viewpoint neutrality in the allocation of funding support.” Although finding that the university’s direct application program satisfied viewpoint neutrality, the Court was less sanguine with the student referendum process, which was incumbent upon a majority vote. As the Court reasoned, “[t]he whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views.” Southworth is distinguishable from earlier precedents in which an objecting individual could not be forced to fund political views of the entire group. Two cases in particular have shaped the law’s direction in this area: Abood v. Detroit Board of Education (1977) and Keller v. State Bar of California (1990). In Abood, nonunion public school teachers objected, on association grounds, to a collective bargaining agreement that required them to pay a “service fee” equal to the dues union members paid.The Court ruled that to the extent that the funds were used to support political candidates or express political views, teachers could prevent the expenditure of a part of their service fees. In Keller, the Court ruled similarly in that although required payment of dues to practice law was permissible, lawyers could not be forced to fund the bar association’s political messages.
Assembly, Association, and Petition
Petitioning for Redress The First Amendment’s right to petition the government for redress of grievances might loosely be thought of as a citizen’s right to fight city hall or, for that matter, any hall of government. Although it might understandably be considered a uniquely American, democratic ideal to vest the people with the power to raise grievances to the government, even the monarchy in seventeenth-century England gave its subjects the right to petition the Crown. In fact, in the United States, many citizens cannot identify this right as part of the First Amendment and take for granted the ability to petition their government. Thus, it is not surprising that Supreme Court case law is relatively sparse on the right to petition. The Court first addressed the notion in 1876 in United States v. Cruikshank (1876), finding in an opinion by Chief Justice Morrison R. Waite, that “[t]he very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” In more modern times, the Court on occasion has reminded the country of the viability and limitations of the petition clause. In McDonald v. Smith (1985), Chief Justice Warren E. Burger noted that “[t]he right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression.” Like the other freedoms it embodies, however, the right to petition is not absolute. Citizens need to take caution to avoid violating other laws under the guise of petitioning activity. In McDonald, a North Carolina state judge had been under consideration by President Ronald Reagan for a U.S. attorney position. Robert McDonald wrote two letters to the president in which he accused Smith of having violated the civil rights of individuals and committing other legal and ethical infractions. Smith failed to be appointed, and he sued McDonald for defamation. McDonald defended himself by arguing that his comments were immune from liability under the petition clause. He was unsuccessful.As the Court observed,“[a]lthough the values in the right of petition as an important aspect of self-government are beyond question, it does not follow that the Framers of the First Amendment believed that the Petition Clause provided absolute immunity from damages for libel.” Another contemporary context involving the petition clause is the burgeoning category of SLAPP litigation, or
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strategic lawsuits against public participation. In a typical SLAPP action, a citizen or group communicates information to the government, sometimes directly at a public hearing or through a petition and sometimes by coalescing community support through meetings or letters to the editor. Then comes a lawsuit, most often filed by a large business or corporate entity—land developers often are the filers—and the citizen’s nightmare begins. SLAPP targets must hire attorneys to defend rights they already have under the Constitution, notably free speech along with the right to petition the government for a redress of grievances. Although the corporations that file these actions often end up losing in court, the litigation serves its purpose in suppressing speech. The lawsuit itself works to drain the target financially and emotionally and serves not only as political retaliation but also as a warning to others not to oppose a project. In most cases, citizens ultimately prevail because of the constitutional guarantee of the right to petition government. SLAPP suits cut straight to the core of this right.Yet, winning the lawsuit is a hollow victory if, in the process of defending their constitutional rights, the SLAPP targets lose their life savings in legal fees.To this end, more than half the states have enacted anti-SLAPP laws that help citizens involved in this type of litigation. In most instances, if the lawsuit is determined to be a SLAPP, the statute requires that the case proceed on an expedited calendar, creates immunity for legitimate petitioning activities, and provides for recovery of attorneys fees. In short, anti-SLAPP laws bolster protections already contemplated in the right to petition the government. The importance of the freedoms of assembly and petition and the corollary right of association cannot be overstated. Decades of Supreme Court precedent have been devoted to sorting out the breadth and depth of these guarantees, and their influence on modern society, ranging from teachers to college students to citizens speaking out at a zoning hearing, has never been clearer. Robert D. Richards
furthe r reading Amundsen, Paul H., and Darren A. Schwartz. “ ‘SLAPP’ Suits: An Assault on the Right to Petition the Government.” Florida Bar Journal 66 (1992): 51–53. Calvert, Clay. “Where the Right Went Wrong in Southworth: Underestimating the Power of the Marketplace.” Maine Law Review 53 (2001): 53–80. Calvert, Clay, and Robert D. Richards. “Challenging the Wisdom of Solomon: The First Amendment and Military Recruitment on
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Campus.” William and Mary Bill of Rights Journal 13 (2004): 205–243. Cogan, Neil H. Contexts of the Constitution. New York: Foundation Press, 1999. Farber, Daniel A. The First Amendment. 2d ed. New York: Foundation Press, 2003. Fiss, Owen M. The Irony of Free Speech. Cambridge, Mass.: Harvard University Press, 1996. Pring, George W., and Penelope Canan. SLAPPs: Getting Sued for Speaking Out. Philadelphia:Temple University Press, 1995.
Redlich, Norman, John Attanasio, and Joel K. Goldstein. Understanding Constitutional Law. 3d ed. New York: Matthew Bender and Co., 2005. Richards, Robert D. Freedom’s Voice: The Perilous Present and Uncertain Future of the First Amendment. Washington, D.C.: Brassey’s, 1998. Sullivan, Kathleen, and Gerald Gunther. First Amendment Law. 2d ed. New York: Foundation Press, 2003. Weaver, Russell L., and Donald E. Lively. Understanding the First Amendment. New York: Matthew Bender and Co., 2003.
Incorporation of the First Amendment
he term incorporation describes the case-by-case process through which the Supreme Court has determined provisions of the Bill of Rights— whether entire amendments or individual clauses—to be fundamental to due process and thus “incorporated” into the due process clause of the Fourteenth Amendment. Once included in the due process clause, that provision is made applicable to the states in the same manner as it is to the federal government by virtue of its inclusion in the Bill of Rights. After a right is incorporated, it is to be assumed that future constitutional interpretations by the federal courts, which either expand or narrow that right, will apply equally to federal and state actions. First Amendment freedoms provide the earliest example of the selective incorporation of civil liberties protected by the Bill of Rights. The process, which began in 1925 and culminated in the 1940s, was among the least contentious concerning incorporation. There was, of course, significant disagreement among the justices in the 1920s and 1930s over the proper interpretation of the First Amendment’s guarantees, especially the appropriate standards by which to judge governmental action that restricts speech or printed material. Even as this debate took place, the Court incorporated the First Amendment rights, in stages, with little disagreement among the justices.The great debates over incorporation between Justices Hugo L. Black, on one side, and Justices Felix Frankfurter and John Marshall Harlan II, on the other, began after incorporation of the First Amendment had become settled law and focused on other provisions of the Bill of Rights. An alternative approach to incorporation of the Bill of Rights is to base constitutional protection of a right or liberty directly on the Fourteenth Amendment’s prohibition on states depriving “any person within their jurisdiction of life, liberty, or property, without due process of law.” According to the Supreme Court in Hurtado v. California (1884) and Palko v. Connecticut (1937), respectively, when state actions so violate the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” as to shock the conscience and be inconsistent with “a
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scheme of ordered liberty,” the Court should strike down those acts as violations of due process of law. Yet a third alternative is to determine that a provision of the Bill of Rights is not a fundamental principle of liberty and justice. In this case, the right in question would not be protected by the due process clause, either directly or by incorporation. Indeed, the Court has declined to incorporate all of the provisions of the Bill of Rights, leaving the Second,Third, Seventh, and elements of the Fifth and Eighth Amendments outside of application to the states. The principal difference between the ordered liberty approach and incorporation is that incorporation applies the same protections and procedures to the states as the Court applies to the federal government. By contrast, even though an ordered liberty approach protects individuals against state actions that are inconsistent with deeply rooted traditions of liberty and justice, this approach requires judges to make an independent determination of what actions the states are required to take or refrain from taking in order to preserve those essential liberties. This case-by-case, fundamental fairness approach normally leaves the states with greater latitude than under judicial interpretations of the Bill of Rights. Prior to the decision in Gitlow v. New York (1925), the Supreme Court had never held that the states were prohibited from abridging freedom of speech, freedom of the press, or the free exercise of religion. In Barron v. Baltimore (1833), Chief Justice John Marshall had held for the Court that the Bill of Rights restricted the powers of the federal government, but not those of the states. It was only with the ratification of the Thirteenth and Fourteenth Amendments that the liberty of individuals against state action came under the jurisdiction of federal courts (with the exception of a limited set of rights protected by Article 1, section 10, of the U.S. Constitution). Initially, however, two important Supreme Court decisions had limited the reach of the Fourteenth Amendment. In the Civil Rights Cases (1883), the Court held that the rights guaranteed by the Bill of Rights were not those protected by the privileges and immunities clause of the Fourteenth Amendment. Rather, the privileges and immu-
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Cases Incorporating Provisions of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment Constitutional Provision
Case
Year
First Amendment Freedom of speech and press Freedom of assembly Freedom of petition Free exercise of religion Establishment of religion
Gitlow v. New York De Jonge v. Oregon Hague v. Committee for Industrial Organization Cantwell v. Connecticut Everson v. Board of Education
1925 1937 1939 1940 1947
Fourth Amendment Unreasonable search and seizure Exclusionary rule
Wolf v. Colorado Mapp v. Ohio
1949 1961
Fifth Amendment Payment of compensation for the taking of private property Self-incrimination Double jeopardy When jeopardy attaches
Chicago, Burlington and Quincy R. Co. v. Chicago Malloy v. Hogan Benton v. Maryland Crist v. Bretz
1897 1964 1969 1978
Sixth Amendment Public trial Due notice Right to counsel (felonies) Confrontation and cross-examination of adverse witnesses Speedy trial Compulsory process to obtain witnesses Jury trial Right to counsel (misdemeanor when jail is possible)
In re Oliver Cole v. Arkansas Gideon v.Wainwright Pointer v.Texas Klopfer v. North Carolina Washington v.Texas Duncan v. Louisiana Argersinger v. Hamlin
1948 1948 1963 1965 1967 1967 1968 1972
Eighth Amendment Cruel and unusual punishment
Louisiana ex rel. Francis v. Resweber
1947
Ninth Amendment Privacy1
Griswold v. Connecticut
1965
source: Lee Epstein and Thomas G.Walker, Constitutional Law for a Changing America, 5th ed. (Washington, D.C.: CQ Press, 2004). notes: Provisions the Court has not incorporated: Second Amendment right to keep and bear arms;Third Amendment right against quartering soldiers; Fifth Amendment right to a grand jury hearing; Seventh Amendment right to a jury in civil cases; and Eighth Amendment right against excessive bail and fines. 1.The word privacy does not appear in the Ninth Amendment (nor anywhere in the text of the Constitution). In Griswold several members of the Court viewed the Ninth Amendment as guaranteeing (and incorporating) that right.
nities clause merely guaranteed the unique rights of national citizenship, such as the right to petition Congress and the right to travel on a passport issued by the federal government.This decision left the privileges and immunities clause virtually without significance. It has never recovered. A year later, the decision in Hurtado v. California (1884) nearly did the same thing to the due process clause of the Fourteenth Amendment. The Court ruled in that case that because the Fifth Amendment contains both the requirement of “a presentment or indictment of a grand jury” and a due process clause, “due process of law” in the Fourteenth Amendment was neither meant nor intended to include the requirement of grand jury indictment, because this would render that provision of the Fifth Amendment superfluous.According to Justice Stanley Matthews,
In the Fourteenth Amendment, by parity of reason, it [due process of law] refers to that law of the land in each State which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. . . . It is not every act, legislative in form, that is law. . . . [Excluded], as not due process of law, [are] acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments and decrees, and other similar
Incorporation of the First Amendment special, partial and arbitrary exertions of power under the forms of legislation. Although Hurtado only decided that the due process clause of the Fourteenth Amendment did not require the states to use grand jury indictments, it is but a small step from Hurtado to a holding that the due process clause of the Fourteenth Amendment does not protect any of the provisions in the Bill of Rights. The Supreme Court never took this step, but instead moved in the opposite direction. Thus, the first task before the Court in 1920s when it decided to hear Benjamin Gitlow’s appeal for his conviction on charges of criminal anarchy was to determine whether the due process clause of the Fourteenth Amendment provided any protection against state abridgment of the freedom of speech and of the press. Only three years earlier, in dicta in Prudential Insurance Co. of America v. Cheek (1922), the Court had remarked 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’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.” Although the Court rejected Gitlow’s appeal, Justice Edward Terry Sanford’s treatment of the question of whether the due process clause of the Fourteenth Amendment protected freedom of speech and of the press from state action represented a dramatic shift from its position only three years earlier: For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question. Still, the standard of review the Court applied in Gitlow to the New York statute was the very weak indulgent rationality test that was contained with the bad tendency test that the Court used to uphold the conviction in the case: By enacting the present statute, the State has determined, through its legislative body, that utterances advocating the overthrow of organized government
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by force, violence and unlawful means are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute. Mugler v. Kansas, 123 U.S. 623, 661. And the case is to be considered “in the light of the principle that the State is primarily the judge of regulations required in the interest of public safety and welfare;” and that its police statutes may only be declared unconstitutional where they are arbitrary or unreasonable attempts to exercise authority vested in the State in the public interest. Justice Oliver Wendell Holmes Jr.’s dissent in Gitlow focused on the extremely deferential standard of review that the Court employed in this case and in other contemporary First Amendment cases, such as Abrams v. United States (1919) and Schaefer v. United States (1920). His remarks on the question of the Fourteenth Amendment protection for freedom of speech were brief: ”The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.” It is noteworthy that Holmes was endorsing an ordered liberty and not an incorporationist approach to the due process clause of the Fourteenth Amendment.The statement that the states are allowed “a somewhat larger latitude of interpretation [of the principle of free speech] than is allowed to Congress” is consistent with an ordered liberty and not an incorporationist approach. Even more remarkable, is the fact that the Court was unanimous in holding that freedom of speech is among the liberties protected by the due process clause and that it announced this holding without fanfare, as if this conclusion were a matter of course. In subsequent cases over the next two decades, the Supreme Court reaffirmed its holding in Gitlow that the due process clause protects freedom of speech and of the press against state infringement.Although the Court did not completely incorporate the First Amendment until Everson v. Board of Education (1947), when freedom from establishment of religion was included, the Court moved rapidly in the
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direction of applying the same protections for freedom of speech and the press under the Fourteenth Amendment as are understood to be guaranteed by the First Amendment. Equally significant is the fact that many of these decisions were unanimous. For example, in Grosjean v. American Press Co. (1936), striking down a Louisiana law that interfered with freedom of the press, Justice George Sutherland wrote for a unanimous Court, “The First Amendment to the Federal Constitution provides that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .’ While this provision is not a restraint upon the powers of the states, the states are precluded from abridging the freedom of speech or of the press by force of the due process clause of the Fourteenth Amendment.” Sutherland’s opinion in Grosjean also explicitly limited Hurtado’s holding to those rights in the Fifth Amendment, thereby reopening the question of whether other rights guaranteed by the Bill of Rights were also protected by the due process clause. Subsequent decisions limited Hurtado’s reach within the Fifth Amendment to the question of grand jury indictment alone. Although the Court in this era was moving in the direction of incorporating the First Amendment, its language was often sufficiently ambiguous to leave open for debate whether it was applying an ordered liberty or an incorporationist approach. This changed in 1940 with the Court’s decision in Cantwell v. Connecticut. Cantwell is a particularly important First Amendment case because it involves both freedom of speech and the free exercise of religion. Newton Cantwell and his sons Jesse and Russell, all Jehovah’s Witnesses, were charged with and convicted of soliciting contributions toward the publication of the organization’s pamphlets without the proper state-issued certificate and inciting others to breach of the peace by playing an anti-Catholic recording. The Supreme Court overturned the Cantwells’ convictions with Justice Owen J. Roberts writing, “We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.”
What made this decision incorporationist was the statement that the “Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws” (emphasis added). An ordered liberty approach assumes, as Holmes wrote in Gitlow, that the due process clause allows states “somewhat greater latitude” to legislate than is allowed Congress by virtue of the Bill of Rights. Incorporation requires that the same protections be applied to the states as to the federal government. This is precisely the position Roberts takes with respect to the First Amendment in Cantwell. It is noteworthy that the establishment clause of the First Amendment presents a special situation. It is difficult to describe the prohibition on the establishment of religion as an individual right or liberty. In this sense, it is quite different from the other First Amendment rights—the freedom of speech, freedom of the press, the right peaceably to assemble, and free exercise of religion. If the Fourteenth Amendment incorporates those individual rights that are fundamental to the U.S. system of liberty and justice, then one might ask why the establishment clause has been incorporated and applied to the states, as the Court expressly held in 1947. Justice Clarence Thomas raised this question when he wrote in a concurrence in Elk Grove Unified School District v. Newdow (2004) that “[t]he text and history of the Establishment Clause strongly suggest that it [the Establishment Clause] is a federalism provision intended to prevent Congress from interfering with state establishments.Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause.” Court majorities continue to rely more heavily on precedents from Everson to the present than on Thomas’s arguments. Moreover, in a country with a religiously diverse population, established religions are so inimical to the free exercise of religion that the latter might not be able to survive without banning the former. Once the Court decided to incorporate the free exercise clause and make it applicable to the states, as it did in 1940 in Cantwell, then it had arguably to incorporate the establishment clause as well.This is Justice Black’s argument in Everson. It is also James Madison’s argument in “Memorial and Remonstrance Against Religious Assessments.” In short, the process of incorporating the First Amendment took place in three rather distinct steps or phases. The first step, taken in Gitlow in 1925, abandoned a line
Incorporation of the First Amendment of decisions dating back to Hurtado in 1884 and running through Prudential Insurance Co. of America in 1922, the latter of which implied, without specifically holding, that the due process clause provides no protection against state action for First Amendment rights.The second phase, dating from 1925 to 1939, expanded the protections accorded by the due process clause of the Fourteenth Amendment for freedom of speech, of the press, and of peaceable assembly. Especially significant in this period is the raising of the bar that state laws must pass in order to be constitutional. Over time, the Supreme Court replaced the weak rationality test applied in Gitlow with the more stringent clear and present danger test favored by Justices Holmes and Louis D. Brandeis.The third and final step in the process of incorporating the First Amendment was the determination that the due process clause imposed the same requirements on the states with respect to the rights of freedom of speech, the press, and the
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free exercise of religion as the First Amendment imposes upon the federal government. This step came in 1940 in Cantwell and in 1947 in Everson. In Palko v. Connecticut (1937), Justice Benjamin Cardozo had described this process as one of absorption. This description seems especially apt. The incorporation of the First Amendment is arguably one of the least contentious but most significant shifts in constitutional doctrine in the history of the Supreme Court of the United States. Bruce E. Auerbach
furthe r reading Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2003. Levy, Leonard W., Charles Fairman, and Stanley Morrison. Fourteenth Amendment and the Bill of Rights:The Incorporation Theory. New York: Da Capo Reprint, 1970.
The First Amendment around the World
any U.S. citizens and residents know the text of the First Amendment to the Constitution of the United States by heart. Others may not be able to recite the forty-five words of the First Amendment verbatim but are familiar with its provisions. For example, in the 2007 State of the First Amendment Report, published by the First Amendment Center, nearly two-thirds (64 percent) of a national sample of adults named freedom of speech as a right specifically guaranteed by the First Amendment; 16 percent named freedom of association, assembly or petition; and 19 percent named freedom of religion. Others may not be aware of the First Amendment, but they know that the Constitution provides for freedom of religion, or freedom of speech and press. Readers of these volumes will find that committing the First Amendment to memory does not necessarily translate into an understanding of the First Amendment, a belief that it serves as a positive force in society, or the assent that First Amendment freedoms protect expression, groups, or religious practices that they find distasteful.
M
Public Attitudes Civil libertarians and scholars argue that the embracing of First Amendment freedoms by most citizens is important to the health or survival of the liberties it establishes and to the development of an effective democratic culture.The earliest research in the United States on public support for the various freedoms embodied in the First Amendment documented widespread support for freedom of religion, speech, press, association, assembly, or petition, but substantially less support for the extension of those freedoms to behavior exercised by various unpopular “nonconformists,” such as communists, atheists, and socialists (Stouffer 1955; Prothro and Grigg 1960). Later research demonstrated that apparent increases in public tolerance for the exercise of First Amendment and other freedoms by nonconformists through the 1960s and 1970s were indicative of changes in the level of appeal of some nonconformist groups; that is, certain groups that had
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been particularly offensive during the 1950s had grown less so, and as a result, the public was more apt to tolerate them. When other nonconformist groups grew more offensive over the same time period, the public was not more supportive of their exercise of First Amendment rights (Sullivan, Piereson, and Marcus 1979). From this foundation, research on political tolerance in the United States for the exercise of rights and freedoms, including but not limited to First Amendment freedoms, has expanded. Research on political tolerance of these freedoms has been conducted elsewhere around the world, though it has not always focused directly on the exercise of First Amendment rights (see, as examples, Bahry, Boaz, and Gordon 1997; Caspi and Seligson 1983; Duch and Gibson 1992; Gibson 2002; Gibson and Gouws 2003; Karpov 1999; Pefley and Rohrschneider 2003; Shamir 1991; Sullivan, Shamir,Walsh, and Roberts 1985). Figure 1 provides a snapshot of population support in eighteen countries during the mid-1990s for the right to assemble and petition for redress of grievances (in demonstrations), with respect to groups disliked by the surveyed individuals. Figure 2 charts the willingness of the population in twelve European Union countries in 1988 to allow rallies by a particular disliked group, fascists. If support for the exercise of rights by unpopular, even despised, groups is regarded as a measure of commitment to First Amendment freedoms, there is much room for improvement worldwide. Even in the countries with the most tolerant populations, only a minority of the population would extend the right to hold a demonstration or rally to a particularly disliked group. With the exception of Switzerland, the most tolerant countries also represent the strongest and most stable democracies. At the other end of the scale, in a majority of the eighteen national populations represented in Figure 1, less than 10 percent of the population approves of allowing unpopular groups to hold demonstrations. Toleration for rallies by fascists was somewhat higher in the European Union in 1988, perhaps because of differences in the wording of survey questions or because European populations in the 1980s
The First Amendment around the World
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Figure 1. Percent Willing to Allow a Disliked Group to Hold Demonstrations, 1995–1997 Sweden
30.30
Australia
28.40
United States
24.60
Finland
22.30
West Germany
19.40
Brazil
17.50
Argentina
13.80 11.10
Uruguay East Germany
9.40
Armenia
9.20
Spain
8.60
Croatia
8.50
Serbia
7.80
Georgia
6.50
Switzerland
6.30
Bosnia
4.40
Peru
4.20
Macedonia
3.20 0.00
10.00
20.00
30.00
SOURCE: Pefley and Rohrschneider 2003, analyzing data from the 1995–1997 World Values Surveys.
Figure 2. Percent Willing to Allow Fascists to Hold Demonstrations, European Union 1988 Spain
39.60
Belgium
27.70
Italy
23.60
Netherlands
23.10
Denmark
22.80
Luxembourg
21.60
Great Britain
20.70 19.40
France West Germany
16.60 15.30
Greece Portugal
14.70
Ireland
14.50 0.00
10.00
20.00
30.00
40.00
SOURCE: Dutch and Gibson 1988.
were familiar with fascists who might be characterized as less extreme than those who led Europe into World War II.
Constitutional Provisions A commitment around the world to the freedoms guaranteed by the First Amendment can be assessed by considering
the extent to which their national constitutions provide for freedom of religion, speech, press, association, and assembly and petition. While a constitution that provides for these rights is no guarantee that the rights will be respected— repressive regimes ignore and abuse such rights despite of constitutional language protecting them—people worldwide
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view formal constitutional provisions for rights seriously. Indeed, it is unlikely that the U.S. Constitution would have been ratified had it not been amended to include a Bill of Rights led off by the forty-five words that comprise the First Amendment. Furthermore, the wave of democratization that has occurred around the world over the past three decades has been accompanied by intensive efforts to protect rights and encourage democracy by embedding fundamental rights in written constitutions and bills of rights. At the very least, many may be inclined to agree with the “Father of the Constitution,” James Madison, that while such “parchment barriers” as those included in the Bill of Rights are hardly satisfactory provisions against a repressive government, they certainly are “neither improper nor altogether useless.” So, how extensive are First Amendment freedoms in the world’s constitutions? To try to answer this question, two scholars recorded the extent to which the First Amendment freedoms of religion, speech, press, association, and assembly were secured within the language of the world’s written constitutions each year from 1976 through 2004 (Keith and Tate 2007). Figures 3 through 8 report for each year the percentage of constitutions that included no mention of these freedoms. The fact that a First Amendment freedom is not
mentioned in a constitution does not necessarily mean that the freedom is in jeopardy; in some countries (most notably Great Britain), these freedoms are observed and protected by constitutional tradition and custom even though there is no written constitution that guarantees them. It is also possible that First Amendment freedoms are protected by written statutes even though they are not mentioned in the constitution. In general, however, it is fair to assume that the failure to mention First Amendment freedoms in a constitution is an indication that those rights are tenuous. Figure 3 presents data on the absence of constitutional provisions protecting freedom of religion across the period 1976 through 2004. The figure and those that follow illustrate a recurring pattern: from 1976 through the 1980s, more than 40 percent of the world’s constitutions included no mention of freedom of religion. Then, beginning around 1990, that percentage falls steadily through 2004, the last year for which these data are available, to about 20 percent. The decline is relatively steep through the mid-1990s but moderates thereafter. This pattern reflects the effort to write new, more democratic constitutions—including strong bills of rights—that followed the evaporation of Soviet control in Eastern
Figure 3. Percentage of World’s Constitutions with No Mention of Freedom of Religion, 1976–2004
50
40
30
20
10
0 1976
1978
SOURCE: Keith and Tate 2007.
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
The First Amendment around the World Europe, the downfall of the communist regimes and breakup of the nations of Yugoslavia and the Soviet Union, and other democratic events during the period of the late 1980s and early 1990s The data on freedom of speech, shown in Figure 4, reflect a similar pattern, but the decline in the percentage of constitutions failing to mention this freedom is steeper. The constitutional right to freedom of speech was the most widely observed of the five First Amendment freedoms in the study. In the 1970s, 35 to 40 percent of constitutions failed to mention freedom of speech. By 2004, that percentage had fallen to less than 10 percent. By the early twentyfirst century, it had become customary to protect freedom of speech in a constitution. Figures 5 and 6, graphs for freedom of association and assembly, reflect similar results. For both, the percentage of world constitutions with no mention of these freedoms is above 40 percent in the 1970s but declines, though less steeply than for freedom of religion and freedom of speech, to a level between 10 and 15 percent by 2004. In fact, the similarities in the results for freedom of religion, freedom of speech, freedom of association, and freedom of assembly might lead one to suspect that these four freedoms were
adopted by constitution makers as a group. Whether or not that was the case, constitutional protection for these four First Amendment freedoms was widespread by the early twenty-first century. The trend line of results for freedom of the press, illustrated in Figure 7, is generally similar to the patterns for the other four freedoms—the percentage of constitutions with no mention of freedom of the press begins at a high level in the 1970s and declines steadily to a lower level by 2004, but the pattern varies significantly from the others in that the measure of constitutions with no mention of this freedom in the 1970s was above 60 percent and rose to a high of 68 percent in the early 1980s, before beginning to fall in the late 1980s. Furthermore, the lowest measure for this freedom, reported in 2004 (42 percent) was as high as that of any other First Amendment freedom at its highest point. Four of ten nations still do not formally recognize freedom of the press in their constitutions by the twenty-first century. Little wonder, then, that protection of this freedom is of paramount concern among civil liberties activists. A final graph, Figure 8, summarizes constitutional support for the First Amendment freedoms around the world over the past three decades. The figure plots the percentage of
Figure 4. Percentage of World’s Constitutions with No Mention of Freedom of Speech, 1976–2004
50
40
30
20
10
0 1976
1978
SOURCE: Keith and Tate 2007.
1980
1982
1984
1986
1988
35
1990
1992
1994
1996
1998
2000
2002
2004
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Figure 5. Percentage of World’s Constitutions with No Mention of Freedom of Association, 1976–2004
50
40
30
20
10
0 1976
1978
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
SOURCE: Keith and Tate 2007.
Figure 6. Percentage of World’s Constitutions with No Mention of Freedom of Assembly, 1976–2004
50
40
30
20
10
0 1976
1978
SOURCE: Keith and Tate 2007.
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
The First Amendment around the World
Figure 7. Percentage of World’s Constitutions with No Mention of Freedom of the Press, 1976–2004
80
70
60
50
40
30
20
10
0 1976
1978
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
SOURCE: Keith and Tate 2007.
Figure 8. Percentage of Written World Constitutions with No Provisions Protecting Any First Amendment Freedom, 1976–2004 40
30
20
10
0 1976
1978
SOURCE: Keith and Tate 2007.
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
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constitutions that make no mention of any of the five First Amendment freedoms. As shown, by the early 2000s, only one constitution in twelve (8.5 percent) made no mention of any First Amendment freedom; the same statistic three decades earlier was approximately one in three—good news for supporters of the First Amendment.
Conclusion Based on the level of constitutional protections for First Amendment freedoms, the evidence suggests that there is growing acceptance for these freedoms.Today, however, it is also apparent that many nations fail to embrace freedom of the press. Moreover, regimes ignore or scorn formal constitutional protections with relative impunity. The United Nations Educational, Scientific and Cultural Organization’s list of nearly 200 assassinated journalists, issued in commemoration of World Press Freedom Day (UNESCO 2007), is a stark reminder of this contradiction. The available evidence concerning the level of public support for First Amendment freedoms and the uncertainty surrounding the observance of these freedoms in certain regimes is a critical concern of First Amendment proponents worldwide. The extent to which citizens support not only the abstract principles underlying the First Amendment but also the extension of those principles to the exercise of freedoms by unpopular individuals or groups may determine whether a free and democratic government survives. But in a world that is increasingly connected by globalization—and in which citizens increasingly face the challenge of understanding and accommodating people who are different from themselves—a stronger level of popular commitment to the principles and the practice of the First Amendment will be, to repeat Madison’s words in his introduction of the Bill of Rights to the First Congress, “neither improper nor altogether useless.” C. Neal Tate
note I am grateful to James L. Gibson for sharing his political tolerance knowledge and bibliography.
furthe r reading Bahry, Donna, Cynthia Boaz, and Stacy Burnett Gordon. “Tolerance, Transition, and Support for Civil Liberties in Russia.” Comparative Political Studies 30 (1997): 484–510. Caspi, D., and M. A. Seligson. “Toward an Empirical Theory of Tolerance: Radical Groups in Israel and Costa Rica.” Comparative Political Studies 15 (1983): 385–404. Duch, Raymond M., and James L. Gibson.“ ‘Putting Up With’ Fascists in Western Europe:A Comparative, Cross-Level Analysis of Political Tolerance.” Western Political Quarterly 45 (1992): 237–273. First Amendment Center. “State of the First Amendment 2007: Final Annotated Survey.” November 11, 2007. www.firstamendmentcenter.org. Gibson, James L. “Becoming Tolerant? Short-Term Changes in Russian Political Culture.” British Journal of Political Science 32 (2002): 309–334. Gibson, James L., and Amanda Gouws. Overcoming Intolerance in South Africa: Experiments in Democratic Persuasion. New York: Cambridge University Press, 2003. Karpov, Vyacheslav. “Political Tolerance in Poland and the United States.” Social Forces 77 (1999): 1525–1549. Keith, Linda Camp, and C. Neal Tate. Constitutional Provisions Database. Nashville:Vanderbilt University, Department of Political Science, 2007. Peffley, Mark, and Robert Rohrschneider. “Democratization and Political Tolerance in Seventeen Countries:A Multi-level Model of Democratic Learning.” Political Research Quarterly 56 (2003): 243–257. Prothro, James W., and Charles M. Grigg. “Fundamental Principles of Democracy: Bases of Agreement and Disagreement.” Journal of Politics 22 (1960): 276–294. Shamir, Michal. “Political Intolerance among Masses and Elites in Israel: A Reevaluation of the Elitist Theory of Democracy.” Journal of Politics 53 (1991): 1018–1043. Stouffer, Samuel C. Communism, Conformity and Civil Liberties. New York: Doubleday, 1955. Sullivan, John L., James E. Piereson, and George E. Marcus. “An Alternative Conceptualization of Political Tolerance—Illusionary Increases 1950s–1970s.” American Political Science Review 73 (1979): 233–249. Sullivan, John L., Michal Shamir, Patrick Walsh, and Nigel S. Roberts. Political Tolerance in Context: Support for Unpopular Minorities in Israel, New Zealand, and the United States. Boulder, Colo.:Westview Press, 1985. UNESCO. 2007. “World Press Freedom Day 2007.” http://portal. unesco.org/ci/en/ev.php-URL_ID=16998&URL_DO=DO_ TOPIC&URL_SECTION=-481.html.
The Future of the First Amendment
ew areas of constitutional law have changed less in the past quarter of a century than the First Amendment. Although the U.S. Supreme Court has decided a large number of First Amendment cases, few have significantly changed the law. None have changed the framework for analyzing First Amendment issues, and few have represented dramatic departures from precedent.
F
The Future of the Court This period of stability is about to change. Recent changes in the composition of the Supreme Court are likely to result in significant, perhaps even radical, shifts in the law. In a number of First Amendment areas, the Court in recent years was closely divided in 5-4 opinions, as Justice Sandra Day O’Connor aligned with Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Her replacement, Justice Samuel Alito, is likely to be more conservative on several First Amendment issues. Moreover, the five most conservative Justices—Chief Justice John Roberts and Justices Antonin Scalia,Anthony Kennedy, Clarence Thomas, and Samuel Alito—are likely to remain on the Court for a decade or more, barring unforeseen health issues.
Freedom of Speech and the Press The framework for analysis of free speech issues has remained unchanged for many years.The critical question in the analysis is whether the government regulation of expression is content-based or content-neutral. In general, content-based restrictions must meet strict scrutiny (that is, be necessary to achieve a compelling government interest), while contentneutral laws only have to meet intermediate scrutiny (that is, be substantially related to achieving an important government interest). A law is content-based if it restricts speech either on the basis of its subject matter (allowing speech on some topics but not others) or its viewpoint (allowing speech expressing some positions but not others). There are a number of exceptions in which contentbased restrictions on speech are allowed. For example, the
Court has said that incitement of imminent illegal activity is not protected by the First Amendment, as articulated in Brandenburg v. Ohio (1969). Similarly, the Court, which currently applies the three-part test that it established in Miller v. California (1973), has held that obscenity is speech unprotected by the First Amendment. Notably, the Court has not decided a case about incitement or obscenity for many years. There is no indication that the Court wants to reconsider this framework or rethink such related issues as restrictions on speech in government places, or the validity of laws regulating speech that are unduly vague or overbroad. The Court has not addressed these topics in a major case in recent years. It is possible to infer from certain factors and circumstances that changes in First Amendment law are likely in the years to come.The first set of adjustments will come as a result of technological change.The emergence of new media for expression—the most of important of which is the Internet—over the past two decades poses new and important issues.Thus far, the Supreme Court has been protective of speech over the Internet, rebuffing attempts by government to restrict speech in this venue, especially sexual speech. Thus, in Ashcroft v. American Civil Liberty Union (2004), the Court upheld a preliminary injunction of the Child Online Protection Act, and in Reno v. American Civil Liberties Union (1997), it declared two provisions of the Communication Decency Act of 1996 to be unconstitutional. The Internet facilitates access to a mass audience in an unprecedented way; previously, only those who owned newspapers or possessed broadcast licenses could reach such an audience. Now any person with a Web site or blog can reach a wide audience at virtually no cost across international boundaries. For example, a significant percentage of the sexually explicit material on the Internet originates outside the United States, thus limiting the extent to which the U.S. government can restrict its content. Technological change will drive other shifts in First Amendment doctrine. For decades, the Supreme Court has approached First Amendment issues medium by medium. In FCC v. Pacifica Foundation (1978), the Court allowed for pun-
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ishment of radio stations that broadcast indecent speech. Similarly, in Red Lion Broadcasting Co. v. FCC (1969), the Court upheld the application of the Fairness Doctrine for both radio and television. The Court rejected right to reply laws for newspapers in Miami Herald Publishing Co. v.Tornillo (1974), while crafting special rules for cable television in Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996), for telephones in Sable Communications of California v. Federal Communications Commission (1989) (invalidating dial-a-porn laws), and, as indicated above, for the Internet. But this approach has little or no application in a world where people can gain access to all of these media through a single service provider over a single cable or wireless connection. The Court will have to respond to the changes in media ownership, product development, and dissemination of news, and revisit the mediumby-medium approach, perhaps creating separate tests for each. Second, changes in the composition of the Supreme Court portend shifts in some areas of free speech law. The most conspicuous example of this change involves campaign finance legislation. In Buckley v. Valeo (1976), the Supreme Court articulated the framework within which campaign finance laws are examined, and the justices have not stepped outside this construction for more than three decades. In general, the government may limit the amount of contributions to specific candidates or committees, but the government cannot limit the amount that a person spends overall. Simply put, contribution limits are constitutional, but expenditure limits are unconstitutional. Three current justices—Antonin Scalia, Anthony Kennedy, and Clarence Thomas—have repeatedly criticized this framework and have urged the Court to overrule Buckley and hold that all contribution limits are unconstitutional. Now, Chief Justice Roberts and Justice Alito may provide the votes to do exactly that. At the very least, the new justices have indicated a willingness to change the law of campaign finance and to invalidate more provisions that regulate campaign spending. For example, in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), the Court recently ruled that the Bipartisan Campaign Finance Reform Act of 2002 is unconstitutional as applied to prevent issue advertising by an organization that exists for advocacy purposes.The Court, with Chief Justice Roberts and Justices Scalia, Kennedy,Thomas, and Alito in the majority, effectively overruled a precedent that was just a few years old to allow more freedom for campaign spending. The decision sent an unmistakable signal that the Court is willing to
reconsider the law concerning campaign finance and to be much less likely to uphold restrictions on campaign contributions and spending. If this trend continues, it will bring a major change in First Amendment doctrine, but even more important, cause major changes in how political campaigns are financed and run in the United States. A third change in the law of the First Amendment is likely to come as a result of the war on terrorism.Although most cases have focused on potential violations of due process, others involve First Amendment rights. Thus, a U.S. circuit court ruled in North Jersey Media Group, Inc. v. Ashcroft (3d Cir. 2002), that there is no First Amendment right to attend deportation hearings and that closing them does not therefore violate the amendment, whereas another U.S. circuit court decided in Detroit Free Press v. Ashcroft (6th Cir. 2002) that the closure of immigration proceedings may violate the First Amendment, though the government may be able to justify such closure in individual cases. Similarly, a circuit court decided in Center for National Security Studies v. United States Department of Justice (D.C. Cir. 2003) that neither the First Amendment nor the Freedom of Information Act requires that the government disclose the names of detainees or their attorneys. Another issue facing the Supreme Court concerns whether designating a group as a terrorist organization and punishing those who contribute to it violate the First Amendment rights of expression and association, at least without greater procedural safeguards. Federal laws have undergone major changes since September 11, 2001, and, to date at least, the U.S. Supreme Court has not fully examined lower court decisions that have arguably given insufficient attention to the First Amendment problems with punishing people for contributing to an organization, at least without proof that they intended to further the illegal activities of the group. Thus, the Supreme Court denied cert in the case of United States v. Afshari (9th Cir. 2005), in which the lower court had decided that the federal statute prohibiting providing material support for a designated foreign terrorist organization (FTO) did not violate either due process or the First Amendment. Similarly, the Supreme Court has not examined the decision in Holy Land Foundation for Relief and Development v. Ashcroft (D.C. Dir. 2003), which held that the Treasury Department’s designation of an organization as a Specially Designated Global Terrorist (SDGT) under the Emergency Powers Act did not violate the First Amendment or due process, even when the Treasury Department relied upon hearsay evidence in making its designation.
The Future of the First Amendment The Court is likely to address the dramatic increase since the attacks on September 11 in the use of “national security letters” by the government to obtain private information about individuals.The entity that provides the information is prohibited from telling the subject of the investigation that the information was disclosed. In a case later reversed and remanded in Doe v. Gonzales (2d Cir. 2006) for reconsideration of some novel issues in Doe v. Ashcroft (S.D.N.Y. 2004), a district court held that a section of this law was a contentbased restriction on speech and a prior restraint under the First Amendment. The Court will continue in all likelihood to deal with more traditional First Amendment issues. Thus, in Morse v. Frederick (2007), it recently upheld punishment for a student who upheld a banner “Bong Hits 4 Jesus” at a school event on a public sidewalk outside the school—behavior that school officials interpreted as encouraging drug use. Similarly, in Garcetti v. Ceballos (2006) the Court addressed protection of speech for government employees, deciding that when such employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the First Amendment does not insulate their communications from employer discipline.
Religion Clauses A dramatic change is likely in the law of the First Amendment with respect to the establishment clause, which says that Congress shall make no law respecting the establishment of religion. In 1971, in Lemon v. Kurtzman, the Court articulated a three-part test for the establishment clause; a government action is unconstitutional if it fails any part of the test. Under Lemon, a government action is unconstitutional if the government acts with the purpose of advancing religion, if the primary effect of the government’s action is to advance or inhibit religion, or if there is excessive government entanglement with religion. Over the past several decades, the Court has used this test in numerous ways. In Santa Fe Independent School District v. Doe (2000), the Court invalidated student-delivered prayers at public school football games. About five years later, in McCreary County v. American Civil Liberties Union (2005), it invalidated the display of the Ten Commandments in public buildings. Much earlier, in Wolman v.Walter (1977), the Court invalidated aid to parochial schools. Four justices (three of whom remain on the Court), however, have called in recent years for overruling the Lemon test
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and an approach to the establishment clause that is more inclined to allow government and religion to be intertwined. Chief Justice William H. Rehnquist and Justices Scalia, Kennedy, and Thomas vehemently reject the view that the establishment clause intended to create a wall separating church and state. From their perspective, which is largely reflected in Justice Kennedy’s partial concurrence and partial dissent in County of Allegheny v. American Civil Liberty Union (1989), a case involving holiday displays, the government violates the establishment clause only if it literally establishes a church, coerces religious behavior, or favors some religions over others. Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito are likely to adopt this position, portending a dramatic change in the law of the establishment clause. What would such a shift mean? First, there would be fewer limits on the ability of the government to place religious symbols, even sectarian symbols, on government property. In the recent cases of McCreary County v.ACLU and Van Orden v. Perry (2005), both of which concern Ten Commandments displays, Justices Scalia, Kennedy, and Thomas explicitly stated their view that such religious symbols on government property do not violate the First Amendment. Chief Justice Roberts and Justice Alito are likely to provide the additional two votes for this position. Second, the government will have far more latitude to give assistance to parochial schools. In a fairly recent case, Mitchell v. Helms (2000), the Court concluded that the government may give aid to religious schools if the aid is not used in religious instruction. But four Justices—Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas—disagreed, arguing that the government should be able to give any assistance, even if it is used in religious teaching, as long as the government does not discriminate among religions. Indeed, Justice Thomas’s opinion, joined by the other three justices, suggested that denying aid to religion would be unconstitutional. With the appointment of Alito, there may be five votes for such aid. Finally, a greater willingness to allow religion in public schools is likely. Conservative justices have dissented from decisions limiting invocations by clergy members at public school graduations in Lee v.Weisman (1992), and prayers by students at high school graduations in Santa Fe Independent School District v. Doe (2000).There may be five votes among the current justices to reconsider such limits. The ruling of the current Court is likely to turn on the position of Justice Kennedy, who agrees with the other conservative justices
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that the government violates the establishment clause only if it coerces religious conduct (or creates a church), but is more willing to find psychological coercion than the others who share his position. For example, in Lee v. Weisman, Justice Kennedy wrote for the Court in finding that the delivery of prayers by clergy at public school graduations violates the establishment clause because the prayers are inherently coercive. The four dissenters vehemently objected to finding coercion on this basis. It is safe to predict that the Court is going to change the law of the establishment clause, perhaps dramatically, in the near term.
Conclusion Predicting developments in any area of law is inherently problematic, but especially so with regard to the First Amendment. Issues, especially those concerning speech and the press, are likely to be a result of unforeseen events. It is hard to imagine all the legal questions and conflicts that will emerge from the high-speed dissemination of information and ease of communication among citizens; two decades
ago, no one could have imagined the scope and scale of the Internet and how dramatically it would change the nature of expression. Still, in a wide array of cases concerning speech and religion, it is safe to assume that the Court is likely to remain divided along ideological lines. For the foreseeable future, there is a solid conservative majority on the Supreme Court: Roberts, Scalia, Kennedy,Thomas, and Alito.They are likely to move the law in this area, like all of constitutional law, in a more conservative direction in the coming years. Erwin Chemerinsky
furthe r reading Chemerinsky, Erwin. “The Future of Constitutional Law.” Capital University Law Review 34 (2006): 647–668. ———. “The Rookie Year of the Roberts Court and a Look Ahead: Civil Rights.” Pepperdine Law Review 34 (2007): 535–552. Gey, Steven G.“Life After the Establishment Clause.” West Virginia Law Review110 (2007): 1–50. Heyman, Steven J. Free Speech & Human Dignity. New Haven, Conn.: Yale University Press, 2008. Richards, Robert D. Freedom’s Voice: The Perilous Present and Uncertain Future of the First Amendment. Washington, D.C.: Brassey, 1998.
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CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
Abington School District v. Schempp (1963) The Supreme Court decision in Abington School District v. Schempp, 374 U.S. 203 (1963), invalidated the reading of verses, without comment, from the Bible and the Lord’s Prayer in public school settings. These practices had been challenged by the Schempps, Unitarians from Pennsylvania. Madalyn Murray and her young son William, both atheists, had challenged a similar practice in Maryland, leading to the companion case Murray v. Curlett (1963).The Schempp decision followed one year after the Court’s ruling in Engel v. Vitale (1962) striking down public prayer in schools. Acknowledging that Americans were religious, Justice Tom C. Clark in the Court’s Abington opinion noted that they were also bound by the establishment clause of the First Amendment, which forbids the recognition of one religion over others and government recognition of religion in general. The clause, he asserted, required government “neutrality” toward religion; although the practices in question might seem to be relatively minor encroachments, “the breach of neutrality that is today a trickling stream may all too soon become a raging torrent.” Clark held that the court was not attempting to establish a “religion of secularism.” Although ending devotional exercises in public schools, the decision did not mean “that such study of the Bible or of religion, when presented objectively as part of a secular program of education” would violate the First Amendment.The “exalted” place of religion in American society was to be “achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind.”
Justice William O. Douglas wrote a concurring opinion, in which he asserted that the establishment clause not only precluded the state from “conducting religious exercises,” but also from employing “its facilities or funds in a way that gives any church, or all churches, greater strength in our society than it would have by relying on its members alone.” In a concurring opinion, Justice William J. Brennan Jr. examined the relationship between the establishment and free exercise clauses, but he warned against “a too literal quest for the advice of the Founding Fathers upon the issues of these cases.” He observed, first, that “the historical record is at best ambiguous,” second, that “the structure of American education has greatly changed since the First Amendment was adopted,” third, that “our religious composition makes us a vastly more diverse people than were our forefathers,” and fourth, that “the American experiment in free public education available to all children has been guided in large measure by the dramatic evolution of the religious diversity among the population which our public schools serve.” Based on cases in which the Court had relied chiefly upon the establishment clause, Brennan concluded that the practices at issue could not be justified on the basis of secular purposes, being nonsectarian, or exempting students who did not want to participate. He also offered that the decision would not require changes in the provision of chaplains in the military, invocational prayers in state legislatures, nondevotional teaching about religion in public schools, tax exemptions for religious institutions, religious considerations (for those, for example, who could not work on Saturday) in the granting of welfare, or activities with religious origins that had ceased to have religious meaning.
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Justice Arthur J. Goldberg wrote a separate concurrence, joined by Justice John Marshall Harlan II, emphasizing the role of the First Amendment in promoting “religious liberty and tolerance.” Justice Potter Stewart dissented. He believed the record to be “fundamentally deficient” for the Court to take the case. He thought that it was “a fallacious oversimplification to regard these two provisions [of the First Amendment] as establishing a single constitutional standard of ‘separation of church and state,’ which can be mechanically applied in every case to delineate the required boundaries between government and religion.” For him, the central value of the amendment was “the safeguarding of an individual’s right to free exercise of his religion.” Stewart also feared that “a compulsory state educational system so structures a child’s life that if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage.” He thought it possible to have religious exercises “in which no possibility of coercion on the part of secular officials could be claimed to exist.” On this he wrote, “What our Constitution indispensably protects is the freedom of each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker, to believe or disbelieve, to worship or not worship, to pray or keep silent, according to his own conscience, uncoerced and unrestrained by government.” See also Brennan,William, J., Jr.; Clark,Tom C.; Douglas,William O.; Engel v.Vitale (1962); Prayer at Public School Events; Stewart, Potter.
John R.Vile
furthe r reading Abraham, Henry J., and Barbara A. Perry. Freedom and the Court. 6th ed. New York: Oxford University Press, 1994. Solomon, Stephen D. Ellery’s Protest. Ann Arbor: University of Michigan Press, 2007.
Abolitionists and Free Speech The movement to abolish slavery—which is usually tied to William Lloyd Garrison’s founding of the abolitionist newspaper the Liberator in 1831—spread swiftly and ferociously. It prompted defenders of slavery to use legal and some illegal means to stem the tide of anti-slavery sentiment, including limiting the ability to speak against the practice of slavery. Several events created an atmosphere of fear in the South so that measures to thwart abolitionism could be passed under the guise of maintaining peace and order.
The 1820 Missouri Compromise was crafted to accommodate the demands of pro-slavery as well as pro-abolition movements. In fact, it satisfied only the moderates on both sides. Extreme pro-slavery elements objected to it because it provided a precedent by which Congress had power to regulate slavery.Abolitionists opposed it because it allowed slavery to continue to spread in some of the areas. The 1822 revelation of Denmark Vesey’s planned slave rebellion in South Carolina shocked southerners.Vesey had organized to lead an army of slaves through Charleston, killing white people in their path. Only the betrayal of Vesey by some of his army prevented his plan from being put into practice. The realization that blacks in several states actually outnumbered whites made residents of slave states all too aware of their tenuous position of power. The tariff of 1828, designed to aid northern manufacturers by increasing the cost of imported goods, also raised fears of economic pain. Having barely recovered from the Panic of 1819, economic interests in the South cast about for a way to fight back. John C. Calhoun provided that means with his impassioned advancement of “nullification” of federal laws. Eventually the tariff was repealed, but the legal justification of independent state action had been broached. Abolitionists began to push more forcefully, urging “any means necessary” to defeat slavery. Within a few years, they would organize the Underground Railroad to help slaves escape. In response to mass mailings of the Liberator, North Carolina passed laws to forbid teaching blacks to read or to provide them with reading material. Nat Turner, an enslaved preacher, led an uprising in 1831 in Virginia, which responded by banning nighttime religious services for slaves. Abolitionist preaching led to heightened tensions in the North as well. In 1834–1835, such tensions resulted in riots in New York City and in Philadelphia. In the wake of these events, Alabama, Georgia, North Carolina, South Carolina, and Virginia published open letters and sent official communications to northern states urging them to control the disruptive activities of abolitionists. In response to the overwhelming submission of petitions to the U.S. House of Representatives in support of abolitionist legislation, pro-slavery and moderate anti-slavery forces banded together to pass a gag rule in the House.The rule, originally passed in 1836 to produce a “cooling off ” period, was renewed and strengthened to ban virtually any mention of abolition or the limiting of slavery or the slave trade. As with earlier attempts to ease tensions, the irreconcilable goals of the two sides doomed this effort to failure.
Abood v. Detroit Board of Education (1977) Former president John Quincy Adams argued against the rule, offering resolutions to lift it at every chance.The House eventually censured him for his actions. Rather than cooling passions, the gag rule merely forced activists to seek other channels of activity. These included increased mailings of newspapers and lecture tours designed to incite the public against the evils of slavery as well as to encourage slaves to resist their masters. Around this time, antiabolitionists held meetings and formed societies throughout the southern states. The implementation of the gag rule also helped fuel the abolitionist movement in northern states, resulting in the election of enough new members of Congress to overturn it in 1844. Calhoun attempted to introduce a similar gag rule in the Senate. His measure was blocked, however, in favor of a rule to force a vote on whether to consider receiving a petition rather than voting to accept the petition.This provided proslavery senators with a guaranteed method of preventing discussion of abolition within the Senate. In 1837 Missouri banned abolitionist expression of any kind. Within a couple of years, every southern state had adopted laws that limited the freedom of speech with regards to abolitionist sentiment. Southerners were especially wary of strangers; and local meetings of antiabolition societies often demanded that state legislatures pass even stricter measures, calling for special taxes on abolitionists, and in some cases their immediate expulsion or imprisonment. In parts of Louisiana, strangers could be arrested for conversing with blacks.Agitators and abolitionists sometimes had bounties on their heads. In time, northern sentiment fueled by abolitionism and southern sentiment fueled by antiabolitionism and states’ rights led to Civil War as the southern states seceded following the 1860 election of Abraham Lincoln, the first Republican president. His party had been largely founded in opposition to the spread of slavery. Lincoln initially viewed the Civil War as a means of preserving the Union, but eventually he used it to eliminate slavery as well, through emancipation. The U.S. government formalized the abolition of slavery with the Thirteenth Amendment, ratified in 1865. In attempting to guarantee the rights of former slaves, the Fourteenth Amendment, ratified in 1868, included a clause providing for “due process of law.” In time, this provision would become the vehicle through which the Supreme Court would apply provisions of the Bill of Rights, including the First Amendment, to the states after decades of only applying it to the national government.
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See also Adams, John Quincy; Civil War, U.S.; Gag Rule in Congress; Lincoln, Abraham.
Thurman Hart
furthe r reading Curtis, Michael Kent. Free Speech: The People’s Darling Privilege. Durham, N.C.: Duke University Press, 2000. Harrold, Stanley. The American Abolitionists. New York: Longman, 2000. Lowance, Mason. Against Slavery: An Abolitionists Reader. New York: Penguin, 2000. Meinke, Scott. “Slavery, Partisanship, and Procedure in the US House: The Gag Rule, 1836–1845.” Legislative Studies Quarterly 32 (February 2007): 33–58. Stauffer, John. The Black Hearts of Men: Radical Abolitionists and the Transformation of Race. Cambridge: Harvard University Press, 2004. Wyly-Jones, Susan. “The 1835 Anti-Abolition Meetings in the South: A New Look at the Controversy over the Abolition Postal Campaign.” Civil War History 47, no. 4 (2001): 289–309.
Abood v. Detroit Board of Education (1977) In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court unanimously ruled that no violation of the First and Fourteenth Amendments existed in an arrangement under which nonunion government employees represented by a union must pay a service fee equal in amount to union fees as a condition of their employment. On First Amendment grounds, however, the Court prohibited the union from using the service fees for political and ideological purposes opposed by the objecting employees and unrelated to the union’s collective bargaining activities. Detroit public school teachers were unwilling to pay dues to the union representing teachers employed by the Detroit Board of Education.They accused the union of engaging in political activities that they opposed and that were unrelated to the union’s collective-bargaining purposes. Relying in part on its decisions in Railway Employees’ Department v. Hanson (1956) and International Association of Machinists v. Street (1961), the Court in an opinion by Justice Potter Stewart in Abood asserted that insofar as the charges required of the nonunion employees were used for funding union expenditures for collective-bargaining, contract-administration, and grievance-adjustment activities, this “agency shop” arrangement was constitutionally valid.The Court had held in Hanson that requiring financial support for a collectivebargaining agency by those who received the agency’s benefits did not violate the First Amendment. In Street, the Court ruled that unions could not use agency shop funds for political purposes opposed by nonunion members.
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Abortion Protests
Although the Court in Abood ruled that the nonunion employees may bar the union from spending their fees on political activities unrelated to the union’s collective bargaining work, it emphasized that its decision does not bar a union representing public employees from spending money to express political views or support political candidates. Rather, the Constitution requires that such expenditures be funded by union employees who do not object to advancing those views and who are not forced to contribute those funds based on the threat of job loss. The Court rejected the teachers’ contention that collective bargaining in the public sector was inherently political, thus forcing nonunion members to surrender their First Amendment rights by financially supporting the union. Abood is important because it became the foundation for the decision in Board of Regents of the University of Wisconsin System v. Southworth (2000), in which the Court held that the First Amendment permits a public university to charge students mandatory student activity fees to fund programs facilitating extracurricular philosophical, religious, or other student discussions insofar as there is viewpoint neutrality in the allocation of funds. See also Board of Regents of the University of Wisconsin System v. Southworth (2000); International Association of Machinists v. Street (1961); Railway Employees’ Department v. Hansen (1956); Stewart, Potter.
Salmon A. Shomade
furthe r reading Schmedemann, Deborah A. “Of Meetings and Mailboxes: The First Amendment and Exclusive Representation in Public Sector Labor Relations.” Virginia Law Review 72 (February 1986): 91–138. Wasserman, Howard M. “Compelled Expression and the Public Forum Doctrine.” Tulane Law Review 77 (November 2002): 163–245.
Abortion Protests Abortion has been one of the most contentious and volatile issues in the United States, igniting public protest for and against it. While Roe v. Wade (1973) protects the right of women to seek an abortion, the First Amendment protects the rights of abortion opponents to challenge the Supreme Court’s decision. In essence, there are two rights at stake: the privacy rights of patients and staff members at health care facilities and the rights of speech, assembly, and petition of pro-choice and antiabortion protesters. Since the Roe decision, this battle of competing rights has played out in the
Supreme Court and Congress as well as on countless streets and sidewalks in front of abortion clinics and elsewhere. The standard of strict scrutiny when applied to First Amendment rights generally requires that the state demonstrate a compelling government interest in order to prohibit speech based on content in a public forum. If the regulation of the speech is neutral in terms of content, the regulation must only pass a reasonable scrutiny test. These standards were tested in Madsen v.Women’s Health Center (1994). In this case, a Florida state court permanently enjoined antiabortion protesters from blocking or interfering with public access to a clinic and from physically abusing persons entering or leaving. An amended injunction subsequently excluded demonstrators from a thirty-six-foot buffer zone around clinic entrances and driveways. Government officials use buffer zones to attempt to mitigate the effects of protesting by separating protesters and their targets in designated areas. Madsen established a new test for injunctions prohibiting speech: an injunction will be upheld unless it burdens speech more than is necessary to serve a significant government interest. Justice Antonin Scalia’s dissent argued that this new standard was not strict enough and represented a grave threat to First Amendment protections. He also argued that the majority decision was biased against antiabortion speech. The majority held that the injunction was not subject to heightened scrutiny based on content simply because it applied to antiabortion protest. It upheld the restrictions against demonstrating within the buffer zone around the clinic and from making loud noises within earshot of the clinic. It rejected the prohibition against approaching patients within 300 feet of the clinic. In response to a wave of violence surrounding protests at abortion clinics, President Clinton signed the Freedom of Access to Clinic Entrances Act of 1994 (FACE). This law prohibits acts of violence at abortion clinics by making it a federal crime to use force or threat of force, physical obstruction, intentional injury, and intimidation against reproductive health care providers and their patients. It also authorizes civil lawsuits for injunctions against such activities and monetary damages.The penalties for violation include imprisonment and fines. To protect First Amendment rights, the law may not be construed to prohibit peaceful expressive conduct or any activities protected by the free speech and free exercise clauses. Abortion rights activists applauded the law as a protection for clinics and patients, but First Amendment watchdogs criticized it as too broad and as improperly distinguishing between violent and nonviolent protest.
Abortion Protests Three years after Madsen, the Supreme Court again addressed the issue of buffer zones in the context of antiabortion speech in Schenck v. Pro-Choice Network of Western New York (1997). Doctors and medical clinics filed a lawsuit against antiabortion organizations that engaged in heated demonstrations and blocked access to clinics. The federal district court issued an injunction against the protesters prohibiting them from demonstrating within fifteen feet of clinic entrances and driveways, making this a fixed zone, and fifteen feet of patients and their vehicles, creating a floating zone. In a 6-3 vote, the Supreme Court upheld the fixed buffer zone but in an 8-1 vote struck down the floating buffer zone. Using the test developed in Madsen, the Court found that the fixed buffer zone did not burden speech more than necessary to serve the government’s interests. It, however, considered the floating buffer zone too broad and difficult to enforce. Chief Justice William H. Rehnquist’s opinion reasoned, “the 15-foot floating buffer zones would restrict the speech of those who simply line the sidewalk or curb in an effort to chant, shout, or hold signs peacefully.” In 2000 the Court addressed buffer zones and floating bubbles in Hill v. Colorado, another antiabortion speech case. In 1993 the state of Colorado passed a statute mandating that within 100 feet of a medical facility, protesters intending to counsel or distribute literature must have permission from passersby before approaching them within eight feet. The statute created buffer zones similar to the fixed buffer zones and floating zones at issue in Schenck. Indeed, the first time the case came before the Court, the justices remanded it in light of Schenck. The Colorado Supreme Court upheld the statute and interpreted the floating zone narrowly. A violation of the floating zone occurred only if the speaker physically moved within eight feet of the passerby but not if the passerby approached the protester. In a 6-3 decision, the Supreme Court upheld the Colorado court’s decision.The majority opinion, written by Justice John Paul Stevens, held that the statute did not violate the content-neutrality test under Ward v. Rock against Racism (1989), because the regulation affected the location of the speech rather than its content and applied to all protesters regardless of viewpoint. Further, the eight-foot zone did not violate Schenck because the protestors can communicate at a “normal conversational distance” to a passersby. Dissenting, Justice Scalia argued that the restriction was contentbased and placed an unjustifiable burden on free speech. Scheidler v. National Organization for Women stands as one of the most well-known and contentious abortion protest
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cases. It reached the Supreme Court three times. Its importance rests in the claim by the petitioners that antiabortion protest violates the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Hobbs Act. The petitioners argued that antiabortion activity was a nationwide conspiracy to shut down abortion clinics through racketeering and extortion.The Supreme Court first heard the case in National Organization for Women v. Scheidler (1994).The lower courts had dismissed the case, arguing that RICO required an economic motive and that abortion protests did not satisfy this requirement. The Supreme Court overturned this decision arguing that economic motive was unnecessary and that although the protesters did not gain financially, they did affect the business of the clinics. Antiabortion groups denounced the decision, and other civil liberties advocates worried that the decision undercut the First Amendment freedoms of other protest groups. Nine years later, the case returned to the Supreme Court as a class action suit in Scheidler v. National Organization for Women (2003). The lower courts found that the actions of Scheidler were racketeering in violation of the Hobbs Act and issued an injunction against the antiabortion groups as well as substantial monetary fines. Scheidler appealed on several grounds, including violations of the free speech clause under the First Amendment. The Supreme Court refused to consider the free speech issues. The Court ruled that while the actions may have been coercive, they did not amount to extortion because the defendants did not obtain property from the plaintiffs, and RICO did not support the injunction. Although not based on First Amendment grounds, the decision was viewed as a victory for abortion protesters. The Court ruled on this case for a third time in Scheidler v. National Organization for Women (2006).The Court ruled, 8-0, that physical violence unrelated to robbery or extortion was outside the Hobbs Act; Congress did not intend to create “a freestanding physical violence offense.” Instead, Congress had addressed violence outside abortion clinics in 1994 through FACE. Of note, social activists and the AFLCIO sided with the antiabortion demonstrators in this case, arguing that injunctions based on extortion law could be used to thwart protests for better wages and working conditions. See also Carey v. Brown (1980); Frisby v. Schultz (1988); Hill v. Colorado (2000); Madsen v.Women’s Health Center, Inc. (1994); Perry Education Association v. Perry Local Educators’ Association (1983); RICO Laws; Scheidler v. National Organization for Women
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Abrams v. United States (1919)
(2006); Schenck v. Pro-Choice Network of Western New York (1997);Ward v. Rock against Racism (1989).
Lynne Chandler Garcia
furthe r reading Hull, N. E. H., William Jones Hoffer, and Peter Charles Hoffer, eds. The Abortion Rights Controversy in America. Chapel Hill: University of North Carolina Press, 2004. Keheler, Christopher P. “Double Standards: Free Suppression of Abortion Protesters’ Free Speech Rights.” DePaul Law Review 51 (2002): 825–910. Kelly, Daniel. “Defining Extortion: RICO, Hobbs, and Statutory Interpretation in Scheidler v. National Organization for Women, Inc.” Harvard Journal of Law and Public Policy 26, no. 3 (Summer 2003): 525–530. Nemko, Amy H. “Saving FACE: Clinic Access under a New Commerce Clause.” Yale Law Journal 106, no. 2 (November 1996). Roberson, Benjamin W. “Abortion as Commerce: The Impact of United States v. Lopez on the Freedom of Access to Clinic Entrances Act of 1994.” Vanderbilt Law Review 50, no. 1 (January 1997): 239–275.
Abrams v. United States (1919) In Abrams v. United States, 250 U.S. 616 (1919), the Supreme Court upheld the conviction of several individuals for the distribution of leaflets advocating their political views. This case is best remembered for the dissent written by Justice Oliver Wendell Holmes Jr. advancing the concept of a free marketplace of ideas. During World War I, Jacob Abrams and four other Russian immigrants living in New York City had printed and distributed two leaflets condemning U.S. intervention in the Russian civil war involving the Bolsheviks (communists).The leaflets did not concern the war with Germany. In the course of an appeal to the “workers of America,” one leaflet advocated a general strike and a resort to arms if the United States intervened in Russia. Justice John Clarke, writing for a seven-member majority of the Supreme Court, upheld the immigrants’ sentence of twenty years in prison for violating a 1918 amendment to the 1917 Espionage Act. The law made it a crime willfully to speak or publish “disloyal” language about the American political system or to incite or advocate “any curtailment of production . . . necessary or essential to the prosecution of the war . . . with intent . . . to curtail or hinder the United States in the prosecution of the war.” Clarke applied the clear and present danger test advanced by Holmes in Schenck v. United States (1919) and found that the natural effect of Abrams and his colleagues’ actions was to “defeat the war plans of the Government” through the “paralysis of a gener-
al strike.” Holmes, joined by Louis D. Brandeis, disagreed. Holmes advanced a more libertarian version of the clear and present danger test, finding that Abrams’s actions presented no real or immediate danger to the nation’s security, dismissing the leaflets as the “silly” actions of an “unknown man.” With free speech at issue, Holmes argued for a stricter standard for intent than had the majority. To Holmes, because Abrams intended to help Russia, not Germany, the First Amendment’s free speech clause protected the leaflets. Holmes asserted that those who think they are right will find it “perfectly logical” to translate their convictions into the law and impose them on others, but it is “the theory of our Constitution” that the best test of truth is a “free trade in ideas” through the competition of debate and discussion. Government is permitted to regulate expression only when it “so imminently threaten[s] immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.” Later cases, including Brandenburg v. Ohio (1969), expanded Holmes’s theory of free speech in developing the incitement test, which provides substantial free speech protection to dissent speech advocating unlawful conduct but not posing an imminent threat of such action. See also Brandenburg v. Ohio (1969); Clear and Present Danger Test; Communist Party of the United States; Espionage Act of 1917; Holmes, Oliver Wendell, Jr.; Incitement; Marketplace of Ideas; Schenck v. United States (1919).
Timothy J. O’Neill
furthe r reading Blasi, Vincent. “Holmes and the Marketplace of Ideas.” In Supreme Court Review, 2004, ed. Dennis J. Hutchinson et al., 1–46. Chicago: University of Chicago Press, 2005. Polenberg, Richard. Fighting Faiths:The Abrams Case, the Supreme Court, and Free Speech. New York:Viking Press, 1987. Stone, Geoffrey. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York:W. W. Norton, 2005.
Abrams, Floyd Floyd Abrams (1936– ) is a well-known and widely respected First Amendment lawyer. Born in Queens, New York, Abrams graduated from Cornell University in 1956 and in 1960 from Yale Law School. Abrams worked from 1961 to 1963 as a legal researcher and clerk for Judge Paul Leahy in the U.S. District Court for the Federal District of Vermont. In 1963 Cahill Gordon Reindel hired Abrams as an associate; he continues to practice for the firm. In addition to his legal practice, Abrams
Absolutists taught as a visiting lecturer at Yale Law School from 1974 to 1980 and 1986 to 1989 and as a visiting lecturer at Columbia Law School from 1981 to 1985. Abrams catapulted to fame in 1971, when he argued and won on behalf of the New York Times in New York Times Co. v. United States, the landmark case over publication of the Pentagon Papers.The case set a powerful precedent against prior restraint of the press. Abrams argued his first solo case before the Court in Landmark Communications, Inc. v.Virginia (1978). He then successfully argued Smith v. Daily Mail Publishing Co. (1979). Abrams was also involved in Nebraska Press Association v. Stuart (1976) and argued Branzburg v. Hayes (1972), the only case in which the Court has explicitly considered the question of reporter-source confidentiality. At the trial level, Abrams acted as counsel in the Heroin Trail case, a 1986 trial involving New York Newsday. Notable among Abrams’s defeats is Wayne Newton v. NBC (9th Cir. 1990), which resulted in a libel judgment against his client, NBC, of more than $22 million dollars, one of the largest libel judgments ever in cases involving the media. In recent years, Abrams took on a case for the Brooklyn Museum of Art when it came under attack from New York mayor Rudy Giuliani over the exhibition Sensation, which the mayor criticized as being sacrilegious. Abrams was also involved in defending comedian and writer Al Franken in a trademark lawsuit brought by the Fox News Corporation over a Franken book title that used the phrase “fair and balanced,” an expression that Fox had adopted for promotional use.Along with attorney Kenneth Starr,Abrams participated in McConnell v. Federal Election Commission (2003), a case stemming from the so-called McCain-Feingold legislation regulating campaign financing; this is another notable case in which Abrams did not prevail. He also defended former New York Times reporter Judith Miller during her legal difficulties resulting from her refusal to reveal sources in the episode involving the outing of Valerie Plame as a covert CIA agent. Abrams is the recipient of many legal awards See also Bickel, Alexander; Branzburg v. Hayes (1972); Landmark Communications Inc. v. Virginia (1978); McConnell v. Federal Election Commission (2003); Miller, Judith; Nebraska Press Association v. Stuart (1976); New York Times Co. v. United States (1971); Prior Restraint; Smith v. Daily Mail Publishing Co. (1979).
A. May
furthe r reading Abrams, Floyd. Speaking Freely:Trials of the First Amendment. New York: Viking, 2005.
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Absolutists Absolutists believe that the wording “Congress shall make no law” means that neither the federal nor state governments may pass laws that abridge the individual rights of religion, speech, press, and association. Also, to that end, these rights should never defer to other social values. Justices Hugo L. Black and William O. Douglas developed and shared an absolutist approach to First Amendment freedoms. Justice Black’s reading of the history of the Bill of Rights persuaded him that the authors meant literally what they wrote and that the restrictions on government contained in the First Amendment are unalterable. Black’s textualism stemmed from his suspicions about the power of judges, feelings rooted in the efforts of a conservative Supreme Court to strike down much of Franklin D. Roosevelt’s New Deal legislation in the 1930s, when Black served as a U.S. senator. Despite his fervent advocacy of the absolutist position, Black still distinguished between speech that the Constitution protects unequivocally and expressive conduct that is not protected; some words are so closely connected to action that they should be unprotected, such as falsely yelling “fire” in a crowded theater. Moreover, when Black found no language in the Constitution expressly protecting an asserted right—for example, privacy claims as in Griswold v. Connecticut (1965)—he argued that only minimal due process guarantees should apply. Black also dissented in the landmark speech case Tinker v. Des Moines Independent Community School District (1969), asserting that school officials should be allowed to punish students for wearing black armbands. Douglas agreed with Black about the absolute guarantees of the First Amendment, but rejected his literalism. As Douglas argued in Roth v. United States (1957), “The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence.” In his view, the Constitution forbids courts and legislatures from abridging any form of expression, including sexually explicit materials. Douglas feared that a ban in any speech would shift the Bill of Rights away from protecting individual liberty and toward governmentally enforced social conformity. Some scholars, including Alexander Meiklejohn, advocate the absolutist position on the ground that only the unfettered expression of politically relevant opinions and ideas can guarantee the intelligent self-government of a democratic
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people. They draw a sharp line, however, between speech that deals with political topics and issues and other forms of literary, philosophical, or artistic expression, granting them less protection. Others point to the history of government curtailment of speech and press, especially during wartime, that tended not to protect national security but to shield public officials from public criticisms. They argue for an absolutist position to protect unpopular minorities or viewpoints during periods of repression. Critics of the absolutist approach argue that the First Amendment should be interpreted within the scope of the entire Constitution. Many rights guaranteed by the Bill of Rights can directly conflict with others; reconciling these conflicts is what politics, especially judicial politics, is about. The critics usually champion a balancing approach, arguing that courts should weigh the competing social and individual interests in unfettered expression against legitimate social and individual interests in protecting against obscenity, actual threats of injury, and incitement to imminent lawless action. A majority of the Supreme Court has never endorsed the absolutist position. Rather, the Court has consistently held that certain types of speech are not protected by the First Amendment or can be regulated when offsetting social or individual interests are involved. For example, so-called fighting words can be prohibited.Advertising can be regulated to prevent fraud or deception. In addition, libel, slander, blackmail, and obscenity, although speech, are not constitutionally protected. See also Ad Hoc Balancing; Black, Hugo L.; Douglas,William O.; Expressive Conduct; Fighting Words; Incitement; Roth v. United States (1957).
David A. May
furthe r reading Hentoff, Nat. Free Speech for Me—But Not for Thee. New York: Perennial, 1993. Meiklejohn, A. Political Freedom. New York: Harper Collins, 1960. Posner, Richard A. Overcoming Law. Cambridge, Mass.: Harvard University Press, 1995.
Academic Bill of Rights The Academic Bill of Rights is a three-part document offering a definition of academic freedom and presenting a number of “rights” that students and faculty should have in scholarship and in the classroom to protect academic freedom and
reduce ideological intimidation. David Horowitz, a conservative political author and commentator, promulgated the document in 2004 in response to a growing concern that modern university curricula have become overly political and ideological. Supporters of the Academic Bill of Rights cite studies revealing that most faculty members are members of the Democratic Party, profess doubts about the existence of God, and identify themselves as liberals. Horowitz, who has written several books exploring the ideological leanings of professors in public universities, has been a harsh critic of colleges and universities, identifying professors he considers to be particularly ideological or political. He worked for more than a decade to draft the Academic Bill of Rights, which he claims is based on the American Association of University Professors’ reports on academic integrity. Part one of the Academic Bill of Rights defines the mission of universities as finding truth, expanding knowledge through new scholarship and research, and encouraging students to become creative, productive citizens. Part two argues that freedom exists when there is an institutional environment of “intellectual diversity that protects and fosters independence of thought and speech, . . . a complete and unlimited freedom to pursue inquiry and publish the results.” This section offers three guidelines for implementing true academic freedom on campuses: universities should not impose a political or ideological orthodoxy on professors; legislatures must avoid imposing ideological constraints on universities through their budgetary decisions; and students should not be “indoctrinated” and “should be free to take reasoned exception to the data or views offered” by their professors. Part three consists of eight principles a university should observe to guarantee academic freedom. In sum, these principles argue that hiring, promotions, and terminations should not be based on ideological or political beliefs, and curricula, especially in the social sciences, should reflect the uncertainty of knowledge and offer students multiple points of view and methodologies. The tenets attempt to protect knowledge advances by students and faculty through the promotion of the integrity of the research process in an atmosphere of civil discourse.Taken together, the Academic Bill of Rights defines academic integrity in terms of freedom to focus on research and scholarship without fear of political or ideological retribution. Although the Academic Bill of Rights seems innocuous and in many ways obvious, the document has created sub-
Academic Freedom stantial debate.Those who support Horowitz and the bill of rights often present anecdotal evidence of students and faculty who have suffered academically or professionally because of their (generally) conservative beliefs. The Chronicle of Higher Education, a trade newspaper for academics, has documented that conservative student newspapers are more likely to be stolen or vandalized than are liberal student papers. Opponents of the Academic Bill of Rights assert that the document is designed to increase the number of conservatives on campuses and that the impact of the document has been to create “liberal witch hunts.” In 2005 Ellen Willis argued in the Chronicle of Higher Education that the impact of the Academic Bill of Rights has been to intimidate liberal professors who fear that students will report them for bringing political views into the classroom. Most critics of the Academic Bill of Rights argue that its implementation would have a substantial chilling effect on academics and research. Supporters and critics of the document argue that free speech and intellectual freedom are at stake in the debate over the Academic Bill of Rights. Supporters believe that there is already a chilling effect on campuses against conservative ideals and academic integrity. Opponents believe that given the conservative nature of current American culture, liberal points of view are in the minority and are thus essential for social development. Both sides have presented evidence and arguments to support their positions.The debate itself ironically fulfills the spirit of the Academic Bill of Rights. See also Academic Freedom; American Association of University Professors; Keyishian v. Board of Regents (1967); Sweezy v. New Hampshire (1957);Teachers, Rights of.
Michael P. Bobic
furthe r reading Academic Bill of Rights, www.studentsforacademicfreedom.org/ abor.html. Bahr, Ann Marie B. “The Right to Tell the Truth.” Chronicle of Higher Education, May 6, 2005, B5. Browning, Reed. “How to Hire Conservative Faculty Members.” Chronicle of Higher Education, April 9, 2004, B14. Hebel, Sara. “Patrolling Professors’ Politics.” Chronicle of Higher Education, February 13, 2004, A18. Horowitz, David. “In Defense of Intellectual Diversity.” Chronicle of Higher Education, February 13, 2004, B12. Lazere, Donald. “The Contradictions of Cultural Conservatism in the Assault on American Colleges.” Chronicle of Higher Education, July 2, 2004, B15. O’Neil, Robert M.“Horowitz, Churchill, Columbia—What Next for Academic Freedom? Bias, ‘Balance,’ and Beyond: New Threats to
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Academic Freedom.” University of Colorado Law Review 77 (2006): 985–1015. Pavela, Gary. “Academic Freedom for Students Has Ancient Roots.” Chronicle of Higher Education, May 27, 2004, B8. Sanders, Jon. “Lean to the Left, Lean to the Right: Intellectual Diversity in Higher Education.” Letter to the Editor. Chronicle of Higher Education, August 13, 2004, B04. Thayer, Frederick.“Rebutting Both Supporters and Opponents of the ‘Academic Bill of Rights.’ ” Letter to the Editor. Chronicle of Higher Education, March 19, 2004, B4. Willis, Ellen. “The Pernicious Concept of ‘Balance.’ ” Chronicle of Higher Education, September 9, 2005, B11.
Academic Freedom Academic freedom refers to the ability of teachers, students, and educational institutions to pursue knowledge without unreasonable political or government interference. Included within this concept is protecting the right of universities and colleges to engage in all aspects of intellectual activity and a faculty’s autonomy in deciding what and how to teach and what research to conduct and publish. It seeks to promote the free exchange of ideas, scholarly debates, and the search for knowledge. Academic freedom encompasses distinct rights for the individual and for the institution. Individual academic freedom protects the individual professor and governs the relationship between a professor, university administration, and external authorities. In contrast, institutional academic freedom safeguards the university as a whole from government or other outside interference. It permits the university to select its faculty and to determine areas of study, appropriate teaching methods, and which students to admit. Although the concept of freedom of thought and expression has ancient roots—Socrates asserted it—the claim of academic freedom is more recent in origin, having come to be recognized in Western Europe in the sixteenth and seventeenth centuries. It is sometimes connected with the founding of Leiden University in 1575 and the rise of social and economic liberalism. Academic freedom developed within the United States as protection for individual teachers.After the Civil War, the goal of higher education shifted from training students for the clergy and elite professions, such as medicine, to training students for practical jobs, such as those in government and business. As a result of this shift, professors sought control over their research and curriculum. They desired to divorce themselves from the governance of academic trustees and administrators that marked pre–Civil War edu-
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cation. To accomplish this, professors looked to the model of their German counterparts. In Germany, academic freedom, or Lehrfreiheit, stood for the idea that faculty have freedom to teach and control their research, and Lernfreiheit, the corresponding right of students to pursue their own course of study. Before academic freedom had any legal significance, professors formed the American Association of University Professors (AAUP) and in 1915 set forth its General Declaration of Principles. The principles assert that higher education and professional autonomy require freedom for faculty in research, publication, and teaching and identify peer review and tenure as the devices for achieving these ideals. Peer review allows fellow professors to judge a faculty member’s competence as a teacher and a scholar, and tenure provides continued employment to those faculty members who have earned professional competence as judged by their peers. By 1940, nearly all major American universities had joined the AAUP’s approach to academic freedom. The organization’s Statement of Principles on Academic Freedom and Tenure issued in 1940 reiterated its 1915 policy and endures to this day. Although the 1940 statement is not law, it has influenced court decisions, been incorporated into many faculty handbooks, and has the support of hundreds of professional associations. Thus, the 1940 statement of principles is often regarded as the norm of academic practice in the United States.
The Judiciary Sweezy v. New Hampshire (1957) stands as the first U.S. Supreme Court case to expound upon the concept of academic freedom though some earlier cases mention it. In Sweezy, the Court reversed the conviction of a Marxist economist for refusing to answer questions by the attorney general concerning the political content of a lecture he delivered at the University of New Hampshire.The plurality acknowledged the freedom of teachers and students, but Justice Felix Frankfurter, a former Harvard Law School professor, authored a concurrence that went further. He said that academic freedom protects an institution’s First Amendment right to decide on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.Two decades later, the majority in Regents of the University of California v. Bakke (1978) cited the same language, noting that academic freedom is a “special concern of the First Amendment.”
The Court had for the first time passionately expressed the social importance of academic freedom in Keyishian v. Board of Regents (1967). This case involved faculty members who refused to sign loyalty certificates as part of a New York law intending to prevent state employment of subversive persons.The Court insisted that the First Amendment does not tolerate such laws, though it invalidated the law as unconstitutionally vague rather than on First Amendment grounds. The Court stated, ”Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned.That freedom is therefore a special concern of the First Amendment.” Ending with a quotation from a U.S. district court decision in United States v. Associated Press (1942), the Court observed, “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection’ ” The freedom of expression and speech guaranteed by the First Amendment does not fully protect academic freedom. Under the state action doctrine, the First Amendment applies only to government actors.Therefore, while the First Amendment applies to all public universities, it does not apply to private or religious institutions. In addition, academic freedom often extends beyond the speech rights protected by the First Amendment to others, such as the right to determine the curriculum of the classroom. Institutional rules and regulations, individual contracts, faculty handbooks, collective bargaining agreements, and academic customs protect these broader concerns of academic freedom. Most constitutional academic freedom issues today revolve around professors’ speech, students’ speech, faculty’s relations to government speech, and using affirmative action in student admissions. Examples of cases include instances where professors are disciplined for expressing their views in class or in scholarship and when a professor’s need for professional autonomy is weighed against the public employer’s legitimate concerns. Other cases present such situations as when students are punished for verbal insults of other students based on their race. The Supreme Court applied academic freedom to university policymaking when in Grutter v. Bollinger (2003) it held as constitutional the University of Michigan’s use of race in the admissions process, largely justifying its decision on the ability of institutions of higher learning, cited in Bakke, to seek diverse student bodies. The boundaries of the constitutional protection of the concept of academic freedom await further delineation by
Access to Courtrooms the Supreme Court. Although academic freedom is regularly invoked as a constitutional right under the First Amendment, the Court has never specifically enumerated it as one, and judicial opinions have not developed a consistent interpretation of constitutional academic freedom or pronounced a consistent framework to analyze such claims.
Academic Bill of Rights The values behind academic freedom protect the freedom of teachers to teach and the freedom of students to learn. Academic freedom for students does not usually constitute a separate issue, as students’ academic freedom stems from the faculties’ freedom to establish their respective disciplines and to determine which positions meet scholarly standards and are supported by peer review.The separate freedoms of students and teachers may, however, sometimes conflict. In 2001 Students for Academic Freedom (SAF) was founded in response to an alleged liberal bias in U.S. colleges and universities.The stated goal of SAF “is to end the political abuse of the university and to restore integrity to the academic mission as a disinterested pursuit of knowledge.” In furthering its agenda, SAF drafted the controversial Academic Bill of Rights, which calls for universities and colleges to implement neutrality in its teaching, research, and development of students. Among the key regulations it calls for are that hiring, firing, promoting, and granting tenure be on the basis of performance; that course content and reading in the social sciences and humanities reflect diverse viewpoints; that students be graded on their work and not their political beliefs; and that the selection of speakers and the allocation of funds for speakers promote academic freedom and intellectual balance. Many scholars and professors believe that the Academic Bill of Rights is counterproductive to academic freedom itself. The AAUP shares this view and has spoken out against it, arguing that it attacks the very principles that academic freedom is designed to protect. Although the Academic Bill of Rights has been introduced in several state legislatures and the U.S. House of Representatives, to date no legislature has formally enacted it, and debates continue to rage over its virtues and shortcomings. See also Academic Bill of Rights; Affirmative Action; American Association of University Professors; Frankfurter, Felix; Keyishian v. Board of Regents (1967); Students, Rights of; Sweezy v. New Hampshire (1957);Teachers, Rights of.
John H. Matheson
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furthe r reading Amar, Vikram, and Alan Brownstein, “Academic Freedom.” Green Bag, 2d ser., 9 (2005): 17–26. American Association of University Professors, www.aaup.org. Byrne, J. Peter. “The Threat to Constitutional Academic Freedom.” Journal of College and University Law 31 (2004): 79–142. College Freedom, www.collegefreedom.org. Menand, Louis, ed. The Future of Academic Freedom. Chicago: University of Chicago Press, 1996. Standler, Robert B. “Academic Freedom in the USA.” www.rbs2 .com/afree.htm. Students for Academic Freedom, www.studentsforacademic freedom.org. Van Alstyne, William W. “Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review.” Law and Contemporary Problems 53 (1990): 79–154.
Access to Courtrooms The public and the press have a qualified First Amendment right of access to court proceedings and records. Although the First Amendment does not explicitly mention the right of access, the Supreme Court has held that the right to attend criminal proceedings is implicit in freedom of speech and serves an important function in a democratic society by enhancing trial fairness and its appearance. The Court first held that the press and the public had a First Amendment right to attend criminal trials in Richmond Newspapers, Inc. v.Virginia (1980).The right of access to attend jury selections and preliminary proceedings soon followed— in Press-Enterprise Co. v. Superior Court of California (1984) and Press-Enterprise Co. v. Superior Court of California (1986)— and the Court reaffirmed the right to attend preliminary hearings in El Vocero de Puerto Rico v. Puerto Rico (1993). As the Court pointed out in Douglas Oil Company v. Petrol Stops Northwest (1979), the right does not cover grand jury proceedings because “the proper functioning of our grand jury system depends upon [its] secrecy” to protect witnesses and those exonerated by the grand jury. In Richmond Newspapers and its progeny, the Supreme Court used a two-part test to determine when the right of access should be granted for a particular proceeding. First, a court should consider whether the process or place at issue has historically been open to the public and the press. The Court generally recognizes that the “tradition of accessibility implies the favorable judgment of experiences,” and it has noted in several opinions that certain proceedings that were public in England and colonial America should remain so today. Second, the court has looked at “whether public
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access plays a significant positive role in the functioning of the particular process in question.” If a proceeding qualifies under these tests, a First Amendment right of public access attaches.That right is not, however, absolute. It is only a presumption of access.The presumption may be overcome by a showing that closing the proceeding preserves a higher interest and that the closure is narrowly tailored to serve that interest. Depending upon the circumstances, proceedings might be closed to protect a defendant’s right to a fair trial by an impartial jury or to protect privacy interests of witnesses, jurors, or victims. Before closing a proceeding, a trial court must exhaust all reasonable alternatives to the closure and make specific findings detailing the need for it. The Supreme Court has never recognized a right of access to civil proceedings, although several state and lower federal courts have. Most have recognized that the openness of civil trials is also necessary to promote free participation and communication in a democratic society.” Although the state and lower federal courts have held that a presumption of openness generally applies in the civil context as well as the criminal, civil proceedings may be closed for a variety of reasons, including the need to protect the parties’ privacy, confidential business information, or trade secrets. The Supreme Court also has not recognized a right of public access to juvenile proceedings. Such proceedings have traditionally been closed to the public and remain so. Some state courts, however, have allowed access to certain juvenile proceedings, particularly if the defendant is charged with murder or another serious felony. These courts generally employ a balancing test that weighs the public’s interest against those of the child. Although the Supreme Court has not yet directly addressed the issue, most federal district and circuit courts have held that the First Amendment right of access does not extend to audiovisual devices in the courtroom. In other words, although the public has a right to attend trials, it does not have a right to watch them on television. Many state courts, however, routinely allow television cameras to tape and televise proceedings, although the trial judge maintains broad discretion to set rules for recordings to ensure that they do not interfere with the defendant’s right to a fair trial or disrupt the proceedings. See also Cameras in the Courtroom; Press-Enterprise Co. v. Superior Court of California (1984) (1986); Richmond Newspapers, Inc. v. Virginia (1980); El Vocero de Puerto Rico v. Puerto Rico (1993).
Emilie S. Kraft
furthe r reading Hardaway, Robert, and Douglas B. Tumminello. “Pretrial Publicity in Criminal Cases of National Notoriety: Constructing a Remedy for the Remediless Wrong.” American University Law Review 46 (1996): 39–90. Levine, Raleigh Hannah. “Toward a New Public Access Doctrine.” Cardozo Law Review 27 (2006): 1739–1796. Liotti, Thomas F. “Closing the Courtroom to the Public: Whose Rights Are Violated?” Brooklyn Law Review 63 (1997): 501–550. Paul, Dan, Richard J. Ovelmen, and Enrique D.Arana. The Development and Structure of the First Amendment Right of Access to Government Proceedings and Records. Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series. Practising Law Institute, November 2005. Reporters Committee for Freedom of the Press. First Amendment Handbook: Access to Courts. www.rcfp.org/handbook/c07 p01.html. Shaw, Jack W. Jr., Annotation. “Right of Accused To Have Press or Other Media Representatives Excluded from Criminal Trial.” American Law Review, 3d ser., 49 (2005). Smolla, Rodney A. “The People’s Right to Know: Transparency in Government Institutions.” Democracy Papers. http://usinfo. state.gov/products/pubs/democracy/dmpaper10.htm. ———. “Press Access to Information, Institutions, and Events— Juvenile Proceedings.” Smolla and Nimmer on Freedom of Speech. Vol. 2. New York: Clark Boardman Callaghan, 2006, sec. 25:11.
Accommodationism and Religion Accommodationism, sometimes called nonpreferentialism, is a constitutional doctrine asserting that the First Amendment promotes a beneficial relationship between religion and government. Accommodationism evolved from an interpretive method into a set of constitutional procedures applied when the Supreme Court faces questions of government involvement with religion. Jurists generally take one of three approaches—secularism, strict separation, or accommodationism—to interpret the First Amendment’s establishment and free exercise clauses concerning religion. Secularism has been defined as opposition to religion in the public arena. In Everson v. Board of Education (1947), Justice Hugo L. Black wrote that separatism asserts a “high and impregnable wall of separation” between church and state. Separatists find any law regarding religion in violation of the First Amendment. Accommodationism rests on the belief that government and religion are compatible and necessary to a well-ordered society. Accommodationists assert that in the First Amendment the framers intended to promote cooperation between government and religion, not neutrality or government hostility toward religion. They argue that because the establishment
Accommodationism and Religion clause forbids Congress to make laws regarding “an establishment,” rather than “the establishment” of religion, government must not show preference among religions or the religious versus the nonreligious.According to accommodationists’ interpretation, the First Amendment permits governmental actions that promote religion, but not religious institutions. Accommodationist arguments are usually made when the Supreme Court considers public observances of religious holidays or symbols or religious practice in public schools. Several justices have been accommodationists, including Byron R.White,William H. Rehnquist, Antonin Scalia, and Clarence Thomas. Many predict that Chief Justice John G. Roberts Jr. will follow in this tradition. Most critics of accommodationism are secularists, such as Leonard Levy. These scholars argue that the original intent of the framers of the Bill of Rights was not to accommodate religion and government, but to keep each from influencing the other. They reject the accommodationist position that the choice of the word “an” in “an establishment” of religion is critical to understanding the establishment clause. Separatists believe that a close exploration of the First Congress reveals the founders’ desire to erect a “wall of separation” between religion and government. Critics argue that nonpreferentialism introduces sectarian strife into politics, contrary to the goal of the First Amendment. They believe that the doctrine of accommodation to religion would inevitably entangle government with religion, harming both.
Practice of Religious Accommodation The Supreme Court generally applies some combination of five constitutional tests or doctrines when approaching questions of religious accommodation. First, the most well known of these is the three-pronged Lemon test, articulated in Lemon v. Kurtzman (1971), requiring that legislation have a secular purpose, neither promoting nor inhibiting religious practice, and that it not create excessive governmental entanglement with religion. Second, Courts try to “balance” the interests of the state with individual practice, as set out in Sherbert v.Verner (1963), which allowed a woman to receive unemployment benefits after being fired for refusing to work on her Sabbath. Third, courts consider whether legislation creates a direct or indirect burden on religion, as in Braunfeld v. Brown (1961) as well as Sherbert. Fourth, courts may consider whether the state has a compelling interest in abridging religious beliefs, such as pacifism, as in Gillette v. United
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States (1971) or exempting churches from property taxes, as in Walz v. Tax Commission (1970). Fifth, Courts apply strict scrutiny to any law or statute that offers direct or indirect benefit to religious institutions.Aside from Lemon, these tests derived from free expression cases. The Court is most likely to accommodate free exercise claims.As noted above, it has held that individuals cannot be denied unemployment benefits because their religion forbids working on a given day (Sherbert) nor be compelled to send their children to public school beyond the eighth grade, as established in Wisconsin v.Yoder (1972). It has rejected claims by religious communities to be exempt from Social Security taxes because there is a compelling state interest in collecting the tax—United States v. Lee (1982). Courts generally also allow religious clothing, even in the presence of a dress code, except in some military settings. When Congress or state governments try to accommodate the sincere religious beliefs of citizens, they risk violating the establishment clause of the First Amendment or the equal protection clause of the Fourteenth Amendment. Nevertheless, the Court has held certain accommodations to be constitutional. For example, in the Civil Rights Act of 1964, Congress exempted religious organizations from the prohibition against discrimination in employment based on religious preference. Courts have also upheld voucher programs that provide for parents to spend state funds to send their children to public or parochial schools. The Court, however, held in Texas Monthly v. Bullock (1989) that religious publications and products sold across state lines are not necessarily entitled to tax exemption. Prohibiting religious practice is among the Court’s most controversial activities.The Court has ruled that prayer, daily Bible readings, and religious training in public schools violate the establishment clause.The courts have held that public funds may be used to provide benefits, such as textbooks to students at parochial schools, but cannot provide educational materials to parochial schools directly. Accommodationism continues to vie with strict separationism as one of two leading theories of interpreting the First Amendment. In practice, permissible accommodation depends upon the degree to which state action interferes with a central tenet of a religious doctrine and the degree to which the state’s interests are at stake. Accommodation is a balancing act, seldom resolved by applying a single doctrine or test. In a pluralist society, such questions will continue to challenge the Court and citizens.
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Action for Children’s Television v. Federal Communications Commission (D.C. Cir. 1995)
See also Braunfeld v. Brown (1961); Gillette v. United States (1971); Lemon v. Kurtzman (1971); Lemon Test; Nonpreferentialism; Sherbert v.Verner (1963);Texas Monthly v. Bullock (1989); United States v. Lee (1982); Wall of Separation; Walz v. Tax Commission (1970);Wisconsin v. Yoder (1972).
Michael P. Bobic
furthe r reading Felsen, David. “Developments in Approaches to Establishment Clause Analysis: Consistency for the Future.” American University Law Review 38 (1989): 395–428. Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. New York: Macmillan Publishers, 1986. Lively, Donald. “The Establishment Clause: Lost Soul of the First Amendment.” Ohio State Law Journal 50 (1989): 681–699. Schuster, Joseph F. The First Amendment in the Balance. San Francisco: Austin and Winfield Publishers, 1993. Shanor, Charles A. American Constitutional Law: Structure and Reconstruction; Cases, Notes and Problems. St. Paul, Minn.:West Group Publishers, 2001. Stone, Geoffrey, Louis M. Seidman, Cass R. Sunstein, Mark V.Tushnet, and Pamela S. Karlan, The First Amendment. 2d ed. New York: Aspen Publishers, 2003.
Action for Children’s Television v. Federal Communications Commission (D.C. Cir. 1995) In Action for Children’s Television v. Federal Communications Commission, 58 F.2d 654 (D.C. Cir. 1995) (“ACT III”), the District of Columbia Circuit Court of Appeals upheld the “safe harbor” provisions of the Public Telecommunications Act of 1992 permitting the broadcast of indecent programming only between 10 p.m. and 6 a.m. Four years earlier, in Action for Children’s Television v. Federal Communications Commission (D.C. Cir. 1991) (“ACT II”), the same court had struck down a total (24-hour) ban on indecent broadcasts. Shortly thereafter, Congress passed the law banning the broadcast of indecent material between 6 a.m. and 10 p.m. It was this law that came before the court in “ACT III.” As the Supreme Court had done in Federal Communications Commission v. Pacifica Foundation (1978), the D.C. court in ACT III recognized that broadcast audiences without warning could be confronted with offensive and unwanted programming. Because of the pervasiveness of the broadcast media, according to the court, young children could easily obtain access to indecent programming aired by broadcasters. Thus, consistent with Pacifica, the court in ACT III applied a constitutional model that subjected broadcasters to more restrictive regulation than other media.
The ACT III appeals court found that the government’s compelling interest in protecting children from broadcast indecency supported the time-channeling regulation. It relied heavily on findings by the FCC concerning the prevalence of homes in which children had radios or televisions in their rooms to show that parents’ control over their children’s exposure to broadcast programming was nearly impossible. As the court stated, “it is fanciful to believe that the vast majority of parents who wish to shield their children from indecent material can effectively do so without meaningful restrictions on the airing of broadcast indecency. The court also found that the government had sufficiently established the harms caused to children by exposure to indecent programming. In fact, a scientific demonstration of psychological harm was not required to support legal restrictions aimed at protecting minors from indecent speech. Furthermore, the court cited sources that attributed a decline in the character and upbringing of contemporary youth to exposure to indecent material, holding that a certain level of individual character is needed to function as a democratic citizen and that restrictions on indecent material can be justified by the interest in preserving the democratic process. The court ruled that the time-channeling law did not interfere with the freedom of adults to watch or listen to indecent programming, because even during the 6 a.m. to 10 p.m. time slot, adults have so many alternative ways of satisfying their tastes. In addition, those parents who wished to expose their children to indecent programming could do so through subscription cable channels, delayed-access viewing with VCR equipment, or the rental of audio and video cassettes. See also Captive Audience; Federal Communications Commission; Federal Communications Commission v. Pacifica Foundation (1978); Indecency and the Electronic Media.
Patrick M. Garry
furthe r reading Garry, Patrick M. “The Right to Reject: The First Amendment in a Media-Drenched Society.” San Diego Law Review 42 (2005): 129–176. Heyman, Steven J. “Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression.” Boston University Law Review 78 (1998): 1275–1392.
Actual Malice Actual malice is the legal standard established by the Supreme Court for libel cases to determine when public
Adams, John officials or public figures may recover damages in lawsuits against the news media. Beginning with the unanimous decision in New York Times Co. v. Sullivan (1964), the Supreme Court has held that public officials cannot recover damages for libel without proving that a statement was made with actual malice—defined as “with knowledge that it was false or with reckless disregard of whether it was false or not.” The decision in Sullivan threw out a damage award against the New York Times, but only six of the nine justices fully agreed with Justice William J. Brennan Jr.’s use of the actual malice standard, which he derived from a Kansas Supreme Court ruling, Coleman v. MacLennan (Kan. 1908). Justices Hugo L. Black and Arthur J. Goldberg, joined by Justice William O. Douglas, thought the Court should go farther to protect criticism of public officials and debate about public affairs. In subsequent cases, the Supreme Court elaborated on the actual malice test in the libel context. In St. Amant v. Thompson (1968), the Court recognized the standard as a subjective one, requiring proof that the defendant actually had doubts about the truth or falsity of a story. It extended the application of the actual malice test to public figures, not just public officials, in Curtis Publishing Co. v. Butts (1967). Under the actual malice standard, if the individual who sues is a public official or public figure, that individual bears the burden of proving that the media defendant acted with actual malice.The amount of proof must be “clear and convincing evidence,” and the standard applies to compensatory as well as to punitive damages. Concerning private figures, however, the Court ruled in Gertz v. Robert Welch, Inc. (1974) that actual malice is not required for recovery of compensatory damages, but is the standard for punitive damages. The Supreme Court has expanded the reach of the First Amendment to afford the news media protection against other types of lawsuits designed to protect individual privacy, including those alleging intentional infliction of emotional distress, as in Hustler Magazine v. Falwell 1988); disclosure of private facts, as per Florida Star v. B.J.F. (1989); and depicting someone in a false light, as in Time Inc. v. Hill (1967). In all of these cases, the Court applied the same actual malice test to further recognize the principle of free and open comment in a democratic society. The actual malice standard has at times drawn criticism from people in the public eye who think the test makes it too hard for them to restore their reputations and from the news media, which has complained that the standard does not afford enough protection for freedom of speech.
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See also Black, Hugo L.; Brennan,William J., Jr.; Curtis Publishing Co. v. Butts (1967); Douglas, William O.; Florida Star v. B.J.F. (1989); Goldberg, Arthur J.; Hustler Magazine v. Falwell (1988); Libel and Slander; New York Times Co. v. Sullivan (1964);Time Inc. v. Hill (1967); St. Amant v.Thompson (1968).
Stephen Wermiel
furthe r reading Epstein, Richard A.“Was New York Times v. Sullivan Wrong?” University of Chicago Law Review 53 (1986): 782–818. Hopkins, W. Wat. Actual Malice:Twenty-five Years after Times v. Sullivan. New York: Praeger, 1989. Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991.
Adams, John John Adams (1735–1826), who served as the first vice president of the United States and then as its second president, also influenced the development of constitutional government through his political writings and thought. Born in Massachusetts Bay Colony, Adams received his education from Harvard and became a leading lawyer in Massachusetts during the colonial era. In his most famous case, he defended British soldiers who stood trial after the Boston Massacre in 1770. The leading advocate for independence at the Second Continental Congress and a member of the committee that drafted the Declaration of Independence, Adams served the United States during the Revolutionary War as an ambassador to the Court of Louis XVI in Paris and as ambassador to the Netherlands. Adams was serving as an ambassador in London during the Constitutional Convention of 1787, so he did not have a direct impact on the drafting of the Constitution. Adams, however, had become a prominent advocate of separation of powers and of checks and balances to protect against the power of absolute government. His political writings, including Thoughts on Government (1776) and A Defense of the Constitutions of the United States of America (1778), developed the principles of constitutional government that James Madison and other delegates applied at the 1787 convention. Adams strongly supported the new constitution. After U.S. independence, Adams returned to his role as a diplomat at the Court of St. James’s in London, from 1785 to 1788, before being elected vice president in 1788 and president in 1796. His presidency (1797–1801) was a tragic episode. As a leader among the Federalists, Adams became the subject of scurrilous attacks in Republican newspapers and pamphlets, which portrayed him as a monarchist and an
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enemy of republican government.They also ridiculed him as being effeminate or a hermaphrodite because of his height and high-pitched voice. Meanwhile, the United States came under pressure from France and Great Britain to take sides in the wars following the French Revolution of 1789. Republicans favored republican France, while the Federalists sympathized with Great Britain. Adams labored to keep the United States out of the great power conflict. After the XYZ Affair of 1797–1798 caused resentment toward France, Adams and the Federalist majority in Congress sponsored four laws that came to be known as the Alien and Sedition Acts of 1798. These statutes—the Naturalization Act, Alien Act, Alien Enemies Act, and Sedition Act—represent the first instance of an American president placing national security issues and personal reputation before the principles of freedom of speech and of the press. The laws met with immediate resistance in Republican strongholds and triggered the Virginia Resolution (1798) and the Kentucky Resolution (1799). Authored by James Madison and Thomas Jefferson, the resolutions questioned the constitutional validity of the legislation. The unpopularity of the measures almost certainly contributed to Adams’s defeat by Jefferson in the presidential elections of 1800. Though a leading Federalist, Adams makes clear in letters to Jefferson that he would have preferred that the Constitution be prefaced by a “declaration of rights,” as was the Massachusetts constitution (1780), for which Adams served as primary author. Adams was serving as vice president when the first Congress proposed and adopted the Bill of Rights. Adams’s political writings and correspondence with Jefferson, Benjamin Rush, and other leading figures of the American founding illustrate his support of the principles of religious liberty and republicanism embodied in the First Amendment.The one exception is Adams’s backing of an established church and his belief that religious establishment need not be subversive of religious freedom. Later in life, his views on religion and politics moved closer to those of Jefferson. Both men espoused Enlightenment attitudes and Unitarian doctrine, but unlike Jefferson, however, Adams was never sanguine that human enlightenment would lead to the end of religious intolerance and oppression. He believed that people acted based on the principle of “might makes right” because power always sees itself as being in the right. Governmental checks and balances consequently might be the only defense against religiously motivated tyranny.
Adams and Jefferson died on the same day, July 4, 1826, the fiftieth anniversary of the Declaration of Independence, to which both men had contributed. See also Bill of Rights; Constitutional Convention of 1787; Declaration of Independence; Established Churches in Early America; Jefferson,Thomas; Madison, James; Sedition Act of 1798;Virginia and Kentucky Resolutions.
Paul J. Cornish
furthe r reading The Adams-Jefferson Letters:The Complete Correspondence between Thomas Jefferson and Abigail and John Adams, edited by Lester J. Cappon. Chapel Hill: University of North Carolina Press, 1959. Carey, George, ed. The Political Writings of John Adams. Washington, D.C.: Regnery Publishing, 2000. Mason,Alpheus Thomas, and George Baker, eds. Free Government in the Making: Readings in American Political Thought. New York: Oxford University Press, 1985. McCullough, David. John Adam. New York: Simon and Schuster, 2001.
Adams, John Quincy John Quincy Adams (1767–1848) was the sixth president of the United States, a legislator, and an attorney. Born in Braintree, Massachusetts, in 1767, he entered public service in his youth as a secretary to his father, John Adams, during the elder Adams’s work as an ambassador in Europe during the founding era. John Quincy later served as a diplomat in several European countries, beginning with his appointment as minister to the Netherlands at the age of twenty-six. He was elected to the Senate in 1802 and later served as one of the greatest secretaries of state, having been primarily responsible for the development of the Monroe Doctrine, warning against European military intervention in the Americas. Adams was the first son of a president of the United States to also become as president. The House of Representatives selected Adams in the disputed election of 1824, despite his challenger, Andrew Jackson, having won a plurality of the popular vote and the electoral college. During the proceedings in the House, Henry Clay of Kentucky, who was one of the four candidates in the race, threw his support behind Adams and was later appointed secretary of state by Adams. Jackson and his supporters contended that the election of Adams had been achieved by a “corrupt bargain” and went on to campaign vigorously for his defeat in 1828.The electoral dispute split the Republican Party—the only party following the demise of the Federalist Party of John Adams after the end of the War of 1812—with the National
Adderly. v. Florida (1966) Republicans, or “Whigs,” supporting Adams and the Democratic Party supporting Jackson. After Jackson defeated Adams in 1828, Adams retired to Massachusetts. In 1830 the Plymouth district elected him to the House of Representatives, where he served until his death, in 1848. As a representative, Adams was an eloquent leader in defense of civil liberties in general, and particularly the right to petition government. In the 1830s, abolitionists adopted a strategy of repeatedly petitioning the House of Representatives for the abolition of slavery in the District of Columbia and throughout the nation. In 1836 southern members of the House managed to pass a “gag rule” to table all petitions on the subject of slavery. Adams objected strenuously to any restriction on the right of any person to petition, which he identified as a right that “belongs to humanity” and which in no way depended upon the condition of the petitioner.Adams eventually won the repeal of the rule in 1844. Adams defense of civil liberties led to his alliance to the abolitionist cause even though he was not an abolitionist himself. He is now also remembered for his oral argument before the Supreme Court in the case of the Amistad, in which he defended the freedom of a group of illegally purchased slaves who had seized control of their ship before arriving in Long Island, where they resisted extradition to Cuba. See also Abolitionists and the Freedom of Speech; Adams, John; Congress; Gag Rule in Congress.
Paul Cornish
furthe r reading ”John Quincy Adams.” www.whitehouse.gov/history/presidents/ ja6.html. “John Quincy Adams Defends the Right of Petition.” In The Antislavery Argument, ed. William H. Pease. New York: BobbsMerrill, 1965.
Adderly v. Florida (1966) In Adderly v. Florida, 385 U.S. 39 (1966), the Supreme Court found no violation of federal law or of the First Amendment in the arrest of students demonstrating against segregation at a county jail in Florida and against the arrest of other protestors. In Leon County, Florida, a jury had found Harriett Louise Adderly and thirty-one other persons guilty of “trespass[ing] with a malicious and mischievous intent” upon the premises of the county jail contrary to Florida law. Those convicted had gone to the jail, along with other students, to
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protest the arrests the day before of other demonstrating students and to protest more generally against practices of racial segregation, including at the jail.When the students blocked a driveway used in transporting prisoners and providing services to the jail, the county sheriff unsuccessfully tried to persuade the students to leave the jail grounds. He then informed those who remained that they would be arrested for trespassing. The Court ruled 5-4 in upholding the jury’s verdict. Writing for the majority, Justice Hugo L. Black began by explaining that unlike breach-of-the-peace convictions— based on common law precedents and invalidated in Edwards v. South Carolina (1963) and Cox v. Louisiana (1965)—the Florida statute was not unconstitutionally vague. Rather, the Florida law specifically defined under what conditions a person would be considered to have committed a criminal trespass. Furthermore, the property on which the trespass had occurred was not one traditionally open to the public; it surrounded a jail, for which there were security concerns. Black then made it clear that petitioners’ actions were likewise not protected by the Civil Rights Act of 1964, which forbids prosecutions for individuals seeking to obtain services by covered entities, because they were not seeking services for anything covered by the act. Furthermore, adequate evidence disproved a lack of due process granted to the petitioners. Black also determined there to have been no violation of the First Amendment because no evidence pointed to the sheriff objecting to what was being sung or said by the demonstrators or his disagreeing with the objectives of their protest. In the Court’s opinion, the sheriff only sought to ensure the continued security and functioning of the jail. Black concluded by making it clear that governments had the power to preserve property under their control for their lawful purposes. In dissent, Justice William O. Douglas—joined by Chief Justice Earl Warren and Justices Abe Fortas and William J. Brennan Jr.—argued that Florida had used its trespass law to penalize people for exercising First Amendment freedoms. See also Black, Hugo L.; Breach of the Peace Laws; Cox v. Louisiana (1965); Douglas,William O.; Edwards v. South Carolina (1963);Vagueness.
furthe r reading Barron, James A., and C. Thomas Dienes, Handbook of Free Speech and Free Press. Boston: Little, Brown and Co., 1979. Chapter 3. Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech:A Treatise on the First Amendment. New York: Mathew Bender, 1994. Chapter 10.
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Ad Hoc Balancing
Ad Hoc Balancing In ad hoc balancing, judges examine and rule on each case based on its unique facts. This approach contrasts with the use of different theories—often summarized by formulaic tests—in interpreting and applying the law to cases. At various times, for example, the Supreme Court has accepted restrictions on speech and press considered to have a “bad tendency,” a test established in Gitlow v. New York (1925); created a “clear and present danger,” as per Schenck v. United States (1919); or incited “an imminent threat of lawless action,” according to Brandenburg v. Ohio (1969). Advocates of ad hoc balancing reject the application of such broad tests. Ad hoc balancing is often distinguished from the “absolutist” approach that some take from the opening words of the First Amendment that “Congress shall make no law . . . ” Justice Hugo L. Black advocated the absolutist position. Justice John Marshall Harlan II was a notable defender of the balancing approach, as epitomized in the decision in Barenblatt v. United States (1959), upholding the conviction of a college professor who refused to testify before the House Un-American Activities Committee on the basis that his right not to respond had to be balanced against the right of Congress to know. In striking a provision of the McCarran Act of 1950 forbidding members of the Communist Party to work in defense facilities, Chief Justice Earl Warren specifically rejected balancing, which is generally considered to exemplify what David O’Brien (2000) calls “maximum selfrestraint” (p. 412). O’Brien summarizes the three primary critiques of this theory: it is “ambiguous and unpredictable in application,” fails “to establish a constitutional standard for adjudicating claims in a principled fashion,” and tends “to legitimate restrictions on speech and press because First Amendment claims [are] construed as simply private interests to be juxtaposed with public interests in self-preservation and punishing licentiousness” (p. 413). Although the Supreme Court has moved away from balancing, it continues to advance what is sometimes called definitional balancing. In this two-tier approach to the First Amendment, which is sometimes also associated with the idea—supported in part by footnote 4 of the Carolene Products Case—that the fundamental rights within the First Amendment have a preferred position over others, justices distinguish some types of speech and press that the First Amendment protects versus those that it does not.The latter might include obscenity, fighting words, and libel. (Indeed, Justice Black, despite his own absolutism, denied protection
to symbolic expressions, which he considered to embody actions rather than words.) Although such an approach might have narrowed, it has certainly not eliminated ambiguity, because the Court must still define each category that it exempts from protection. See also Absolutists; Bad Tendency Test; Barenblatt v. United States (1959); Black, Hugo L.; Brandenburg v. Ohio (1969); Carolene Products Footnote Four; Clear and Present Danger Test; Gitlow v. New York (1925); Harlan, John Marshall, II; Preferred Position Doctrine; Schenck v. United States (1919);Warren, Earl.
John R.Vile
furthe r reading Deutsch, Norman T.“Professor Nimmer Meets Professor Schauer (and Others): An Analysis of ‘Definitional Balancing’ as a Methodology for Determining the ‘Visible Boundaries of the First Amendment.’ ” Akron Law Review 39 (2006): 483–539. O’Brien, David M. Civil Rights and Civil Liberties. Vol. 2 of Constitutional Law and Politics, 4th ed. New York: W. W. Norton, 2000.
Adler v. Board of Education (1952) In Adler v. Board of Education, 342 U.S. 485 (1952), the Supreme Court upheld the so-called Feinberg Law, a New York statute designed to enforce existing civil service regulations to prevent members of subversive groups from teaching in public schools. The 6-3 decision rejected assertions that the law violated the freedom of speech and assembly. Justice Sherman Minton, who wrote the opinion for the Court, observed that although individuals have “the right under our law to assemble, speak, think and believe as they will,” the decision in United Public Workers v. Mitchell (1947) had established that they do not have the “right to work for the State in the school system under their own terms.” Minton pointed out that a “teacher works in a sensitive area in a schoolroom” and that a state had the right to exercise its “police power to protect the schools from pollution and thereby to defend its own existence.” He further observed that New York granted individuals hearings at which they could rebut charges against them. Justice Hugo L. Black dissented, characterizing the law as an attempt “to mould people into a common intellectual pattern.” He favored instead a policy resting “on the belief that government should leave the mind and spirit of man absolutely free.” Justice Felix Frankfurter dissented, largely on the ground that he found it unclear how the state law would operate and because he questioned the standing of the parties who brought the case.
Adventures of Huckleberry Finn Justice William O. Douglas also wrote a dissent, joined by Justice Black, in which he denied “the power of a state to place its employees in the category of second-class citizens by denying them freedom of thought and expression.”“The public school is in most respects the cradle of our democracy,” he wrote. He further criticized the law for fostering “guilt by association” and for turning the school system into a “spying project,” typical of “a police state.” He observed that “the guilt of the teacher should turn on overt acts. So long as she is a law-abiding citizen, so long as her performance within the public school system meets professional standards, her private life, her political philosophy, her social creed should not be the cause of reprisals against her.” The Court would abandon much of the reasoning of Adler in Keyishian v. Board of Regents (1967). See also Black, Hugo L.; Douglas,William O.; Frankfurter, Felix; Keyishian v. Board of Regents (1967); Loyalty Oaths; United Public Workers v. Mitchell (1947).
John R.Vile
furthe r reading Kozel, Randy J. “Reconceptualizing Public Employee Speech.” Northwestern University Law Review 99 (2005): 1007–1051.
Adult Film Association of America Founded in 1969 as the first trade association of pornographic film producers, the Adult Film Association of America sought to limit the reach of government with regard to content censorship, defend those employed in the pornographic film industry from prosecution for obscenity or solicitation, and finance defense counsel and the filing of amicus curiae briefs at the state and federal court level in support of adult film industry defendants.The association added to its notoriety by holding an annual adult film awards for industry participants. At the time of the association’s inception, adult entertainment was primarily available in permit-bearing, adult-only theaters. With the advent of inexpensive home videos, the adult entertainment industry experienced a sea change.The association sought to expand its professional jurisdiction accordingly, and in the early 1970s changed its name to the Adult Film and Video Association of America (AFVAA). Galvanized in 1988 by efforts of the State of California to prosecute video producer Harold Freeman for the rarely rec-
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ognized crime of “pandering,” the AFVAA financed Freeman’s defense and countered the state’s assertion that “paying performers to have sex in a film was an act of prostitution.” In 1988 in The People v. Freeman, the California Supreme Court (sitting en banc) reversed the decisions of the trial court and the court of appeals, finding that (1) the defendant did not “procure another person for the purpose of prostitution” within the meaning of the pandering statute when he hired and paid actors to perform in nonobscene commercial films that portrayed sexually explicit acts, and (2) the First Amendment precludes the application of pandering statutes to the hiring of actors to perform in nonobscene motion pictures that portray sexually explicit acts. The AFVAA’s role as the trade representative for the adult entertainment industry was taken over initially by the Free Speech Legal Defense Fund (FSLDF), which in 1992 became the Free Speech Coalition. The coalition acknowledges the AFVAA as its ideological predecessor and accordingly states as its goal the opposition of efforts to pass and enforce censorship and obscenity laws within the United States. In 1997 the FSC retained a California lobbyist to represent its legislative interests in the state. See also Obscenity and Pornography.
Carrie A. Russell
furthe r reading Free Speech Coalition, www.freespeechcoalition.com. Hyde, H. Montgomery. A History of Pornography. New York: Farrar, Strauss and Giroux, 1965. Ziplow, Stephen. The Film Maker’s Guide to Pornography. New York: Drake, 1977.
Adventures of Huckleberry Finn A 1907 article in the Library Journal reported that Mark Twain’s Adventures of Huckleberry Finn (1885) had been banned somewhere every year since its publication. This novel, written by Samuel Clemens (1835–1910) under the pen name Mark Twain, chronicles the adventures of two young white boys and an escaped black slave who sail the Mississippi River on a raft. Huck Finn, a rebellious teenager, fakes his own death to escape an alcoholic father and throughout the book challenges the mores of his society. Some Americans did not view Huck as a positive role model for young readers. Immediately after publication, the book was banned on the recommendation of public commissioners in Concord,
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Samuel Clemens
Massachusetts, who described it as racist, coarse, trashy, inelegant, irreligious, obsolete, inaccurate, and mindless. Two decades later, the New York Public Library banned Huck Finn from the children’s reading room because Huck scratched when he itched and said “sweat.” When informed of the censorship,Twain remarked that the controversy would only increase sales. Indeed, the book became a bestseller. By 1960 it had sold 10 million copies; more than forty different editions have been printed in the United States alone. Although Twain’s Tom Sawyer initially overshadowed Huck Finn, most scholars have since come to consider the latter book Twain’s best work and one of the great American novels. One early criticism of Huck Finn concerned Twain’s intentional use of bad grammar in the book. In general, the language is considered an accurate representation of that spoken by rural populations in the pre–Civil War South. Some critics accept Twain’s presentations as characteristic of the time portrayed but also believe that the effect of some of the racially charged language continues to contribute to
negative racial stereotypes. Some feminists have disliked what they consider to be Twain’s negative, sexist portrayals of females in Huck Finn. Alleged racist content has been the reason most often cited for banning or challenging Huck Finn, particularly since 1957 and the rise of the civil rights movement in the United States. From the beginning, however, some critics objected to Huck Finn’s “racial content.” Those critics note that Twain uses the word nigger 213 times in the book. Detractors have also objected to what they call Jim’s “childlike character” and maintain that he lacks credibility as an African American. Since the 1970s, the use of Huck Finn in schools and libraries has been challenged in a number of states. In 1988 a poster for Banned Books Week referred to these challenges by asking, “Would you call Huck Finn a racist?”Twain supporters contend that the author was anything but racist and insist that the Adventures of Huckleberry Finn was a satire in which Twain sought to highlight the hypocrisy of the society in which he grew up. Defenders of the book also insist that Jim comes across as having more common sense and as being more talented than either Huck or his best friend, Tom Sawyer. These critics suggest that overall the white characters are portrayed more negatively than black characters, citing the extreme piety of Miss Watson and the irresponsibility of Huck’s father as examples. Ironically, Huck Finn was conceived only after an earlier explicit exposé by Twain of slavery was censored. Twain responded by writing what he claimed was a satirical exposé of slavery, the Adventures of Huckleberry Finn. See also Banned Books Week; Censorship.
Elizabeth R. Purdy
furthe r reading Foerstel, Herbert N. Banned in the U.S.A.: A Reference Guide to Book Censorship in Schools and Public Libraries. Westport, Conn.: Greenwood Press, 2002. Graff, Gerald, and James Phelan, eds. Adventures of Huckleberry Finn: A Case Study in Critical Controversy. Boston: Bedford/St. Martin’s, 2004. Leonard, James S., et al. Satire or Evasion? Black Perspectives of Huckleberry Finn. Durham, N.C.: Duke University Press, 1992. Twain, Mark. Adventures of Huckleberry Finn. Berkeley: University of California Press, 2003.
Advertising See Commercial Speech
Affirmative Action
Advocacy of Illegal Conduct For a time, the Supreme Court permitted the government constitutionally to punish speakers for the mere “advocacy of illegal conduct,” but in Brandenburg v. Ohio (1969), it reversed course to require that punishable speech be intended to, and likely to, incite listeners to engage in imminent lawless action.The Court came to the latter determination over the course of four decades, after having reached the opposite conclusion in Whitney v. California (1927). Anita Whitney was convicted under a California statute for membership in and involvement with the Communist Party. The government alleged that the Communist Party advocated the overthrow of the U.S. government by violent methods.Whitney challenged the statute on the ground that it violated her rights under the First Amendment, but the Court, in an opinion by Justice Edward T. Sanford, held speech advocating illegal conduct as outside the ambit of the First Amendment. Because a speaker could be punished for such speech, the Court unanimously affirmed Whitney’s conviction. Subsequent cases implicitly and explicitly called into question the decision in Whitney to allow advocacy of illegal conduct to be constitutionally punished. In Dennis v. United States (1951), the Court affirmed the defendants’ conviction under a statute similar to the one at issue in Whitney but deviated from the Whitney rule in a significant way: rather than allowing conviction for mere advocacy of illegal conduct, the Court instead relied on the fact that the “gravity of the evil”—a modified version of the “clear and present danger” test—was sufficient to uphold a conviction for organizing a political party designed to bring about the action—violent overthrow of the government—as soon as possible, not at some indeterminate future time or as an abstract idea for discussion.The Court reached a similar result in Yates v. United States (1957), ruling a judge’s jury instructions in error because they conveyed to the jury that the defendants could not be convicted for advocacy of illegal conduct as an “abstract principle.” Elaborating on this principle in Noto v. United States (1961), the Court stated that “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” Despite the distinctions between abstract advocacy of illegal action and advocacy of imminent illegal advocacy that gradually undermined the Whitney rule, the Court did not expressly overrule Whitney until Brandenburg v. Ohio.
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Clarence Brandenburg, a leader in an Ohio chapter of the Ku Klux Klan, had been convicted for making anti–African American and anti-Semitic statements at a Klan rally. The government argued that Brandenburg’s conviction was constitutional under the Whitney precedent. In a per curiam opinion, the Court unanimously overturned Whitney and expressly articulated a rule first hinted at in Dennis, Yates, Noto, and companion cases: it is unconstitutional, as per the First Amendment, criminally to punish a speaker for abstract advocacy of illegal conduct. For speech to fall outside the ambit of First Amendment protection, the speaker’s advocacy must be “directed to inciting or producing imminent lawless action and is likely to incite or produce imminent lawless action.” Because in Brandenburg’s case neither the statute nor the judge’s instructions to the jury distinguished between “mere advocacy” and “incitement to imminent lawless action,” the Court determined his conviction to be unconstitutional and due to be reversed. The Court has affirmed the Brandenburg principle numerous times, notably in Hess v. Indiana (1973) and NAACP v. Claiborne Hardware Co. (1982). More recently, in explaining the Court’s denial of certiorari review in Stewart v. McCoy (2002), Justice John Paul Stevens expressly cited Brandenburg, leaving no doubt that the principle continues to govern analysis in this area. See also Brandenburg v. Ohio (1969); Clear and Present Danger Test; Dennis v. United States (1951); Gravity of the Evil Test; Hess v. Indiana (1973); NAACP v. Claiborne Hardware Co. (1982); Noto v. United States (1961); Schenck v. United States (1919); Yates v. United States (1957).
James T. Gibson
furthe r reading Cole, David. “The New McCarthyism: Repeating History in the War on Terrorism.” Harvard Civil Rights–Civil Liberties Law Review 38 (Winter 2003): 1–30. Heyman, Steven J. “Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression.” Boston University Law Review 78 (December 1998): 1275–1392. O’Neil, Kevin Francis. “Disentangling the Law of Public Protest.” Loyola Law Review 45 (1999): 411–526.
Affirmative Action Throughout much of U.S. history, racial classifications have been used to discriminate against African Americans, most of whose ancestors were originally brought to the New World as slaves or were born into slavery there. Even after ratification
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of the Fourteenth Amendment (1868) guaranteeing equal protection of the laws, the Supreme Court upheld racial segregation under the doctrine of separate but equal in Plessy v. Ferguson (1896). This policy remained law until the Court, led by Chief Justice Earl Warren, reversed Plessy in Brown v. Board of Education (1954). Originally mandating desegregation in education, Brown has subsequently been applied to all areas of public racial discrimination. Some advocates of racial equality argued the necessity of using minority race status as a positive factor in college admissions and employment to help minorities overcome the effects of past discrimination by enabling them to catch up educationally and economically. Proponents of such “affirmation action” also justified racial preferences on the basis of creating role models within minority communities, bringing professional services to such communities, and increasing diversity. Absent compensating individuals for discrete instances of past discrimination, the Supreme Court chose to subject all racial preferences to strict scrutiny, requiring government to show a compelling interest to justify them. In some cases, such scrutiny has allowed for positive considerations of race as long as they fall short of strict racial quotas that treat individuals as members of racial classes rather than as discrete individuals. Two of three prominent Supreme Court cases dealing with affirmative action programs in education have relied in part on the First Amendment. In Regents of the University of California v. Bakke (1978), the medical school at the University of California at Davis had denied admission to Alan Bakke, a white man, despite his grades and test scores being above those of the sixteen African Americans selected for an entering class of 100 students. Four justices would have admitted Bakke on the basis that all considerations of race were impermissible under the Fourteenth Amendment in circumstances where the school had no past history of racial discrimination. Four others would have accepted racial preferences and even racial quotas as appropriate. Justice Lewis F. Powell Jr. split the difference. Of significance, he relied in part on the First Amendment. Powell observed that “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.” Powell further observed that “in arguing that its universities must be accorded the right to select those students who will contribute the most to the ‘robust exchange of ideas,’ petitioner
invokes a countervailing constitutional interest, that of the First Amendment.” Powell subsequently argued that the university could exercise its freedom to give some weight to race in its admissions process, as long as it did not use strict quotas, as he believed the University of California had improperly done. The Court encountered two similar cases in 2003. Justice Sandra Day O’Connor—in upholding what she considered to be narrowly tailored use of racial preferences at the University of Michigan Law School in Grutter v. Bollinger (2003)—cited Powell’s earlier use of the First Amendment in her lead opinion. Justice Clarence Thomas attempted to answer in a partial dissent joined by Justice Antonin Scalia. Tracing what he called “the constitutionalization of ‘academic freedom’ ” back to Sweezy v. New Hampshire (1957) and Keyishian v. Board of Regents (1967), Thomas wrote that “ ‘it is the business’ of this Court to explain itself when it cites provisions of the Constitution to invent new doctrines—including the idea that the First Amendment authorizes a public university to do what would otherwise violate the Equal Protection Clause.The majority fails in its summary effort to prove this point.” The Court did not raise the First Amendment in the companion case of Gratz v. Bollinger (2003), in which Chief Justice William H. Rehnquist wrote a decision classifying the admissions policy of the University of Michigan’s undergraduate college, which awarded a fixed number of points to the applications of minorities, as the kind of quota that the Court had prohibited in the Bakke. With recent changes on the U.S. Supreme Court, it may well revisit this issue in the near future See also Academic Freedom; Keyishian v. Board of Regents (1967); O’Connor, Sandra Day; Rehnquist, William H.; Sweezy v. New Hampshire (1957);Thomas, Clarence.
John R.Vile
furthe r reading Eastland, Terry. Ending Affirmative Action:The Case for Colorblind Justice. New York: Basic Books, 1996. Fiscus, Ron. The Constitutional Logic of Affirmative Action. Durham, N.C.: Duke University Press, 1992. Horwitz, Paul.“Grutter’s First Amendment.” Boston College Law Review 46 (2005): 461–590.
Agostini v. Felton (1997) In Agostini v. Felton, 521 U.S. 203 (1997), the Supreme Court held that New York did not violate the First Amendment’s
Aguilar v. Felton (1985) establishment clause by administering a federally funded program in which public school teachers provided remedial instruction in private religious schools. The case reconsidered two decisions—Aguilar v. Felton (1985), and Grand Rapids School District v. Ball (1985)—that the Court had rendered twelve years prior. In Aguilar and Ball, the Court had relied on two prongs of the Lemon test—that state funding should neither advance nor prohibit religion and should not entangle government with religion in an “excessive” manner—to declare unconstitutional the New York program and a similar “shared time” arrangement in Grand Rapids, Michigan.The Court’s 1985 decisions led to a lower court injunction against New York’s use of a Title I grant from the Elementary and Secondary Education Act of 1965 to fund the instructional program. Several years later, a group of parents in New York, joined by state officials, sued to have the order lifted, claiming that Aquilar had become obsolete in light of subsequent precedents and had unnecessarily burdened the state. In Agostini, the Supreme Court agreed and explicitly reversed its Aguilar decision as well as the relevant portion of Grand Rapids v. Ball. Writing for the 5-4 Agostini majority, Justice Sandra Day O’Connor suggested that there was little disagreement that the Title 1 program served the secular purpose of serving disadvantaged children. The more controversial matter was whether its primary effect had been to advance religion. On that question, O’Connor asserted that the New York funding arrangement, a supplement to regular instruction at the religious schools, did not implicate government in the inculcation of religion, as Aguilar had presumed, nor did it create a “symbolic union” of state and religion. She also read the Court’s post-Aguilar decisions, particularly Zobrest v. Catalina Foothills School District (1993), as undermining past criteria for identifying an “excessive entanglement” of the state with religion (for example, that state monitoring of teachers would inevitably create unconstitutional church-state conflict). O’Connor essentially folded the excessive entanglement prong into the primary effect prong of the Lemon test. In other words, the entanglement analysis becomes part of the effects test. In dissent, Justice David H. Souter insisted that the Court had misread its own post-Aguilar decisions and unreasonably rejected the “sensible” proscriptions in the Aguilar and Ball cases. He argued that the Title I money was, in effect, not supplementary to ordinary instruction, but a form of direct aid; that public school teachers faced real temptations to
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inculcate the religious sensibilities of the parochial schools they served; and that these kinds of church-state partnerships required a level of state monitoring that would likely run afoul of the establishment clause. Justice Ruth Bader Ginsburg’s dissent took a slightly different tack, suggesting that the way the case had reached the Court—namely, as a request to reconsider a twelve-year-old injunction against the Title I program—did not meet certain requirements of civil procedure. In the final analysis, however, the Court’s majority rejected the dissenters’ arguments, and Agostini went on to become a pivotal case in several subsequent decisions. See also Aguilar v. Felton (1985); Aid to Parochial Schools; Grand Rapids School District v. Ball (1985); Lemon Test; Lemon v. Kurtzman (1971); Zobrest v. Catalina Foothills School District (1993).
Kevin R. Den Dulk
furthe r reading Johnston, Christian W. “Agostini v. Felton: Redefining the Establishment of Religion through a Modification of the Lemon Test.” Pepperdine Law Review 26 (1999).
Aguilar v. Felton (1985) In Aguilar v. Felton, 473 U.S. 402 (1985), the Supreme Court agreed with a group of taxpayers and an appellate court that the City of New York had violated the establishment clause of the First Amendment by paying public school teachers to teach reading, reading skills, and remedial mathematics to educationally disadvantaged, low-income students in the city’s parochial schools with funds allotted under Title I of the Elementary and Secondary School Act of 1965. Justice William J. Brennan Jr. spoke for the 5-4 majority, while Justice Lewis F. Powell Jr. wrote a concurring opinion. The four dissenting justices wrote separate opinions, with Justice William H. Rehnquist also joining in parts of Justice Sandra Day O’Connor’s dissent. In the companion case Grand Rapids School District v. Ball, handed down the same day as Aguilar, the Court ruled unconstitutional the Shared Time and Community Education programs—in which taxpayer funds went to pay for public school employees to teach such classes as arts, crafts, and drama in rooms located in and leased from private schools—because they served the purpose of advancing religion in direct violation of the establishment clause of the First Amendment.
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The City of New York had attempted to avert such a decision by monitoring the religious content of the Title I classes, going so far as to provide all instructional materials and removing items that might have been construed as religious from the relevant classrooms. Nevertheless, the majority of the Court believed that the monitoring systems created “excessive entanglement” between church and state.The program failed consequently to pass the third prong of the test established in Lemon v. Kurtzman (1971), the landmark case on separation of church and state. Justice Rehnquist’s dissent in Aguilar expanded on his position set forth a month earlier in Wallace v. Jaffree, an Alabama case in which the Court declared Alabama’s moment of silence law unconstitutional. Rehnquist accused the majority of trying to block all public aid to parochial schools. Aguilar and Ball were part of a body of cases in which state and local governments forced the Supreme Court to elaborate on restrictions that Lemon’s three-tier test had placed on public aid to parochial schools. In Lemon, the Court had struck down a state program that reimbursed parochial schools for costs associated with teaching math, foreign languages, the physical sciences, and physical education. Throughout the 1970s and into the 1980s, the justices had banned the use of public funds in parochial schools in most areas. In Meek v. Pittenger (1975), for instance, the Court overturned a program in which public school employees provided guidance, testing, and therapeutic services at parochial schools. The Court, however, had permitted the use of public funds in areas where religion did not play a specific role, such as in reimbursing schools for the costs of transportation and for state-required and standard testing. Later, in Zobrest v. Catalina Foothills School District (1993), the Supreme Court reversed Aguilar, determining that public school teachers could teach in parochial schools under limited circumstances. Over time, the Court allowed various exceptions to the establishment clause on the grounds that specific programs promoted education rather than religion. The Court then overruled Aguilar in Agostini v. Felton (1997), writing that “Aguilar is not consistent with our subsequent Establishment Clause cases.” See also Agostini v. Felton (1997); Aid to Parochial Schools; Brennan,William J., Jr.; Grand Rapids School District v. Ball (1985); Lemon v. Kurtzman (1971); Meek v. Pittenger (1975); Wallace v. Jaffree (1985); Zobrest v. Catalina Foothills School District (1993).
Elizabeth R. Purdy
furthe r reading Aguilar v. Felton, 473 U.S. 402 (1985). Roberson, Doug.“The Supreme Court’s Shifting Tolerance for Public Aid to Parochial Schools and the Implications for Educational Choice.” Harvard Journal of Law and Public Policy 21 (Summer 1998): 861–879. Tsingos, Basilios E. “Forbidden Favoritism in the Government Accommodation of Religion: Grumet and the Case for Overturning Aguilar.” Harvard Journal of Law and Public Policy 18 (1995): 867–888.
Aid to Parochial Schools Early in U.S. history, religious organizations often educated the citizenry, but beginning in the early 1800s, individuals— initially Catholics, but later Protestants and others dissatisfied with public schools—founded parochial schools. Entering the twenty-first century, roughly 10 percent of the nation’s pre-college-aged children attended parochial schools. The free exercise clause protects a student’s right to attend such schools, but state efforts to support parochial schools through myriad programs have been tested mainly under the establishment clause. Over the years, the Supreme Court has gradually moved from the principle of “no aid” to religion to one of “neutrality,” which permits aid provided it is available to a wide range of recipients, not just religious ones. Pierce v. Society of Sisters (1925) represents the “Magna Carta” of parochial school cases. In it, the Supreme Court held that Oregon’s compulsory education laws interfered with parents’ right to send their children to parochial schools. Because the First Amendment had not yet been applied to the states at the time of the case, the Court based its decision on the idea that the due process clause of the Fourteenth Amendment protected certain fundamental rights—the idea of substantive due process. In Cochran v. Louisiana (1930), the Court allowed Louisiana to use state funds to purchase secular textbooks for religious and public schools. The Court held that the program benefited individual school children rather than religious schools. This “child benefit” theory remained a staple in numerous subsequent decisions. Everson v. Board of Education (1947), the first case to incorporate the establishment clause under the Fourteenth Amendment, examined a Ewing, New Jersey, program to reimburse parents of children attending parochial schools for transportation costs. In a 5-4 vote to uphold the practice, the Court followed the “child benefit” doctrine of Cochran, reasoning that the benefit went to students, not the religious schools.
Aid to Parochial Schools In Board of Education v.Allen (1968), the Court considered a New York education law requiring the state to provide textbooks to children in all private and public schools. It upheld the program on the theory that no direct benefit flowed to the religious institutions. Of importance, the books could be reviewed in advance, ensuring that they cover only secular subjects and therefore not be used for religious purposes. Lemon v. Kurtzman (1971) concerned a Pennsylvania statute paying for parochial school teachers’ salaries and a Rhode Island statute supplementing such salaries. In an 8-0 decision, the Court found that such aid constituted “excessive entanglement” between church and state and was thus unconstitutional. These cases produced the “three-prong” Lemon test: a statute must have a secular legislative purpose; its principal or primary effect cannot advance or inhibit religion; and the statute must not foster an excessive government entanglement with religion. The Court’s separationist decisions nevertheless did not prevent state legislatures from crafting innovative legislation designed to aid parochial schools. In Committee for Public Education v. Nyquist (1973), New York provided grants to sectarian groups to create and develop school facilities in lowincome neighborhoods.The legislation also provided tuition reimbursement to parents who sent their children to parochial schools.The Court declared the law to be unconstitutional on the ground that it had the effect of aiding religion. In Meek v. Pittenger (1975), the Court struck down attempts by Pennsylvania to aid its parochial schools. This case involved various forms of aid to religious schools, including remedial services for handicapped students and instructional materials, such as films and projectors. The Court, per Allen, permitted the state to purchase textbooks for students but denied the other forms of aid because they could be used to advance religion. Perhaps in response to unmitigated criticism of the Court for its refusal to approve much in the way of state aid to parochial education, the Court considered in Wolman v. Walter (1977) an Ohio program that provided testing, speech, and hearing diagnostic services for students in church-related schools. The Court upheld these programs because they were “incapable of diversion to religious use.” The Court’s decision in Levitt v. Committee for Public Education (1973) invalidated a New York law that reimbursed parochial schools for expenses they incurred in administering state-mandated tests. In Committee for Public Education v. Regan (1980), however, the Court upheld a New York statute
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reimbursing parochial schools for expenses incurred in administrating state-mandated tests on the ground that “the new statute, unlike the earlier version, provided a means by which state funds are audited, thus ensuring that only the actual costs incurred in providing the covered secular services are reimbursed out of state funds.” Mueller v. Allen (1983) produced a new theory—neutrality—destined to become a hallmark of Supreme Court religion clause jurisprudence. The Court held that Minnesota parents could deduct expenses for tuition, textbook costs, and transportation for their children regardless of the type of school they attended. Because the statute was blind—the basis of the neutrality principle—to the kinds of schools attended, the statute did not impermissibly aid religion. It made no difference that more than 90 percent of the benefits passed to students attending religious schools. Aguilar v. Felton (1985) dealt with New York City’s payments to public school teachers for teaching secular subjects to remedial students in parochial schools. In a 5-4 vote, the Court struck down the program because the teachers might be tempted to inject religious instruction in a pervasively religious environment.Twelve years later, in Agostini v. Felton (1997), the Court overruled its decision in Aguilar and in doing so altered the Lemon test. It retained Lemon’s first two prongs—having a secular purpose and not effecting the advancement or hindrance of religion—but then established three criteria to determine effect: Does the program create religious indoctrination? Are recipients chosen on the basis of religious criteria? Does the program create excessive entanglement between religion and government? These criteria were more in keeping with the Court’s emerging “neutrality” principle. The Court extended the neutrality principle in Zobrest v. Catalina Foothills School District (1993), which held that a school district did not violate the establishment clause by furnishing a sign-language interpreter to a Catholic high school student under a federally funded program. Rather, the program provided neutral benefits “to a broad class of citizens.” Mitchell v. Helms (2000) held as constitutional a federal program directing funds to Louisiana educational agencies that in turn supplied computers, films, videos, books, and other educational materials to public and private schools to implement “secular, neutral, and nonideological” programs. The Court relied on the “neutrality” doctrine once again in Zelman v. Simmons-Harris (2002), which dealt with the constitutionality of voucher programs. Under an Ohio program, parents of students could receive a voucher to send
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their child to a school of their choice. Although 96 percent of the students benefiting attended religious schools, the Court nevertheless ruled 5-4 that “a government aid program is not readily subject to challenge . . . if it is neutral with respect to religion.” “Parochiaid” cases are among the Court’s most difficult to adjudicate, primarily because they mirror the Court’s uncertain commitment to Thomas Jefferson’s “wall of separation between church and state,” a metaphor hotly disputed among judges, educators, religious leaders, and the public at large as a policy principle in American public life. Indeed, the metaphor is rarely to be found any longer in Supreme Court opinions. Instead the Court has relied on less incendiary, more neutral terms, such as “benevolent neutrality,” as in Walz v.Tax Commission (1970), which expresses the view that the appropriate role of the government toward religion is neither hostility nor active support. See also Agostini v. Felton (1997); Aguilar v. Felton (1985); Child Benefit Theory; Committee for Public Education v. Nyquist (1973); Committee for Public Education v. Regan (1980); Everson v. Board of Education (1947); Lemon v. Kurtzman (1971); Levitt v. Committee for Public Education (1973); Meek v. Pittenger (1975); Mitchell v. Helms (2000); Mueller v.Allen (1983); Neutrality, Religion; Pierce v. Society of Sisters (1925);Wall of Separation; Walz v.Tax Commission (1970); Wolman v. Walter (1977); Zelman v. Simmons-Harris (2002); Zobrest v. Catalina Foothills School District (1993).
Derek Davis
furthe r reading Alley, Robert S., ed. The Constitution and Religion: Leading Supreme Court Cases on Church and State. Amherst, N.Y.: Prometheus Books, 1999. Miller, Robert T., and Ronald B. Flowers. Toward Benevolent Neutrality: Church, State, and the Supreme Court, 5th ed. Waco, Texas: Baylor University Press, 1996. Witte, John. Religion and the American Constitutional Experiment: Essential Rights and Liberties. Boulder, Colo.:Westview Press, 2000.
Aid to Religious Colleges and Universities Aid to religious colleges and universities presents at least three First Amendment–related issues: How do the religion clauses affect employment policies of religiously affiliated colleges and universities? Is it a violation of the establishment clause for federal or state government to provide financial assistance to religious colleges and universities in the form of grants or loans to construct or repair facilities? What
kinds of student aid to students attending religious colleges and universities violate the religion clauses? Title VII of the Civil Rights Act of 1964 and similar state statutes prohibit employers from taking into account the religious background or affiliation of an employee or prospective employee in hiring and other personnel decisions. Nevertheless, Title VII, section 703 (E)(2), exempts a religious college or university from the ban on religious discrimination, even if the employee in question is not directly involved in the religious activities of the institution. In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos (1987), the Supreme Court upheld this exemption against a challenge on First Amendment establishment clause grounds.Thus, such an institution is free to maintain its religious character by hiring persons who share a commitment to its religious tradition or values. In Maguire v. Marquette (1987), however, a federal circuit court determined that Title VII does not permit a religiously affiliated college or university to discriminate on the basis of race, color, national origin, or sex. In a related but separate issue, case law suggests that religiously affiliated institutions of higher education may preferentially hire employees on the basis of religion without impairing the entitlement of such institutions or their students to state and federal assistance programs. In three cases, the Supreme Court sustained federal and state programs of institutional assistance to religiously affiliated colleges: federal construction loans and grants—Tilton v. Richardson (1971), state bonds for construction—Hunt v. McNair (1973), and noncategorical state capitation grants—Roemer v. Board of Public Works of Maryland (1976). Although the principal issue in these cases was not the employment policy of religiously affiliated institutions, the Court noted that such factors as religious commitment could be taken into consideration in determining whether an institution is “pervasively sectarian,” a finding of which would have caused the Court to disallow the governmental aid to the various institutions. Later, in Smith v. Board of Governors (1977), the Court summarily affirmed decisions allowing state aid to students attending a religiously affiliated college where “an applicant for a position on the faculty is not required to disclose any religious preference or affiliation’’ and in Americans United for Separation of Church and State v. Blanton (1977) to institutions “with religious requirements for students and faculty” and which are “admittedly permeated with the dogma of the sponsoring religious organization.”
Alberts v. California (1957) Many religiously affiliated colleges and universities receive financial assistance from the federal government in the form of grants or subsidized loans to construct or repair facilities on their campuses. In order to protect these grant or loan programs from constitutional challenge, Congress placed restrictions on the religious use of these buildings. The Higher Education Facilities Act of 1963 authorized grants and loans for construction or renovation of facilities at qualifying institutions of higher education. Divinity schools were excluded from participation in this program, and divinity departments could not be located in a facility constructed or renovated with funds from this program. Subsequent revisions of the statute prohibited use of such facilities for “religious worship or a sectarian activity or for a school or department of divinity” (20 U.S. Code, sec. 1132 et seq.). The 1963 statute contained a provision that after twenty years from the date of the grant or loan, the federal government would waive its restrictions on the use of the facility, and the college could put it to any use it chose. Accepting the view that the appropriate role of the government toward religion is neither hostility nor active support but “benevolent neutrality” as in Walz v.Tax Commission (1970), the Supreme Court ruled in Tilton v. Richardson (1971) that the federal grant and loan program enacted in 1963 was constitutionally permissible, in part because of the limitations placed on the use of facilities constructed with federal aid.The Court, however, invalidated the twenty-year limit on the government’s interest in the facilities. In so doing, the Court, in effect, mandated that the federal government must continually regulate the use of any facility constructed or renovated with federal funds. Neither the statute itself nor the accompanying regulations clearly defined the terms religious worship or sectarian activity. From cases invalidating public financial assistance of church-related elementary and secondary education, including Abington School District v. Schempp (1963), it would seem that the terms refer generally to instruction that indoctrinates or promotes faith in the beliefs of a particular denomination or which advocates a manifestly religious worldview. A number of cases address the constitutionality of scholarships to students attending religious colleges or universities. In Witters v.Washington Department of Social Services for the Blind (1986), the petitioner, suffering from a progressive eye condition, applied to the State of Washington for a scholarship to attend a private Christian college. He sought training to become a pastor or youth director.The Court upheld the scholarship program because it benefited students attending
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any kind of school, not just religious ones.This principle of “neutrality” may be viewed as part of a trend toward upholding state assistance to religiously affiliated colleges and universities. In view of the rise of the neutrality principle, the outcome of Locke v. Davey (2004) surprised many. Davey dealt with the State of Washington’s request to pay for the pastoral ministries degree of Joshua Davey at Northwest College, a distinctively Christian college. Davey argued that because the scholarship program funded the education of nonministerial students, the State of Washington could not discriminate against him.The Court disagreed, holding that Davey’s degree plan was specifically for ministerial training and that the state was not obliged to pay for such an education if its constitution prohibited taxpayer-subsidized ministerial degrees. See also Abington School District v. Schempp (1963); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos (1987); Locke v. Davey (2004);Tilton v. Richardson (1971); Walz v. Tax Commission (1970); Witters v. Washington Department of Services for the Blind (1986).
Derek Davis
furthe r reading Davis, Derek, and Kent Weeks. Legal Deskbook for Administrators for Independent Colleges and Universities. 2d ed. Waco, Texas: Center for Constitutional Studies, Baylor University, 1999. Chapter 9. Miller, Robert T., and Ronald B. Flowers. Toward Benevolent Neutrality: Church, State, and the Supreme Court. 5th ed. Waco, Texas: Baylor University Press, 1996. Moots, P., and E. Gaffney. Church and Campus: Legal Issues in Religiously Affiliated Higher Education. Notre Dame, Ind.: University of Notre Dame Press, 1979. Sandin, Robert T. Autonomy and Faith: Religious Preference in Employment Decisions in Religiously Affiliated Higher Education. Atlanta: Omega Publications, for the Center for Constitutional Studies, 1990.
Alberts v. California (1957) Alberts v. California, 354 U.S. 476 (1957), the companion case to Roth v. United States, marks the first time the Supreme Court specifically ruled that the Constitution does not protect obscene materials. David S. Alberts ran a mail-order business out of Los Angeles when he was found guilty of violating the California Penal Code, which declared that any person who willfully and lewdly distributes or advertises any obscene or indecent writing, paper, book, or picture was guilty of a misdemeanor. In the opinion for the 7-2 Court, Justice William J. Brennan
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Jr. noted that the central question presented by the case was whether obscenity is utterance within the area of protected speech and press. Although Brennan found that the First Amendment protects all ideas having the slightest social importance, even if disturbing to the prevailing climate of opinion, not all words or works are protected. Rather, implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Because the rejection of obscenity had found support throughout U.S. history and in contemporary laws, states could make laws regulating obscene materials. A line of demarcation existed, however, between materials of a sexual nature, which were protected, and obscene materials, which were not protected, because obscene materials dealt with sex in a manner that appealed to a prurient interest or excited a person in a lustful way. Brennan clarified that the lower courts should no longer rely on the test stemming from the British case of Regina v. Hicklin (1868). Instead, the appropriate test in obscenity cases should be “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” According to Brennan, using the average person as the standard would ensure that obscenity not be determined by the most susceptible persons in society. Noting the difficulty of developing a precise definition of obscenity, Brennan added that the Court had consistently held that lack of precision was not itself offensive to the requirements of due process. Instead, statutes, as did California’s, must use language that sufficiently provides definite warning as to the proscribed conduct when measured by common understanding and practices. Chief Justice Earl Warren concurred but considered Brennan’s test to be too broad. Legal history, he said, demonstrated that the power of government can be invoked under obscenity laws against great art or literature, scientific treatises, or works exciting social controversy. Justice John Marshall Harlan II also concurred but explained that he thought the decision painted with such a broad brush that he feared states would not be as capable of enforcing their obscenity statutes. Justice William O. Douglas dissented, joined by Justice Hugo L. Black. Both believed all government censorship unacceptable under the First Amendment. See also Brennan, William J., Jr.; Hicklin Test; Obscenity and Pornography; Roth v. United States (1957).
Tom McInnis
furthe r reading Hixson, Richard F. Pornography and the Justices:The Supreme Court and the Intractable Obscenity Problem. Carbondale, Ill.: Southern Illinois University Press, 1996. MacMilliam, P. R. Censorship and Public Morality. Aldershot, UK: Gower Publishing Company, 1983. Schauer, Frederick I. The Law of Obscenity. Washington, D.C.: Bureau of National Affairs, 1976.
Alcohol Advertising Alcohol advertising involves the marketing of alcoholic beverages through numerous media markets, including print, radio, television, billboards, and the Internet. The Twentyfirst Amendment—which repealed the Eighteenth Amendment’s national prohibition against alcohol—gives states regulatory power over alcohol. Various states and localities have prohibited alcohol advertisements from making false claims and have restricted its placement near schools or college campuses, targeting of minors, and association with athletic prowess. Due to the commercial speech doctrine developed by the Supreme Court, state regulations of alcohol advertising are subject to careful review. Commercial speech is generally defined as speech designed to convince a target audience to purchase a good or service so that a business or individual can make a profit.The Court first explicitly ruled that truthful commercial speech was protected by the First Amendment in Virginia Pharmacy v.Virginia Consumer Council (1976). Alcohol advertising, as commercial speech, is protected under the First Amendment as long as it does not promote unlawful activity and is not misleading. It can be regulated, however, if the government demonstrates that its regulation advances a significant governmental interest and if it narrowly draws it so as not to restrict speech unnecessarily. This test, developed in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), is often used to determine whether certain types of commercial speech can be restricted. In Rubin v. Coors Brewing Co. (1995), the Court unanimously struck down a federal regulation prohibiting the display of alcohol content on beer labels. The Court provided even more protection to alcohol advertising and amplified the Central Hudson test in 44 Liquormart, Inc. v. Rhode Island (1996). In this decision, it rejected as unconstitutional Rhode Island’s “complete ban on truthful non-misleading commercial speech,” in this case on the prices of alcohol and related items. Regardless, some courts have allowed cities to ban alcohol and cigarette advertising on billboards, which
Alexander v. United States (1993) are easily viewed by minors, implicitly accepting city arguments that such advertising increased alcohol consumption and that their regulation was narrowly drawn to advance a compelling government interest. See Anheuser-Busch v. Schmoke (4th Cir. 1996). The Federal Trade Commission (FTC) and the Bureau of Alcohol,Tobacco, Firearms and Explosives (ATF) can restrict deceptive, misleading, or unfair alcohol advertisements. The Federal Alcohol Administration Act (FAAA) authorizes these agencies to act against untruthful alcohol advertisements and those touting therapeutic or curative values. For example, the ATF often took the position that using athletes in alcohol beverage advertisements is deceptive because it implies that one can enhance athletic performance by consuming such beverages. Many broadcasters have engaged in voluntary restraint and have generally decided not to direct alcoholic advertising to underage consumers. Television industries voluntarily banned hard liquor advertisements until 1996, but with some cable networks now airing these ads, major network broadcasters may eventually join them. Some believe that alcohol advertising should be banned or restricted because it encourages alcohol consumption, which can be detrimental to the public health. Others point out that hard liquors have been singled out for a voluntary ban while the beer and wine industries freely advertise in all media. They claim this is discrimination and is not content neutral. Like the wine industry, the spirits industry notes that one drink a day can have health benefits for adult men and women.The courts so far have been unwilling to allow regulations that do not meet the Central Hudson test, thus total bans on alcohol advertising are unlikely to pass constitutional muster. See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Federal Trade Commission; 44 Liquormart, Inc. v. Rhode Island (1996); Rubin v. Coors Brewing Co. (1995);Tobacco Advertising.
Ruth Ann Strickland
furthe r reading Center on Alcohol Marketing and Youth. “State Alcohol Advertising Laws: Current Status and Model Policies.” Georgetown University, Washington, D.C., 2003. DellaCrose, Anthony D. “ ‘One Bourbon, One Scotch, One Beer’: Each ‘Spirit’ Should Have an Equal, But Limited, Opportunity to Advertise on Television.” Journal of Law and Policy 5 (1997): 545–575. Sheehan, Kim. Controversies in Contemporary Advertising. Thousand Oaks, Calif.: Sage Publications, 2004.
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Sherman, Marc L. “We Can Share the Women, We Can Share the Wine: The Regulation of Alcohol Advertising on Television.” Southern California Law Review 58 (May 1985): 1107–1145. Skilken, Melissa S. “This Ban’s for You: 44 Liquormart, Inc. v. Rhode Island.” University of Cincinnati Law Review 65 (Summer 1997): 1387–1422. Smith, Craig R., and David M. Hunsaker. The Four Freedoms of the First Amendment: A Textbook. Long Grove, Ill.:Waveland Press. 2004. Steffey, Brian S. 1984. “Tension between the First and Twenty-First Amendments in State Regulation of Alcohol Advertising.” Vanderbilt Law Review 37 (November 1984): 1421–1453.
Alexander v. United States (1993) In Alexander v. United States, 509 U.S. 544 (1993), a two-part split decision, the Supreme Court rejected the claims of a petitioner convicted under obscenity and racketeering laws that his First Amendment free expression rights had been violated. In response to petitioner’s claims that his Eighth Amendment rights had been violated through the levying of “excessive” fines, the Court remanded the case for further elaboration by lower courts, leaving them to decide what constitutes “excessive” fines. In Austin v. United States, handed down the same day as Alexander, Justice Harry A. Blackmun authored the Court’s unanimous opinion that the Constitution required that the extent of property seized by governments be proportionately related to the gravity of the crime in question. Alexander concerned the owner of several adult bookstores and movie theaters offering pornography and sexual paraphernalia for sale throughout Minnesota. Ferris J. Alexander Sr. was convicted on three counts of violating state obscenity laws and on twelve counts of violating the Racketeer Influenced and Corrupt Organizations Act (RICO) of 1970. Following these convictions, several thousand books and movies were destroyed, and authorities seized all of Alexander’s bookstores and theaters. His forfeited assets were estimated at $9 million. Alexander was also given a six-year prison term and ordered to pay a fine of $100,000 in addition to court costs. Alexander appealed the forfeitures, arguing that the elements of RICO dealing with forfeiture involved prior restraint on his First Amendment right to free speech and insisting that the relevant RICO provisions were overbroad. Arguing that the combination of serving prison time, paying fines, and losing his property constituted “excessive fines,” Alexander contended that his Eighth Amendment rights had also been violated. The Eighth Circuit Court of Appeals determined that neither First nor
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Eighth Amendment rights had been violated in Alexander’s case. RICO had been designed to put an end to racketeering, which Congress defined as acts and threats involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, the sale of obscene matter, or dealing in a controlled substance or listed chemical. Potential punishment for violating RICO included prison terms from twenty years to life and forfeiture of all money and property garnered from the racketeering activity. In the late 1970s, prosecutors around the country began using RICO to fight organized crime. In Alexander, divisions within the Court complicated Chief Justice William H. Rehnquist’s task of writing the majority opinion. Justices Byron R. White, Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas joined Justice David H. Souter in concurring in part and dissenting in part. For the minority, Justice Anthony M. Kennedy was joined by Justices Harry A. Blackmun and John Paul Stevens, with Justice Souter deserting the majority to join the Kennedy dissent on the Eighth Amendment issue in Part II. Voting 5-4 in Part I of Alexander, the Court addressed the First Amendment issues by reaffirming the obscenity standards established in Roth v. United States (1957), which emphasized “the average person” applying “contemporary community standards,” and rejecting the notion of prior restraint. In justifying the latter, the Court referred to the explanation handed down in Near v. Minnesota (1931) that prior restraint occurs only when communications are banned before they occur. It therefore had no relevance in Alexander. According to the Court, the RICO-mandated forfeiture of Alexander’s property was acceptable because his assets had been generated through decades of racketeering activities. The Court rejected the idea that extenuating circumstances had rendered the forfeiture of Alexander’s property illegal, citing Marcus v. Search Warrant (1961) and Fort Wayne Books, Inc. v. Indiana (1989) as examples of cases in which rights had indeed been violated. On the issue of overbreadth, the Court insisted that RICO does not infringe on speech protected by the First Amendment, citing Airport Comm’rs v. Jews for Jesus, Inc. (1987) as a case in which arguments for overbreadth had been accepted. In a plethora of cases, the Court had repeatedly affirmed that the First Amendment does not protect obscenity. In Part II of Alexander, dealing with the levying of “excessive fines” under RICO, the justices remanded the
case to the Eighth Circuit, which had opted not to offer an opinion on what constituted “excessive.” Instead, the appellate court had limited itself to declaring that Alexander had not been the victim of “cruel and unusual punishment,” which was also prohibited under the Eighth Amendment. The Supreme Court contended, however, that lower courts were better suited to deciding whether specific fines were “excessive.”Although Chief Justice Rehnquist offered a hint that there might be some validity in arguing that forfeiture, a prison term, and large fines might be excessive, he qualified the statement by reaffirming that the enormity of Alexander’s racketeering activities must be taken into account when defining “excessive” as related to his case. Since the early 1980s, RICO has been used to target individuals involved in organized crime as well as politicians, racists, abortion protesters, animal rights activists, and others accused of illegal activity. Individuals convicted under RICO have repeatedly attempted to undermine the statute by having all or parts of it declared unconstitutional. In United States v. Turkette (1981), the Court stood by RICO, holding that Congress had designed the law to keep organized crime from infiltrating legitimate businesses. Four years later, in Sedime S.R.R.L. v. Imrex Company, the Court broadened RICO’s scope by asserting that it was not necessary to relate specific injuries to racketeering activities to win damages in civil cases prosecuted under RICO. Nevertheless, limitations on RICO’s scope were handed down in Agency Holding Corporation v. Malley Duff and Associates (1987) and Reves v. Ernst and Young (1990). Among the more controversial uses of RICO is the prosecution of persons who commit violence at abortion clinics. As in Alexander, the First Amendment and RICO were at issue in Scheidler v. National Organization for Women (2006). Protesters outside abortion clinics had long insisted that it was their First Amendment right to picket clinics and hand out literature, but when protests became violent and eventually led to murder, the Court responded with the 8–1 decision that no First Amendment freedoms were violated when prosecutors used RICO to triple prison terms and fines for violent protesters. See also Fort Wayne Books, Inc. v. Indiana (1989); Marcus v. Search Warrant (1961); Near v. Minnesota (1931); Obscenity and Pornography; Overbreadth; Prior Restraint; RICO Laws; Roth v. United States (1957); Scheidler v. National Organization for Women (2006).
Elizabeth R. Purdy
Aliens furthe r reading Goldberg, Ronald M. “RICO Forfeiture of Sexually Explicit Express Materials: Another Weapon in the War on Pornography, or an Impermissible Collateral Attack on Free Expression?” William Mitchell Law Review 21 (Fall 1995): 231–263. Harrison, Kendall W. “RICO Forfeitures, Pornography, and the Obscenity Doctrine.” Wisconsin Law Review 6 (November– December 1994): 1549–1578. U.S. Congress. “Racketeer Influenced and Corrupt Organized Act.” http://usinfo.state.gov/usa/infousa/laws/majorlaw/rico/rico.htm.
Alien and Sedition Acts See Sedition Act of 1798
Alien Registration Act See Smith Act of 1940
Aliens Although the First Amendment to the U.S. Constitution makes no distinction between citizens and noncitizens, Supreme Court precedents interpreting the amendment do not always treat these groups the same. Early U.S. leaders crafted the First Amendment as a prohibition on Congress exercising its power in certain areas. Congress is denied the power to pass laws establishing a religion, prohibiting its free exercise, abridging the freedom of speech or of the press, or restricting the right of “the people” to assemble and petition the government. Nonetheless, the adoption of the Alien and Sedition Acts of 1798 illustrates how repression of aliens and of First Amendment freedoms have often gone hand in hand. Supreme Court precedents hold that aliens are entitled to lesser First Amendment protections while seeking to enter the United States, because an alien has no right to enter the country, as per United States ex rel. Knauff v. Shaughnessy (1950). In matters involving alien exclusion and naturalization, Congress has historically been permitted broad regulatory powers, so the government has been able to use the political viewpoints of aliens against them where contentbased distinctions against citizens would be impermissible. Exclusion of a British anarchist was at issue in Turner v. Williams (1904), Harisiades v. Shaughnessy (1952) concerned deportation of communists (1952), and Kleindienst v. Mandel (1972) examined denial of a visa to travel to a Marxist. Once situated lawfully in the United States, aliens enjoy First Amendment rights. As Justice Francis W. Murphy described the law in his concurrence in Bridges v. Wixon
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(1945), “the Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.” In that case, the Court reversed the deportation of labor activist Harry Bridges, an Australian, because of statements he had made that prosecutors charged indicated “affiliation” with the Communist Party.Writing for the Court, Justice William O. Douglas concluded that “freedom of speech and of the press is accorded aliens residing in this country. . . . [T]he literature published by Harry Bridges, the utterances made by him were entitled to that protection.” So long as that same activity can be used to support the later deportation of an alien, however, resident aliens lack the same security in political expression extended to citizens. According to the decision in Rasul v. Bush (2004), whether an alien is “in” the United States depends upon whether the location is territory over which the United States exercises plenary and exclusive jurisdiction. In Rasul, the Court held that U.S. courts had jurisdiction, or the power to hear a habeas corpus claim filed by detainees in Guantanamo Bay, Cuba. A passing statement in United States v. Verdugo-Urquidez (1990), a Fourth Amendment search and seizure case, casts some doubt on whether “the people” to whom First Amendment rights belong includes aliens. The Court remarked,“[T]his textual exegesis . . . suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” The USA Patriot Act of 2001 targeted certain speech and association activities by noncitizens in the immigration context. Under the act, aliens may be deported for fund-raising for, providing support to, or associating with groups deemed to be terrorist organizations by the U.S. government. It also excludes entry to aliens who endorse or espouse terrorism or support such groups. In another anti-terrorism measure, the Department of Justice instructed immigration judges to close to the press and the public proceedings involving certain “special interest” cases and asked that they be removed from the court public docket. The Sixth Circuit Court of Appeals declared this policy unconstitutional, but the Third Circuit upheld it in Detroit Free Press v. Ashcroft (6th Cir. 2002) and North Jersey Media Group Inc. v. Ashcroft (3d Cir. 2002), cert. denied 123 S. Ct. 2215 (2003).The Sixth Circuit,
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Alito, Samuel A., Jr.
following the rule set forth in Richmond Newspapers Inc. v. Virginia (1980), concluded that the First Amendment protected the right of access to the proceedings because of the history of access to such proceedings. The Third Circuit found the record insufficient in this regard. The First Amendment rights of aliens, even once lawfully established in the country, are not equivalent to those of citizens in matters of campaign finance. Federal law prevents aliens who are not “permanent resident aliens” (green card holders) from making campaign contributions or expenditures and from participating in political spending decisions. See also Sedition Act of 1798; USA Patriot Act of 2001.
Allison Hayward
furthe r reading Brown, Bruce D.“Alien Donors: The Participation of Non-Citizens in the U.S. Campaign Finance System.” Yale Law and Policy Review 14 (1997): 503–522. Hafetz, Jonathan L.“The First Amendment and the Right of Access to Deportation Proceedings.” California Western Law Review 40 (2004): 265–319. Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York:W. W. Norton, 2005.
Alito, Samuel A., Jr. Samuel A.Alito Jr. (1950– ) assumed the position of a justice on the U.S. Supreme Court in January 2006. He replaced the retiring Sandra Day O’Connor. Alito’s short tenure on the Court thus far makes it difficult to assess his First Amendment record, but if his experience as a federal appeals court judge is any indication, he will voice his opinions on such issues forcefully and articulately. Born in 1950 in Trenton, New Jersey, Alito received an undergraduate degree from Princeton in 1972 and a law degree from Yale Law School in 1975. Upon graduation from Yale, he served as a law clerk for Leonard I. Garth of the Third Circuit Court of Appeals. After his clerkship, Alito became an assistant U.S. attorney for the District of New Jersey for four years, until moving to the U.S. Department of Justice in 1981 as an assistant to the solicitor general. In 1985 he received a promotion to deputy assistant attorney general. He became U.S. attorney for New Jersey in 1987. In 1990 President George H. W. Bush nominated Alito to the Third Circuit where he served for more than fifteen years. President George W. Bush nominated him in October 2005 to serve on the Supreme Court.The Senate confirmed
him by a vote of 58-42 in January 2006, making him the one hundred tenth justice to serve on the Court. While on the Third Circuit, Alito had established himself as a strong defender of commercial, student, and religious expression. He wrote the court’s opinion in Saxe v. State College Area School District (2001) striking down a public school’s anti-harassment policy. Alito asserted that there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs.” In Fraternal Order of Police v. City of Newark in 1999, Alito ruled that a city police department violated the free exercise of religion rights of two Muslim officers fired for refusing to shave their beards. “Because the Department makes exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons, we conclude that the Department’s policy violates the First Amendment,” he wrote. Between January 2006 and mid-2007 on the Supreme Court bench, Alito participated in two First Amendment decisions of the Court. During the October 2006 term, he sided with the five-member majority in Garcetti v. Ceballos (2006), a decision that limited the free speech rights of public employees with respect to expression carried out as part of their regular job duties. He joined the six-member majority in Randall v. Sorrell (2006), striking down a Vermont campaign finance statutory scheme imposing severe limits on expenditures and contributions. Alito’s short concurring opinion stressed the importance of stare decisis and his view that this case was not a proper vehicle for the Court to reassess the seminal campaign finance First Amendment decision in Buckley v.Valeo (1976). See also Buckley v. Valeo (1976); Garcetti v. Ceballos (2006); O’Connor, Sandra Day; Randall v. Sorrell (2006).
David L. Hudson Jr.
furthe r reading Collins, Ronald K. L., and David L. Hudson Jr. “Judge Alito Fairly Strong on Free Expression.” First Amendment Center, October 31, 2005. www.firstamendmentcenter.org/analysis.aspx?id=16003. First Amendment Center. “Online Symposium: Justice Alito and the First Amendment.” www.firstamendmentcenter.org//collection .aspx?id=16013. “Justices of the U.S. Supreme Court.” http://supremecourtus.gov/ about/biographiescurrent.pdf.
American Academy of Religion v. Chertoff (S.D.N.Y. 2006)
Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968) In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968), the Supreme Court held that the state courts of Pennsylvania could not enjoin peaceful union picketing by nonemployees directly in front of a nonunion grocery store in a private shopping mall. In the majority opinion, Justice Thurgood Marshall explicitly drew an analogy between municipally owned business centers (such as town squares) and a shopping mall. Under traditional applications of the First Amendment, the state, Marshall noted, may not rely on its own property rights to bar protesters from business districts. Since the parking lot and environs of the stores of the shopping mall were “the functional equivalents of the streets and sidewalks of a normal municipal business district,” the Court relied on Marsh v. Alabama (1946), which held that protesters could not be charged with criminal trespass for political activity in a company-owned town, to bar civil injunctions against protest in the company-owned shopping mall. Logan represented a substantial extension of Marsh, as, unlike in Marsh, the protesters in Logan had significant access to their intended audience—mall shoppers—through nearby public roads and a berm dividing the mall from the street. Logan can be understood as a form of constitutional translation in the face of a changed cultural and technological landscape, as discussed by Lawrence Lessig (1993). In cities, proprietors commonly operate businesses in individual storefronts on public roads and integrated within communities. In an urban environment, disaffected citizens seeking to express their grievances against a business have a publicly accessible location to engage in political speech. By contrast in less dense suburbs, businesses tend to cluster in shopping malls. In Logan, the majority sought to maintain a constitutional balance as suburban environments supplanted urban environments by applying the same First Amendment principles to privately owned suburban store locales as to their urban equivalents. The majority noted accordingly the “large-scale movement” of the population to suburbs, and the greater number of stores and percentage of national retail sales accounted for by shopping malls. Logan represents the high watermark of the Supreme Court’s jurisprudence establishing a right for speakers to make use of private property as the “functional equivalent”
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of traditionally public space. In Lloyd Corp. v.Tanner (1972), the Court greatly limited the reach of Logan. As a consequence, further development of the principles articulated in Logan has been left to the states. In Pruneyard Shopping Center v. Robins (1980), the Supreme Court held that the state of California could interpret its own constitution to apply Logan-like protections to speakers in shopping malls, but that the U.S. Constitution does not offer this type of protection. Several states have followed in California’s footsteps. See also Lloyd Corp., Ltd. v. Tanner (1972); Marsh v. Alabama (1946); Marshall, Thurgood; Private Property, Expression on; Pruneyard Shopping Center v. Robins (1980).
Paul Gowder
furthe r reading Lessig, Lawrence.“Fidelity in Translation.” Texas Law Review 71 (1993): 1165–1268. Yandle, Bruce, and Andrew Morriss. “The Technologies of Property Rights: Choice among Alternative Solutions to Tragedies of the Commons.” Ecology Law Quarterly 28 (2001): 123–168.
American Academy of Religion v. Chertoff (S.D.N.Y. 2006) In American Academy of Religion v. Chertoff, 463 F.Supp.2d 400 (S.D.N.Y. 2006), a U.S. district court in New York ordered the government to issue a visa within ninety days to Tariq Ramadan, a scholar of Islam, or to explain its decision to continue to exclude him from entering the United States. The order affirmed the First Amendment rights of scholars who had extended an invitation to Ramadan. An internationally known Swiss-born scholar of Islam, Ramadan had published extensively and was affiliated with Oxford University. He had advocated an independent European Islam that is “fully European and fully Muslim.” The New York court noted in its ruling that Ramadan “has consistently spoken out against terrorism and radical Islamists” and also that he had been “equally critical of Western governments” and of U.S. policy in the Middle East. Britain had “enlisted him in the fight against terrorism,” and he was “banned from entering Saudi Arabia, Egypt, and Tunisia.” The University of Notre Dame had offered Ramadan a tenured teaching position that required an H-1B nonimmigrant visa, but the U.S. government revoked this visa on July 28, 2004, as he prepared to move to Indiana. Citing the USA Patriot Act, the government initially claimed that it had
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done so because Ramadan fell within the category of aliens “who have used a ‘position of prominence within any country to endorse or espouse terrorist activity.’ ” It later withdrew this explanation, calling it “erroneous” (and thus voiding the visa revocation of July 2004).After the United States delayed subsequent visa applications by Ramadan, he resigned from the post at Notre Dame, and the government, making no reference to its earlier approval or revocation of his H-1B visa, informed him that his H-1B had been revoked.The government also subsequently refused to act on Ramadan’s application for a B visa, filed on September 16, 2005, which would have enabled him to enter the country and participate in conferences to which he had been invited by plaintiffs. The American Academy of Religion, an association of teachers and scholars, along with other groups brought suit against Michael Chertoff, secretary of the Department of Homeland Security, and the secretary of state to request an injunction compelling the government to admit Ramadan to the country or alternatively to make a final decision on his visa application. The organizations claimed that Ramadan’s exclusion, justified by the federal government under the Patriot Act’s section 411(a)(1)(A)(iii)—allowing the exclusion of prominent aliens who have used their positions to “endorse or espouse terrorist activity”—violated the First Amendment. In reviewing a district court’s right to issue a preliminary injunction, Judge Paul A. Crotty observed that precedents limited the issuance of such injunctions when a plaintiff could establish by a “clear showing” the likelihood of suffering “irreparable injury” and “a ‘clear’ or ‘substantial’ likelihood that they will prevail on the merits.” Crotty cited Elrod v. Burns (1976), for the principle that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” and Kleindienst v. Mandel (1972), for the principle that “the exclusion of an alien on the basis of his speech implicates the First Amendment rights of those U.S. citizens who desire to hear the alien speak.” Crotty observed that for purposes of a preliminary injunction, the latter interests, when balanced with others, could be satisfied through videoconferencing rather than requiring face-to-face meetings. Crotty then examined the likelihood of success of the plaintiffs’ case on its merits. To win, precedents established that they needed to prove “(1) an injury-in-fact, (2) that is fairly traceable to defendant’s allegedly violating conduct, and (3) that is likely to be redressed by the requested relief.”
Crotty accepted that the plaintiff ’s failure to interact face-toface with Ramadan presented an injury-in-fact, namely the denial of First Amendment rights. He further found that the case was “ripe” for review. Crotty wrote, “It is a well-established principle of constitutional law that the First Amendment includes not only a right to speak, but also a right to receive information and ideas.” Citing Mandel, he observed that this right includes the rights of American citizens “to have an alien enter and to hear him explain and seek to defend his views.” This right, however, is not absolute. Congress had delegated power to the executive branch to exclude aliens for bona fide reasons, and courts should intervene only in cases “where the Government is unable to provide a facially legitimate and bona fide reason for excluding the alien, thereby revealing that the true reason for exclusion was the content of the alien’s speech.” Crotty rejected the argument that the government could escape articulating reasons for its decision under the doctrine of consular nonreviewability. The government thus needed either to provide such an explanation or admit Ramadan within a reasonable time. Citing “an excess of caution,” Crotty gave the government another ninety days to issue a formal decision on Ramadan’s request. On September 19, 2006, the government officially denied Ramadan’s visa request based on a provision of the Immigration and Nationality Act requiring the exclusion of foreign citizens who had provided material support for terrorist organizations. Ramadan had contributed to the Association de Secours Palestinien, which had given money to Hamas. In a subsequent review of this case, Judge Crotty upheld the denial. He stated that Ramadan, as a noncitizen, had no standing to challenge the government’s decision, which was based on clear statutory authority and subject to limited judicial review under the principle of consular nonreviewabiltiy. Judge Crotty applied the precedent in Kleindienst v. Mandel (1972) to indicate that the government had articulated a “facially legitimate and bona fide reason for excluding Professor Ramadan.” Crotty further noted that the denial of Ramadan’s visa was “unrelated to Professor Ramadan’s speech” and that the issue of the admissibility of an alien was a political question and therefore best left to the elected branches of government. See also Aliens; Elrod v. Burns (1976); Kleindienst v. Mandel (1972); USA Patriot Act of 2001.
John R.Vile
American Association of University Professors
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furthe r reading
Vandiver, W. Aaron. “Comment: Checking Ideas at the Border: Evaluating the Possible Renewal of Ideological Exclusion.” Emory Law Journal 55 (2006): 751–90.
Calvert, Clay. “Violence,Video Games, and a Voice of Reason: Judge Posner to the Defense of Kids’ Culture and the First Amendment.” San Diego Law Review 39 (2002): 1–30. Pyle, Scott A.“Is Violence Really Just Fun and Games? A Proposal for a Violent Video Game Ordinance That Passes Constitutional Muster.” Valparaiso University Law Review 37 (2003): 429–487.
American Amusement Machine Association v. Kendrick (7th Cir. 2001) In American Amusement Machine Association v. Kendrick, 244 F.3d 572 (7th Cir. 2001), the Seventh Circuit Court of Appeals ruled that an ordinance against violent video games could not be enforced by Indianapolis officials because it violated the First Amendment. The case represents the first federal appeals court decision invalidating such an ordinance on First Amendment grounds. Indianapolis had sought to limit minors’ access to video games deemed harmful to them because of the videos’ explicitly violent and sexual content. To this end, the ordinance prohibited minor access to violent video games in public unless accompanied by an adult. Several groups, including the American Amusement Machine Association, challenged the law, arguing that it violated their free expression rights along with those of minors. Judge Richard Posner, writing for a three-judge panel, cited the Odyssey, The Divine Comedy, and War and Peace as examples of classic literature that graphically depicts violence. He also noted that “classic fairy tales” contained violence. Many of the video games in the court record, he observed, dealt with the age-old themes of “self-defense, protection of others, dread of the ‘undead’, and fighting against overwhelming odds.” Posner rejected the argument that studies show that violent video games cause violence in minors. “Violent video games played in public places are a tiny fraction of the media violence to which modern American children are exposed,” he wrote.“Common sense says that the City’s claim of harm to its citizens from these games is implausible, at best wildly speculative.” Indianapolis appealed the Seventh Circuit’s decision to the U.S. Supreme Court, which declined review in October 2001. See also Harmful to Minors Laws; Posner, Richard;Video Games.
David L. Hudson Jr.
American Association of University Professors The American Association of University Professors (AAUP) is the largest organization representing the general interests of the academic profession in the United States. Chiefly concerned with the defense of academic freedom and tenure, it also addresses issues of governance, professional ethics, accreditation, and teaching standards and procedures. Among the events leading to the founding of the AAUP was the dismissal of sociologist E. A. Ross from Stanford University in 1901. Ross opposed the gold standard and had investigated the problems of immigrant workers, including Chinese laborers on the Southern Pacific Railroad. University founder Leland Stanford Jr., head of the Southern Pacific, intervened at the university to have Ross dismissed. In 1915 philosophers Arthur O. Lovejoy (of Johns Hopkins University) and John Dewey (of Columbia University) organized a meeting to form an association to ensure the academic freedom of faculty members. Dewey became the first president of the AAUP. The AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure, jointly authored with the Association of American Colleges, is the definitive articulation of the principles and practices of academic freedom and tenure and has been endorsed by about 150 learned societies and educational organizations.The AAUP responds to complaints of violations of academic freedom and tenure by providing consultation, mediation, and assistance in obtaining due process. Grave violations often result in an on-site investigation by the organization’s Committee A and censure of the school’s administration. The organization’s legal office files amicus curiae briefs before the courts on significant issues of academic freedom. During the cold war, the AAUP opposed loyalty oaths. Committee R (Government Relations) coordinates and engages in lobbying activities in Washington, D.C., and state capitols. It also monitors legislation and provides expert testimony, offering a faculty-oriented perspective on matters of equal opportunity, funding for research and student aid, and
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freedom of expression in the classroom. Other AAUP committees include B (Professional Ethics), C (College and University Teaching, Research, and Publication), D (Accreditation), E (Retirement), F (Chapters, Conferences, Members and Dues), G (Part Time and Non-Tenure Track Appointments), H (History of the Association), I (Association Investments), L (Historically Black Institutions and Status of Minorities), N (Representation of Economic and Professional Interests), O (Organization),T (College and University Government), V (Junior and Community Colleges), W (Status of Women), Y (Taxation), and Z (Economic Status). Membership in 2007 stood at approximately 45,000, with more than 500 local campus chapters and 39 state organizations. In addition, the association had more than 70 chapters and affiliates, mostly at public institutions, with faculty collective bargaining representation.The Collective Bargaining Congress governs the organization’s collective bargaining activities. AAUP’s annual report on faculty salaries and benefits, a key barometer of professional academics, is widely used and quoted. Academe, the association’s magazine for higher education, appears six times a year, offering news, analysis, and discussions on matters of concern to faculty. It often highlights First Amendment issues related to academic freedom. Redbook is a collection of AAUP policy documents and reports concerning the rights and responsibilities of members of the academic profession. See also Academic Freedom; Loyalty Oaths.
Martin Gruberg
furthe r reading Benjamin, Ernst, and Donald R.Wagner. Academic Freedom:An Everyday Concern. San Francisco: Jossey-Bass, 1994. Hutcheson, Philo A. A Professional Professoriate: Unionization, Bureaucratization, and the AAUP. Nashville, Tenn.: Vanderbilt University Press, 2000. Sanders, Jane. Cold War on the Campus: Academic Freedom on the University of Washington, 1946–64. Seattle and London: University of Washington Press, 1979.
American Aurora American Aurora, a tool of the Democratic-Republican Party, illustrates the use of newspapers as partisan instruments in early U.S. history.The government’s response to such opposition in the Sedition Act of 1798 illustrates the precariousness of press freedom in the formative years of the republic.
Richard Rosenfeld offers some of the best insight into the American Aurora in his American Aurora—A Democratic Republican Returns—The Suppressed History of our Nation’s Beginnings and the Heroic Newspaper That Tried to Report It. He uses the first person narrative of William Duane, assistant and successor to Benjamin Franklin Bache (founding editor of the Philadelphia Aurora and grandson of Benjamin Franklin) to report the political battles waged between Federalists and Republicans at the end of the eighteenth century. Duane’s account sets the stage for the Sedition Act, Alexander Hamilton’s threat of war with France, and the election of Thomas Jefferson as the nation’s third president. Through the use and arrangement of primary texts— newspaper articles and selected correspondence—Duane’s character presents the emboldened press as the site of exchange in the marketplace of ideas. Daily newspapers circulating throughout cities and towns tenaciously waged ideological battles for the hearts and minds of citizens. The Philadelphia Aurora and its rivals, the Gazette of the United States and the Porcupine Gazette, were primary vehicles for political communication, rallying cries for change in Philadelphia, the nation’s seat of government. The American Aurora represented Jeffersonian philosophy and the Philadelphia Democrats, who believed that the American Revolution had afforded citizens a unique historical opportunity to fully develop the rights of man, not only as active participants but as virtuous individuals. Issue after issue of the Aurora devoted discussion to British history, to help readers understand the historical and economic development of the monarchy and aristocracy.The editors thereby reminded the newly enfranchised of the horrors of laboring as cogs in machinery operated by elites.The Aurora called for the politics of majority rule and reconstitution of the judiciary. Bache, Duane, and their colleagues sought to end the practice of judicial review and reliance upon English common law for the resolution of disputes among American citizens. The Aurora struck fear in the heart of Philadelphia’s elite, especially the legal community, which perceived the call for the abolition of common law as advocating unbridled anarchy. In response, the Sedition Act codified and implemented an effort to silence those who disagreed with Federalist Party leaders Alexander Hamilton and President John Adams. Authorities charged Bache with sedition, but he died before arraignment in the 1798 pandemic of yellow fever that swept Philadelphia. Duane took up the call as editor of the Aurora,
American Booksellers Association v. Hudnut (7th Cir. 1985) continuing to attack the Adams administration as elitist, but the Sedition Act successfully muzzled political dissidence and curbed the power of the majoritarian wing of the Jeffersonian Democrats. The American Aurora serves as a historical reminder of the power of the press and the courage required to proffer alternative views in politically heated environments.The Sedition Act serves to remind of the fear that written words that challenge the status quo can excite among those who hold the seat of power and the lengths the powerful will go to in quelling its disposition. See also Adams, John; Bache, Benjamin Franklin; Hamilton, Alexander; Jefferson,Thomas; Sedition Act of 1798.
Carrie Russell
furthe r reading Shankman, Andrew. “Malcontents and Tertium Quids: The Battle to Define Democracy in Jeffersonian Philadelphia.” Journal of the Early Republic 19 (Spring 1999): 43–72. Watts, Stephen. The Republic Reborn: War and the Making of Liberal America, 1790–1820. Baltimore: University of Baltimore Press, 1987.
American Booksellers Association v. Hudnut (7th Cir. 1985) The decision in American Booksellers Association v. Hudnut, 771 F.2d. 323 (7th Cir. 1985), upheld a federal district court opinion declaring unconstitutional an Indianapolis antipornography ordinance that made it illegal to depict women in sexually subordinate roles or positions. In so ruling, the Seventh Circuit Court of Appeals found that the city ordinance violated the First Amendment. In the early 1980s at the urging of women’s rights advocates—including Catharine MacKinnon and Andrea Dworkin, who argued that pornography sexually demeaned women—Minneapolis and some other cities contemplated ordinances or local laws to make certain forms of sexually explicit material illegal. Proponents contended that such material violated the civil rights of women and adversely affected social attitudes towards them.Although Minneapolis decided not to adopt an ordinance, Indianapolis did, in 1984. Its law stated that any sexually explicit material that depicted women as sexual objects—interpreted as appearing to enjoy pain or humiliation, domination, or rape—and otherwise depicted them in sexually subordinate and humiliating roles would be considered a civil rights violation.The ordinance also gave individuals who claimed to have been
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harmed by such depictions a right to sue the maker or seller of the pornography. Before the law took effect, the American Booksellers Association, an organization representing bookstores, sought an injunction in federal court to prevent the anti-pornography law from being enforced. They argued that the ordinance violated the First Amendment free speech clause in that it censored protected expression and that its vagueness rendered the law unenforceable.The district court issued the injunction, declaring the law unconstitutional.The decision was appealed to the Seventh Circuit. In an opinion by Judge Frank Easterbrook, the appeals court noted that the Supreme Court had ruled in Miller v. California (1973) that for material to be obscene it had to, when viewed as a whole, appeal to the “prurient interest,” contain patently offensive depictions or descriptions of specified sexual conduct, and on the whole have no “serious literary, artistic, political, or scientific value.” Obscene material is not protected by the First Amendment and so may be proscribed. Pornographic material—so long as it fails to meet the Miller requirements—is, however, protected by the First Amendment and may not be banned. Because, according to the Court, the Indianapolis ordinance sought to regulate sexually explicit material determined not to be obscene, it was inconsistent with the Miller test. Moreover, the court stated that under the Indianapolis ordinance, classic works by Homer and James Joyce might be considered illegal because they describe women as submissive objects for conquest and domination. Although the court noted that the type of pornography that the ordinance sought to proscribe might in fact adversely influence how women are treated in society, the First Amendment protects all types of viewpoints, including those that describe or depict women in sexually subordinate and inferior positions. Although American Booksellers Association ended efforts to declare pornography a civil rights violation, controversy over the impact of the sexual depiction of women continues. Some argue that pornography is not harmful and that women should be free voluntarily to participate in it, while others see it as harmful and degrading, especially when individuals are unwillingly subjected to it in the workplace. In the latter situation, the courts have often found this to be a form of sexual harassment. See also Dworkin, Andrea; MacKinnon, Catharine; Miller v. California (1973); Obscenity and Pornography; Sexual Harassment Laws.
David Schultz
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furthe r reading Dworkin, Andrea. Pornography: Men Possessing Women. New York: E. P. Dutton, 1990. MacKinnon, Catharine L. Women’s Lives, Men’s Laws. Cambridge: Belknap Press, 2005. ———. Toward a Feminist Theory of the State. Cambridge, Mass.: Harvard University Press, 1991.
American Booksellers Foundation for Free Expression The American Booksellers Association founded the American Booksellers Foundation for Free Expression (ABFFE) in 1990 to promote the free exchange of ideas by defending the First Amendment rights of booksellers, their customers, and others against censorship, especially as they relate to reading materials. It educates booksellers and others about the importance of free expression and the dangers to First Amendment rights posed by censorship; collaborates with other free speech interest groups in challenging censorship and supporting free speech; and participates in legal cases involving First Amendment rights. The ABFFE has been an outspoken opponent of the USA Patriot Act since its enactment forty-five days after the September 11, 2001, al-Qaida attacks. It particularly opposes section 215, which authorizes the Federal Bureau of Investigation (FBI) to obtain bookstore and library records, and section 505, which authorizes the FBI to issue so-called national security letters requiring Internet service providers, telephone companies, and libraries secretly to hand over digital records of their clients’ activities. Congress reauthorized the act in 2006 with some restraints on the FBI’s activities under section 215. In 2005 the foundation joined the American Library Association and the Freedom to Read Foundation in filing an amicus brief in support of a challenge by the American Civil Liberties Union on behalf of the Library Connection, a consortium of libraries in Connecticut, against an FBI effort to force a Connecticut library to supply it information relating to a specific Internet Protocol (IP) address. As the case made its way through the federal courts, the Department of Justice dropped its demand for the records. The ABFFE also joined with other organizations committed to First Amendment rights to challenge parts of the Communications Decency Act of 1996 and the Child Online Protection Act of 1998, which attempted to regulate minors’ access to indecent material via the Internet. In Reno v. American Civil Liberties Union (1997), the Supreme Court
held that the First Amendment protected speech on the Internet and that the provisions of the Communications Decency Act referencing “indecent” and “patently offensive” materials were unconstitutionally vague. In Ashcroft v. American Civil Liberties Union (2004), the Court affirmed a lower court injunction against enforcement of the Child Online Protection Act, because it also suppressed legitimate adult speech. Not all of the foundation’s efforts have been successful, of course. It filed an amicus brief in a challenge to the Children’s Internet Protection Act of 2000, but in United States v. American Library Association (2003), the Supreme Court held as constitutional the act’s requirement that public libraries install removable filters to block access to pornographic Internet sites. It also filed an amicus brief in Beard v. Banks (2006), supporting the First Amendment rights of a prisoner in solitary confinement to receive newspapers, magazines, and photographs. The Court ruled that the state had the right to curtail the inmate’s reading material. The foundation has opposed congressional efforts to amend the Constitution to prohibit flag burning out of concern that it could lead to the suppression of legitimate protests and potentially erode freedom of expression. It cosponsors Banned Books Week, a national event held the last week of each September to celebrate the freedom to read and to educate the public about First Amendment rights. Its newsletter, ABFFE Update, provides information about its numerous activities at the local, state, and national levels. See also American Library Association; Ashcroft v. American Civil Liberties Union (2002) (2004); Banned Books Week; Beard v. Banks (2006); Child Online Protection Act of 1998; Communications Decency Act of 1996; Reno v. American Civil Liberties Union (1997); United States v. American Library Association (2003); USA Patriot Act of 2001.
Judith Haydel
furthe r reading American Booksellers Foundation for Free Expression, www.abffe.org. American Library Association. “Banned Books Week: Background.” www.ala.org/ala/oif/bannedbooksweek/backgroundb/background.htm. Corn-Revere, Robert. “Overview: Internet and the First Amendment.” First Amendment Center. www.firstamendmentcenter.org/ speech/internet/overview.aspx. McMasters, Paul K.“Overview: Libraries and First Amendment.” First Amendment Center. www.firstamendmentcenter.org/speech/ libraries/overview.aspx. Yeh, Brian T., and Charles Doyle. USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis. Washington, D.C.:
American Civil Liberties Union Congressional Research Service, 2006. www.fas.org/sgp/crs/ intel/RL33332.pdf.
American Center for Law and Justice The American Center for Law and Justice (ACLJ), a public interest law firm and political advocacy group, focuses on issues of religious freedom and “family values.” Marion “Pat” Robertson founded the organization in 1990 to act as the legal advocacy arm of the religious conservative movement. Although like-minded organizations existed at the time of the center’s establishment, the American Center for Law and Justice quickly became a leading voice for greater government support of religion and conservative views on marriage, education, and family. In terms of budget, staff, and volume of high-profile cases, the ACLJ is today the largest and arguably most prominent of the advocacy firms that draw their support largely from American religious conservatives. Some of the center’s prominence reflects the efforts of its chief counsel, Jay Alan Sekulow, a Jewish convert to Christianity who in a string of intensely controversial cases has earned a reputation as an aggressive litigator. Many of the ACLJ’s abortion-related cases have focused on the First Amendment rights of abortion protesters, culminating recently in Sekulow’s successful challenge to the use of the federal government’s racketeering statute against Operation Rescue in Operation Rescue v. National Organization for Women (2006). Sekulow has also argued establishment clause cases, including Board of Education of the Westside Community Schools v. Mergens (1990), Lamb’s Chapel v. Center Moriches Union Free School District (1993), Sante Fe Independent School District v. Doe (2000), and Locke v. Davey (2004). Under Sekulow’s leadership, the ACLJ has developed an expertise in using the free speech and establishment clauses to defend the principle of “equal access” of religious groups to public resources, and it also has become adept at monitoring the implementation of its victories (and even its losses). The ACLJ’s rise to prominence is also related to its founder’s breadth of involvements. Robertson, a Yale Law School graduate, envisioned the ACLJ as counterpart to the American Civil Liberties Union and the legal complement to his media, political, and educational organizations—the Christian Broadcasting Network, Regent University (including Regent’s College of Law), and Christian Coalition, respectively.These groups provide important syn-
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ergies for the ACLJ by generating opportunities for publicity, fundraising, and expertise. For example, Sekulow has ready-made visibility as a frequent guest on the 700 Club, Robertson’s nationally broadcast television program, and Regent’s law school provides the ACLJ with student interns, lawyers, and other forms of legal expertise. The ACLJ has had an uneasy relationship with other organizations sympathetic to its goals. Nevertheless, it has emerged as a leader among rights-advocacy groups that identify with religious conservatism, and the organization’s ever-widening focus and bases of support suggest that unlike many other political groups associated with American evangelicalism, the ACLJ will remain a force for years to come. See also American Civil Liberties Union; Board of Education of the Westside Community Schools v. Mergens (1990); Equal Access Act of 1984; Lamb’s Chapel v. Center Moriches Union Free School District (1993); Locke v. Davey (2004); Religious Right; Sante Fe Independent School District v. Doe (2000); Sekulow, Jay Alan.
Kevin R. den Dulk
furthe r reading American Center for Law and Justice, www.aclj.org. den Dulk, Kevin R. “In Legal Culture, but Not of It: The Role of Cause Lawyers in Evangelical Legal Mobilization.” In Cause Lawyering and Social Movements, ed. Austin Sarat and Stuart Scheingold. Palo Alto, Calif.: Stanford University Press, 2006.
American Civil Liberties Union The American Civil Liberties Union (ACLU) states as its mission the protection and preservation of First Amendment rights, equal protection under the law, due process, and the right to privacy. It also works for the extension of rights to groups traditionally denied them. It seeks to do so through community outreach and education, legislation, and litigation. Its participation in many of the major civil liberties cases in the United States has made it one of the most influential and controversial nongovernmental organizations in the country, drawing criticism from a cross-section of the political spectrum for its positions on contentious issues and in its protection of the First Amendment. The ACLU was founded in 1920 by a number of prominent figures, including Roger Baldwin (former head of the National Civil Liberties Bureau, a group born out of the American Union Against Militarism), Crystal Eastman, Albert De Silver, Helen Keller, and others. At the time, ensuring the protection and respect for individuals’ civil liberties included protecting aliens facing deportation and
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Attorney Laurence Tribe, representing the American Civil Liberties Union, argues a case before the Ninth Circuit Court of Appeals in September 2003.
assisting U.S. nationals threatened by U.S. attorney general Alexander Mitchell Palmer with criminal charges for communist or socialist activities. The ACLU also supported the Industrial Workers of the World (IWW), opposing government legislation that attacked the rights of the IWW and other labor unions to organize and meet.The ACLU’s predecessor, the National Civil Liberties Bureau, had opposed U.S. intervention in World War I and provided legal advice and assistance for conscientious objectors to the war and those being prosecuted under the Espionage Act of 1917 and the Sedition Act of 1918. Notable episodes within the ACLU’s history include the barring of communists from leadership or staff positions within the organization in 1940, a policy that provoked much criticism from leftist attorneys and some of its later members. In more recent history, the ACLU has been a strong voice in opposition to the USA Patriot Act of 2001, its renewal (Patriot II), and other legislation passed in response to the threat of terrorism following the al-Qaida attacks of September 11, 2001. The ACLU asserts that the legislation as enacted violates the letter and spirit of the Bill
of Rights. The ensuing debate on the balance between the protection of civil liberties and security priorities has led to an increase in the ACLU’s activities as well as growth in its membership since 2001. The ACLU houses its national headquarters in New York City and has locally based affiliates organized into fifty chapters (generally one per state, although California has two chapters, and North and South Dakota share one). Each chapter has a certain amount of autonomy, allowing it to work independently of the national organization in New York. In fact, many of the ACLU’s cases originate at the local level and are handled by lawyers there who review state legislation on behalf of individuals or parties concerning civil liberties and First Amendment issues within the state. In addition to its primary work on equal protection, due process, and the First Amendment clauses concerning freedom of speech, assembly, and religion, the ACLU has also taken positions on a wide range of contentious issues, including desegregation, discrimination against gay, lesbian, bisexual, and transgender people, and the decriminalization of marijuana. It has supported the separation of state and
American Civil Liberties Union v. National Security Agency (E.D. Mich. 2006) church by opposing government-sponsored displays of religious symbols on public property, affirmative action as a means of redressing discrimination, and reproductive rights of women. Some of the ACLU’s more controversial stances involve its support of unpopular people or organizations in holding to its position that all citizens and residents of the United States be allowed to exercise their free speech rights. For example, the ACLU has defended the free speech rights for the Ku Klux Klan and neo-Nazi groups although these groups’ stances on other issues conflict with those of the ACLU. In another instance concerning the protection of free speech, the ACLU fought proposed anti-“spam” legislation in 2000 that it argued infringed free speech through the forced labeling of all e-mail. The ACLU’s most important activities have involved court tests of civil liberties issues. The ACLU has been directly or indirectly involved in most major civil liberties cases contested in the courts since its founding, and it has been one of the most active and successful litigants before the Supreme Court in this arena.These test cases include the 1925 Scopes monkey trial in Tennessee, in which it opposed a law against the teaching of evolution (1925); Hirabayashi v. United States (1943), where it unsuccessfully opposed curfews for Japanese American citizens during World War II; the landmark Brown v. Board of Education (1954), in which it successfully opposed racial segregation; and Loving v. Virginia (1967), where it successfully challenged state bans on interracial marriage. Other cases handled by the ACLU include Roe v. Wade (1973), in which it successfully argued that a woman’s right to privacy extends to abortion; support in 1977 and 1978 for the efforts by the National Socialist Party of America, an offshoot of the American Nazi Party, to conduct parades and demonstrations in Skokie, Illinois; opposition to a 1981 Arkansas statute requiring that public schools teach the biblical account of creation as an alternative to the theory of evolution; and a challenge to Congress’s first major attempt to regulate Internet speech in Reno v. American Civil Liberties Union (1997). In more recent cases, the ACLU has led in opposing legislation, including the USA Patriot Act, restricting civil liberties in the name of security against terrorism. Cases challenging the Patriot Act in which the ACLU has participated include Ashcroft v. American Civil Liberties Union (2004), regarding wiretaps and secretly subpoenaed customer
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records from telephone and Internet providers as part of terrorist activity investigations, and American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich. 2006), concerning warrantless surveillance. See also American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich. 2006);American Nazi Party and Related Groups;Ashcroft v.American Civil Liberties Union (2002) (2004); Baldwin, Roger; Criminal Syndicalism Laws; Espionage Act of 1917; Palmer, A. Mitchell; Reno v. American Civil Liberties Union (1997); Sedition Act of 1918; USA Patriot Act of 2001.
Dale Mineshima
furthe r reading American Civil Liberties Union, www.aclu.org. Donohue, William A. The Twilight of Liberty: The Legacy of the ACLU. Rev. ed. Somerset, N.J.:Transaction Publishers, 2001. Goldberger, David, Joel M. Gora, Morton H. Halperin, and Gary M. Stern. The Right to Protest:The Basic ACLU Guide to Free Expression. Carbondale: Southern Illinois University Press, 1991. Sears, Alan, and Craig Osten. The ACLU vs. America: Exposing the Agenda to Redefine Moral Values. Nashville, Tenn.: Broadman and Holman, 2005. Walker, Samuel. In Defense of American Liberties: A History of the ACLU. 2d ed. Carbondale: Southern Illinois University Press, 1999.
American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich. 2006) In American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich. 2006), U.S. district court judge Anna Diggs Taylor issued an injunction against the so-called terrorist surveillance program (TSP), implemented by the National Security Agency (NSA) with President George W. Bush’s approval after the al-Qaida attacks of September 11, 2001. Both sides agreed, however, that the program would remain in place until a decision by the court of appeals. This highly anticipated decision, based on First and Fourth Amendments issues, was the first to address the legality of the secret program involving the warrantless tapping of conversations between individuals in the United States and individuals abroad believed to be connected with terrorism. Taylor agreed with the government that it could use the state secrets privilege—barring disclosures detrimental to national security—in prohibiting the plaintiffs from forcing
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the NSA to disclose its efforts at “data-mining” telephone data, which the government had not officially acknowledged. She also held, however, that the state secrets privilege did not bar journalists, professors, and attorneys from challenging the program because Bush had already acknowledged instituting a warrantless surveillance program outside current laws; no privilege therefore needed to be breached to determine this. Taylor ruled that the plaintiffs had established standing by showing that individuals with whom they previously had contact were now deterred from talking with them over phone lines. The program thus had a chilling effect on First Amendment rights. The plaintiffs had also challenged the program on Fourth Amendment grounds. In reviewing the history of electronic surveillance in the United States, Taylor observed that United States v. U.S. District Court (1972) had established a Fourth Amendment requirement to obtain prior warrants for domestic security matters. Under the Foreign Intelligence Surveillance Act (FISA), Congress had crafted exceptions for dealing with emergencies, but Bush had not pursued these options.Taylor further explored the connection between the First and Fourth Amendments by noting that both were in part reactions against British abuses under the Star Chamber. Citing United States v. U.S. District Court, she wrote, “Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power.” Taylor further relied chiefly on Youngstown Sheet and Tube v. Sawyer (1952) to establish the framers’ balancing of presidential power against that of the other two branches.Taylor did not agree with the government’s argument that Congress’s passage of the Authorization for Use of Military Force (AUMF) against Afghanistan after September 11 exempted or intended to exempt the president from FISA requirements. Contrasting the elective presidency with hereditary kings, Taylor argued “all ‘inherent powers’ must derive from that Constitution.” She further cited Ex parte Milligan (1866) for the principle that the “Constitution of the United States is a law for rulers and people, equally in war and in peace.” She ended with a citation to United States v. Robel (1967), offering that “national defense” should not lead to “the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile.” In 2007 the Sixth Circuit Court of Appeals (493 F. 3d 644) vacated this decision and remanded it to the district court to dismiss for lack of jurisdiction. The circuit court observed that the plaintiffs had argued that they were
restraining their phone conversations with foreigners, and foreigners with them, for fear that such exchanges might be wiretapped, and that even if a warrant requirement were added, such fears might continue. Thus, any effects on freedom of speech were largely speculative.The Supreme Court left this decision in place when it denied certiorari on February 19, 2008. See also American Civil Liberties Union; Chilling Effect; Star Chamber; United States v. Robel (1967).
John R.Vile
furthe r reading Burton, Adam. “Fixing FISA for a Long War: Regulating Warrantless Surveillance in the Age of Terrorism.” Pierce Law Review 4 (2006): 381–404.
American Committee for Protection of Foreign Born v. Subversive Activities Control Board (1965) In American Committee for Protection of Foreign Born v. Subversive Activities Control Board, 380 U.S. 503 (1965), the Supreme Court responded to a challenge by the American Committee for Protection of Foreign Born of its classification as a communist-front organization by remanding the case to the Subversive Activities Control Board to ascertain whether the committee should continue to be classified as such and therefore required to register under the Subversive Activities Control Act of 1950, also known as the McCarran Act. The Court’s per curiam opinion observed that the control board had based its classification in part on the membership of its leader, Abner Green, in the Communist Party, and that in light of Green’s death it should reconsider the designation. Justice William O. Douglas dissented, objecting to what he considered to be the Court’s refusal to examine the control board’s authority to classify organizations as communist. He observed that the board had considered lots of evidence other than Green’s own affiliation in making its initial classification. In a separate dissent, Justice Hugo L. Black cited his dissent in Communist Party v. Subversive Activities Control Board (1961) to argue that the Subversive Activities Control Act was unconstitutional. He believed its actions constituted illegal bills of attainder, imposed “cruel, unusual and savage punishments for thought, speech, writing, petition and assembly, and that it stigmatizes people for their beliefs, associations and views about politics, law, and government.” He
American Federation of Labor v. American Sash and Door Co. (1949) objected to the Court’s attempts to dodge such “thought-stifling” actions, which he believed denied “the constitutional heritage of every freedom-loving American.” In a companion case, Veterans of the Abraham Lincoln Brigade v. Subversive Activities Control Board, the Court found that the determination that the brigade was a communist organization was too “stale” for review. Justice Black referred readers to his dissent in American Committee, while Justice Douglas, joined by Black and John Marshall Harlan, argued that the case was ripe for review and should be decided by the Court. See also Black, Hugo L.; Communist Party of the United States; Communist Party of the United States v. Subversive Activities Control Board (1961); Douglas,William O.; McCarran Act of 1950.
John R.Vile
furthe r reading Bigel, Alan I. “The First Amendment and National Security: The Court Responds to Governmental Harassment of Alleged Communist Sympathizers.” Ohio Northern University Law Review 19 (1993): 885–926.
American Communications Association v. Douds (1950) In American Communications Association v. Douds, 339 U.S. 382 (1950), the Supreme Court upheld the constitutionality of section 9(h) of the Labor Management Relations Act of 1947.The provision required that for labor unions to utilize the benefits and protections of the National Labor Relations Board (NLRB), they must file affidavits “by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate . . . [declaring] that he is not a member of the Communist party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches the overthrow of the United States Government by force or by illegal or unconstitutional methods.” Congress created the NLRB to encourage and protect the flow of interstate commerce and discourage and guard against “institutional impediments,” such as strikes and other forms of industrial unrest. It identified “political strikes” as an impediment and, according to testimony presented before Congress, as resulting from “Communist labor union leaders subordinating legitimate trade union objectives to obstructive strikes when dictated by Party leaders, often in support
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of the policies of a foreign government.” Petitioners countered that section 9(h), known as the “non-Communist affidavit provision,” effectively prohibited union leadership by those who could not sign the oath and that such a law violated fundamental First Amendment rights. “The difficult question that emerges,” wrote Chief Justice Frederick M. Vinson in his opinion for the Court, is “whether, consistently with the First Amendment, Congress, by statute, may . . . deny positions of leadership to certain persons who are identified by particular beliefs and political affiliations.”The Court answered this question in the affirmative. Given Congress’s constitutional power to regulate commerce among the states, including preventing actions that might burden or interrupt the free flow of commerce, Congress could rationally find that the Communist Party and individuals who espoused revolutionary beliefs represented legitimate threats to commerce. The Court admitted that in drawing lines on the basis of “beliefs and political affiliations . . . Congress has undeniably discouraged the lawful exercise of political freedoms.” It went on to note that “[w]hen particular conduct is regulated in the interest of public order, and the regulation results in an . . . abridgment of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances.” The Court then concluded that under the totality of the circumstances, “section 9(h) of the National Labor Relations Act . . . does not unduly infringe freedoms protected by the First Amendment.” See also Carolene Products Footnote Four; Loyalty Oaths; United States v. Schwimmer (1929);Vinson, Frederick M.
Carrie Archie
furthe r reading Jones, C. M. Primer of Intellectual Freedom. Cambridge, Mass.: Harvard University Press, 1949. Wood, Diane P. “The Rule of Law in Times of Stress.” University of Chicago Law Review 70 (2003): 455–470.
American Federation of Labor v. American Sash and Door Co. (1949) In American Federation of Labor v.American Sash and Door Co., 335 U.S. 538 (1949)—issued the same day as Lincoln Federal Labor Union v. Northwestern Iron and Metal Co. and Whitaker v. North Carolina—the Supreme Court upheld a right-to-
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work amendment to the Arizona constitution, which had prohibited discrimination against nonunion members (including their exclusion from employment), against constitutional challenges, including First Amendment claims. In so ruling, the Supreme Court affirmed a federal district court decision dismissing a plea brought by unions, a union official, and an employer. Justice Hugo L. Black, in the majority opinion, observed that the Arizona measure was basically covered by the rationale in Lincoln Federal, which rejected challenges to right-to-work laws under First Amendment speech, assembly, and petition claims, the contract clause, and the due process clauses, except that Arizona had not also explicitly adopted similar rules to protect union workers. Black did not think this difference resulted in a denial of equal protection of the laws for union workers. He observed that other cases had established that states could address one set of evils without addressing them all. Justice Felix Frankfurter wrote a concurring opinion in which he reviewed the history of past Court pronouncements on economic matters and concluded that the justices should generally defer to such judgments. He specifically observed that the matter at hand was not “like censorship of the press or separation of Church and State, on which history, through the Constitution, speaks so decisively as to forbid legislative experimentation.” Justice Wiley Rutledge wrote a separate concurrence, indicating that he did not think the Court’s decisions of the day necessarily answered the issue as to whether unions could call strikes in order “not to work with nonunion men.” See also Black, Hugo L.; Frankfurter, Felix; Lincoln Federal Labor Union v. Northwestern Iron and Metal Co. (1949).
John R.Vile
furthe r reading Gardbaum, Stephen. “New Deal Constitutionalism and the Unshackling of the States.” University of Chicago Law Review 64 (1997): 483–566.
American Federation of Labor v. Swing (1941) In American Federation of Labor v. Swing, 312 U.S. 321 (1941), the Supreme Court held that the state’s common law policy forbidding peaceful persuasion through picketing when there was “no immediate employer-employee dispute” vio-
lated freedom of discussion. Swing, who owned a beautyshop, had gone to court to get an injunction against union picketers who were trying to unionize his business. Reviewing the complexities of the lower court injunctions and decisions, Justice Felix Frankfurter, in the majority opinion, wrote that these complexities showed “ ‘peaceful persuasion’ disentangled from violence and free from ‘picketing en masse or otherwise conducted’ so as to occasion ‘imminent and aggravated danger.’ ” In such circumstances, he concluded,“Such a ban of free communication is inconsistent with the guarantee of freedom of speech.” He added, “A state cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him.” He thus affirmed, “The right of free communication cannot . . . be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ.” Justice Owen J. Roberts authored a dissent joined by Chief Justice Charles Evans Hughes, arguing that the questions of Illinois procedure were not adequately established by the record for the Court to intervene. See also Frankfurter, Felix; Picketing.
John R.Vile
furthe r reading Pope, James Gray. “Labor and the Constitution: From Abolition to Deindustrialization.” Texas Law Review 65 (1987): 1971.
American Friends Service Committee The American Friends Service Committee (AFSC) is an international social justice organization with a mission based on Quaker philosophy. Founded in 1917 after the United States entered World War I,AFSC initially mobilized conscientious objectors and anti-war activists to support relief and reconstruction initiatives that served poor communities and war-torn countries. In the late 1930s, before the start of World War II, AFSC assisted victims of the Nazis. A strong advocate of nonviolence, AFSC was awarded the Nobel Peace Prize in 1947. The beginning of the cold war marked a significant period for AFSC. As anti-communist hysteria gained steam, AFSC intensified its political activism and expressed its dis-
American Friends Service Committee agreement with the United States’ containment policy. Instead, it called for a de-escalation of tensions between the United States and the Soviet Union, a position that it maintained throughout the cold war. AFSC’s nonaligned stance led to government scrutiny and surveillance of itself and similarly positioned groups for allegedly being communist sympathizers. With the blacklisting of suspected communists and AFSC’s experience during the cold war, the organization became a vocal proponent of First Amendment protections, especially the right of association and freedom of speech. Through the work of executive secretary Clarence Pickett, AFSC and several other groups formed the National Committee to Abolish the House Un-American Activities Committee, which had been created in 1938 and targeted, among others, anti-war groups and, later, peace activists who disagreed with U.S. cold war policy. From the 1940s on,AFSC advocated civil rights and civil liberties protections for an assortment of groups, including prisoners, interned Japanese and Japanese Americans, civil rights activists, and resident and nonimmigrant aliens.AFSC joined the American-Arab Anti-Discrimination Committee and a myriad of other organizations in challenging the Immigration and Nationality Act of 1952, also known as the McCarran-Walter Act.The law allowed for the deportation of alien residents without providing them due process if they were suspected of being members of a communist organization or engaged in subversive activities. The case, American-Arab Discrimination Committee v. Meese (C.D. Cal. 1989), stems from the 1987 arrests of eight members of the Popular Front for the Liberation of Palestine (PFLP). The U.S. government began deportation procedures against the eight after their arrest on the grounds of associating with a subversive organization. The plaintiffs argued that the McCarran-Walter Act had been selectively enforced against the PFLP members and violated their First and Fifth Amendment protections of freedom of expression and due process. District and appellate courts ruled in their favor, and a year later, Congress repealed the act. A decade later, however, in Reno v. American-Arab AntiDiscrimination Committee (1999), the Supreme Court issued an 8-1 decision allowing the attorney general to begin deportation proceedings against subversive, alien individuals and groups without the oversight of the federal courts. Civil libertarians objected, arguing that removing federal court jurisdiction would prevent the aforementioned groups from having their civil liberties safeguarded by judicial review.
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AFSC’s religious orientation became a point of contention in American Friends Service Committee v. Thornburgh (9th Cir. 1991), which concerned the employment status of illegal immigrants. AFSC had challenged a provision of the Immigration Reform and Control Act (IRCA) of 1986, which mandated that employers certify the citizenship or legal status of prospective employees as a condition of employment. AFSC contended that the First Amendment’s right to freedom of religion exempted it, as a Quaker-oriented organization, from this provision. It argued that much of its work, which includes international activities, was rooted in Quaker principles, which required it to welcome aliens.The Ninth Circuit Court of Appeals disagreed, stating that the IRCA was not purposefully designed to curtail religious freedoms. AFSC has been a staunch opponent of recent attempts by government to restrict the right of association and other civil liberties. In the 1990s, it helped to establish the Bill of Rights Alliance, a coalition of mostly liberal organizations to lobby against congressional attempts to restrict civil liberties. In American Friends Service Committee v. Department of Defense (3d Cir. 1987), it used the Freedom of Information Act (FOIA) to investigate civil liberties violations by attempting to force the Department of Defense to disclose unclassified documents. The courts ruled against AFSC in this instance. Shortly after the September 11, 2001, al-Qaida attacks, AFSC filed a FOIA request to determine whether the Department of Defense’s Threat and Local Observation Notice (TALON) database—created as part of George W. Bush’s “war on terrorism”—had illegally monitored antiwar and social justice organizations. (The Pentagon announced the closure of the TALON program in 2007.) AFSC also harshly criticized the USA Patriot Act, the major anti-terrorism law passed shortly after the September 11 attacks, for the statute’s possible infringement of civil liberties. Headquartered in Philadelphia, AFSC remains one of the most influential social justice organizations. See also Conscientious Objection to Military Service; House UnAmerican Activities Committee; Quakers; USA Patriot Act of 2001; Vietnam War.
Sekou Franklin
furthe r reading American Friends Service Committee, www.afsc.org. Brown, Drew. “ACLU Tries to Force Pentagon to Turn over Records on Peace Groups.” Knight Ridder Tribune News Service, June 14, 2006.
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American Indian Religious Freedom Act of 1978 as Amended in 1994
Esser,William, IV. “Religious Hybrids in Lower Courts: Free Exercise Plus or Constitutional Smoke Screen.” Notre Dame Law Review 74 (October 1998): 211–243. Henthorne, Heather R. “Resident Aliens and the First Amendment: The Need for Judicial Recognition of Full Free Speech and Association Rights.” Catholic University Law Review 39 (Winter 1990): 595–637. Ingle, H. Larry. “The American Friends Service Committee, 1947–1949: The Cold War’s Effect.” Peace and Change 23 (1998): 27–48. Kamali-Miyamoto, Maryam. “The First Amendment after Reno v. American-Arab Anti-Discrimination Committee: A Different Bill of Rights for Aliens.” Harvard Civil Rights–Civil Liberties Law Review 35 (Winter 2000): 185–224. Kopel, David, and Joseph Olson. “Preventing a Reign of Terror: Civil Liberties Implications of Terrorism Legislation.” Oklahoma City Law Review 21 (Summer/Fall 1996): 247–347. Treleven, Dale E. “Interviewing a Close Friend, First Amendment Activist Frank Wilkinson.” Journal of American History 85 (September 1998): 611–619.
American Indian Religious Freedom Act of 1978 as Amended in 1994 The 1994 amendment to the American Indian Religious Freedom Act of 1978 provided that “the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or by any State.” It went on to allow governments to enforce specific prohibitions against ingesting such drugs by on-duty law enforcement officials and members of the military. Congress adopted the law after the Supreme Court issued decisions that failed to protect sacramental drug use. The American Indian Religious Freedom Act of 1978 had provided that “it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites.” Native Americans constitute a small percentage of the population, so Congress passed this legislation, in its view, to protect minority religious beliefs. According to Louis Fisher (2001/2002), the 1978 law expressed “only a general policy” and lacked enforcement mechanisms. He observes, for example, that lower federal
courts did not consider the statute to require blocking the construction of dams that would flood Native American holy sites. Moreover, the Supreme Court ruled in Lyng v. Northwest Indian Cemetery Protective Association (1988) that the free exercise clause did not require the government to prevent logging in a National Park near sacred Indian grounds. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court ruled that a state was not compelled to exempt the sacramental use of peyote by Native Americans because the drug laws in question were general laws, not ones aimed at particular religious adherents. Citing its power under section 5 of the Fourteenth Amendment to enforce equal protection, Congress responded to the Smith decision by adopting the Religious Freedom Restoration Act (RFRA) of 1993. It sought to require courts to apply a compelling interest test before justifying restrictions on religious exercise. A year after adopting RFRA, Congress moved to provide specific protection for the sacramental use of peyote by Native Americans by amending the American Religious Freedom Act of 1978. In City of Boerne v. Flores (1997), however, the Court ruled that instead of enforcing the Constitution, in enacting the RFRA, Congress had unconstitutionally sought to change its application to the states. Congress responded by adopting a more limited law, the Religious Land Use and Institutionalized Persons Act of 2000, which applied specifically to federal property. Conflicts and accommodations are likely to continue in this area in the near future. See also City of Boerne v. Flores (1997); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Lyng v. Northwest Indian Cemetery Protective Association (1988); Native Americans; Religious Freedom Restoration Act of 1993; Religious Land Use and Institutionalized Persons Act of 2000.
John R.Vile
furthe r reading Fisher, Louis. “Indian Religious Freedom: To Litigate or Legislate?” American Indian Law Review 26 (2001/2002): 1–39. Willis, Clyde. Student’s Guide to Landmark Congressional Laws on the First Amendment. Westport, Conn.: Greenwood Press, 2002.
American Library Association The American Library Association (ALA) supports the First Amendment rights of freedom of speech and press as they pertain to libraries, librarians, and library patrons. Its mission is to enhance learning and ensure free access to infor-
American Library Association mation by providing leadership to librarians and the library community. Established in Philadelphia in 1876 and now headquartered in Chicago, the ALA has promulgated numerous statements and policies articulating its position on intellectual freedom.The Library Bill of Rights affirms the association’s view that libraries are “forums for information and ideas.”As such, librarians should not discriminate in the selection or provision of information based on content; they should not discriminate against patrons in the provision of library materials and services; and they should challenge censorship and cooperate with other organizations to defend First Amendment freedoms. The ALA’s Freedom to Read Statement recognizes the freedom to read as an essential part of the U.S. Constitution and asserts that free and open communication is vital to a democratic society. It is in the public interest for publishers and librarians to make available the widest range of material from a variety of viewpoints. They should not prevent access to information because of the background or views of an author, nor should they tolerate government, group, or individual attempts to reduce or deny access to public information. The ALA’s involvement in First Amendment issues also includes promoting academic freedom, opposing censorship in schools, opposing Internet filtering in public and public school libraries, and protecting the privacy rights of library patrons. Its Office for Intellectual Freedom implements the organization’s policies regarding intellectual freedom as defined in the Library Bill of Rights, develops and maintains the association’s intellectual freedom programs, and provides advisory services and assistance to librarians. Its Intellectual Freedom Manual addresses practical issues confronting librarians in applying intellectual freedom principles. The ALA established (in 1945) an office in Washington, D.C., to track legislation of interest to the library community. It also maintains a Web site to help librarians stay abreast of legislative activities and to provide information about legislation involving library-related issues. It created the tax-exempt Freedom to Read Foundation in 1969 to help support and defend librarians who resist censorship and other challenges to First Amendment rights. Along with other organizations, the ALA co-sponsors the American Booksellers Foundation for Free Expression and Banned Books Week, a national celebration of the freedom to read and an opportunity to educate the public about First Amendment rights. The ALA consistently has challenged numerous laws that it contends infringe on the First Amendment right of free
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expression. It questioned the provisions of the Communications Decency Act, which led to the Supreme Court’s landmark decision in Reno v. American Civil Liberties Union (1997) declaring that provisions of the act designed to protect minors were unconstitutionally over broad. More recently, the ALA has opposed congressional efforts that it contends violate the First Amendment rights of library patrons who have a legitimate right to access material that may be inappropriate for or harmful to certain minors. In early 2007, the Senate and the House of Representatives introduced the Deleting Online Predators Act (DOPA), which if enacted would require schools and libraries to block access to commercial social networking Web sites and chat rooms to protect minors from sexual predators. The ALA opposes the legislation on the grounds that its language is overly broad and unclear and thus would block access to many Web sites and interactive Web applications of value to library patrons. In United States v. American Library Association (2003), the ALA unsuccessfully challenged the Children’s Internet Protection Act, which requires libraries that receive federal funds for Internet access to install filters on library computers to continue to receive funding. (Adults can request that the filters be turned off.) The association also opposes congressional efforts to protect national security in ways that violate the privacy and First Amendment rights of librarians and library patrons. It has called into question section 2709 of the USA Patriot Act, which allows the Federal Bureau of Investigation to issue socalled national security letters, which in the case of libraries secretly demands that they turn over patrons’ library records. The ALA and the Freedom to Read Foundation filed amicus briefs in Doe v. Gonzalez (2005), involving a challenge to a national security letter issued to Connecticut librarians. Although the case was resolved in the librarians’ favor and section 2709 amended, the ALA argues that the provision still poses a threat to First Amendment and privacy rights. See also American Booksellers Foundation for Free Expression; Censorship; Communications Decency Act of 1996; Deleting Online Predators Act of 2007; Doe v. Gonzales (2005); Libraries and Intellectual Freedom; Reno v.American Civil Liberties Union (1997); United States v. American Library Association (2003); USA Patriot Act of 2001.
Judith Haydel
furthe r reading American Library Association, www.ala.org.
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American Life League v. Reno (4th Cir. 1995)
———. “Freedom to Read Statement,” 2006. www.ala.org/oif/policies/freedomtoread. ———.“Intellectual Freedom,” 2006. www.ala.org/ala/oif/intellectual.htm. ———. Intellectual Freedom Manual. 7th ed. Chicago: American Library Association, 2006. ———. “Library Bill of Rights,” 2006. www.ala.org/alaorg/oif/ lbr.html. Starr, Joan. “Libraries and National Security: An Historical Review.” First Monday 9, no. 12 (2004). www.firstmonday.org/issues/ issue9_12/starr/index.html. Thomison, Dennis. A History of the American Library Association, 1967–1972. Chicago: American Library Association, 1978.
American Life League v. Reno (4th Cir. 1995) In American Life League v. Reno, 47 F.3d 642 (4th Cir. 1995), the Fourth Circuit Court of Appeals upheld the constitutionality of the Freedom of Access to Clinic Entrances Act (FACE) of 1994, a law to combat antiabortion activists who had become increasingly violent in their attempts to shut down or disrupt abortion clinic operations. FACE made it a federal crime to use force or the threat of force or physical obstruction to interfere with abortion clinics. For example, one violent incident had involved the fatal shooting of a doctor in Florida. On the day that President Bill Clinton signed FACE into law in May 1994, the American Life League (ALL) filed suit in a Virginia federal district court, arguing that the legislation was unconstitutional. ALL, a Virginia-based group whose members engaged in antiabortion legislative and educational activities, admitted that its members also sought to interfere with abortion providers and cause them financial harm by depriving them of clients. To achieve these goals, they physically obstructed clinic entrances and tried to intimidate women seeking abortions into changing their minds. ALL claimed that FACE violated the First Amendment because it singled out antiabortion views for punishment and was too vague. It also charged that the law exceeded congressional authority under the interstate commerce clause. In American Life League v. Reno (E.D. Va. 1994), the district court ruled against ALL and the organization appealed. A three-judge panel of the Fourth Circuit Court of Appeals unanimously affirmed the district court’s decision. The appellate court found that in enacting FACE, Congress cited substantial evidence of women being forced to cross state lines to obtain abortions made unavailable in their home states and of antiabortion protesters crossing state lines
to demonstrate at abortion clinics. Congress had thus rationally concluded that the abortion protests affected interstate commerce and had acted within its constitutional authority to regulate such commerce through FACE. The court also ruled that the law was reasonably designed to protect abortion providers and their clients and that antiabortion activists were not barred from peacefully protesting; they were only banned from obstructing clinics and using force or the threat of force. Because the law was aimed at illegal conduct, not at protected speech, it did not violate the First Amendment. In American Life League v. Reno (1995), the Supreme Court denied ALL’s petition for certiorari, refusing to hear the case. See also Abortion Protests;Viewpoint Discrimination.
Susan Gluck Mezey
furthe r reading Brownstein, Alan E. “Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-abortion Protests.” University of California at Davis Law Review 29 (1996): 553–638. Huberfeld, Nicole.“The Commerce Clause Post-Lopez: It’s Not Dead Yet.” Seton Hall Law Review 28 (1997): 182–212. Saylor, Elizabeth S. “Federalism and the Family after Morrison: An Examination of the Child Support Recovery Act, the Freedom of Access to Clinic Entrances Act, and a Federal Law Outlawing Gun Possession by Domestic Violence Abusers.” Harvard Women’s Law Journal 25 (2002): 57–140.
American Nazi Party and Related Groups The American Nazi Party is one of several hundred white supremacist groups in the United States whose words and actions have tested the limits of the First Amendment. George Lincoln Rockwell founded the party in 1959 with the mission of killing all Jews, sending blacks to Africa, and furthering other racial policies.The party ventured into politics in 1964, when Rockwell ran for president. Rockwell was assassinated in 1967 by John Patler, a former member of Rockwell’s group, but the party’s legacy continued, leading to the formation of several offshoots. In 1977 one such group, the National Socialist Party of America, planned a march through Skokie, Illinois, a Chicago suburb with a large Jewish population, including Holocaust survivors. The town attempted to prevent the march, but in Collin v. Smith (7th Cir. 1978), the Seventh Circuit Court of Appeals struck down a Skokie ordinance making it a crime to disseminate material that might incite
American Radio Association, AFL-CIO v. Mobile Steamship Association (1974)
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National Socialist Party of America leader John Schoop speaks to the media at a 2005 rally with several of his supporters and bodyguards behind him. In 1978 the Seventh Circuit Court of Appeals determined that the party’s display of swastikas during a peaceful march could not be deemed a crime.
racial or religious violence or hatred. Skokie officials wanted to apply this law to the party’s display of swastikas, which would allow authorities to deny a permit for the march.The appeals court noted that although the swastika might be an offensive symbol, its display during a peaceful march could not be considered a crime. The court wrote in its opinion that it is “the fact that our constitutional system protects minorities unpopular at a particular time or place from government harassment and intimidation, that distinguishes life in this country from life under the Third Reich.” As a result of the court’s decision, Skokie officials could not stop the march (which the party ultimately held in Chicago). Almost ten years earlier, in Brandenburg v. Ohio (1969), the Supreme Court had ruled that attempts to restrict the hateful speech of Ku Klux Klan leader Clarence Brandenburg on the basis of content and subject matter violated the First Amendment. In Brandenburg, the speech at issue was vehemently racist and anti-Semitic. Nonetheless, the Court held that speech cannot be banned solely because of its content; it could only be limited in cases where it presented the threat of imminent lawless action. Thus, when words turn to violence or intimidation, First Amendment protection becomes more limited.Take, for example, the issue of cross burning in Virginia v. Black (2003). After a lengthy discussion of the history of the Ku Klux Klan and white supremacy, the Supreme Court’s opinion held that it is constitutional for a state to
criminalize cross burning when such burning is done with the intent to intimidate, but not when it is used to make a political statement or as part of a group assembly. These cases illustrate that the First Amendment applies to all groups so long as their intent is not to intimidate or incite violence. This is sometimes a fine line. As a result of First Amendment protections, people are often forced to tolerate speech they find offensive. See also Brandenburg v. Ohio (1969); Cross Burning; Village of Skokie v. National Socialist Party of America (Ill. 1978);Virginia v. Black (2003).
Jason A. Abel
furthe r reading Delgado, Richard, and Jean Stefancic. Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment. New York: New York University Press, 1997. Strum, Philippa. When the Nazis Came to Skokie: Freedom for Speech We Hate. Lawrence: University of Kansas Press, 1999.
American Radio Association, AFL-CIO v. Mobile Steamship Association (1974) The Supreme Court decision in American Radio Association, AFL-CIO v. Mobile Steamship Association, 419 U.S. 215 (1974),
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American School of Magnetic Healing v. McAnnulty (1902)
held that an Alabama court’s injunction against picketing of foreign-flagged ships for alleged substandard treatment of their crewmembers did not violate the free expression rights guaranteed by the First and Fourteenth Amendments. The opinion, written by Justice William H. Rehnquist, focused chiefly on the issue of whether Alabama was precluded from intervening on the basis that the action involved a commercial matter pre-empted by federal action under the National Labor Relations Act, originally adopted in 1935. Rehnquist indicated that the decision rejecting the idea of such pre-emption in Windward Shipping v. American Radio Association, AFL-CIO (1974) applied to this case. Having so decided, Rehnquist noted that Alabama had an expressed policy prohibiting secondary boycotts and that the injunction in question furthered this policy. The Alabama Supreme Court had relied on Teamsters Union v. Vogt, Inc. (1957) to conclude that “if the picketing compromised valid public policies, it was not protected by its putative purpose of conveying information.” Rehnquist observed that “Vogt endorsed the view that picketing involves more than an expression of ideas.” It had also established that states had a “broad field” of action in such cases. Rehnquist further denied that the opinion in Amalgamated Food Employees Local Union 590 v. Logan Valley Plaza (1968) permitting picketing in this case because Logan Valley involved “the location of the picketing, not its purpose.” Justice William O. Douglas’s dissent focused on what he considered to be the adverse environmental impact of foreign-flagged ships. Justice Potter Stewart based his dissent, joined by Douglas and two other justices, on his belief that the issues affected commerce and thus fell under the authority of the National Labor Relations Board not the states. See also Amalgamated Food Employees Unioin Local 590 v. Logan Valley Plaza Inc. (1968); Picketing; Rehnquist,William H.; Stewart, Potter.
John R.Vile
furthe r reading Kahn, Peggy. Picketing: Industrial Disputes,Tactics, and the Law. London: Routledge and Kegan Paul, 1983.
American School of Magnetic Healing v. McAnnulty (1902) American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902), set a precedent furthering freedom of speech and the press by limiting the discretion of the postmaster general
concerning mail delivery. In this case, the postmaster had attempted to prohibit the delivery of letters by the American School of Magnetic Healing professing the ability to heal disease through influencing the mind. Justice Rufus W. Peckham’s opinion observes that enough doubt existed about claims of the effect of the mind upon the body that there “is no exact standard of absolute truth by which to prove the assertion false and a fraud.” If the Court were to allow the postmaster to make such decisions on his or her own, a decision could be taken to prohibit delivery of advertisements for the use of electricity to cure diseases, for vaccinations for smallpox, for homeopathic physicians, and for others. Peckham further argues that the plaintiff had not violated any congressional laws. Of note, while furthering the First Amendment, the Court’s opinion does not directly mention it. Justices Edward D. White and Joseph McKenna dissented without a written opinion. See also Mail.
John R.Vile
furthe r reading Gibson, Michael T. “The Supreme Court and Freedom of Expression from 1791 to 1917.” Fordham Law Review 55 (1986): 263–333.
American Society of Newspaper Editors The American Society of Newspaper Editors (ASNE), founded in 1922, concerns itself with issues of importance to newspaper editors, their profession, and journalism in general. Conceived by Casper Yost, an editor from the Saint Louis Globe-Democrat, during a field trip of sorts in September 1912 with nine other editors, ASNE was intended originally to be a group in which newspaper editors could informally share their experiences with one another and discuss their craft. Ten years later, in response to articles questioning the integrity and slant of the newspapers of the day, the society formed officially. Individual editors, not their newspapers, comprise ASNE’s membership. Eligible members are defined as “persons of suitable qualifications who are directing editors having immediate charge of journalistic policies and operations of daily newspapers, editorial and opinion pages, news gathering operations of daily newspapers, or wire services and other organizations that gather and publish information for daily newspapers.”
Americans United for Separation of Church and State As one might expect, ASNE is a firm supporter of the First Amendment. Protecting First Amendment rights and enhancing the free flow of information top the list of priorities outlined in the society’s mission statement.The organization keeps track of issues pertaining to the ongoing battle over freedom of expression, including matters ranging from the Patriot Act II to the question of flag burning.The organization’s Web site hosts links to stories its members are watching, most of them dealing with First Amendment rights. ASNE has acted as a critic of legislation limiting information and free speech and gets involved when newspapers or reporters are parties to a dispute.Through their member newspapers, press releases, and letters to government officials, ASNE uses its influence to keep First Amendment rights alive. Other priorities of the society include encouraging innovation and creativity in newspapers and respecting and promoting diversity and inclusion in the workplace and newspaper content. The society promotes programs that encourage continued growth and excellence in the newspaper business. It also sponsors the High School Journalism Initiative, a partnership with schools and local papers that encourages scholastic journalism by providing such resources as Internet hosting and information.The society supports programs concerning journalistic ethics and presents awards to outstanding reporters, photojournalists, and editors working at daily newspapers and services. See also Flag Desecration; Freedom of Information Act of 1966; USA Patriot Act of 2001.
Howard Leib
furthe r reading American Society of Newspaper Editors, www.asne.org.
Americans United for Separation of Church and State Americans United for Separation of Church and State is one of the oldest U.S. advocacy groups committed to the strict separation of government and religious institutions. The organization was established in 1947 as Protestants and Others United, signaling its early fears of Catholic influence on U.S. democracy. Its change in name reflected the shifting political culture and a broader constituency, but its commitment to church-state separation remained unwavering.
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Today, Americans United claims more than 50,000 members and representation in 4,000 places of worship. It has also matured into a professional organization, with a sizable permanent staff headquartered in Washington, D.C. Americans United has a tradition of irrepressible leadership, from Paul Blanshard, author of the controversial American Freedom and Catholic Power (1949), to Barry Lynn, an ordained minister in the United Church of Christ who maintains a high profile in the media on issues of church-state controversy. During the past six decades, Americans United has been active in nearly every church-state dispute. Much of its early work focused on state aid to parochial schools; indeed, the group was established soon after the landmark case Everson v. Board of Education (1947), in which the Court majority cited the language of strict separation while upholding a program that reimbursed parents who sent their children to parochial schools.AU leaders feared that the case represented a harbinger of greater state support for Catholic schools. By the early 1960s,Americans United had added school prayer and other church-state matters to its agenda. The increasing prominence of religious conservatism in the late 1970s and 1980s became another issue of importance to Americans United’s efforts.Today, the group often describes itself as a “watchdog of the Religious Right,” a description reflected in its list of key issues, which ranges from educational vouchers and the teaching of human origins in schools to marriage and family life. Americans United is perhaps best known for its legal advocacy. It has taken part, either as an amicus curiae or case sponsor, in dozens of church-state cases at the state and federal levels. It vigorously opposed the form of state aid at issue in the landmark Lemon v. Kurtzman (1971), and it was instrumental in Flast v. Cohen (1968), which established procedural rules for taxpaying citizens seeking to use the courts to challenge church-state partnerships. At times the group has entered into coalitions with likeminded organizations, including the American Jewish Congress and American Jewish Committee, but the uncompromising approach of Americans United has made such relationships somewhat uneasy. Legal advocacy is not the group’s only tactic. Indeed, in many ways its primary role is educational. Its monthly Church and State chronicles church-state conflict across the country and editorializes on timely issues from a separationist perspective. The group generates innumerable press releases, legislative alerts, and e-mail communications across the spectrum of its concerns. Most important, Lynn, the
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group’s executive director, has a national reputation in the media as the “go-to” person for a separationist view on a hot-button church-state dispute. See also Everson v. Board of Education (1947); Flast v. Cohen (1968); Lemon v. Kurtzman (1971); Separation of Church and State.
Kevin R. Den Dulk
furthe r reading Americans United for Separation of Church and State, www.au.org. Lynn, Barry. Piety and Politics: The Right Wing Assault on Religious Freedom. New York:Three Rivers Press, 2007. Sorauf, Frank J. The Wall of Separation: The Constitutional Politics of Church and State. Princeton, N.J.: Princeton University Press, 1976.
Amish and Mennonites The pacifism and effort of the Amish and Mennonites to separate themselves from worldliness have led to a number of important legal precedents relative to the First Amendment. Like some other religious minorities, both groups have contributed to American pluralism. Beginning in the fourth century, Christianity went from being a persecuted movement to the only official religion tolerated in the Roman Empire. The Roman Catholic Church, after 1517, began losing its moral and political authority in parts of Europe. Martin Luther, a Wittenbergbased monk and lecturer, proposed changes to church structure as well as to key church doctrines that split Christianity first into Catholics and Protestants before the latter in turn split into numerous groups. One group of dissenters in Zurich believed that the church should be a community of Christians voluntarily committed to Christ and each other. Rather than baptizing infants, they held that only adults who chose to join this fellowship could be baptized. Because Christ taught peaceful nonviolence and nonresistance to the world’s enemies, they argued that Christians could not participate in the military or judicial arms of the state. In January 1525, these dissenters met and baptized one another, thereby signaling their conscious decision to follow Christ and to establish a church apart from the state. They wanted this second baptism—in Latin anabaptismus—because they felt their infant baptisms had been meaningless. Temporal rulers believed that such challenges to the unity of the church tore at the fabric of society, the Anabaptists’ rejection of the state’s authority in matters of religion threatened anarchy, and resisting military service left the state vulnerable to foreign attack. Anabaptists
therefore faced imprisonment and exile, fines, threats, and even state-sanctioned death. In 1527 the Anabaptists met on the Swiss-German border to define their church, agreeing upon several foundational points for church life and practice. They advocated excommunication and barring from fellowship any who fell into unrepentant sin. In 1534 a group of Anabaptists captured the city of Münster and began to persecute and punish anyone who refused to be baptized as an adult. In 1536 Menno Simons, a former Dutch Catholic priest, spoke out against the violence in Münster and joined a nonviolent group of Anabaptists.These Mennonites, as they were called, placed more emphasis than earlier Anabaptists on rejection of sin in the church and separation of believers from those who had left the church. As the Mennonite church grew, it became more lenient. At the close of the seventeenth century, Jakob Amman, a Swiss elder, called for reform in church life. In particular, he proposed more frequent communion services, which would require members to be more conscientious because participation in communion required a close examination of their Christian lives and relationship with God.This issue divided the church between the Amish—those who followed Amman—and other Mennonites, who sided with Elder Hans Reist, who had balked at the idea of implementing this new practice and did not believe in social shunning of erring members as a way of bringing them back to the church. Toward the middle of the nineteenth century, the more progressive among the Amish developed a close fellowship with the Mennonites, while the more conservative Amish concerned themselves with traditional understanding of the Ordnung (“old order”). In accordance, the progressive Amish would come to be referred to as Amish Mennonites and the conservative Amish were called Old Order Amish. Religious freedom was a prime reason the Amish and Mennonites crossed the Atlantic, with the first Mennonites migrating to North America in 1683. William Penn, who had received land that would become Pennsylvania, offered parts of it to Quakers, Mennonites, and Amish for settlement. This colony would be built on religious tolerance. Amish immigration began in earnest in 1737. The Amish and Mennonites continued to fight for religious freedom after arriving in the United States. The French and Indian War and the American Revolution called upon them to bear arms, which they opposed and for which they faced persecution. They found reprieve centuries later with passage of the Universal Military Training and Service Act of 1958,
Anarchy Statutes which “exempts from combatant training and service in the armed forces of the United States those persons who by reason of their religious training and belief are conscientiously opposed to participation in war in any form.” These groups also found themselves in legal trouble over educating their children. Most contemporary compulsory education laws require children to attend school until sixteen years of age, but the Amish felt an eighth-grade education adequate for their simple needs and lifestyle. The Supreme Court ruled in Wisconsin v. Yoder (1972) that the First Amendment’s free exercise of religion clause included the right to keep children out of high school. Mennonites found protection in many cases involving Jehovah’s Witnesses, such as West Virginia State Board of Education v. Barnette (1943), which cited the free speech clause to prohibit compulsory flag salutes in public schools.Amish believe in providing for members of their own communities, and the Supreme Court has exempted individual Amish from paying Social Security taxes. In United States v. Lee (1982), however, the Court ruled that this exemption did not apply to Amish who employed others. Despite the twenty-first-century pressures of tourism and repeated conflict with government, the Amish and Mennonites have remained a remarkably resilient people. See also Conscientious Objection to Military Service; Penn,William; United States v. Lee (1982);West Virginia State Board of Education v. Barnette (1943);Wisconsin v.Yoder (1972).
Sandra Thomas
furthe r reading Hostetler, John A. Amish Society. 3d ed. Baltimore: Johns Hopkins University Press, 1980. Hostetler, John A., and Gertrude Enders Huntington. Amish Children: Education in the Family, School, and Community. 2d ed. Fort Worth, Texas: Harcourt Brace Jovanovich College Publishers, 1995. McWhirter, Darien A. The Separation of Church and State. Phoenix: Oryx Press, 1994. Nolt, Steven M. A History of the Amish. Intercourse, Penn.: Good Books, 1992.
Anarchy Statutes Most state and federal anarchy statutes in the United States were passed in the early twentieth century in response to the growing visibility of anarchists, who believe in replacing coercive governments with forms of voluntary cooperation. Although most U.S.-born anarchists at the time were peaceful (Fine 1955: 778), anarchists from Europe, particularly
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from Germany and Russia, sometimes advocated violence. The public therefore often associated immigrants with anarchism. Much of the popular reaction toward anarchists appears to foreshadow, and possibly set the stage for, the later “red scares” focusing on the perceived threat of communists. Johann Most immigrated to the United States in 1882 and became anarchism’s most vocal American proponent. He helped establish the International Working People’s Association in 1883, calling for the “[d]estruction of the existing class rule, by all means, i.e., by energetic, relentless, revolutionary and international action” (Ibid.: 779). The Haymarket Riot in Chicago on May 4, 1886, generated fear of anarchism after someone from a group of labor protesters seeking an eight-hour workday threw a bomb into a group of policemen. The riots led to restrictions on freedom of speech, press, and assembly and resulted in convictions for several labor leaders that the Illinois Supreme Court upheld in Spies v. Illinois (1887). At the time, the First Amendment did not apply to the states, as it would after Gitlow v. New York (1925). The anarchists’ reputation received another blow when Leon F. Czolgosz, an unstable anarchist who had listened to a speech by anarchist and socialist Emma Goldman, assassinated President William McKinley on September 6, 1901. Most, Goldman, and others were charged with having conspired with Czolgosz. Most was convicted under New York law for having reprinted an article advocating tyrannicide. Elsewhere, throughout the country, prosecutors went after anarchist communities. Congress adopted the Immigration Act of 1903, which excluded immigrants who were “anarchists, or persons who believe in or advocate the overthrow by force or violence of all governments, or of all forms of law, or the assassination of public officials” (Ibid.: 792).This law generated considerable controversy, when the federal government attempted to deport John Turner, a British trade unionist found to possess a copy of a pamphlet by Johann Most. Attorney Clarence Darrow, among others, stepped forward to help the newly formed Free Speech League—a precursor to the American Civil Liberties Union—press the free speech aspects of the case.The Supreme Court rejected the appeal against deportation in United States ex. rel. John Turner v.Williams (1904). In Gitlow, the Court upheld a conviction of socialists under New York’s criminal anarchy law, which the state had adopted in 1902. (New Jersey and Wisconsin had adopted similar legislation.) Although the Court used the decision to indicate that it would now apply First Amendment free
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Anderson v. Celebrezze (1983)
speech rights to the states, the majority applied the bad tendency test, which allowed for prosecution of speech that had a “bad tendency” to promote illegal action. They used the test to uphold the conviction not of an anarchist but of a socialist for distributing copies of the Left-wing Manifesto advocating overthrow of the government by force. Over time, including in Brandenburg v. Ohio (1969), which struck down an Ohio criminal syndicalism act, the Court would make clearer distinctions between the legal advocacy of abstract doctrine, which it decided that the First Amendment protected, from incitement to imminent lawless action, which the justices decided it did not. See also Bad Tendency Test; Darrow, Clarence; Free Speech League; Gitlow v. New York (1925); Goldman, Emma; Red Scare; Spies v. Illinois (1887); United States ex rel.Turner v.Williams (1904).
John R.Vile
furthe r reading Avrich, Paul. The Haymarket Tragedy. Princeton, N.J.: Princeton University Press, 1984. Fine, Stanley. “Anarchism and the Assassination of McKinley.” American Historical Review 60 (July 1955): 777–799. Frankel, Oz.“Whatever Happened to ‘Red Emma’? Emma Goldman, from Alien Rebel to American Icon.” Journal of American History 83 (December 1996): 903–942. Madison, Charles A. “Anarchism in the United States.” Journal of the History of Ideas 6 (January 1945): 46–66.
Anderson v. Celebrezze (1983) In Anderson v. Celebrezze, 460 U.S. 780 (1983), the Supreme Court struck down on First Amendment grounds a state law that imposed early filing requirements for an independent presidential candidate who wished to appear on the general election ballot.With the Anderson decision, the Court created a test making it easier for candidates to secure ballot access when running for office. In 1980 Representative John Anderson of Illinois sought the Republican presidential nomination. After he lost the nomination to Ronald Reagan, Anderson announced in April 1980 that he would instead run for the presidency as an independent candidate. To appear on the ballot as an independent, Anderson had to file petitions of candidacy in all fifty states. In some circumstances, he encountered resistance because of a variety of state law requirements, such as early filing dates or a minimum threshold of signatures from supporters in order to appear on the ballot. In May 1980, when Anderson supporters sought to file nominating petitions to get him on the ballot in Ohio, elec-
tion officials refused, pointing to a state law requiring independent candidates for president to file their petitions in March in order to appear on the ballot in November. Anderson successfully challenged the early filing deadline in federal district court, contending that it violated his and his supporters’ First Amendment freedom of association rights. An appeals court reversed, contending that the law was not unreasonable. The Supreme Court reversed the appeals court, striking down the Ohio law and ruling in favor of Anderson. Writing for the Court, Justice John Paul Stevens asserted that in order to determine the constitutionality of the Ohio law, one had to weigh the character and magnitude of the injury to Anderson and his supporters’ First and Fourteenth Amendments rights against the interests asserted by the state in justifying the burden imposed by its law. In this case, the First Amendment right of freedom of association of Anderson and his supporters had to be weighed against the state’s purported interest in early filing, which was to give its voters a sufficient period of time to consider the candidates before voting. Because the burdens of the state’s interest were so severe, and because the law also had an impact on the national presidential election process, the Court found the early filing deadline unconstitutional. The decision in Anderson led to the repeal of many state laws hindering ballot access for third parties and third-party candidates or to their being declared unconstitutional. The Court’s ruling made it easier for subsequent third-party or independent candidates, such as Ross Perot in 1992 and 1996, to appear on the presidential ballot. See also Munro v. Socialist Workers Party (1986); Stevens, John Paul; Storer v. Brown (1974).
David Schultz
furthe r reading Hasen, Richard L. The Supreme Court and Election Law. New York: New York University Press, 2003.
Anderson v. Dunn (1821) In Anderson v. Dunn, 19 U.S. 204 (1821), the Supreme Court unanimously upheld the right of the House of Representatives to cite individuals for contempt, but limited its power to imprison them beyond the session and ruled out corporal or capital punishments. It is the first case in which the Court specifically references the freedoms of speech and press (Gibson 1986: 276).
Anderson v. Liberty Lobby (1986) The case arose after the House of Representatives punished John Anderson for contempt.The Court did not identify his alleged offense, but it almost surely knew it to be attempted bribery. Justice William Johnson, who wrote the Court’s opinion, recognized the power of contempt as an exercise of implied powers. Responding to fears, however, that the House might exercise its powers “in cases affecting the liberty of speech and of the press,” Johnson responded that Congress would be limited by “received opinions and fixed ideas” against such punishments. Michael Gibson (1986) interprets the Court’s words as a warning “that it would remain on guard against congressional activity that endangered first amendment rights.” In Marshall v. Gordon (1917), the Court, without specifically citing the First Amendment, extended the limitations of Anderson by granting a writ of habeas corpus to a district attorney cited by Congress for contempt for statements he had made and published respecting a House member. Chief Justice Edward D. White ruled that the contempt went far beyond Congress’s intrinsic power to protect itself and was instead “extrinsic to the discharge of such duties and related only to the presumed operation which the letter might have upon the public mind and the indignation naturally felt by members of the committee on the subject.” See also Congress.
John R.Vile
furthe r reading Gibson, Michael T. “The Supreme Court and Freedom of Expression from 1791 to 1917.” Fordham Law Review 55 (1986): 363–333.
Anderson v. Liberty Lobby (1986) In Anderson v. Liberty Lobby, 477 U.S. 242 (1986), the Supreme Court required application of the clear and convincing evidence standard to decide if the journalist had displayed actual malice. It reached this conclusion while ruling on a motion for summary judgment brought by a journalist to dismiss a libel action initiated by an advocacy group whose members were considered to be public figures. Liberty Lobby, a political advocacy group founded by Willis Carlo, had filed a defamation suit against columnist Jack Anderson for twenty-one allegedly libelous statements in the Investigator, a magazine. A federal district court deemed members of the Liberty Lobby to be limited-purpose public figures and applied the standard set in New York Times Co. v. Sullivan (1964). As such, Liberty would be
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required to show with “convincing clarity” that Anderson acted with “actual malice” in printing the statements. Anderson moved for summary judgment under Rule 56 and submitted an affidavit from the reporter who authored the articles, demonstrating that the reporter had conducted substantial research and relied upon multiple sources. Liberty argued that the suit should survive summary judgment because several of the reporter’s sources were “patently unreliable.” The district court granted summary judgment in favor of Anderson, taking into account the elevated “clear and convincing” evidentiary standard that would apply at trial under Sullivan. The District of Columbia Circuit Court of Appeals held that this standard of proof—applicable at the decision phase—need not be considered in determining the question of summary judgment. Rather, to apply the higher standard to summary judgment “would change the threshold summary judgment inquiry from a search for a minimum of facts supporting the plaintiff ’s case to an evaluation of the weight of those facts.”The court then reversed with respect to nine of the allegedly defamatory statements. The Supreme Court reversed and remanded. In an opinion written by Justice Byron R.White on behalf of six justices, the Court noted that in determining summary judgment, a court must consider whether there exists sufficient disagreement in the evidence to provide a genuine issue for trial. The district court correctly considered Sullivan’s clear and convincing standard in making its summary judgment determination. Enough evidence must exist that a reasonable jury might find actual malice at that standard of proof. In order to survive a summary judgment motion properly supported by evidence, a plaintiff must also present evidence to support a favorable jury verdict. A plaintiff may not survive by simply asserting that the jury might disbelieve the defendant’s denial of actual malice. Justice William J. Brennan Jr. authored a dissenting opinion arguing that when a plaintiff presents sufficient evident of a prima facie case, the summary judgment motion should fail. Justice William H. Rehnquist authored another dissent, joined by Chief Justice Warren E. Burger, contending that the lower court did not need to apply the clear and convincing evidence standard in determining motions for summary judgments. See also Actual Malice; Libel and Slander; New York Times Co. v. Sullivan (1964); Public Figures and Officials;White, Byron R.
Linda M. Merola
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Animal Sacrifice
furthe r reading McAninch, Benjamin D. “Commentary: Removing the Thumb from the Scales: The Eleventh Circuit Summary Judgment Standard for Disparate Treatment Cases in the Wake of Chapman v.A1 Transport.” Alabama Law Review 53 (2002): 949–962.
Animal Sacrifice The Supreme Court addressed the constitutionality of animal sacrifice for religious purposes in Church of the Lukumi Babalu Aye v. City of Hialeah (1993), voting unanimously to strike down a set of local ordinances prohibiting the practice because they specifically targeted the Santeria religion. At the same time, the Court continued to be divided over the appropriate test to determine the constitutionality of free exercise claims. Santeria combines elements of Roman Catholicism and some African religious practices. It originated in West Africa, and adherents brought it to Cuba during the slave trade and then to the United States following the Cuban revolution. Some Santerians practice animal sacrifice as part of their religious ritual and belief. They cut the throats of chickens, goats, sheep, or turtles, which are often eaten later as part of religious ceremonies involving weddings, births, and deaths. In 1987 a group of Santerians made plans to open a church in Hialeah, Florida. In response, the city council passed a number of ordinances limiting animal sacrifice, which the city defined as “to unnecessarily kill, torment, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.”The city argued that there were considerable health risks involved with feeding, housing, slaughtering, and disposing of animals in locations not properly zoned for these practices. They estimated that as many as 10,000 animals were slaughtered each year in areas of the city not so zoned. The city also cited a concern for animal cruelty as another reason for the regulations. The Supreme Court voted 9-0 to strike down the ordinances with Justice Anthony M. Kennedy delivering the opinion of the Court. Despite the unanimous vote, Justices Antonin Scalia, David H. Souter, and Harry A. Blackmun each wrote separate concurring opinions.The justices spent most of their time debating the new free exercise test articulated in Employment Division, Department of Human Resources of Oregon v. Smith (1990). In Smith, Scalia said that neutrality should be the standard used to adjudicate free exercise claims.The neutrality standard had replaced the longstanding
free exercise test from Sherbert v. Verner (1963) that government could only burden religious practice if a compelling state interest existed and the government used the least restrictive means of achieving that interest. The neutrality standard was much easier for governments to meet than was the compelling interest test. Kennedy adopted a hybrid approach, explaining that “a law failing to satisfy [the requirements of neutrality and general applicability] must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Kennedy said that despite government claims to the contrary, the ordinances were clearly targeted at Santerians and were therefore not neutral. He then turned to the reasons given by the state and concluded that they were neither “compelling” nor “narrowly tailored.” Kennedy noted that hunters, restaurants, and people who fish were not subject to the regulations, thereby making the government’s public health arguments a sham. He charged that the city’s animal cruelty argument also was a smoke-screen, as authorities did not seek to prohibit kosher slaughter although that method was similar to the way Santerians sacrificed animals: “simultaneous and instantaneous severance of the carotid arteries with a sharp instrument.” Justice Blackmun in his concurrence explained that one day the Court would have to decide the issue of animal sacrifice for religious purposes under a statute that met the neutrality test: “A harder case would be presented if [a religious group] were requesting an exemption from a generally applicable anticruelty law. The result in the case before the Court today, and the fact that every Member of the Court concurs in that result, does not necessarily reflect this Court’s views of the strength of a State’s interest in prohibiting cruelty to animals. . . . The number of organizations that have filed . . . briefs on behalf of this interest, however, demonstrates that it is not a concern to be treated lightly.” Lukumi Babalu was essentially an easy case because the ordinances were written so poorly. The Court has not yet revisited the issue of animal sacrifice. See also Church of the Lukumi Babalu Aye v. City of Hialeah (1993); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Kennedy, Anthony M.; Sherbert v. Verner (1963).
Artemus Ward
furthe r reading Cookson, Catharine. Regulating Religion:The Courts and the Free Exercise Clause. New York: Oxford University Press, 2001.
Anonymous Speech Gonzalez-Wippler, Migene. Santeria: The Religion. 2d ed. Woodbury, Minn.: Llewellyn Publications, 2002. O’Brien, David M. Animal Sacrifice and Religious Freedom: Church of the Lukumi Babalu Aye v. City of Hialeah. Lawrence: University Press of Kansas, 2004. Regan, Tom, ed. Animal Sacrifices: Religious Perspectives on the Use of Animals in Science. Philadelphia: Temple University Press, repr.1987. Singer, Peter. Animal Liberation. New York: Harper Perennial, repr. 2001.
Anonymous Speech Speakers and writers seek anonymity as protection against prosecution, harassment, abuse, and invasions of their privacy.The government seeks publicity of speakers’ identities to prosecute other crimes, such as fraud and libel, provide information to the public, discourage corruption, and reduce the appearance of corruption.The Supreme Court has protected anonymity under the First Amendment, but as with other constitutional rights, it has balanced protection for anonymous speech against competing interests, notably in the areas of political activity, campaign finance, and use of the Internet. From the United States’ earliest days, speakers addressing controversial public questions have sought anonymity. The authors of the Federalist Papers, which supported ratification of the Constitution, published under the pseudonym Publius, and the revolutionary-era pamphleteers had published under assumed names, often to escape prosecution. Protection of anonymity in speech and association reached its high-water mark in a series of decisions protecting civil rights activists. In Watkins v. United States (1957), NAACP v. Alabama (1958), Bates v. Little Rock (1960), and Gibson v. Florida Legislative Investigation Committee (1963), the Court protected the anonymity of members of controversial groups to ensure their First Amendment right of association. In Talley v. California (1960), McIntyre v. Ohio Elections Commission (1995), Buckley v. American Constitutional Law Foundation (1999), and Watchtower Bible and Tract Society of New York v.Village of Stratton (2002), the Court protected the anonymity of individuals engaged in personal political activity, such as passing out leaflets or gathering petitions.Yet, in Lewis Publishing Co. v. Morgan (1913), the Court had decided that if a publication seeks to qualify for a special postage rate or “privilege,” the government is justified in asking that publishers register their name and addresses with the postmaster general The Court has been less protective of anonymity in the arena of campaign finance. In Buckley v. Valeo (1976), the
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Court upheld compelled disclosure of campaign contribution information while keeping open the possibility that certain aggrieved groups might not need to disclose if they could show a record of threats, harassment, or reprisals. In Brown v. Socialist Workers ’74 Campaign Committee (1982), the Socialist Workers Party showed a sufficient record of harassment to receive a constitutional exemption from Ohio’s disclosure laws and is the only group to date that has done so. The tension between the protection of anonymity in some cases and the recognition of a state interest in compelled disclosure in others was left unresolved in the Court’s decision in McConnell v. Federal Election Commission (2003). The Court in McConnell upheld the disclosure requirement of the Bipartisan Campaign Reform Act that a person spending $10,000 on an electioneering communication, or donating $1,000 to a group for that purpose, report with the Federal Election Commission.The Court found the requirement “served important state interests . . . [in] providing the electorate with information, deterring actual corruption and avoiding its appearance, and gathering data necessary to enforce more substantive electioneering restrictions.” That opinion asserted that McIntyre, which held political disclosure unconstitutional, should be distinguished from McConnell without explaining the basis for the distinction. Because the corruption concern surrounding campaign contributions and spending involve undue influence by donors and spenders, and candidates, scholars Bruce Ackerman and Ian Ayers have suggested that all contributions be made anonymously through a governmental clearinghouse. Donors could always claim that they had given funds to a candidate, but the “secret donation booth” system would prevent verification, and thus deny officeholders and donors the ability to enter into corrupt agreements. The ascendancy of political communications and fundraising via the Internet is raising additional issues of anonymity. Many individuals using the Internet for political discourse do so under pseudonyms, posting on Web sites confident that their identity will remain secret.Those seeking to remain anonymous in e-mail can use re-mailing services, some located offshore, that render their identity impossible to trace. If anonymity can be achieved outside the jurisdiction of the United States, then for Internet speakers willing to take additional precautions, it may matter little what federal or state disclosure laws require. It also means that such activity is outside the reach of other laws, such as those that punish libel and defamation, and those protecting intellectual property.
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Ansonia Board of Education v. Philbrook (1986)
See also Brown v. Socialist Workers ’74 Campaign Committee (1982); Buckley v.American Constitutional Law Foundation (1999); Buckley v.Valeo (1976); McConnell v. Federal Election Commission (2003); McIntyre v. Ohio Elections Commission (1995); NAACP v. Alabama (1958); Talley v. California (1960); Watchtower Bible and Tract Society v.Village of Stratton (2002).
Allison Hayward
furthe r reading Ackerman, Bruce, and Ian Ayres. Voting with Dollars. New Haven, Conn.: Yale University Press, 2002. Cardillo, Richard M. “I Am Publius and I Approve This Message:The Baffling and Conflicted State of Anonymous Pamphleteering Post McConnell.” Notre Dame Law Review 80 (2005): 1929–1960. Levy, Leonard W. Emergence of a Free Press. Oxford: Oxford University Press, 1985. Turley, Jonathan. “Registering Publius: The Supreme Court and the Right to Anonymity.” Cato Supreme Court Review (2001–2002): 57–83.
Ansonia Board of Education v. Philbrook (1986) The Supreme Court ruled in Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), that Title VII of the Civil Rights Act of 1964 did not require an employer to accept an employee’s proposal concerning religious observance when the employer and the employee both proposed reasonable accommodation of the employee’s religious needs. Title VII requires employers to reasonably accommodate “an employee’s or a prospective employee’s religious observance” if it can do so “without undue hardship.” Ronald Philbrook, a schoolteacher and member of the Worldwide Church of God, missed approximately six schooldays a year to observe holy days. He was permitted to use only three of the six days as annual leave for this purpose and wanted either to be able to use more leave or to hire a substitute for the extra days he had to miss. In the Court’s opinion, Chief Justice William H. Rehnquist argued that the Court had ruled previously in Trans World Airlines v. Hardison (1977) that accommodations posed “undue hardship” on employers when they resulted in “more than a de minimis cost” to the employer. If a school’s accommodation is reasonable, “the statutory inquiry is at an end.” In this case, Rehnquist did not believe the record sufficiently established whether the policy constituted a reasonable accommodation of Philbrook’s religious beliefs and accordingly argued that it should be remanded to the lower court for such a determination.
In a partial concurrence and a partial dissent, Justice William J. Brennan noted that an employee who had to forfeit three days of pay was presented with “a conflict between his religious needs and work requirements.” He thought the school board was obligated at the very least to consider Philbrook’s proposal. In a separate partial concurrence and partial dissent, Justice John Paul Stevens said there was no need to remand the case to the lower court because the evidence clearly demonstrated that Philbrook could not prevail on his claim. Philbrook received no more or less days because of his religion than anyone else, and that is all the law required. The case illustrates the fine line that the Court sometimes has to draw between claims based on religious accommodation and discrimination. See also Holidays, Religious; Rehnquist, William H.; TransWorld Airlines v. Hardison (1977).
John R.Vile
furthe r reading Greenawalt, Kent. Free Exercise and Fairness. Vol. 1 of Religion and the Constitution. Princeton, N.J.: Princeton University Press, 2006.
Anti-Dial-a-Porn Act of 1989 Congress passed the Anti Dial-a-Porn Act of 1989 to prohibit the availability of obscene and indecent interstate telephone recordings via toll numbers. The Supreme Court overturned part of the law dealing with indecent recordings in Sable Communications of California v. Federal Communications Commission (1989). In 1983 Sable Communications had begun offering “diala-porn” services, in which customers access a prerecorded message with sexual content; the calls appear as a special charge on phone bills. One of the court cases challenging Sable’s lines noted that in one six-month period in 1985, such lines in NewYork City received between 6 million and 7 million calls every month. In an administrative decision in May 1983, the Federal Communications Commission (FCC) found that the relevant existing portion of the Communications Act of 1934 did not apply to dial-a-porn telephone lines. In the Federal Communications Commission Authorization Act of 1983, therefore, Congress made commercial transmissions of sexual messages to minors illegal, noting that such providers as Sable could defend themselves from criminal charges under the act by taking measures to ensure that
Anti-Federalists only adults be able to access their dial-a-porn lines. The FCC would decide upon the defensive measures. Various iterations of the steps to ensure that only adults access diala-porn were issued after several FCC recommendations were successfully challenged in court. For example, in Carlin Communications v. Federal Communications Commission (2d Cir. 1984), the Second Circuit Court of Appeals held that an initial rule that providers offer dial-a-porn services only at night violated the First Amendment. The 1989 act was passed, curiously, after the Second Circuit upheld the third version of FCC rules specifying the use of credit card payments only, access codes verifying a caller’s age, and message scramblers decoded by descramblers sold only to adults.The court specified that the prohibitions could only apply to obscene speech, which is not protected by the First Amendment. Despite the FCC’s victory, in April 1988 Congress passed what would become the 1989 act, which entirely prohibited obscene as well as indecent interstate commercial telephone messages. Regardless of the age of the caller, anyone providing or permitting a phone under their control to be used to transmit dial-a-porn messages with any indecent material could be fined up to $50,000 and jailed up to six months. Sable Communications immediately challenged the act. The district court that first heard the case found the prohibition on obscene dial-a-porn messages to be constitutional, but ruled the prohibition of indecent materials as unconstitutional. The court stated that keeping minors from accessing indecent dial-a-porn lines was a compelling state interest, but that the blanket prohibition of all indecent lines was not narrowly tailored. In an opinion written by Justice Byron R. White, the Supreme Court in Sable affirmed the district court’s findings as well as its reasoning. See also Federal Communications Commission; Obscenity and Pornography; Sable Communications of California v. Federal Communications Commission (1989).
Dara Purvis
furthe r reading Rubens, Suzanne D. “Supreme Court Review: First Amendment— Disconnecting Dial-a-Porn: Section 223(b)’s Two Pronged Challenge to First Amendment Rights.” Journal of Criminal Law and Criminology 80 (Winter 1990): 968–995.
Anti-Federalists The Anti-Federalists opposed the ratification of the 1787 U.S. Constitution because they feared that the new national
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government would be too powerful and thus threaten individual liberties, given the absence of a bill of rights. Their opposition was an important factor leading to the adoption of the First Amendment and the other nine amendments that constitute the Bill of Rights. The Constitution, drafted at the Constitutional Convention of 1787, needed to be ratified by nine or more state conventions (and by all states that wanted to take part in the new government). A clash erupted over ratification, with the Anti-Federalists opposing the creation of a strong national government and rejecting ratification and the Federalists advocating a strong union and adoption of the Constitution. The Anti-Federalists included small farmers and landowners, shopkeepers, and laborers.When it came to national politics, they favored strong state governments, a weak central government, the direct election of government officials, short term limits for officeholders, accountability by officeholders to popular majorities, and the strengthening of individual liberties. In terms of foreign affairs, they were pro-French. To combat the Federalist campaign, the Anti-Federalists published a series of articles and delivered numerous speeches against ratification of the Constitution. The independent writings and speeches have come to be known collectively as The Anti-Federalist Papers, to distinguish them from the series of articles known as The Federalist Papers, written in support of the new constitution by Alexander Hamilton, James Madison, and John Jay under the pseudonym Publius. Although Patrick Henry, Melancton Smith, and others eventually came out publicly against the ratification of the Constitution, the majority of the Anti-Federalists advocated their position under pseudonyms. Nonetheless, historians have concluded that the major Anti-Federalist writers included Robert Yates (Brutus), most likely George Clinton (Cato), Samuel Bryan (Centinel), and either Melancton Smith or Richard Henry Lee (Federal Farmer). By way of these speeches and articles, Anti-Federalists brought to light issues of (in their view) the excessive power of the national government at the expense of the state government; the disguised monarchic powers of the president; apprehensions about a federal court system; fears that Congress might seize too many powers under the necessary and proper clause; concerns that republican government could not work in a land the size of the United States; and their most successful argument against the adoption of the Constitution—the lack of a bill of rights to protect individual liberties.
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Anti-mask Laws
The Anti-Federalists failed to prevent the adoption of the Constitution, but their efforts were not entirely in vain. Although many Federalists initially argued against the necessity of a bill of rights to ensure passage of the Constitution, they promised to add amendments to it specifically protecting individual liberties. Upon ratification, James Madison introduced twelve amendments during the First Congress in 1789. The states ratified ten of these, which took effect in 1791 and are known today collectively as the Bill of Rights. Although the Federalists and Anti-Federalists reached a compromise that led to the adoption of the Constitution, this harmony did not filter into the presidency of George Washington. Political division within the cabinet of the newly created government emerged in 1792 over fiscal policy. Those who supported Alexander Hamilton’s aggressive policies formed the Federalist Party, while those who supported Thomas Jefferson’s view opposing deficit spending formed the Jeffersonian Party. The latter party, led by Jefferson and James Madison, became known as the Republican or Democratic-Republican Party, the precursor to the modern Democratic Party. The Democratic-Republican Party gained national prominence through the election of Thomas Jefferson as president in 1801.This election is considered a turning point in U.S. history because it led to the first era of party politics, pitting the Federalist Party against the DemocraticRepublican Party. This election is also significant because it served to repudiate the Federalist-sponsored Alien and Sedition Acts—which made it more difficult for immigrants to become citizens and criminalized oral or written criticisms of the government and its officials—and it shed light on the importance of party coalitions. In fact, the Democratic-Republican Party proved to be more dominant due to the effective alliance it forged between the southern agrarians and northern city dwellers. The election of James Madison in 1808 and James Monroe in 1816 further reinforced the importance of the dominant coalitions within the Democratic-Republican Party. With the death of Alexander Hamilton and retirement of John Quincy Adams from politics, the Federalist Party disintegrated. After the War of 1812 ended, partisanship subsided across the nation. In the absence of the Federalist Party, the Democratic-Republican Party stood unchallenged. The socalled Era of Good Feeling followed this void in party politics, but it did not last long. Some scholars continue to see echoes of the Federalist–Anti-Federalist debates in modern party politics.
See also Bill of Rights; Constitutional Convention of 1787; Federalists; Hamilton, Alexander; Henry, Patrick; Jefferson, Thomas; Madison, James; Sedition Act of 1798.
Mitzi Ramos
furthe r reading The Anti-Federalist Papers. This Nation.com: American Government and Politics Online, 2006. www.thisnation.com/library/anti federalist. Duncan, Christopher M. The Anti-Federalists and Early American Political Thought. DeKalb: Northern Illinois University Press, 1995. Ketcham, Ralph L., ed. The Anti-Federalist Papers and the Constitutional Convention Debates. New York: Signet Classics, 2003. Storing, Herbert J. What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution. Chicago: University of Chicago Press, 1981.
Anti-mask Laws The earliest laws banning masked demonstrations date back to the antebellum era. In 1845 New York made it illegal to appear “disguised and armed.” Most anti-mask laws were passed, however, in response to the Ku Klux Klan, whose members used masks to hide their identities as they terrorized their victims. Some fifteen states have anti-mask laws, as do many counties and municipalities. Most anti-mask laws do not target specific groups explicitly. Instead, they use neutral language, typically banning mask wearing that intimidates others. Supporters of such laws argue that wearing masks emboldens people to commit crimes and makes those crimes more frightening to the victims. Opponents, in turn, make three arguments. First, they invoke freedom of association, claiming that mask laws deprive wearers of the anonymity needed to express their views. They rely on NAACP v. Alabama (1958), which held that because its members feared harassment from opponents of civil rights, the NAACP did not have to reveal its membership list unless Alabama could supply a compelling state interest. Klan members argued that if their masks were removed, they would face harassment.The Klan’s unpopularity added fuel to this argument. For example, in American Knights of the Ku Klux Klan v. City of Goshen (N.D. Ind. 1999), a court found that Klan members had indeed suffered harassment, through vandalism and bomb threats, and ultimately invalidated the city’s anti-mask law.The Second Circuit Court of Appeals, in Church of the American Knights of the Ku Klux Klan v. Kerik (2d Cir. 2004), held that harassment of Klan members was irrelevant because the Constitution guarantees only the right to speak, not the conditions under which one
Appropriation speaks. Furthermore, in most cases involving the Klan, courts held that protecting citizens from intimidation was a compelling state interest. Non-Klan mask wearers generally fared better when making freedom of association claims. In Aryan v. Mackey (N.D. Texas 1978) and Ghafari v. Municipal Court (Ct. App. 1978), political opponents of the shah of Iran successfully argued that they needed masks to avoid reprisals from the shah’s security forces.Anarchists convicted under New York’s anti-mask law failed, however, to raise a constitutional claim in People v. Aboaf (Crim. Ct. 2001) because they could not show any harassment beyond famous anarchists having been persecuted in the past. Second, opponents of anti-mask laws argued, largely unsuccessfully, that masks constitute symbolic speech. In Klan cases, courts held that the masks added little to the expressive content of the rest of the Klan regalia. They also ruled that the state’s concerns about safety and avoiding intimidation easily satisfied the substantial state interest test for symbolic speech cases. Third, opponents contended that most anti-mask laws violate the equal protection clause because they make exceptions for Halloween masks, masquerade ball masks, and masks worn for medical reasons, but not masks for political acts. These arguments convinced the California court in Ghafari but not the Georgia Supreme Court in State v. Miller (S.E.2d 1990), which defended Georgia’s exemptions as distinguishing between threatening and nonthreatening masks. Overall the general trend has been toward upholding antimask laws, at least where mask wearers cannot show direct, specific evidence of harassment. See also Anonymous Speech; NAACP v. Alabama (1958); Symbolic Speech.
Robert A. Kahn
furthe r reading Allen, Wayne. “Note, Klan, Cloth and Constitution: Anti-Mask Laws and the First Amendment. Georgia Law Review 25 (1991): 819–860. Simoni, Stephen J. “Note, ‘Who Goes There?’—Proposing a Model Anti-Mask Act.” Fordham Law Review 61 (1992): 241–274.
Appropriation Appropriation, also referred to as misappropriation, is the unauthorized use of a person’s name, photograph, likeness, voice, or endorsement, often for financial gain. Although appropriation may involve speech or communication, the First Amendment does not protect its practice.
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Appropriation is related to and is often co-mingled with the “right of publicity.” Some commentators differentiate them, however, on the grounds that the right of publicity applies to individuals (for example, a celebrity) with a proven commercial value to their image or identity, while appropriation pertains to everyone.Appropriation has its roots in the law of unfair competition and has historically been applied when something that cannot be copyrighted, such as a performance, is used without authorization.The terms are often used interchangeably, however, and the Restatement (Second) of Torts (sec. 652C, comment (b) (1977)) includes only a single action for “appropriation of name or likeness,” which includes commercial and noncommercial purposes. The concept of a right of publicity arose at the start of the twentieth century. New York, for example, adopted the claim by statute in 1905 after the state’s highest court refused to recognize it in Roberson v. Rochester Folding Box Co. (N.Y. 1902).The Georgia Supreme Court recognized the claim in Pavesich v. New England Life Ins. Co. (Ga. 1905). The first court decision to use the term right of publicity was Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (2d Cir. 1953). Professor Melville B. Nimmer promoted the concept the following year in a seminal article. The Supreme Court upheld the constitutionality of the claim in Zacchini v. Scripps-Howard Broadcasting Co. (1977), which involved the unauthorized broadcasting of the entire “human cannonball” act. The Second Restatement of Torts, published the year of the Zacchini decision, states that “[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy” (sec. 652C; see also Restatement (Third) of Unfair Competition, sec. 46 (1995): “[o]ne who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability for [monetary and injunctive] relief ”). The action is now recognized as a common law tort by most states, although some jurisdictions recognize it only for prominent individuals. Several jurisdictions, notably California and New York, have adopted the cause of action by statute. In a few states, the cause of action survives the death of the individual. For celebrities, courts have allowed “right of publicity” actions for an individual’s image, Grant v. Esquire, Inc. (S.D.N.Y. 1973); name, Parks v. LaFace Records (6th Cir. 2003); persona, White v. Samsung Electronics America, Inc. (9th Cir. 1992), reh’g denied (9th Cir. 1993), cert. denied (1993); and
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Aptheker v. Secretary of State (1964)
voice, Midler v. Ford Motor Co. (9th Cir. 1988). Courts have also allowed right of publicity claims in cases involving a celebrity’s signature phrase, Carson v. Here’s Johnny Portable Toilets, Inc. (6th Cir. 1983); the persona of a fictional character with which an actor is closely identified, Allen v. Men’s World Outlet, Inc. (S.D.N.Y. 1988); and a race car driver’s automobile, Motschenbacher v. R.J. Reynolds Tobacco Co. (9th Cir. 1974). For noncelebrities, courts have allowed claims for use of an individual’s name, as in Haith v. Model Cities Health Corp. of Kansas City (Mo. App. 1986), and unique clothing, as in Cheatham v. Paisano Publ’ns., Inc. (W.D. Ky. 1995). Plaintiffs must, however, show that their persona has some commercial value. Courts have rejected claims from noncelebrities whose personas have minimal value, as in Vassiliades v. Garfinckel’s, Brooks Bros. (D.C. App. 1985). Appropriation claims are limited where the unauthorized use has First Amendment value (for example, newsworthy material, entertainment, or parody). In Hoffman v. Capital Cities/ABC, Inc. (9th Cir. 2001), for example, a federal appeals court held that the actor Dustin Hoffman could not recover for use of his image as the movie character Tootsie in a noncommercial speech context without showing actual malice. In Doe v.TCI Cablevision (Mo. 2003), a hockey player failed to recover for publication of a comic book with a character with a similar name, and in Tyne v. Time Warner Entertainment Co., L.P. (Fla. 2005), the court found that publications, including motion pictures, that do not directly promote a product or service, are not actionable under right of publicity statutes. Namath v. Sports Illustrated (N.Y.App. 1975) set out that the limitations also apply to advertising undertaken in connection with a use protected by the First Amendment. Federal copyright law preempts state appropriation law when the work falls within the subject matter of the Copyright Act of 1976 and plaintiffs’ claims assert rights equivalent to those protected by copyright.Thus, for example, appropriation claims are preempted in cases involving usage of a copyrighted work that incidentally, but necessarily, includes the identity of the complainant. Compare Baltimore Orioles, Inc. v. Major League Baseball Players Association (7th Cir. 1986), cert. denied (1987) with Laws v. Sony Music Entertainment, Inc. (9th Cir. 2006), Brown v. Ames (5th Cir. 2000), and Downing v. Abercrombie and Fitch (9th Cir. 2001). See also Copyright; Privacy; Publicity, Right of; Zacchini v. ScrippsHoward Broadcasting Co. (1977).
Eric P. Robinson
furthe r reading Gibson, Floyd A., and Rachel M. Healey, “The Right of Publicity Comes of Age.” American Intellectual Property Law Association Quarterly Journal 23 (1995): 361–399. Goldman, Lee. “Elvis Is Alive, But He Shouldn’t Be: The Right of Publicity Revisited.” Brigham Young University Law Review 1992 (1992): 597–628. Halpern, Sheldon W. “The Right of Publicity: Commercial Exploitation of the Associative Value of Personality.” Vanderbilt Law Review 29 (1986): 1199–1255. Hunt, Alicia M. “Everyone Wants to Be a Star: Extensive Publicity Rights for Noncelebrities Unduly Restrict Commercial Speech.” Northwestern University Law Review 96 (Summer 2001): 1605–1659. “Invasion of Privacy by Use of Plaintiff ’s Name or Likeness in Advertising.” Annotation in American Law Reports 3d. Rochester, N.Y.: Lawyers Cooperative, 1969. “Invasion of Privacy by Use of Plaintiff ’s Name or Likeness for Nonadvertising Purposes.” Annotation in American Law Reports 3d. Rochester, N.Y.: Lawyers Cooperative, 1970. Kahn, Jonathan.“Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity.” Cardozo Arts and Entertainment Law Journal 17 (1999): 213–272. Marr, Jeremy T.“Constitutional Restraints on State Right of Publicity Laws.” Boston College Law Review 44 (May 2003): 863–900. McCarthy, J.Thomas. The Rights of Publicity and Privacy. 2d ed. St. Paul, Minn.:West Publishing, 2006. Nimmer, Melville B. “The Right of Publicity.” Law and Contemporary Problems 19 (1954): 203–223. Post, Robert C. “Rereading Warren and Brandeis: Privacy, Property, and Appropriation.” Case Western Reserve Law Review 41 (1991): 647–677. Webner, W. Mack, and Leigh Ann Lindquist. “Transformation: The Bright Line Between Commercial Publicity Rights and the First Amendment.” Akron Law Review 37 (2004): 171–201.
Aptheker v. Secretary of State (1964) The Supreme Court decision in Aptheker v. Secretary of State, 378 U.S. 500 (1964), invalidated the denial of passports to American communists under a section of the Subversive Activities Control Act of 1950. Justice Arthur J. Goldberg’s opinion relied chiefly on the right to travel as a “liberty” protected by the Fifth Amendment. He stated that the law, which allowed the secretary of state to deny passports to all members of the Communist Party of the United States or communist-front organizations unnecessarily swept up the innocent with the guilty. He further observed that the ban applied regardless of the purposes of the travel. Not only was the law unconstitutional on its face, Goldberg asserted, but it seemed to him also that it would be impossible to adapt its language in such a way as to save it.
A Quantity of Books v. Kansas (1964) In a concurring opinion, Justice Hugo L. Black argued that the law constituted an unconstitutional bill of attainder, denied jury determinations, and violated “the freedom of speech, press, and association which the First Amendment guarantees.” He argued that the nation could best preserve its “internal security” by honoring First Amendment freedoms. Justice William O. Douglas pointed similarly to the kinship between freedom of movement and “the right of assembly and the right of association.” Like these freedoms, freedom of movement makes all other rights meaningful— “knowing, studying, arguing, exploring, conversing, observing and even thinking.” Justice Tom C. Clark’s dissent argued that the individuals involved in this case were clearly knowing members, and leaders, of the Communist Party. He further believed that Congress had the right to regulate the right to travel to protect national security. See also Black, Hugo L.; Communist Party of the United States; Douglas,William O.; Facial Challenges.
John R.Vile
furthe r reading Woods, Jeanne M. “Travel That Talks: Toward First Amendment Protection for Freedom of Movement.” George Washington Law Review 65 (November 1996): 106–129.
A Quantity of Books v. Kansas (1964) Four justices of the Supreme Court, led by Justice William J. Brennan Jr., concluded in A Quantity of Books v. Kansas, 378 U.S. 205 (1964), that a procedure used to seize and impound 1,715 books prior to an obscenity hearing was constitutionally insufficient because it did not safeguard against the suppression of nonobscene books.The Court’s plurality decision reversed a Kansas Supreme Court judgment upholding the seizure and destruction of the books. Authorities had confiscated the books under a Kansas statute permitting the seizure and destruction of obscene materials. Although the statute only required the filing of an information—a state alternative to a grand jury indictment—identifying the presence of an obscene book, the state’s attorney general filed an information identifying fiftynine specific novels and provided the court with copies of seven of them. In an ex parte inquiry, the district judge “scrutinized” the seven novels, determined them to be obscene, and issued a warrant authorizing the seizure of all fifty-nine
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titles. When authorities executed the warrant, only thirtyone of the titles (totaling 1,715 books) were found and impounded.The business from which the novels were seized filed a motion to quash the information and the warrant, arguing that it should have been afforded a hearing on the issue of whether the novels were obscene before the warrant’s execution. The district court denied the motion and ordered the sheriff to destroy the books. The Kansas Supreme Court held that the procedures met constitutional requirements and affirmed the district court’s order. The attorney general argued that the procedure followed was necessary under the Supreme Court’s decision in Marcus v. Search Warrant (1961). That case involved the seizure of obscene materials under a Missouri statute similar to that of Kansas. In Marcus, the warrant had been issued on a complaint lacking examples of the materials or any specific description of them, and it gave the police virtually unlimited authority to seize publications they deemed obscene. The Supreme Court held, however, that books seized in this manner, even if actually obscene, could not be destroyed because the process used to seize them lacked constitutional safeguards to prevent the suppression of nonobscene materials. The Court cited Kingsley Books, Inc. v. Brown (1957), in which it upheld a similar New York procedure that postponed all injunctive relief until an adversary proceeding on the issue of obscenity could be held. Based on this precedent, the Court concluded that the Kansas procedure was unconstitutional because it did not provide a hearing on the issue of obscenity before seizing the books, pointing out that if seizures precede such hearings,“there is danger of abridgement of the right of the public in a free society to unobstructed circulation of nonobscene books.” Justice John Marshall Harlan II authored a dissent, joined by Justice Tom C. Clark, indicating that he saw adequate evidence to find the materials to be obscene and that an adversary hearing had not been necessary. See also Kingsley Books, Inc. v. Brown (1957); Marcus v. Search Warrant (1961); Obscenity and Pornography.
Emilie S. Kraft
furthe r reading Ringel, William E., et al., eds. “Search and Seizure of Obscene Materials—Adversary Hearing on Issue of Obscenity.” Searches and Seizures, Arrests and Confessions. 2d ed., sec. 19.5. Eagan, Minn.: Thomson/West, 2003– ; March 2006 update, supp. no. 7. Tipon, Emmanuel S. “Lewdness, Indecency, and Obscenity.” American Jurisprudence. 2d ed., vol. 50, sec. 14. St. Paul, Minn.: West, 1962– ; May 2006 update.
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Arcara v. Cloud Books, Inc. (1986)
Arcara v. Cloud Books, Inc. (1986) In Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986), the Supreme Court upheld the application of a New York public health law to close an adult bookstore on the premises of which illegal sexual activity was taking place.The bookstore had contended that this closure constituted an illegal prior restraint in violation of the First Amendment. In its decision, the Court reversed a portion of a New York court of appeals decision, which had voided the closure of the book store on the ground that the state had not used the least restrictive means to accomplish its goal. Chief Justice Warren E. Burger wrote the Court’s majority opinion. Quoting from United States v. O’Brien (1968), which involved the burning of draft cards, Burger observed that when speech and nonspeech elements are combined, a regulation can be justified “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Unlike O’Brien, however, “the sexual activity carried on in this case manifests absolutely no element of protected expression.” Concerning the bookstore case, Burger observed, “The legislation providing the closure sanction was directed at unlawful conduct having nothing to do with books or other expressive activity. Bookselling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises.” In a brief concurring opinion, Justice Sandra Day O’Connor, joined by Justice John Paul Stevens, indicated that she would give greater scrutiny to such legislation if she thought the state was using it “as a pretext for closing down a bookstore because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood.” Justice Harry A. Blackmun authored a dissent joined by William J. Brennan Jr. and Thurgood Marshall. Blackmun pointed to “the obvious role that commercial bookstores play in facilitating free expression.” He thought a one-year closure was too drastic and that the state should seek less drastic remedies.
See also Blackmun, Harry A.; Burger, Warren E.; Obscenity and Pornography; O’Connor, Sandra Day; Prior Restraint; United States v. O’Brien (1968).
John R.Vile
furthe r reading Forshay,Andrew E.“Note:The First Amendment Becomes a Nuisance. Arcara v. Cloud Books, Inc.” Catholic University Law Review 37 (1987): 191–217.
Arkansas Educational Television Commission v. Forbes (1998) In Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), the Supreme Court upheld a decision by the Arkansas Educational Television Commission (AETC) to exclude Ralph P. Forbes, an independent candidate for Congress, from a televised debate.The ruling overturned the decision of the Eighth Circuit Court of Appeals, which had ruled that the AETC had created a public forum to which all candidates should have access. In the Court’s opinion, Justice Anthony M. Kennedy wrote that the First Amendment did not bar “the legislative imposition of neutral rules for access to public broadcasting” and that the amendment, by itself, did not compel “public broadcasters to allow third parties access to their programming.” Kennedy asserted that candidate debates generally lend themselves to public forum analysis and identified three areas—traditional public fora, designated governmental fora, and nonpublic fora sites. Kennedy placed the televised debate in the nonpublic forum category. Indeed, he thought it likely that classifying debates as public fora would be more likely to discourage speech than to encourage it since “faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates’ views at all.” The fact that candidate debates fell into the category of a nonpublic forum did not give the AETC “unfettered discretion.” It still had no power to practice “viewpoint discrimination,” and its regulations must be “reasonable in light of the purpose of the property.” Kennedy believed the exclusion in this case was based on lack of public support for the candidate and thus constituted “a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment.” Justice John Paul Stevens wrote a dissent, which Justices David H. Souter and Ruth Bader Ginsberg joined.Agreeing
Art Censorship that the network had “no ‘constitutional obligation to allow every candidate access to’ public debates that it sponsors,” Stevens thought the grounds for exclusion in this case were too ad hoc and standardless to pass constitutional muster. See also Ballot Access; Kennedy,Anthony M; Political Parties; Public Forum Doctrine; Stevens, John Paul;Viewpoint Discrimination.
John R.Vile
furthe r reading Kinter, Sutton I., III. “Comment: Enduring the Reign of Tweedledee and Tweedledum: How the Court Further Entrenched America’s Two-Party Duopoly in Arkansas Educational Television Commission v. Forbes and How It Can be Dredged Out.” Case Western Reserve Law Review 49 (1998): 257–274.
Arkansas Writers’ Project, Inc. v. Ragland (1987) In Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987), the Supreme Court declared unconstitutional an Arkansas law exempting newspapers as well as “religious, professional, trade and sports journals and/or publications printed and published within this State,” but not general interest magazines, from the state’s 4 percent sales tax. The Arkansas Writers’ Project, Inc., publisher of the magazine Arkansas Times, filed suit against the state law. The Court’s decision built on a number of other cases that restricted state taxing policies that discriminated among different types of publications. In the Court’s opinion, Justice Thurgood Marshall relied heavily on the Court’s earlier decision in Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983), in which the Court invalidated a state tax that exempted paper and ink costs of only newspapers that spent less than $100,000 on these supplies.Agreeing that no evidence existed that Arkansas had “an improper censorial motive,” Marshall nonetheless noted that “a power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected.” Arkansas chose to distinguish exempt from nonexempt publications on the basis of content. Such content discrimination in turn led to “official scrutiny of the content of publications” that was inconsistent with First Amendment protection of freedom of the press. Such discrimination could only be justified if the state showed that it served “a compelling state interest” and was “narrowly drawn to achieve that end.”
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The state unsuccessfully advanced three interests in this case: Its interest in raising revenue could not be used to “explain selective imposition of the sales tax on some magazines and not others.” It had not narrowly tailored its laws to meet a second goal of encouraging “fledgling” publishers. Its concern about fostering communication within the state was limited to communication within certain specified content areas. Arkansas thus could not meet its burden. Justice John Paul Stevens wrote a short concurring opinion, agreeing that the state had not justified its content discrimination in this case but separating himself from the view that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Justice Antonin Scalia dissented, joined by Chief Justice William H. Rehnquist. Scalia found there was little difference between the tax exemption at issue and other state subsidy schemes that the Court had upheld; he contended that the decision “introduces into First Amendment law an element of arbitrariness that ultimately erodes rather than fosters the important freedoms at issue.” He argued that tax exemptions and similar subsidy schemes could be distinguished from those that infringe fundamental rights on the basis that they did not “as a general rule, have any significant coercive effect.” Scalia cited regulations the post office used for bulk mail and subsidies for the Kennedy Center and public broadcasting. He concluded that “[b]ecause there is no principled basis to distinguish the subsidization of speech in these areas—which we would surely uphold—from the subsidization that we strike down here, our decision today places the granting or denial of protection within our own idiosyncratic discretion.” See also Compelling State Interest; Content Based; Marshall, Thurgood; Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983); Scalia, Antonin; Taxation of Newspapers.
John R.Vile
furthe r reading Casarez, Nicole B. “Public Forums, Selective Subsidies, and Shifting Standards of Viewpoint Discrimination.” Albany Law Review 64 (2000): 501–581.
Art Censorship In drafting the Constitution, the framers acknowledged the importance of artistic expression, going so far as to define promotion of the “useful arts” as one of government’s
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Art Censorship
Art photographer Andres Serrano poses in his New York apartment on November 19, 2004, in front of his controversial photograph “The Other Christ.”
purposes. Despite this early recognition, artistic expression has historically been subject to some measure of direct or indirect censorship in the United States. The First Amendment provides significant protection to artistic expression and, as a result, severely limits the government’s right to censor controversial works in most contexts. Nonetheless, restrictions on the publication of art continues in several contexts. The scope of protection afforded to artistic expression largely depends on the nature of the speech. Artistic expression through the spoken or written word, particularly in the form of political protest or satirical speeches or writings, such as plays or stories, is akin to “pure speech” and is enti-
tled to comprehensive protection. By contrast, art created for commercial purposes or not designed (such as nude dancing) to convey an expressive message is entitled to less protection. Some artistic expression is subject to censorship based on its content. For example, “obscene” materials may be censored. Legitimate artistic expressions are never, however, considered obscene because in Miller v. California (1973) the Supreme Court excluded materials with “serious artistic value” from the definition of obscenity. “Indecent” works, which are less than obscene but make use of patently offensive terms to describe sexuality or bodily functions, may be restricted. In Federal Communications Commission v. Pacifica Foundation (1978), the Court held that indecent material, particularly in the context of television or radio broadcasts, which cannot be banned entirely under the First Amendment, may be restricted to avoid broadcast during times when children might typically view or hear it. Artistic expressions that are neither obscene nor indecent may also be censored because they offend the rights of others. For example, defamatory works—those that maliciously harm a person’s character through falsehoods—fall outside the scope of the First Amendment and may be censored. By contrast, the First Amendment does protect obvious satire of a public figure, so such expressions are not subject to censorship. In addition, artistic expressions that break various statutory laws, such as artistic renderings of currency that violate anti-counterfeiting law or works that offend copyright laws, may also be subject to censorship. The maxim against prior restraint prohibits federal, state, and local governments from requiring a person to seek permission before publishing or speaking. The rationale for placing a heavy burden on the government in this regard is that a ruling denying the right to exhibit or publish a work of art prior to its publication amounts to censorship. In light of this reasoning, attempts by the government to limit expression through prior restraint have largely been unsuccessful. Prior restraints have, however, been upheld in some limited forms. For example, courts have held that requiring a movie producer to submit a film for rating prior to showing it publicly is a constitutional exercise of government power despite the strong presumption against the legality of prior restraints. Controversy sometimes arises when publicly owned space is used for exhibitions or communication of art. The degree to which the government may censor such expression depends on the nature of the public space. In traditionally public spaces set aside for the exchange of ideas, like
As-applied Challenges public parks, the government may not completely ban artistic expression unless it has a compelling interest that cannot be accomplished through less restrictive means.The government may, however, enforce reasonable time, place, and manner restrictions, such as requiring performances to take place within certain hours or limiting the size of the audience for purposes of public safety. In the event the government does enforce time, place, and manner restrictions, these elements must be viewpoint neutral and may not censor one opinion and favor another. A designated public forum is one that the government has made available for public expression, but has not been traditionally set aside for the free exchange of ideas. For example, a city hall allowing an art exhibit has been held to be a designated public forum. In this context, the government may censor artistic expression based on content only to the extent that such restriction preserves the purpose of the place.Thus, a city hall art exhibition could allow for quiet performances, yet restrict raucous musical groups from performing. The government may completely censor expression in a nonpublic forum, such as a military facility or a mayor’s private office. Even in nonpublic spaces, the restrictions must be reasonable and not an effort to suppress a specific viewpoint while allowing for the expression of others. To the extent that the government funds the arts, it may indirectly censor artists by refusing to finance projects. The federal government did not become significantly involved with sponsoring the arts until it created the National Endowment for the Arts (NEA) in 1965. In the 1980s, the NEA sparked a public and political uproar when it helped fund exhibits with controversial themes. Critics accused the NEA of financing obscenity, and Congress passed an artsfunding law in 1990 requiring that public values be considered in awarding grants.The Supreme Court upheld that law in 1998, ruling in National Endowment for the Arts v. Finley (1998) that the government need not subsidize art it considers indecent.Although Finley does not stand for the proposition that disagreeable art is subject to censorship, it does mean that the government need not sponsor art it finds offensive. See also Book Banning; Censorship; Dancing, Nude; Federal Communications Commission v. Pacifica Foundation (1978); Hair; Hustler Magazine v. Falwell (1988); Libel and Slander; Miller v. California (1973); National Endowment for the Arts v. Finley (1998); Obscenity and Pornography; Prior Restraint; Public Forum Doctrine; Satire;Time, Place, and Manner Restrictions.
Gabriel H.Teninbaum
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furthe r reading Darraby, Jessica L. Art, Artifact and Architecture Law. Eagan, Minn.: Thomson West Publishing, 2006. Dollimore, Jonathan. Sex, Literature and Censorship. Cambridge: Polity Press, 2001. Free Expression Policy Project. “Issues—Art Censorship.” www.fepproject.org/issues/artcensorship.html. National Coalition Against Censorship. “Art, Free Expression, and the Law.” www.ncac.org/art-law/index.cfm. Weschler, Lawrence. Boggs: A Comedy of Values. Chicago: University of Chicago Press, 1999.
As-applied Challenges In as-applied challenges in First Amendment cases, litigants contend that a governmental law, rule, regulation, or policy is unconstitutional as applied to their expressive activities.These challenges often are distinguished from facial challenges, in which litigants claim that a governmental regulation is unconstitutional “on its face,” that is, by the very text of the policy. According to Richard H. Fallon Jr. (2000), “As-applied challenges are the basic building blocks of constitutional adjudication” (p. 1328). The Supreme Court will often decide a case on an as-applied basis to avoid unnecessary or premature decisions regarding the constitutionality of a law. In several recent First Amendment decisions, the Court has avoided striking down laws on their face, emphasizing that the proper course of action is for a litigant to file an asapplied challenge if actual discrimination against their expression occurs. For example, in Thomas v. Chicago Park District (2002), the Court rejected a First Amendment facial challenge to several park-permitting rules. Writing for the Court, Justice Antonin Scalia reasoned that any “abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements.” Sometimes it is less than clear when the Court is hearing a facial or as-applied challenge or both. For example, in Los Angeles Police Department v. United Reporting Publishing Co. (1999), the majority opinion and the dissent disagreed over this very issue. In the majority opinion, Chief Justice William H. Rehnquist called the challenge to an access-to-information policy a facial challenge. In dissent, Justice John Paul Stevens countered that “the majority’s characterization of this case as an improper facial challenge is misguided.” Michael Dorf (1994) explains some of the tension in this area of constitutional law when he writes, “The distinction between as-applied and facial challenges may confuse more than it illuminates” (p. 294).
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See also Beard v. Banks (2006); Facial Challenges; Los Angeles Police Department v. United Reporting Publishing Co. (1999); Overton v. Bazzetta (2003);Thomas v. Chicago Park District (2002).
David L. Hudson Jr.
furthe r reading Dorf, Michael C. “Facial Challenges to State and Federal Statutes.” Stanford Law Review 46 (1994): 235–295. Fallon, Richard H., Jr. “As-Applied and Facial Challenges and ThirdParty Standing.” Harvard Law Review 113 (2000): 1321–1370. Gans, David H. “Strategic Facial Challenges.” Boston University Law Review 85 (2005): 1333–1388.
Ashcroft v. American Civil Liberties Union (2002) (2004) In Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), a fractured Supreme Court temporarily avoided deciding the constitutionality of a federal law designed to protect children from Internet pornography, sending the case back to the Third Circuit Court of Appeals for further review. Congress first attempted to protect children from Internet pornography in the Communications Decency Act (CDA) of 1996. In Reno v. American Civil Liberties Union (1997), however, the Court struck down key provisions of the act because the statute failed specifically to define the terms indecent and patently offensive and would likely “chill” or silence constitutionally protected speech, that is, nonobscene speech aimed at adults. Congress responded to the Court’s decision with the Child Online Protection Act (COPA) of 1998, which was narrower than the CDA because it attempted to prohibit material harmful to minors based on contemporary community standards.The law was immediately challenged, and a federal district court granted a preliminary injunction stating that the statute would likely place a burden on some protected speech and that less restrictive means existed to protect children.The Third Circuit affirmed the preliminary injunction, ruling the “community standards” language in COPA unconstitutionally broad.The case was subsequently appealed to the Supreme Court. In Ashcroft v.American Civil Liberties Union the Court held 8-1 that the breadth of the community standards language did not in itself invalidate the law. According to the Court, however, proper judicial deference required that the justices first allow the Third Circuit to rule on the other questions in the case: whether COPA was overly broad for reasons
other than its use of community standards; whether the statute was unconstitutionally vague; or whether it survived the strict scrutiny test used to judge obscenity cases. Justice Clarence Thomas delivered the opinion of the fractured Court with separate concurrences by multiple justices and the lone dissent by Justice John Paul Stevens. The case returned to the Supreme Court in Ashcroft v. American Civil Liberties Union 542 U.S. 656 (2004), with a 6-3 majority agreeing with the lower court’s ruling that COPA did not pass the strict scrutiny test used to judge obscenity cases: it failed to be narrowly tailored and to incorporate the less restrictive means—for example, blocking and filtering software—of protecting children from otherwise constitutionally protected speech. Justice Anthony M. Kennedy, who delivered the majority opinion, explained that “[f]ilters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. . . . [T]he Government failed to introduce specific evidence proving that existing filtering technologies are less effective than the restrictions in COPA.” In dissent, Justice Stephen G. Breyer, joined by Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor, disagreed with Kennedy’s characterization of filters: “the presence of filtering software is not an alternative legislative approach to the problem of protecting children from exposure to commercial pornography. Rather, it is part of the status quo, i.e., the backdrop against which Congress enacted the present statute.” Since COPA, Congress has continued to legislate to protect children from what it considers to be harmful Internet content. For example, federal law now prohibits misleading Internet domain names, such as the infamous “whitehouse.com”Web site, which has since been removed. In addition, a “Dot Kids” second-level Internet domain was created specifically for content suitable for minors under the age of thirteen. See also Child Online Protection Act of 1998; Communications Decency Act of 1996; Obscenity and Pornography; Reno v. American Civil Liberties Union (1997);Thomas, Clarence.
Artemus Ward
furthe r reading Jenkins, Philip. Beyond Tolerance: Child Pornography on the Internet. New York: New York University Press, 2003. Levine, Judith. Harmful to Minors: The Perils of Protecting Children from Sex. Minneapolis: University of Minnesota Press, 2002. Taylor, Max, and Ethel Quayle. Child Pornography: An Internet Crime. New York: Brunner-Routledge, 2003.
Ashton v. Kentucky (1966)
Ashcroft v. Free Speech Coalition (2002) In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Court struck down portions of the federal Child Pornography Prevention Act (CPPA) of 1996 that banned “virtual child pornography,” which the justices said was neither obscene nor actual child pornography as defined by previous decisions. Congress began proscribing child pornography in 1977, and the law at issue in this case was their most recent attempt to broaden the ban by including any depiction that “appears to be” or “conveys the impression” of a minor engaging in sexually explicit conduct.These sections of CPPA represented an attempt to outlaw virtual child pornography, which Congress was particularly concerned about due to the growth of computer technology and the Internet. Though no actual children were involved, the material in question often used computer imaging, adults who appeared to be minors, or both to create the impression of minors engaging in sexual activity. Congress reasoned that pedophiles might “whet their own sexual appetites” with this material “thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children.” Members of Congress also contended that pedophiles might use virtual child pornography to encourage children to participate in sexual activity. They argued, furthermore, that the existence of virtual material made it harder to distinguish from actual child pornography and therefore more difficult to prosecute the latter. Justice Anthony M. Kennedy delivered the 6-3 majority opinion, citing two key pornography precedents. In Miller v. California (1973), the Court had articulated a test to determine obscenity: if the average person in the community would find the work’s predominant theme “prurient”; if the material depicts sexual conduct in a “patently offensive way”; and if when taken as a whole the material “lacks serious literary, artistic, political, or scientific value.” In the other precedent, New York v. Ferber (1982), the Court upheld prohibitions on the production and distribution of actual child pornography because of its direct link to the sexual abuse of minors. Kennedy wrote that the Child Pornography Prevention Act was overbroad because it banned a “significant universe of speech that is neither obscene under Miller nor child
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pornography under Ferber.” As examples of the kind of material that could be prohibited under CPPA, Kennedy listed a picture in a psychology manual and well-known, award-winning theatrical films that portray minors having sex, such as Romeo and Juliet and Traffic. He explained that “in contrast to Ferber, CPPA prohibits speech that records no crime and creates no victims by its production.” Indeed, Kennedy noted that the majority in Ferber reasoned that young-looking adults could be used if necessary for scientific and artistic purposes.As for the argument that virtual child pornography could be used by pedophiles to seduce children into sexual activity, Kennedy countered that other enticements, such as cartoons and candy, could just as easily be used. Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Antonin Scalia dissented in part, stating that Congress could ban virtual child pornography but not “youthful-adult pornography,” reasoning that these were two distinguishable categories of pornography. O’Connor said that the phrase “conveys the impression” as used in the statute applies to youthful-adult pornography, which is constitutionally protected because it is plain to the viewer that there are no real children, as in cartoons or sketches. O’Connor said, however, that the phrase “appears to be” essentially means “virtually indistinguishable from” an actual minor, so that viewers would not be able to tell the difference.These three justices therefore reasoned that such virtual child pornography could be banned. See also Child Pornography; Kennedy, Anthony M.; Miller v. California (1973); New York v. Ferber (1982); Obscenity and Pornography; O’Connor, Sandra Day.
Artemus Ward
furthe r reading Jenkins, Philip. Beyond Tolerance: Child Pornography on the Internet. New York: New York University Press, 2003. Levine, Judith. Harmful to Minors: The Perils of Protecting Children from Sex. Minneapolis: University of Minnesota Press, 2002. Taylor, Max, and Ethel Quayle. Child Pornography: An Internet Crime. New York: Brunner-Routledge, 2003.
Ashton v. Kentucky (1966) In Ashton v. Kentucky, 384 U.S. 195 (1966), the Supreme Court held that most criminal libel laws violated the First Amendment. These laws had allowed prosecutors to bring criminal charges against persons who published false and malicious statements.
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Ashton grew out of a bitter labor dispute in Hazard, Kentucky. As part of an effort to collect food and other aid for unemployed miners, Steve Ashton had circulated a pamphlet in which he criticized the local police chief, sheriff, and newspaper publisher. According to Ashton, the police chief had illegally collected $100 a week to guard a mine operator’s home, the sheriff had used excessive force against suspects, and the newspaper publisher had refused to distribute aid donated for the strikers’ benefit. Based on these allegations, prosecutors charged Ashton with criminal libel for “publishing a false and malicious publication which tends to degrade or injure.” Ashton was convicted of the charge, fined $3,000, and sentenced to six months in prison.The Kentucky Court of Appeals affirmed. The Supreme Court unanimously reversed, holding the criminal libel statute to be too vague to withstand constitutional scrutiny. Under the First Amendment, the Court said, a conviction “for an utterance ‘based on a common law concept of the most general and undefined nature’ could not stand.” Otherwise, the Court held, freedom of speech would suffer “under the guise of regulating conduct that is reachable by the police power.” In its opinion, the Court cited Chief Justice Charles E. Hughes from De Jonge v. Oregon (1937), which had overturned the conviction of an individual for criminal syndicalism simply for participating in a meeting that communists had organized: ”[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” See also De Jonge v. Oregon (1937); Hughes, Charles Evans; Libel and Slander.
Douglas E. Lee
furthe r reading Lisby, Gregory C. “No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence.” Communication Law and Policy 9 (2004): 433–487.
Associated Press v. National Labor Relations Board (1937) Associated Press v. National Labor Relations Board, 301 U.S. 103 (1937), decided the same day as National Labor Relations Board v. Jones and Laughlin Steel Corp., upheld the application of the National Labor Relations Act of 1935 to the Associated Press (AP), which had discharged an employee for his union membership and activities. Justice Owen J. Roberts, author of the Court’s opinion in the 5-4 decision, noted that the industry being regulated was involved in interstate commerce and that the law did not abridge freedom of speech or press or violate due process of law. In addressing the First Amendment issue, Roberts observed that although the AP claimed to have discharged the employee for biased reporting, the record revealed the actual reason to be his union activity, which had no bearing on First Amendment issues: “The business of the Associated Press is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.” He noted that the AP could be held accountable for libel, punished for contempt of court, and subject to antitrust laws. Justice George Sutherland authored a vigorous dissent concentrating on the First Amendment issues in a manner pleasing to absolutists and those who believe that the First Amendment should have a preferred position in the law. He observed that whereas some liberties, such as due process, were qualified, “those liberties enumerated in the First Amendment are guaranteed without qualification, the object and effect of which is to put them in a category apart and make them incapable of abridgment by any process of law. That this is inflexibly true of the clause in respect of religion and religious liberty cannot be doubted; and it is true of the other clauses save as they may be subject in some degree to rare and extreme exigencies such as, for example, a state of war.” Given such absolute status, the Court should be wary of any encroachment: “The destruction or abridgment of a free press . . . would be an event so evil in its consequences that the least approach toward that end should be halted at the threshold.” In Sutherland’s judgment, press freedom “does not permit any legislative restriction of the authority of a publisher, acting upon his own judgment, to discharge anyone engaged in the editorial service.” Just as a judge might dismiss a juror for
Associated Press v.Walker (1967) prejudice in a case, so, too, a news organization should be able to dismiss an employee that it perceives as too favorable toward labor. Sutherland ended with a paragraph linking the First Amendment freedoms:“Do the people of this land—in the providence of God, favored, as they sometimes boast, above all others in the plentitude of their liberties—desire to preserve those so carefully protected by the First Amendment: liberty of religious worship, freedom of speech and of the press, and the right as freemen peaceably to assemble and petition their government for a redress of grievances? If so, let them withstand all beginnings of encroachment. For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.” See also Absolutists; Preferred Position Doctrine; Roberts, Owen J.
John R.Vile
furthe r reading Currie, David P. “The Constitution in the Supreme Court: The Preferred-Position Debate, 1941–1946.” Catholic University Law Review 37 (Fall 1987): 39–71.
Associated Press v. United States (1945)
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without power to protect that freedom.” Instead, he asserted that the First Amendment was premised “on the assumption that the widest dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.” Justice William O. Douglas’s concurring opinion stressed that the AP was engaged in an “unreasonable” restraint of trade. Justice Felix Frankfurter’s concurring opinion rested in large part on a lower court opinion by Judge Learned Hand. Frankfurter observed that a “free press is indispensable to the workings of our democratic society.” He further intoned, “Truth and understanding are not wares like peanuts or potatoes.” Justice Owen J. Roberts dissented on the basis that he did not think that the AP had sought to restrain trade or had effectively limited it. Instead, he focused on the healthy competition that it received from the United Press and the International News Service. Justice Francis W. Murphy came to similar conclusions. He disputed the adequacy of the evidence upon which the majority had relied and feared that it was opening “a previously unopened door” that might clear the way for more dangerous governmental interferences in the future. See also Black, Hugo L.; Clear and Present Danger Test.
John R.Vile In a 6-2 decision, the Supreme Court in Associated Press v. United States, 326 U.S. 1 (1945) upheld an injunction filed against the Associated Press (AP) for alleged violations of the Sherman Antitrust Act of 1890. Most of the violations related to the agreement that AP members made not to share their stories with nonmembers and to the power that existing members had to exclude new ones. Writing for the majority, Justice Hugo L. Black denied that the press should receive more favorable treatment under the law than other businesses, “[f]or equal—not unequal— justice under law is the goal of our society.” He also denied that the prevailing clear and present danger test applied to this case. Black stated that the membership provisions of the AP stifled competition by essentially giving existing members an effective veto over new members who might compete with them if given membership. He found this to be an “unreasonable” rather than a “reasonable” restraint of trade. As to freedom of the press, Black wrote that “it would be strange indeed . . . if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was
furthe r reading Bambauer, Derek E. “Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas.” University of Colorado Law Review 77 (2006): 649–709.
Associated Press v. Walker (1967) In Associated Press v.Walker, 388 U.S. 130 (1967), the Supreme Court ruled that public figures should be treated differently from public officials when they sue for libel. This case, a companion to Curtis Publishing Company v. Butts, is notable for the extensive discussion and difficulty the justices had in reaching their decision. Edwin Walker, a retired U.S. general, had been in charge of federal troops in the Little Rock,Arkansas, school desegregation confrontation in 1957. Ten years later, he became engaged in the debate over desegregation at the University of Mississippi, attracting significant publicity for his statements against federal intervention; he even had a “friends of Walker” following. A correspondent from the Associated Press (AP) was present when demonstrations turned violent on the
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night of September 30, 1967. He sent a dispatch, reporting that Walker, “[a]ssumed command of the crowd” and led them in a charge against the U.S. marshals.That dispatch was then sent to newspapers subscribing to AP services. Walker sued for libel.The trial court and Texas Court of Civil Appeals awarded compensatory damages to him, because AP could not prove that its published statements were true, but denied punitive damages because Walker could not prove malice on the part of the news organization. Justice John Marshall Harlan II’s opinion for the Court commanded four votes plus concurrences from every other justice, overturning Walker’s award of compensatory damages. The Court first concluded that Walker was a “public figure,” given “his personal activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy.” He also “commanded sufficient access to the means of counterargument to be able to expose through discussion the falsehood and fallacies of the defamatory statements.” Harlan reasoned, however, that public figures could recover damages for false defamatory statements only “on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” Because the reporter was reliable and the story “hot news,” the Court found AP’s conduct reasonable. Chief Justice Earl Warren concurred, but felt that the doctrine established in New York Times Co. v. Sullivan (1964) requiring actual malice should be extended to public figures as well as to public officials.The Court would adopt Warren’s view ten years later in Gertz v. Robert Welch (1974), but the debate would continue on what constituted a person being a “public figure.” Justices Hugo L. Black and William O. Douglas concurred in Walker, agreeing with the result and reasoning of Justice Warren but asserting that Sullivan provided too little protection for the press. See also Actual Malice; Gertz v. Robert Welch, Inc. (1974); Harlan, John Marshall, II; Hutchison v. Proxmire (1979); New York Times Co. v. Sullivan (1964); Public Figures and Officials.
Geoffrey P. Hull
furthe r reading Hancock, Catherine. “International and Comparative Perspectives on Defamation, Free Speech, and Privacy: Origins of the Public Figure Doctrine in the First Amendment Defamation Law.” New York Law School Law Review 50 (2005): 81–143. Smolla, Rodney A. Law of Defamation. 2d ed. St. Paul, Minn.: West Group, 1999.
Atheism The relationship between atheists and the First Amendment is a curious one.The establishment clause not only prohibits governments from directly establishing a religion, but also prohibits them from favoring one religion over another or religion over nonreligion. In other words, governments must treat atheism like a religion for purposes of the First Amendment.This may seem counterintuitive, as religion and atheism have generally been respectively defined, at least since 1913 by Webster’s, as “the outward act or form by which people indicate their recognition of the existence of a god or of gods having power over their destiny” and as “the disbelief or denial of the existence of a god, or supreme intelligent Being.” In fact, this seemingly anomalous legal status of atheism vis-à-vis conventional religion has generated some convoluted statements. Take for example a statement by Judge Diane Wood, of the Seventh Circuit Court of Appeals, in Kaufman v. McCaughtry (7th Cir. 2005), a case involving a warden’s denial of an atheist’s (Kaufman’s) application to organize a religious organization in the prison: “Atheism is Kaufman’s religion, and the group that he wanted to start was religious in nature even though it expressly rejects a belief in a supreme being.” The philosophy underpinning the inclusion of atheists within the establishment clause’s ambit is elucidated in an oft-quoted comment from Lynch v. Donnelly (1984) by Justice Sandra Day O’Connor, who in a concurring opinion stated that the “Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. . . . [A] direct infringement [of the clause would be a] government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.” A unanimous Court solidified the establishment clause’s application to the nonreligious in the opinion written by Justice Hugo L. Black for Torcaso v. Watkins (1961). In that decision, the Court struck down a Maryland Declaration of Rights provision designed to bar anyone who refused to declare a belief in God from holding a public office. Justice Black stated, “We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force
Attorney Advertising a person to profess a belief or disbelief in any religion. Neither can [they] constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can [they] aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” A quarter century after Torcaso, the Court reaffirmed its position in an opinion by Justice John Paul Stevens, writing for the Court in Wallace v. Jaffree (1985), a case involving an Alabama statute authorizing a one-minute moment of silence in all public schools for meditation or voluntary prayer. Stevens wrote, “At one time it was thought that [the establishment clause] merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” With Justice William H. Rehnquist arguing that the First Amendment, from its inception in the House of Representatives in 1789, “did not mean that the Government should be neutral between religion and irreligion [sic],” Justice Stevens asserted that “the political interest in forestalling intolerance extends beyond intolerance among Christian sects—or even intolerance among ‘religions’—to encompass intolerance of the disbeliever and the uncertain.” Although a judicially generated legal definition of atheism may not be easily forthcoming, the Seventh Circuit— like other courts—has at least proffered a definition of religion that includes atheism.According to the Kaufman court, “when a person sincerely holds beliefs dealing with issues of ‘ultimate concern that for her occupy a place parallel to that filled by . . . God in traditionally religious persons, those beliefs represent her religion.” In short, the courts have held that the establishment clause is equally applicable to the non-religious and even the anti-religious. As the Seventh Circuit stated, “[A]theism may be considered, [only] in this special sense, a religion.” See also Black, Hugo L.; Lynch v. Donnelly (1984); Rehnquist, William H.; Stevens, John Paul;Torasco v.Watkins (1961);Wallace v. Jaffree (1985).
Clyde E.Willis
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furthe r reading Kramnick, Isaac and R. Laurence Moore. The Godless Constitution: A Moral Defense of the Secular State. Rev. ed. New York: W. W. Norton and Co., 2005.
Attorney Advertising The regulation of attorney advertising continues to present challenging First Amendment issues for courts, as bar regulators attempt to protect the public from misleading, deceptive, or coercive ads while ensuring that attorneys retain a measure of free expression protection. Attorney advertising flourished in the nineteenth century, with ads appearing regularly in the classified sections of newspapers. The American Bar Association’s (ABA) Commission on Advertising (1995) wrote, “Advertising was viewed as a function of commerce in an era of growth both in the business community and the legal community” (p. 30). Even Abraham Lincoln and his law firm advertised in the 1850s. The climate changed, however, when the ABA condemned lawyer advertising in its 1908 Canons of Professional Ethics. Canon 27 provided in part, “The most worthy and effective advertisement possible, even for a young lawyer, and especially for his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust” (Ibid.: 33).The canons permitted business cards but prohibited other forms of advertising. This led many states to pass regulations banning or severely limiting attorney advertising. Attorneys possessed few, if any, free expression rights as a result of the Supreme Court’s decision in Valentine v. Chrestenson (1942).Although the ruling involved a nonattorney distributing handbills, the Court wrote,“We are equally clear the Constitution imposes no such restraint on government as it respects purely commercial advertising.” This holding controlled for more than thirty years, until the Court’s landmark decision on pharmacy ads in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976). In this case, the Court ruled that commercial speech—that is, speech that does no more than propose a commercial transaction—is entitled to some degree of First Amendment protection. A year later, in Bates v. State Bar of Arizona (1977), the Court found attorney advertising specifically to be a form of commercial speech entitled to some degree of First Amendment protection.The case involved two young Arizona attor-
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neys who had placed an ad in a Phoenix newspaper quoting prices for certain routine legal services.This action violated a state rule flatly prohibiting such advertising. Faced with a suspension, the attorneys challenged the rule unsuccessfully in state court. They appealed to the Supreme Court, which ruled in their favor by a 5-4 vote. Justice Harry A. Blackmun, who had authored the majority opinion in Virginia Pharmacy, also wrote for the majority in Bates. He reasoned that “the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance.” Though he ruled in favor of the attorneys, Blackmun cautioned that false, deceptive, or misleading attorney advertising would not be protected. The next year, the Court upheld a restriction on in-person solicitation by an attorney in Ohralik v. Ohio State Bar Association (1978).“Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection,” the Court wrote. From 1977 until 1995, the only time the Court upheld a restriction on attorney speech involved the ban in Ohralik. Notes First Amendment scholar Rodney Smolla (2002), the Court has tended to favor freeing the speech of lawyers despite Ohralik. For example, in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985), the Court struck down rules prohibiting a newspaper ad soliciting clients with problems related to breast implants; in Peel v. Attorney Disciplinary Commission of Illinois (1990), a rule prohibiting a lawyer from advertising himself as certified as a trial specialist by the National Board of Trial Advocacy; and in Shapero v. Kentucky Bar Association (1988), a rule banning direct, in-person solicitation letters. The trend was slowed in 1995, when the Court upheld a thirty-day ban on solicitation letters in Florida Bar v.Went For It, Inc. (1995). The Court distinguished the thirty-day ban from the total ban in Shapero. Applying the four-part Central Hudson test for determining whether commercial speech can be regulated, the majority reasoned that the thirty-day ban furthered the state’s substantial interests in protecting the privacy rights of victims and the reputational interests of the bar. Florida Bar occurred ironically at a time when the Court had begun to accord commercial speech more protection. It struck down various restrictions on commercial speech in Rubin v. Coors Brewing Co (1995), 44 Liquormart, Inc. v. Rhode Island (1996), Greater New Orleans Broadcasting Association v. United States (1999), Lorillard Tobacco Co. v. Reilly (2001), and Thompson v. Western States Medical Center (2002). Attorney
advertising continues to face increased scrutiny. Bar regulators grapple with whether to allow client testimonials, publication in Super Lawyer magazines, and how to regulate attorney speech on the Internet. See also Bates v. State Bar of Arizona (1977); Blackmun, Harry A.; Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Florida Bar v.Went For It, Inc. (1995); Ohralik v. Ohio State Bar Association (1978); Peel v. Attorney Disciplinary Commission of Illinois (1990); Shapero v. Kentucky Bar Association (1988); Smolla, Rodney A.; Valentine v. Chrestenson (1942); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985).
David L. Hudson Jr.
furthe r reading American Bar Association Commission on Advertising. Lawyer Advertising at the Crossroads. Chicago: American Bar Association, 1995. Hudson, David L., Jr. “Solicitation Letters: Offensive or Informative?” Vanderbilt Lawyer 27 (1997): 22–25. Phillips, John. “Six Years after Florida Bar v. Went for It, Inc.: The Continual Erosion of First Amendment Rights.” Georgetown Journal of Legal Ethics 14 (2000): 197–215. Smolla, Rodney A. “The Puffery of Lawyers.” University of Richmond Law Review 36 (2002): 1–20.
Attorney General’s Commission on Pornography During the Reagan administration, the Department of Justice under Attorney General Edwin Meese prepared the final report of the Attorney General’s Commission on Pornography in 1986 to document the scope of pornography in American society and to make recommendations on ways to prosecute its distributors and halt its spread. Concerned that the pornography industry was connected to organized crime and that sexually explicit materials were increasingly appearing on television, in movies, and in other public arenas, the administration created an elevenperson commission under the guidance of Meese.The group held hearings around the country to document the growth of the pornography industry and to develop ways to stanch its growth while also, according to the commission, respecting the First Amendment constitutional guarantees surrounding this form of expression. The final report provided an in-depth examination of many aspects of the pornography industry, including discussion of victimization, harm to families and society, child porn, and an overview of the laws available to prosecute dis-
Austin v. Michigan Chamber of Commerce (1990) tributors. The report also included detailed discussions and descriptions of numerous adult movies and offered thirty-six recommendations for federal, state, and local governments to use to address pornography. Many of these recommendations were never acted upon, and some civil libertarians claimed that some violated the First Amendment. Opponents criticized the commission as a political witch hunt by Meese to curry favor with social conservatives. See also Miller v. California (1973); Obscenity and Pornography.
David Schultz
furthe r reading Attorney General’s Commission on Pornography: Final Report. July 1986. www.porn-report.com/contents.htm. Kalven, Harry, Jr. A Worthy Tradition: Freedom of Speech in America. New York: Harper and Row, 1988.
Attorney General’s List of Subversive Organizations In 1947 President Harry S Truman issued an executive order for the government to catalog organizations engaged in subversive activity against the United States.The attorney general maintained and updated the list until its abolishment in 1974 during the Nixon administration. The cold war and the Soviet Union’s detonation of an atomic bomb exacerbated fears that members of the Communist Party were infiltrating major U.S. institutions, such as the motion picture industry, as well as the federal government. Investigations in the 1940s by the House UnAmerican Activities Committee (HUAC) into alleged communist activity in Hollywood and various New Deal government agencies, such as the Federal Theatre Project and the Work Progress Administration, heightened concerns about subversive organizations operating in the United States. In 1946 Congress passed the Atomic Energy Act, one of whose major provisions called for the Federal Bureau of Investigation (FBI) to surveil government employees and their associations to confirm their loyalty to the country. As a result of the 1946 act, Truman on March 22, 1947, ordered the FBI and the Civil Service Commission to investigate the loyalty of every federal employee. This so-called loyalty order called for the firing or dismissal of individuals when reasonable grounds demonstrated their disloyalty. “Reasonable grounds” included “membership in, affiliation with or sympathetic association with . . . any organization designated as subversive by the Attorney General.” HUAC
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compiled the initial list, which included ninety organizations mostly considered Communist Party fronts but also the American Jewish Labor Congress, the American Youth Congress, the National Negro Congress, and even the Progressive Party, which had nominated Henry Wallace for president in 1948. Federal employees found to be members of or donors to these groups or who perhaps had friends who were members were fired or barred from government employment. Thus, the government assumed one’s guilt of being a communist by association if one’s name appeared in connection with the attorney general’s list of subversive organizations. The list was updated and modified several times, and during the heyday of anti-communist fervor in the 1940s and 1950s the list had a potent impact upon freedom of association. Individuals denied or sought to hide their membership in these and other groups that they feared might be suspected of subversive activity. Few at the time considered the list complete or accurate. Its main value was to hurt or politically cripple individuals whom Sen. Joseph McCarthy, R-Wis., wanted to investigate. It also gave sanction to the FBI and its director, J. Edgar Hoover, to monitor and investigate members of these organizations. See also Blacklists; Federal Bureau of Investigation; Hoover, J. Edgar; House Un-American Activities Committee; Loyalty Oaths; McCarthyism.
David Schultz
furthe r reading Morgan, Ted. Reds: McCarthyism in Twentieth-Century America. New York: Random House, 2003.
Austin v. Michigan Chamber of Commerce (1990) In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Supreme Court upheld as constitutional a Michigan law prohibiting nonprofit corporations from using general treasury fund revenues for independent candidate expenditures in state elections. Section 54(1) of the Michigan Campaign Finance Act of 1979 only permitted nonprofit corporations to expend segregated funds amassed for entirely political purposes. The Michigan Chamber of Commerce, a nonprofit corporation, challenged the statute, arguing that the limitation violated such corporations’ First Amendment rights.
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The Court, in an opinion authored by Justice Thurgood Marshall, held that although the provision burdened the chamber’s political expression, the burden was constitutionally justified by the compelling state interest of Michigan, which had narrowly tailored a mechanism to achieve that interest. In its pleadings, Michigan had justified the operation of the statute by citing the state’s interest in preventing corruption or the appearance thereof. The state had provided corporate entities with substantial statutory advantages, such as limited liability, perpetual life, and favorable tax treatment. These advantages, Michigan argued, could allow corporations to exercise undue influence on the political process. The Chamber of Commerce countered, contending that independent expenditures were less likely than direct outlays to implicate the concerns raised by the state. In the end, the Court majority decided that Michigan was rightly concerned about the “immense aggregations of wealth that are accumulated with the help of the corporate form and have little or no correlation to the public’s support for the corporation’s political ideas.” The Court next considered whether the act was sufficiently narrowly tailored to its proffered goal. Marshall held the act was “precisely targeted” at its stated goal while still allowing corporations to express political views. Because the act allowed corporations to express political ideas by making independent expenditures through a segregated fund, corporate speech could still accurately reflect the underlying views of the corporation’s membership. The Chamber of Commerce had argued that the statute was overly inclusive, as its nonprofit status should have led to consideration of the regulation under the standards adopted in Federal Election Commission v. Massachusetts Citizens for Life (1986). There, the Court invalidated a restriction placed on an antiabortion nonprofit organization. Justice Marshall disagreed. Instead, he argued that the Chamber was qualitatively distinct from Massachusetts Citizens for Life (MCFL). First, although the MCFL’s express purpose was the promotion of political ideas, the chamber had various purposes, several of which were nonpolitical. Second, although the MCFL and the chamber both lacked shareholders, Justice Marshall noted that chamber members were more like shareholders and less like MCFL members because they were reluctant to use the threat of resignation as a mechanism to constrain the leadership of the chamber. Third, the Austin Court majority noted that the MCFL decision was predicated upon the organization’s independence from business corporations. The Chamber of Commerce, although
not itself a business corporation, consisted of membership, three-fourths of which were, in fact, business corporations. The Court also rejected the chamber’s final argument that the statute was not inclusive enough because it failed to reach labor unions. Marshall asserted that differential treatment on behalf of the state was justified, as unions do not receive the same statutory advantages as corporate entities. See also Federal Election Commission v. Massachusetts Citizens for Life (1986); First National Bank of Boston v. Bellotti (1978); Marshall,Thurgood.
Daniel M. Katz
furthe r reading Geary, Sean T. “Austin v. Michigan Chamber of Commerce: Freedom of Expression Issues Implicated by the Government Regulation of Corporate Political Expenditures in Candidate Elections.” Boston University Law Review 72 (September 1992): 825–840.
Automobiles See Headlight Flashing; Horn Honking
Autopsies and Treatment of the Dead By law, states commonly require autopsies when a person’s cause of death is unknown, death occurs under suspicious circumstances, or when it is feared that a communicable disease threatening to the public may have been responsible. Sometimes such laws conflict with religious objections to such procedures. Judaism has traditionally opposed autopsies, although some rabbis permit them for medical or other humanitarian reasons. Native Americans have been especially concerned about the return of bones to ancestral burial grounds. States typically make provisions for cases in which autopsies conflict with religious beliefs. Thus, the New York Supreme Court ruled in Weberman v. Zugibe (1977) and in Atkins v. Medical Examiner (1979) that the rights of religious liberty should prevail when the state is simply attempting to determine the organ whose injury caused death in a car accident or merely to identify the cause of death when no suspicion of foul play exists. Prior to Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Supreme Court typically had required states to show a “compelling” interest when interfering with religious practices, including opposition to autopsies.That decision, however, stated that no such
Avis Rent-a-Car System v. Aguilar (2000)
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Avis Rent-a-Car System v. Aguilar (2000)
In November 2005, Connie Ayres holds a photo of her daughter, Amanda Siner, killed in a drunk driving accident in 1996 when she was sixteen. Ayres pushed for Michigan legislation restricting access to autopsy photos after she discovered that pictures of her daughter were on public display as part of an anti–drunk driving campaign.
showing is required in cases where laws of general applicability simply happen to apply with particular force to religious practices. As a result, a U.S. district court in Rhode Island reversed its decision in You Vang Yang (1990), in which it had originally decided that a Hmong family was entitled to damages after a son’s body was autopsied, following its seizure, despite the family’s objections.
In Avis Rent-a-Car System v. Aguilar, 529 U.S. 1138 (2000), the Supreme Court declined to review a ruling by the California Supreme Court allowing an injunction prohibiting an employee of Avis Rent-a-Car from uttering derogatory remarks about Latino co-employees. The case began when Oscar Aguilar and sixteen other Latino drivers sued Avis for employment discrimination based on the harassing comments of fellow employee John Lawrence. The plaintiffs asserted that Avis knew or should have known that Lawrence was uttering such remarks and did nothing to stop him. After a jury ruled in favor of the employees, a trial court crafted an injunction that sought to prohibit such conduct in the future. The California Court of Appeals ordered the injunction modified to limit only workplace speech. The injunction listed certain words that Lawrence could not speak in the workplace. In 1999 the California Supreme Court approved the injunction in Aguilar v. Avis Rent-a-Car System (Cal. 1999).The court ruled that “a remedial injunction prohibiting the continued use of racial epithets in the workplace does not violate the right to freedom of speech if there has been a judicial determination that the use of such epithets will contribute to the continuation of a hostile or abusive work environment.” Avis appealed to the U.S. Supreme Court, which denied the petition on May 22, 2000. Justice Clarence Thomas dissented from the denial of certiorari. He reasoned that the injunction, which he termed a prior restraint, “very likely suppresses fully protected speech.” Thomas explained that “even assuming that some pure speech in the workplace may be proscribed consistent with the First Amendment when it violates a workplace harassment law, special First Amendment problems are presented when, as here, the proscription takes the form of a prior restraint.” See also Prior Restraint;Thomas, Clarence.
David L. Hudson Jr. See also Employment Division, Department of Human Resources of Oregon v. Smith (1990); Native Americans.
John R.Vile
furthe r reading Flowers, Ronald B.“Government Accommodation of Religious-based Conscientious Objection.” Seton Hall Law Review 24 (1993): 695–735.
furthe r reading Bernstein, David. “Hostile Environment Law and the Threat to Freedom of Expression in the Workplace.” Ohio Northern University Law Review 30 (2004): 1–13. Burke, Debra D.“Workplace Harassment:A Proposal for a Bright Line Test Consistent with the First Amendment.” Hofstra Labor and Employment Law Journal 21 (2004): 591–641.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
B
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 REDRESS OF GRIEVANCES.
Bache, Benjamin Franklin Benjamin Franklin Bache (1769–1798), the controversial editor of the Philadelphia newspaper the American Aurora, was one of the persons arrested under the Sedition Act of 1798. He was the oldest son of the only daughter of Benjamin Franklin—the inventor, journalist, statesman, and founder—and followed in the journalistic footsteps of his famous grandfather. At age seven, young Benjamin accompanied his grandfather to France, where Franklin served as agent and minister for the American revolutionaries.While there, Bache became more fluent in French than in English.After attending school in France with John Adams’s son John Quincy, he continued his schooling in Geneva, Switzerland. Also while in France, Bache learned the trades of printing and type-founding. Upon returning to the United States in 1785, Bache worked as a printer in his grandfather’s shop in Philadelphia. After Franklin’s death in 1790, Bache inherited the printing house. The same year, he established the General Advertiser (later the Aurora), becoming an active participant in the partisan journalism common during the early years of the nation. Fiercely pro-French and democratic, the newspaper attacked Presidents George Washington and John Adams, and it eventually succeeded the National Gazette as the leading organ for Thomas Jefferson’s Democratic-Republican Party. Through his newspaper, Bache defended the cause of the French Revolution and other Democratic-Republican positions. He relied on anonymous sources and leaks, and his paper was not above making personal attacks. The Aurora even reprinted forged letters attributed to Washington, but originally issued by the British in 1776. The paper also leaked the text of the Jay Treaty.
In 1798 authorities arrested Bache under the Sedition Act of 1798 for libeling President Adams, but he was released on parole. He died soon afterward of yellow fever at the age of twenty-nine. His widow carried on the paper after his death and married the associate editor,William Duane. See also Adams, John; Franklin, Benjamin; Jefferson, Thomas; Sedition Act of 1798.
Martin Gruberg
furthe r reading Fays, Bernard. Two Franklins: Fathers of American Democracy. Boston: Little, Brown, 1933. Smith, Jeffery A. Franklin and Bache: Envisioning the Enlightened Republic. New York: Oxford University Press, 1990. Tagg, James. Benjamin Franklin Bache and the Philadelphia. Aurora: University of Pennsylvania Press, 1991.
Bachellar v. Maryland (1970) In Bachellar v. Maryland, 397 U.S. 564 (1970), the First Amendment came head to head with the unpopular war in Vietnam. Justice William J. Brennan Jr. delivered the unanimous opinion of the Supreme Court, setting aside the convictions of several anti-war protestors.The Court found that the jury may have convicted the protestors simply because it disagreed with the protestors’ viewpoint. Donald Bachellar and others were convicted in a Baltimore City Criminal Court for violating Maryland’s disorderly conduct statute. The petitioners were protesting the Vietnam War in front of a U.S.Army recruiting station on the afternoon of March 28, 1966.The Maryland Court of Special Appeals ruled that the protestors were not constitutionally
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protected under the First and Fourteenth Amendments.The petitioners handed out pamphlets during their protest, but the police officers on hand reported that neither the pamphlets nor the protest incited any disturbance. At 3:30 p.m. the marchers interrupted their protest to enter the recruiting office to post anti-war materials. The sergeant on duty informed them that army regulations forbade posting such materials. In response, the petitioners staged a sit-in. A few minutes before 5 p.m. the sergeant asked the petitioners to leave so he could close the office.When the petitioners refused to comply, they were ejected by the police. What happened next was unclear because of conflicting testimonies. It was clear, however, that the petitioners, singing “We Shall Overcome,” continued their march after being expelled from the building and that, according to police officers, they did not incite any serious counterprotest. Still, the jury could have found them guilty of disturbing the peace because “their anti-Vietnam protest amounted to the doing or saying of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area.” The Court reversed the judgment of the Maryland Court of Special Appeals because, it reasoned, the jury may have convicted the protestors simply because it found the viewpoint of the protesters offensive. Or as Brennan wrote, “[T]he petitioners may have been found guilty . . . simply because they advocated unpopular ideas.” The Court “held that where it was impossible to determine if convictions for disorderly conduct in blocking a public sidewalk as part of an anti-Vietnam war demonstration were based on grounds contrary to the First Amendment, the case must be reversed” (Bartholomew 1970: 857). See also Brennan,William J. Jr.;Vietnam War.
Heather K. DeMatos
furthe r reading Bartholomew, Paul C. “The Supreme Court of the United States, 1969–1970.” Western Political Quarterly 23, no. 4 (1970): 854–869.
Backus, Isaac Isaac Backus (1724–1806), an influential Baptist, led the fight for religious freedom in colonial Massachusetts. His efforts helped to establish the notion of free exercise of religion, which eventually was incorporated into the First Amendment. In the aftermath of the Great Awakening, pre-revolutionary Baptists began to flourish, despite the religious harass-
ment and maltreatment that had characterized the eighteenth century and was still apparent in most colonies, Massachusetts in particular. Consistent with the revolutionary zeal for political liberty, Isaac Backus led Baptists and other nonconformists against the unwarranted parameters that the Massachusetts government was applying to those believers who did not accept the Puritan creed. Through tracts, speeches, protests, and petitions, Backus became a well-known advocate of religious liberty in the years leading up to the American Revolution. He supported separation of church and state and soul freedom. According to historian John Mecklin (1934),“Patient, tolerant, wise and brave in the face of institutionalized intolerance and petty persecution, he illustrated, in simple and unpretentious fashion, principles which were later to become embodied in organic law and made the guarantee of our democratic liberties” (p. 221). Backus argued that the civil enforcement of religion leads to bloodshed and suffering, exacerbating the spread of infidelity under the Christian banner and serving as the greatest form of tyranny known to humankind (Maston 1962: 71). He posited conversely that the church refrain from interference in governmental affairs. For Backus, there could be harmony between church and state, but the nature of their work was vastly different and prohibited them from being united successfully. An active writer on religious liberty and a frequent lobbyist before the Massachusetts legislature, Backus was the most profound American thinker of his day on church-state relations and religious liberty. He drew upon seventeenthcentury British theologian Roger Williams and British philosopher John Locke and wrote several voluminous works, the most important being his three-volume History of New England with Particular Reference to the Denomination of Christians called Baptists (1777, 1784, 1796).The thrust of his argument was that the Massachusetts tax exemptions granted to certain denominations violated the law of God, because the government had assumed the right to determine those denominations it would tolerate and at what price and those entitled to exemptions (Estep 1988: 68–69). In 1772 the Massachusetts Warren Association called on Backus to lead its Grievance Committee in an attempt to redress the wrongs carried out against Baptists in New England. In making the case for relief, the committee was asked to assemble and present “well-attested” cases of religious persecution to courts and legislators. The efforts of Backus and others, however, brought about little change in
Bad Tendency Test the Massachusetts laws.Thus in 1774 the Warren Association (consisting of twenty-one Baptist churches) decided that it would appeal to the newly created Continental Congress for redress, and it asked Backus to argue the association’s cause before that body. But Congress offered no relief. Delegates to the Continental Congress generally looked upon the whole affair as an attempt to disrupt colonial unity and to disrupt the legislature by introducing extraneous and contentious issues. Undaunted, Backus and other Baptists continued to pursue their cause before the Massachusetts legislature, but his proposed language to end the establishment of the Congregational church was not included in Article III of the 1780 Massachusetts constitution. Although the article on establishment remained in effect until 1833, the words, writings, and character of Backus symbolized and influenced the Baptist struggle for religious liberty for generations to come and helped to shape the American tradition of church-state relations. See also Baptists; Locke, John; State Constitutional Provisions on Religion;Williams, Roger.
Derek H. Davis
furthe r reading Davis, Derek H. “Baptists and the American Tradition of Religious Liberty.” Perspectives in Religious Studies 33 (2006): 41–66. ———. Religion and the Continental Congress, 1774–1789: Contributions to Original Intent. Oxford: Oxford University Press, 2000. Estep, William. Religious Liberty: Heritage and Responsibility. North Newton, Kan.: Bethel College, 1988. Maston, T. B. Isaac Backus: Pioneer of Religious Liberty. London: James Clarke, 1962. Mecklin, John M. The Story of American Dissent. New York: Harcourt, Brace, 1934.
Bad Tendency Test The bad tendency test was the most influential standard used by U.S. courts to determine whether criticism of World War I (1914–1918), and the government in the wake of the war, was protected by the First Amendment. The test has its roots in the stance of the Woodrow Wilson administration against dissent to the war effort. President Wilson warned that disloyalty “must be crushed out” in the United States, and that those disloyal “had sacrificed their right to civil liberties.” Soon after the United States entered the war in 1917, Congress passed the Espionage Act of 1917, the first federal legislation against disloyalty since the Sedition Act of 1798. Although Congress intended to
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address in the act concerns about the operation of the military, the administration used the act to prohibit dissenting views. Attorney General Thomas W. Gregory called on dissenters to pray for God’s mercy, “for they need expect none from an outraged people and an avenging government.” The government exacted its vengeance with the assistance of the judiciary. The bad tendency test is based on English common law, most specifically on Sir William Blackstone’s Commentaries. In the U.S. judicial system, the roots of the test can be traced to the U.S. Supreme Court cases United States ex rel.Turner v. Williams (1904) and Patterson v. Colorado (1907). However, it was used most pervasively in lower federal court decisions. For example, Shaffer v. United States (1919), heard in the Ninth Circuit Court of Appeals, revolved around Shaffer’s possession and mailing of the book The Finished Mystery. Because a passage in the book questioned the wisdom of the U.S. involvement in the war and the government’s reasons for it, Shaffer was convicted of violating the Espionage Act. According to the court,“It is true that disapproval of war and the advocacy of peace are not crimes under the Espionage Act; but the question here . . . is whether the natural and probable tendency and effect of the words . . . are such as are calculated to produce the result condemned by the statute” [emphasis added]. The end result of the bad tendency test was that during the wartime era the Supreme Court ruled in favor of the government’s anti-seditious behavior almost without fail. Among the most well-known cases related to the First Amendment were Abrams v. United States (1919), Gitlow v. New York (1925), and Whitney v. California (1927). In Abrams, a group headed by Jacob Abrams published a pamphlet decrying Wilson’s decision to send troops to Russia. The pamphlet, written in both English and Yiddish and using anti-capitalist language common to supporters of the Russian Revolution, urged U.S. workers to strike in protest. The government charged the group with violating the 1918 amendment to the Espionage Act by expressing disloyalty and interfering with the war effort. In its decision, the Supreme Court abandoned the clear and present danger test it had articulated in Schenck v. United States (1919) in favor of the bad tendency test.According to the majority opinion, the Court could distinguish between language intended to discredit the form of the government and language intended to result in action against the institutions of government. However, the Court found that “it is not necessary to a decision of this case to consider whether such distinction is vital
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or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war.” In Gitlow, a socialist violated a New York criminal anarchy statute. Benjamin Gitlow distributed a pamphlet calling for mass insurrection and overthrow of the U.S. capitalist system. Using the bad tendency test, the Supreme Court upheld the statute and the conviction. Gitlow’s most enduring legacy, however, was the incorporation of the freedoms of both speech and press to the states. The Whitney case involved a wealthy heiress, Charlotte Anita Whitney, who was arrested for her membership in socialist and communist organizations that were violating California’s syndicalism laws by helping to form the Communist Labor Party.The Court rejected her claims that the laws violated her freedom of speech. Instead, it found “that a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question.” As speech has become recognized as a “preferred freedom,” the Supreme Court and lower federal courts have moved away from use of the bad tendency test. See also Abrams v. United States (1919); Blackstone,William; Clear and Present Danger Test; Espionage Act of 1917; Gitlow v. New York (1925); Patterson v. Colorado (1907); Preferred Position Doctrine; Schenck v. United States (1919); United States ex rel. Turner v. Williams (1904);Whitney v. California (1927);World War I.
Tobias T. Gibson
furthe r reading Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997. Stone, Geoffrey R. “The Origins of the ‘Bad Tendency’ Test: Free Speech in Wartime.” Supreme Court Review (2002): 411–453.
Baggett v. Bullitt (1964) Focusing on the issue of vagueness, the Supreme Court in Baggett v. Bullitt, 377 U.S. 360 (1964), struck down the 1931 and 1955 provisions of a Washington state law that mandated loyalty oaths for state employees, thereby interfering with their First Amendment rights of association. The 1931 statute, which applied only to teachers, required them to “promote respect for the flag and the insti-
tutions of the United States of America and the State of Washington.” The 1955 statute required all state employees to affirm that they were not “subversive” and that they were not aiding the Communist Party of the United States. Employees of the University of Washington had challenged both statutes. Justice Byron R.White wrote the Court’s majority opinion, which limited its reach to the vagueness of the statutes. White relied in large measure on Cramp v. Board of Public Instruction (1961), which had invalidated a Florida loyalty oath. Like those who questioned that oath, White said that conscientious persons could not know for certain what the oath permitted and what it forbade. He also pointed out that the 1931 oath might be applied to individuals who refused to salute the flag because of religious convictions. However well intentioned prosecutors or judges might be, reliance on their interpretation of the statutes would “not neutralize the vice of a vague law.” White further rejected the notion that the Court should abstain from handling the issue and wait on the state courts to do so. Although states had the right to “take proper measures safeguarding the public service from disloyal conduct,” the measures they take “must allow public servants to know what is and is not disloyal.” Writing in dissent, Justice Tom C. Clark, who was joined by Justice John Marshall Harlan II, denied the relevance of the Cramp decision. Clark thought the brief per curiam decision in Gerende v. Board of Supervisors of Elections (1951) was more on target. It had upheld an oath for individuals seeking a place on a ballot—they had to affirm they were not engaged in attempting to overthrow the government by force or violence. In reviewing possible interpretations of the Washington oaths that his fellow justices had formulated, Clark accused them of extracting “more sunbeams from cucumbers than did Gulliver’s mad scientist” and building up “a whimsical and farcical straw man which is not only grim but Grimm.” In his view, the language of the Washington oaths differed little from that of the loyalty oaths required under the Smith Act of 1940, which the Court had upheld in Dennis v. United States (1951). Clark also dismissed claims based on claims of free speech and association as “frivolous.” See also Cramp v. Board of Public Instruction (1961); Dennis v. United States (1951); Loyalty Oaths; Smith Act of 1940;Vagueness; White, Byron R.
John R.Vile
Baker v. Nachtrieb (1856) furthe r reading Goldsmith, Andrew E. “The Void-for-Vagueness Doctrine in the Supreme Court, Revisited.” American Journal of Criminal Law 30 (2003): 279–313.
Baird v. State Bar of Arizona (1971) This companion case to In re Stolar (1971) is one of several Supreme Court rulings that extended greater First Amendment protection to admission to the bar than the Court had demonstrated in its earlier decisions in In re Anastaplo (1961) and Konigsberg v. State Bar (1961). Although Sara Baird, the petitioner, responded to a query on the Arizona State Bar questionnaire about organizations to which she belonged, she refused to answer whether she was a member of the Communist Party or any organization that advocated overthrowing the U.S. government by force. Consciously distancing himself from McCarthy era decisions that had upheld such oaths, Justice Hugo L. Black wrote in his majority opinion in Baird v. State Bar of Arizona, 401 U.S. 1 (1971), that the question posed to Baird about her past associational activities forced her into a guessing game. Citing Cantwell v. Connecticut (1940), Black observed that the First Amendment embraces “freedom to believe and freedom to act.” Further citing Thomas v. Collins (1945), he noted that the “First Amendment gives freedom of mind the same security as freedom of conscience.” First Amendment recognition of freedom of association “prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular political organization or because he holds certain beliefs.” Moreover,“a State may not inquire about a man’s views or associations solely for the purpose of withholding a right or benefit because of what he believes.” Black argued that “the practice of law is not a matter of grace, but of right for one who is qualified by his learning and moral character,” and he found no evidence “that this lady is not morally and professionally fit to serve honorably and well as a member of the legal profession.” In his concurring opinion, Justice Potter Stewart agreed that “the First and Fourteenth Amendments bar a State from acting against any person merely because of his beliefs.” Justice Byron R. White’s dissent stressed that a state did not have to admit anyone to the bar “who believes in violence and intends to implement that belief in his practice of law and advice to clients.” Justice Harry A. Blackmun’s dissent cited the precedents In re Anastaplo and Konigsberg, and
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he did not find the questions Arizona asked to be vague or Baird’s decision not to answer to be inadvertent. He found the state in a better position to assess risk than the Supreme Court and within its right “to protect itself.” See also Bar Admissions; Black, Hugo L.; Cantwell v. Connecticut (1940); In re Anastaplo (1961); In re Stolar (1971); Konigsberg v. State Bar (1961); McCarthyism;Thomas v. Collins (1945).
John R.Vile
furthe r reading Keeley, Theresa. “Comment: Good Moral Character: Already an Unconstitutionally Vague Concept and Now Putting Bar Applicants in a Post-9/11 World on an Elevated Threat Level.” University of Pennsylvania Journal of Constitutional Law 6 (2004): 844–879.
Baker v. Nachtrieb (1856) Although this decision does not mention the First Amendment, Baker v. Nachtrieb, 60 U.S. 126 (1856), furthered the free exercise of religion by sustaining an agreement between a religious society and its members. The Harmony Society was founded by German immigrants in 1805 in Pennsylvania. Under the leadership of Johann George Rapp, the group eventually settled in Economy, Pennsylvania, after a foray to Indiana. Under the rules of the society, members held property in common as “joint and indivisible stock.” The society’s director was charged with deciding how much, if anything, any member leaving the society would receive.When disaffected member Joshua Nachtrieb left the society in 1846, he received $200. Although Nachtrieb claimed that he had been unjustly excluded by combination and covin, Justice John A. Campbell, writing for a unanimous Court, ruled that Nachtrieb’s acceptance of the money from the Harmony Society precluded his claim against the society and its leaders. The Supreme Court decision in Baker v. Nachtrieb (1856) effectively prevented the judiciary from examining the internal structure of the society. Later cases—Schwartz v. Duss (1902) related to the same society; Goesele v. Bimeler (1852) about a similar society, the Separatists; and Order of St. Benedict v. Steinhauser (1914), dealing with the Benedictine order—had similar effects. See also Order of St. Benedict v. Steinhauser (1914).
John R.Vile
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furthe r reading Taylor, Anne. Visions of Harmony: A Study in Nineteenth Century Millenarianism. New York: Clarendon Press, 1987.
Baker, C. Edwin C. Edwin Baker (1947– ), Nicholas F. Gallicchio Professor of Law and professor of communication at the University of Pennsylvania Law School, is one of the country’s foremost First Amendment scholars. Baker grew up in Madisonville, Kentucky, where he followed his parents’ example in speaking out against racism and other injustices. After graduating from Madisonville Public High School in 1965, he received his undergraduate degree from Stanford University in 1969. His next stop was Harvard University for a two-year fellowship in law and humanities, followed by Yale Law School, where his favorite professor was renowned First Amendment scholar Thomas Emerson. After graduation from Yale in 1972, Baker entered academia, teaching at the University of Toledo and then the University of Oregon before eventually moving to the University of Pennsylvania. For a time, he also worked as a staff attorney for the American Civil Liberties Union in New York. Since 1986, he has taught at the University of Pennsylvania. Perhaps Baker’s most enduring contribution to First Amendment theory is his influential book Human Liberty and Freedom of Speech (1989) in which he argues that the primary justification for freedom of expression rests on protecting individual human liberty (the liberty theory) rather than the traditional marketplace of ideas rationale. He writes: “The liberty model holds that the free speech clause protects not a marketplace, but rather an arena of individual liberty from certain types of government restrictions” (p. 5). Baker has also written several other books that examine First Amendment–related issues: Advertising and a Democratic Press (1994); Media, Markets, and Democracy (2002); and Media Concentration and Democracy:Why Ownership Matters (2007). See also Emerson,Thomas; Liberty Model.
David L. Hudson Jr.
furthe r reading Bergren, Kris.“Changing the World One Decade at a Time.” Penn Law Journal (2000). www.law.upenn.edu/alumnijournal/fall2000/communication/article2.
Bakery and Pastry Drivers and Helpers Local v. Wohl (1942) In Bakery and Pastry Drivers and Helpers Local v.Wohl, 315 U.S. 769 (1942), the Supreme Court struck down an injunction against picketers who were protesting peddlers buying from bakeries and selling to small retailers seven days a week in conflict with union policies. In so ruling, the case applied freedom of speech to New York via the Fourteenth Amendment. New York state courts had ruled that the peaceful picketing had been unlawful because it did not involve a labor dispute as defined by state law. By contrast, in delivering the opinion of the U.S. Supreme Court, Justice Robert H. Jackson wrote: “One need not be in a ‘labor dispute’ as defined by state law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive.” In so writing, Jackson thereby clarified that the Court had denied certiorari to Opera on Tour v. Weber (1941), a similar case, because it was one in which “the question of the existence of a right to free speech under the Fourteenth Amendment was neither raised nor considered.” Justice William O. Douglas authored a concurring opinion, joined by Justices Hugo L. Black and Francis W. Murphy, in which he observed, “If the opinion in this case means that a State can prohibit picketing when it is effective but may not prohibit it when it is ineffective, then I think we have made a basic departure from Thornhill v. Alabama, 310 U.S. 88 [1940].” Douglas sought to apply the clear and present danger test to picketing cases and thought that any restrictions on peaceful picketing would have to be drawn more narrowly than the statute under which the injunction had been justified. Douglas acknowledged that “picketing by an organized group is more than free speech” and can be a proper “subject of restrictive regulation,” but he further noted that because the “ ‘dissemination of information concerning the facts of a labor dispute’ is constitutionally protected, a State is not free to define ‘labor dispute’ so narrowly as to accomplish indirectly what it may not accomplish directly.” See also Clear and Present Danger Test; Douglas, William O.; Jackson, Robert H.; Picketing;Thornhill v. Alabama (1940).
John R.Vile
Baldwin, Roger
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Kennedy, Elizabeth. “Freedom from Independence: Collective Bargaining Rights for ‘Dependent Contractors.’ ” Berkeley Journal of Employment and Labor Law 29 (2005): 143–179.
Miller, John C. Crisis in Freedom—The Alien and Sedition Acts. Delran, N.J.: Classics of Liberty Library, 2002. Rudanko, Martti Juhani. James Madison and Freedom of Speech: Major Debates in the Early Republic. Dallas: University Press of America, 2004.
Baldwin, Luther One of the most famous victims of the Sedition Act of 1798 was Luther Baldwin (dates of birth and death not known). Baldwin was the pilot of a garbage scow (sailing dinghy) in Newark, New Jersey, and a former member of the Continental Army in Essex County, New Jersey. Contrary to the First Amendment, the Sedition Act greatly limited freedom of speech. Anyone who criticized government leaders or who promoted resistance to federal laws in violation of the Sedition Act was subject to a fine or imprisonment. During the summer of 1798, President John Adams and his wife were traveling from Philadelphia to Quincy, Massachusetts, to enjoy some vacation time. Along the way, they stopped in Newark, where they were greeted by a crowd of citizens and a sixteen-gun cannon salute to the commander in chief. A group of men who included Baldwin observed the proceedings from the doorway of a nearby tavern. One of the men said something to the effect that the shots were being fired at the rear end of the president. An inebriated Baldwin was then overheard to reply that he did not care if they fired through President Adam’s “arse,” a comment that would help change course of U.S. history.The owner of the tavern, John Burnet, said that Baldwin had committed an act of sedition.A group of nearby Federalists agreed with Burnet. For his misdeed, Baldwin was indicted and convicted in federal court for speaking “seditious words” that defamed President Adams. He was fined $150, assessed court costs, and jailed until he paid the fine and fees. Despite his troubles, Baldwin became a national hero. His plight helped spur opposition to President Adams and the restrictions he had placed on First Amendment rights. This opposition proved instrumental in helping Thomas Jefferson win the presidential election of 1800 and in strengthening the First Amendment. One of Jefferson’s first acts in office was to grant Baldwin, as well as others imprisoned under the Sedition Act, a formal pardon and apology and to drop any imposed fines. See also Adams, John; Federalists; Jefferson,Thomas; Sedition Act of 1798.
Alvin K. Benson
Baldwin, Roger Roger Nash Baldwin (1884–1981) founded the American Civil Liberties Union (ACLU) in 1920 and served as its executive director from 1920 to 1950. Baldwin was born in Wellesley Hills, Massachusetts, into an affluent and socially active New England family. His uncle William Henry served as director of the National Child Labor Committee, and his aunt Ruth Standish Bowles helped found the National Urban League. While at Harvard College, Baldwin volunteered as an instructor for adult education classes for low-income workers, thereby launching his social work. He then headed west to Missouri, accepting, on the advice of family friend Louis D. Brandeis, an offer from Washington University to teach sociology and to work at a settlement house in St. Louis. There, he soon became prominent in the social work community and active in leading reform movements such as the settlement house movement, African American rights groups, and good government leagues. During World War I, Baldwin directed the American Union Against Militarism (AUAM) in St. Louis and later served as AUAM secretary in New York. The government investigated the group for its work in behalf of conscientious objectors. In 1918 Baldwin himself was called up for military service, but, to demonstrate his solidarity with wartime resisters, he refused to serve and was sentenced to a year in prison.After his release, he married prominent journalist and feminist Madeleine Z. Doty, whom he later divorced. In 1917 Baldwin founded the Civil Liberties Bureau as a branch of the AUAM. By 1920 the bureau had grown into an independent organization. Now known as the American Civil Liberties Union, the group became the country’s first national civil liberties organization. Under Baldwin’s thirtyyear tenure as the first executive director of the ACLU, the organization quickly earned a reputation for defending the civil liberties of some of the most controversial members of society. In some of its earliest cases, the ACLU provided legal support for anarchists Nicola Sacco and Bartolomeo Vanzetti, and in the Scopes monkey trial (Scopes v. State [Tenn. 1925], [Tenn. 1927]) it defended the right to teach
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evolution. Baldwin also led the ACLU as it spurred many landmark First Amendment cases, including the extension of First Amendment prohibitions against censorship to the states in the Supreme Court cases Gitlow v. New York (1925) and Stromberg v. California (1931), as well as the victory over attempts to censor James Joyce’s Ulysses in the Second Circuit case United States v. One Book Entitled “Ulysses” (1933). Outside his work at the ACLU, Baldwin was criticized for his involvement in socialist causes and his praise for the Soviet Union in his book Liberty under the Soviets (1928). However, after the Soviets signed the 1939 German-Soviet Nonaggression Pact with the Nazis Baldwin lost faith in communism, and his later work called for human rights in Soviet bloc countries. After World War II, Gen. Douglas MacArthur, supreme commander for the Allied Powers, asked Baldwin to help Japan and Korea develop civil liberties protections. Several months before Baldwin’s death in 1981, President Jimmy Carter awarded him the Presidential Medal of Freedom. See also American Civil Liberties Union; Brandeis, Louis D.; Gitlow v. New York (1925); Scopes Monkey Trial; Stromberg v. California (1931); Ulysses.
Julie Lantrip
furthe r reading Cottrell, Robert C. Roger Nash Baldwin and the American Civil Liberties Union. New York: Columbia University Press, 2000. Klein, Woody. Liberties Lost: The Endangered Legacy of the ACLU. Westport, Conn.: Praeger, 2006. Lamson, Peggy. Roger Baldwin: Founder of the American Civil Liberties Union. Boston: Houghton Mifflin, 1976.
Ballot Access Ballot access refers to the basic rules and procedures that regulate whether and how candidates or political parties will be presented to voters for electoral consideration. Fundamental to promoting democracy, ballot access continues to be the subject of considerable debate in the United States. The U.S. Constitution decentralizes the election process to the states. Article 1, section 4, of the Constitution states that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof.” This deferral of election procedures to state governments, which has remained in place over time, has allowed each state to consider its own unique circumstances and conditions when designing the
criteria for access. Amendments to the Constitution have, however, limited discrimination in voting based on race (Fifteenth Amendment, 1870); sex (Nineteenth Amendment, 1920); payment of a poll tax (Twenty-fourth Amendment, 1964); and age (Twenty-sixth Amendment, 1971). The original constitutional design of ballot access did not lend itself to secrecy. Before the latter half of the nineteenth century, voters would either verbally inform election officials for whom they were voting or would place a ballot printed by their own political party in the ballot box.These practices tended to make the process prone to corruption, misinterpretation, and inefficiency. The Australian ballot, created in that country in 1858 and adopted by the United States in the 1880s, changed this design and allowed voters to cast their votes in secret for candidates on an office-by-office basis using an official ballot. The new process not only ensured confidentiality, but also made the election process more formal and credible.The Australian ballot model was thereafter used successfully in presidential elections, but voter turnout declined noticeably, because voters had to be able to read the ballot and literacy rates then were much lower than today. The Australian ballot also had an effect on ballot access, which until then had been relatively uninhibited. The states are the primary vanguard of ballot access. Many state governments delegate this responsibility to their county governments, which have elected or appointed “supervisors of elections.” The result has been extensive electoral variability throughout the nation, not only in the criteria for gaining access to the ballot, but also in the ways in which elections are conducted. Most states require candidates and parties that have not previously garnered a significant number of votes at the national level and that wish to appear on the ballot to collect a minimum number of signatures—that is, a percentage of the total number of registered voters. Such a requirement puts minor parties and less recognized candidates at a disadvantage, as does some states’ imposition of a “filing fee” to cover the costs of the ballot process. Incumbents usually have more money and resources to devote to the cause. The predominantly two-party nature of the U.S. political system has fueled the ballot access debate. Supporters of ballot access restrictions view the matter from a practical standpoint, arguing that the established procedures and access criteria have deterred large numbers of unqualified candidates from appearing on ballots, thereby alleviating stress in the system and confusion within the electorate. By contrast, reformers contend that stringent access criteria prevent
Ballot Access competition and even alienate third-party candidates who are unable to collect the requisite number of signatures to appear on the ballot. In addition, such candidates must contend with the name recognition that gives incumbents of the two major parties a distinct advantage. Political apathy and disinterest further diminish the likelihood that a qualified newcomer will be able to meet access criteria. Such criteria stifle the political dialogue and limit discourse to those issues favored by the two major parties. Finally, reformers contend that by narrowing the field of new and entrepreneurial candidates, ballot access restrictions reduce the quantity and quality of choices available to voters, and thus have contributed to the declining levels of voter turnout. The right of candidates and political parties to be on the ballot is not unlimited.Yet this right implicates the freedom of association, and the courts have ruled that the government’s authority to regulate elections cannot make ballot access unduly burdensome. In Bullock v. Carter (1972), the U.S. Supreme Court found that the payment of a filing fee to run for office was unconstitutional. Although the Court based its ruling on the equal protection clause, it also discussed how the fee affected conduct protected by the First Amendment. In Williams v. Rhodes (1968), the Supreme Court again used the equal protection clause to invalidate state laws, making it virtually impossible for Alabama governor George C. Wallace to appear on the Ohio presidential ballot. Ohio laws required candidates to collect a large number of signatures and parties to form committees well in advance of the election. Conversely, in Storer v. Brown (1974) the Court upheld a state law requiring an independent candidate running for office to demonstrate disaffiliation from a party for a least one year. And yet in Anderson v. Celebrezze (1983) the Supreme Court invalidated on First Amendment grounds a state law that imposed early filing requirements for an independent presidential candidate who wished to appear on the general election ballot. Often, independent and third-party candidates are required to collect and file a minimum number of signatures in order to appear on the ballot. If that minimum threshold is too high, the courts may invalidate the threshold or requirement as a First Amendment violation, but precedents have not been completely consistent. In Illinois State Board of Elections v. Socialist Workers Party (1979), the U.S. Supreme Court ruled that a state law requiring a minor party to obtain more than 25,000 signatures to appear on the ballot
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violated its First Amendment rights. Later, in Norman v. Reed (1992), the Court ruled that requiring a third-party candidate to collect 25,000 signatures within the city of Chicago to appear on the ballot was not a First Amendment violation. In Munro v. Socialist Workers Party (1986), the Court upheld a requirement that a party secure at least 1 percent of the vote in a primary in order to gain a spot on the general election ballot.The Court noted that although the 1 percent requirement did impinge upon the First Amendment rights of the party, these rights were not absolute and it was not burdensome to require the party to demonstrate some minimum level of support to appear on the ballot. Finally, in Timmons v. Twin Cities Area New Party (1997) the Court upheld, against a First Amendment challenge, a state “antifusion” law barring a candidate from one political party from appearing on the ballot as an endorsed candidate for another political party. The Court’s reasoning here was that the compelling interest in preventing fraud and voter confusion outweighed any First Amendment claims to ballot access. Overall, although the courts have been hostile to the payment of fees to obtain ballot access, other requirements in place to demonstrate that candidates or political parties have sufficient political support have been upheld as legitimate governmental interests in regulating elections. See also Anderson v. Celebrezze (1983); Electioneering; Norman v. Reed (1992);Williams v. Rhodes (1968).
Daniel Baracskay
furthe r reading Beck, Michael S., and Peverill Squire. “The Politics of Institutional Choice: Presidential Ballot Access for Third Parties in the United States.” British Journal of Political Science 25 (1995): 419–427. Claude, Richard. The Supreme Court and the Electoral Process. Baltimore: Johns Hopkins University Press, 1970. Hayduck, Ronald, and Kevin Mattson. Democracy’s Movement: Reforming the American Political System for the 21st Century. Lanham, Md.: Rowman and Littlefield, 2002. Markin, Karen M. Ballot Access 2: For Congressional Candidates. Washington, D.C.: National Clearinghouse on Election Administration, 1995. ———. Ballot Access 3: For Presidential Candidates. Washington, D.C.: National Clearinghouse on Election Administration, 1995. ———. Ballot Access 4: For Political Parties. Washington, D.C.: National Clearinghouse on Election Administration, 1995. Palmer, James A., Edward D. Feigenbaum, and David T. Skelton. Election Case Law 97. Washington, D.C.: Federal Election Commission, 1997.
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Balzac v. People of Porto Rico (1922)
Balzac v. People of Porto Rico (1922) The Supreme Court decision in Balzac v. People of Porto Rico, 258 U.S. 298 (1922), affirmed a libel decision against Jesus M. Balzac, who edited the Puerto Rican news daily El Baluarte. The central issues in the case were jurisdiction and the application of the Sixth Amendment right to a jury trial to the territory of Puerto Rico. In a decision written by Chief Justice William Howard Taft, the Court ruled that it did have jurisdiction in this case, but denied that Congress had “incorporated” Puerto Rico into the Union. It concluded that Congress had not intended to apply to the territory all the provisions of the Bill of Rights, including the Sixth Amendment jury provision, which Puerto Rico did not apply in nonfelony libel cases such as this one. Taft’s decision, in which Justice Oliver Wendell Holmes Jr. concurred without a written opinion, made relatively short shrift of Balzac’s arguments based on freedom of speech and press.At a time when the Court had yet to make it difficult for public figures to win libel judgments, Taft observed that a reading of the articles at issue “removes the slightest doubt that they go far beyond the ‘exuberant expressions of meridianal [he apparently meant meridional] speech’ ” the Court had cited in Gandia v. Pettingill (1912). “Indeed they are so excessive and outrageous in their character,” said Taft, “that they suggest the query whether their superlative vilification has not overleapt itself and become unconsciously humorous.” He quickly added,“But this is not a defense.” See also Gandia v. Pettingill (1912); Libel and Slander.
John R.Vile
furthe r reading Kent, J. Andres. “A Textual and Historical Case against a Global Constitution.” Georgetown Law Journal 95 (2007): 463–539.
Banned Books Week Launched in the fall of 1981, Banned Books Week is intended to make the public more aware of the frequent challenges to the First Amendment’s guarantees of freedom of speech and press. This celebration of the First Amendment is the product of a joint effort by the American Library Association (ALA), American Booksellers Association, American
Booksellers Foundation for Free Expression, Association of American Publishers, American Association of Journalists and Authors, and National Association of College Stores. Each year, the last week of September is designated Banned Books Week. Organizers choose a theme related to the First Amendment that is also designed to promote reading. In 2002, for example, the theme was “Let Freedom Ring: Read a Banned Book.” For its twenty-fifth anniversary in 2006, Banned Books Week adopted a carnival motif with the theme “Read Banned Books: They’re Your Ticket to Freedom.” Each year, the ALA sends libraries around the country a kit (three posters, a hundred bookmarks, a button, and a resource guide) to use in promoting Banned Books Weeks. Local librarians also come up with their own ideas. For example, in 2004 one library chose to wrap banned books in underpants to honor Dav Pilkey’s Captain Underpants series. Reactions to the display varied. Some parents objected to the banning of the books; others were offended that underpants were used in the display. Supporters of the First Amendment have long realized that the unrestricted freedom to read material of one’s own choosing is essential to democracy. Thomas Jefferson, the author of the Declaration of Independence and the third president of the United States, believed that freedom of speech was the central element in combating tyranny. Jefferson ran into censorship in 1814 when a bookseller refused to sell him a banned book by a French writer about the creation of the world. Guided by the ALA’s Intellectual Freedom Manual, Banned Books Week seeks to promote two basic democratic tenets: freedom of conscience, including the right to express individual views in any format, and unrestricted public access to library materials of all kinds. Organizers do acknowledge that parents and guardians have the right to exercise control over their own children, but they do not accept censorship of other people’s children. Most books are challenged rather than banned outright. Challenges generally originate with parents, but they also may come from churches and community groups. Between 1970 and 1990, the Office for Intellectual Freedom of the American Library Association reported that over six thousand books had been challenged. In 2005 most challenges centered on homosexuality, sexual content, offensive language, unsuitability for a particular age group, and violence. Over the years, banned and challenged books have ranged from the Bible to Mark Twain’s The Adventures of Huckleberry
Bantam Books, Inc. v. Sullivan (1963) Finn, Maya Angelou’s I Know Why the Caged Bird Sings, J. D. Salinger’s The Catcher in the Rye, and the American Heritage Dictionary. Currently, the most challenged books are those in British author J. K. Rowling’s Harry Potter series about a young wizard. More than 200 million copies of the Harry Potter books have been sold worldwide, while engendering a controversy that has swept up even the pope and heads of government. See also American Library Association; Censorship.
Elizabeth R. Purdy
furthe r reading American Library Association. “Banned Books Week.” www.ala.org/ ala/oif/bannedbooksweek/bannedbooksweek.htm. Foerstel, Herbert N. Banned in the U.S.A.: A Reference Guide to Book Censorship in Schools and Public Libraries. Westport, Conn.: Greenwood Press, 2002. Hentoff, Nat. Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other. New York: Harper Collins, 1993. Karolides, Nicholas J. Censored Books: Critical Viewpoints, 1985–2000. New York: Harper Collins, 2002. Noble, William. Bookbanning in America: Who Bans Books? And Why? Middlebury, Vt.: Paul S. Criksson, 1992.
Bantam Books, Inc. v. Sullivan (1963) In Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), the Supreme Court ruled that states must provide adequate procedural safeguards when establishing a mechanism to declare books obscene. The Court’s decision favored a group of book publishers who were suing a state commission created to take preventative action to stop juvenile delinquency. Part of the commission’s responsibility was “to educate the public concerning any book . . . or other thing containing obscene, indecent or impure language” that could corrupt youth. The commission carried out this responsibility by threatening the distributors of material deemed to be “objectionable” with prosecution in an attempt to suppress obscene material. In its fact-finding capacity, the trial court found the commission’s attempted suppression to have been successful. The book publishers argued that the actions of the commission were an act of government censorship that failed to provide safeguards for protected speech.The state of Rhode Island argued that the commission lacked the power to suppress obscenity, because its power was “limited to informal
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sanctions.” The state also argued that the actions of the commission were not actions of the state, and as such did not fall within the scope of the Fourteenth Amendment. The trial court agreed with the book publishers and granted the injunction against the commission, holding its actions unconstitutional. The Rhode Island Supreme Court, however, reversed the decision of the trial court. The U.S. Supreme Court voted 8-1 to reverse the decision of the Rhode Island Supreme Court, but only six justices signed onto the majority opinion written by Justice William J. Brennan Jr. (Justices Hugo L. Black and Tom C. Clark concurred in the result, Black without a separate opinion). In the majority opinion, Justice Brennan addressed the arguments made by Rhode Island, writing that through its use of threats of prosecution, the commission engaged in actions that amounted to informal censorship. Furthermore, these actions constituted acts of the state under the Fourteenth Amendment because the commission operated “under color of state law.” Brennan then addressed the arguments made by the book publishers and found them to have merit. He wrote that although the Court’s decision in Roth v. United States (1957) held that obscenity was not protected by the First Amendment, state regulations must contain certain procedural safeguards.These safeguards require “that regulation by the States of obscenity conforms to procedures that will ensure against the curtailment of constitutionally protected expression.” Without these procedural safeguards, there is essentially a system of prior restraint, which, Justice Brennan noted, could only operate with judicial oversight, as in Kingsley Books, Inc. v. Brown (1957). In dissent, Justice John Marshall Harlan II argued that none of the reasons put forth by the majority justified ruling against what was in his view “an attempt to cope with a most baffling social problem” rather than an attempt to suppress the freedom of expression. See also Brennan,William, Jr.; Censorship; Harlan, John Marshall, II; Kingsley Books, Inc. v. Brown (1957); Obscenity and Pornography; Prior Restraint; Roth v. United States (1957).
Michael P. Fix
furthe r reading Catlett, Steven T. “Enjoining Obscenity as a Public Nuisance and the Prior Restraint Doctrine.” Columbia Law Review 84 (1984): 1616–1629. Russum, Kate.“Rhode Island’s Point-Counterpoint: Morality and Free Speech.” Rhode Island Bar Journal 46 (1997): 7–33.
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Baptists
Baptists The American tradition of religious liberty, ensconced in the U.S. Constitution and more fully elaborated in the Bill of Rights, owes much to Baptist belief and practice. But the Baptist contribution to religious liberty, especially the principle of separation of church and state, is often overlooked. Beginning in the early seventeenth century, Baptists were the first religious group to adopt separation of church and state as a fundamental article of faith. Early Baptists sought the freedom to worship God as they believed the Scriptures taught. They understood religious liberty to be a principle that would apply to all persons, not one manufactured to advance only their own interests. Baptists grounded their advocacy of religious liberty primarily in the New Testament. While never denying proper authority to civil rulers, Baptists did not accede to the notion that the New Testament gave civil rulers any authority whatsoever to compel religious belief. Rather, religious commitment was a matter between the human person and God, and civil magistrates should respect the religious conscience of all persons. Baptists fundamentally rejected any policy that afforded the state the “divine” authority to compel or even guide people in matters of religion. A leading Baptist theologian of the twentieth century, E. Y. Mullins, contended that religious liberty is the greatest of human rights. In support of the Baptist notion of religious liberty for all, he asserted that, first, no human authority should come between a human soul and God, because each person has the right to direct access to God, and, second, each person is inherently entitled to search for truth in religion. Jesus, who exemplified this individual liberty, did not assert his divine authority to compel belief; instead, he lived and taught the truth. Individuals are then responsible for discovering the messiahship revealed to them (Mullins 1997: 89). The vigorous promotion of religious liberty has been a central tenet of Baptist faith and practice for centuries. Baptists have been on the frontlines in combating religious oppression everywhere it occurs, both at home and abroad. According to traditional Baptist belief, a government that gives preferential treatment to certain religious beliefs breaches the eternal and inalienable rights of each individual—and disobeys the will of God. Baptists have consistently opposed governments that establish certain religions, advance mere toleration as opposed to complete religious freedom, become advocates for a particular view of the reli-
gious life, or proscribe the reasonable religious practices of any faith group—in short, inordinately mix church and state. Prominent Baptist voices have been Roger Williams and John Clarke in the seventeenth century, Isaac Backus and John Leland in the eighteenth and nineteenth centuries, and E. Y. Mullins, George W.Truett, J. M. Dawson, and James E. Wood Jr. in the twentieth century. In the twentieth century, several Baptist organizations began to distinguish themselves, nationally and internationally, in becoming strong advocates for religious liberty. On the international scene, the Baptist World Alliance (BWA) was formed in 1905, nearly three hundred years after the formation of the earliest Baptist church in England in 1612. The BWA has consistently challenged Baptists worldwide to remain committed to their vital denominational principles and heritage, including religious liberty. The BWA has fought religious persecution and oppression in countries such as the former Soviet Union, Spain, Bangladesh, China, Cuba, Czechoslovakia, Hungary, Liberia, and South Africa. In the United States, the Baptist Joint Committee on Religious Liberty (BJC) serves as the principal Baptist voice to the U.S. government on a wide range of religious liberty issues. The BJC opposes state support of parochial schools, state-supported religion in the public schools, appointment of a U.S. ambassador to the Vatican, and a “Christian Amendment” to the Constitution, but it has strongly supported legislation designed to protect religious liberty, such as the Equal Access Act (1984) and the Religious Freedom Restoration Act (1993). In 1988 the Southern Baptist Convention took the first steps toward creating its own public policy arm, the Ethics and Religious Liberty Commission (ERLC), and subsequently withdrew its support of the BJC.The ERLC represents more conservative Baptists, who, based on the belief that secularism is overtaking American culture, have sometimes called for moral reform achieved through the government’s advancement of religion. For example, it has advocated creating more opportunities for religious activity in the public schools, making more government dollars available for religious education, and allowing postings of the Ten Commandments and other religious texts in public buildings. Its view generally is that only a loosening of the constitutional prohibitions on government involvement in religion can stem the tide of moral decline. Traditional, more moderate Baptists, usually identified with the BJC, resist this trend as an encroachment on church-state separation.
Bar Admissions See also Backus, Isaac; Leland, John; Religious Freedom Restoration Act of 1993;Williams, Roger.
Derek H. Davis
furthe r reading Davis, Derek H. “Baptists and the American Tradition of Religious Liberty.” Perspectives in Religious Studies 33 (2006): 41–66. Mullins, E. Y. The Axioms of Religion. Philadelphia: American Baptist Publication Society, 1908. ———.“The Baptist Conception of Religious Liberty.” In Proclaiming the Baptist Vision: Religious Liberty, ed. Walter B. Shurden. Macon, Ga.: Smyth and Helwys, 1997. Shurden, Walter B. “How We Got That Way: Baptists on Religious Liberty and Separation of Church and State.” In Proclaiming the Baptist Vision: Religious Liberty, ed. Walter B. Shurden. Macon, Ga.: Smyth and Helwys, 1997.
Bar Admissions In the United States, activities that constitute the practice of law may be performed only by an individual licensed as a lawyer by the state in which he or she will practice. Under the inherent powers doctrine, which recognizes certain authority as implicit in the judiciary, the highest court in each state sets the qualifications for the practice of law and controls the bar admission process, which is conducted by a board of bar examiners made up of lawyers and judges. In some states, the board of bar examiners may also be connected to the state bar association.The bar admission process has produced many First Amendment–based challenges. Any applicant seeking bar admission must meet certain educational and character criteria. The educational requirements in almost all states are undergraduate and law school degrees (the law school must be approved by the American Bar Association) and a passing grade on the state bar examination.The bar examination, which is conducted over two or three days, consists of the Multistate Bar Examination (MBE), a nationally developed, standardized test, made up of two hundred multiple-choice questions and covering six areas of law (constitutional law, contracts, criminal law, evidence, real property, and torts); the Multistate Professional Responsibility Examination (MPRE), which tests legal ethics and is administered separately three times each year; and locally written essay questions on a variety of legal subjects deemed important by the state’s bar examiners.A growing number of states are also including the nationally developed Multistate Essay Exam (MEE), which consists of standardized essay questions, and the Multistate Performance Test (MPT), made up of three ninety-minute skills questions
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covering legal and fact analysis, communication, problem solving, resolution of ethical dilemmas, and organization and management of a lawyering task. The second set of criteria speaks to the applicant’s character and fitness for the practice of law, usually referred to as the requirement of “good moral character.” The bar examiners seek and check background information that may reveal the applicant’s character such as academic discipline, arrests, convictions, bankruptcy, and involvement as a party in civil litigation. Most states also require the applicant to produce character certifications from the law school attended and from others who know the applicant. The bar admission process has led to numerous First Amendment–based challenges, particularly when an applicant has been denied because of past political associations or beliefs. In In re Anastaplo (1961) and Konigsberg v. State Bar (1961), the U.S. Supreme Court upheld the denial of bar membership to individuals who refused to answer questions related to their membership in the Communist Party of the United States, although, earlier, in Schware v. Board of Bar Examiners of New Mexico (1957), it had used the due process clause of the U.S. Constitution to overturn a decision denying bar admission to an individual simply because he had been a past member. In Konigsberg, the Court noted that “good moral character” is an unusually vague concept, but the Court did not prohibit its use in the bar application process. Although bar examiners are given wide latitude in determining whether an applicant meets character standards, in Willner v. Committee on Character and Fitness (1963) the Court held that due process guarantees apply and that an applicant denied admission on character grounds must be given the reasons for the denial and an opportunity for a hearing before a neutral body. Decisions in Baird v. State Bar of Arizona (1971) and In re Stolar (1971) further limited earlier rulings disqualifying bar applicants who refused to answer questions about membership in communist-related organizations. And in Law Students Research Council v.Wadmond (1971) the Court ruled that states could refuse entry to those who wanted to destroy the government by force. More recently, a 2002 decision by the state of Illinois refusing bar admission to Matthew F. Hale, leader of the World Church of the Creator, which advocated white supremacy, stirred considerable controversy. Once admitted to the practice of law in one state, an individual with sufficient practice experience (usually five years) may be able to seek admission to the bars of other states without taking a bar examination if the states involved have
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a reciprocity agreement. Otherwise, the lawyer must successfully complete each additional state’s bar examination. All lawyers, however, whether admitted with or without a bar examination, must demonstrate good character and fitness. No unified or national system is in place for admission before federal courts, and so each court sets its own criteria. At the trial level, the most common requirement is that one must be admitted to practice law in the state in which the federal district court is located. For admission to practice before the appellate federal circuit courts and the U.S. Supreme Court, usually admission to practice law in any state will suffice. See also Baird v. State Bar of Arizona (1971); In re Anastaplo (1961); In re Stolar (1971); Konigsberg v. State Bar (1961); Law Students Research Council v.Wadmond (1971).
Peter A. Joy
furthe r reading American Bar Association. “Comprehensive Guide to Bar Admission Requirements.” www.abanet.org/legaled/baradmissions/bar.html. Wolfram, Charles W. Modern Legal Ethics. St. Paul, Minn.: West Publishing Co., 1986.
Barber v. Time (Mo. 1942) The Missouri Supreme Court decision Barber v. Time, 159 S.W.2d 291 (Mo. 1942), was one of the first to establish that the balance between an individual’s right to privacy and freedom of the press does not depend solely on the truth of or the absence of malice in what is published, but on the judicial determination of “proper public interest.” In early March 1939, Dorothy Barber, a nonpublic figure and private citizen, checked herself into a public hospital in Kansas City for treatment of an eating disorder that caused her to eat enormous amounts of food without gaining weight. A week later, Time magazine published a humorous story about her under the headline “Starving Glutton.” It was accompanied by a photo of Barber in her hospital bed. Barber, who did not give her consent to either the article or the photo, successfully sued Time for invasion of her privacy. Time appealed the decision to the Missouri Supreme Court. Justice Laurance Hyde wrote the opinion in Barber that affirmed the lower-court opinion that Time had violated Barber’s right to privacy. Although Hyde agreed with “the classic article” written in 1890 by Samuel D. Warren and Louis D. Brandeis (later appointed to the U.S. Supreme Court) that privacy is the right to be left alone, Hyde noted
that no individual “is entitled to or can have complete isolation.” An individual is a member of society, and thus his or her rights must be placed within this social context: “Individual rights must be construed in the light of duties incumbent upon individuals as citizens of a free country.” In effect, Hyde continued, as long as an individual “behaves properly,” his or her right to privacy cannot be restricted. Hyde also pointed out that freedom of the press is not by itself an absolute; it “was not created merely for the benefit of the press.” Rather, the guarantee of a free press is instrumental to ensuring “the preservation of free government and progress of civilization.” Because neither an individual’s right to privacy nor the right of a free press to inform is absolute, the proper balancing of the two “is a matter of harmonizing individual rights with community and social interests.” Neither should be allowed to abuse its “constitutional rights or overlook its obligations to others.” To achieve this balance, the courts must first determine whether the press is reporting on a matter of “proper public interest” and weigh that against the individual’s “private affairs.” If press coverage either does not address proper public interest, or does so in a way that is “serious, unreasonable, unwarranted and offensive interference with another’s private affairs,” the press has violated the individual’s right to privacy. Applied to the Barber case, Hyde concluded that although media coverage of health care and medicine falls under the category of a proper public interest, this interest can be satisfied without reporting names and publishing pictures of individual health care patients without their consent. See also Intrusion; Libel and Slander; Privacy; Public Figures and Officials.
Alex Aichinger
furthe r reading Prosser, William L. “Privacy.” California Law Review 48 (1960): 383–423. Warren, Samuel D., and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review 4 (December 1890): 193–220.
Barenblatt v. United States (1959) Barenblatt v. United States, 360 U.S. 109 (1959), presented the Supreme Court with two issues: whether the government could compel persons to respond to questions about their political affiliations and whether the perceived threat of domestic communism justified curtailing speech in ways that would otherwise be constitutionally suspect. Appearing to
Barnes v. Glen Theatre, Inc. (1991) retreat from an earlier decision in Watkins v. United States (1957), the Court, in a 5-4 decision, sustained Lloyd Barenblatt’s conviction for refusing to answer questions posed to him by the House Un-American Activities Committee (HUAC). The U.S. House of Representatives formed HUAC in 1938 to investigate the domestic activities of the Communist Party of the United States. In 1956 the committee subpoenaed Barenblatt, a professor of psychology at Vassar College, because another witness had informed the committee that Barenblatt had been a member of the Communist Club while a graduate student and a teaching fellow at the University of Michigan in the late 1940s. Barenblatt appeared before the committee, but he refused to answer when asked whether he was or ever had been a member of the Communist Party. Rather, he submitted a statement explaining that the First Amendment protects citizens against government inquiries into their political beliefs and affiliations. The committee then found Barenblatt in contempt of Congress, and he was eventually convicted of the charge, fined $250, and sentenced to six months in prison. Justice John Marshall Harlan II, writing for the majority, acknowledged that Congress’s power of inquiry is limited by the provisions of the Constitution and the Bill of Rights, including the First Amendment. To determine whether the committee had transgressed the First Amendment, the Court had to determine the relative importance of the government and individual interests at stake. Harlan followed the logic of Dennis v. United States (1951), arguing that the Communist Party’s goal of overthrowing the U.S. government by force posed a special danger to the United States and made Congress’s power to investigate the Communist Party broader than its power to investigate other parties. He identified the government’s interest as “self-preservation,” which he found weightier than Barenblatt’s interest in silence. Harlan rejected Barenblatt’s argument that the committee’s real motivation was to expose and humiliate rather than to achieve a legitimate legislative goal. The Court could not judge the legislature on the basis of motives, asserted Harlan. In his dissent, Justice Hugo L. Black argued that the committee had violated the First Amendment by compelling answers to questions about political affiliation. Black maintained that for the judiciary to apply a balancing test in cases of direct abridgement of speech was to abandon its proper role as protector of individual rights. Even if a balancing test were appropriate, he continued, the Court had weighed the wrong interests.The real interest represented by Barenblatt’s
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position was the interest of all citizens in being able to seek private affiliations, to think in unpopular ways, and to experiment politically. Furthermore, he argued, the government’s interest in self-preservation did not require it to curtail speech. Black alluded here to the “marketplace of ideas,” asserting that, through open discussion, citizens are able to reject wrong ideas. Black also pointed out that the Court had effectively outlawed the Communist Party of the United States, which was constitutionally impermissible. As for the legislature, Black found that its purpose in this case was public shaming by making the types of allegations that had caused people to lose their jobs. In his own separate, short dissent, Justice William J. Brennan Jr. claimed that the purpose of the HUAC’s investigations—exposure—was not sufficient to outweigh freedom of speech. See also Black, Hugo L.; Communist Party of the United States; Compelled Speech; Congress; Congressional Investigations; Dennis v. United States (1951); Harlan, John Marshall, II; House UnAmerican Activities Committee;Watkins v. United States (1957).
Katrina Hoch
furthe r reading Bigel, Alan A. “The First Amendment and National Security: The Court Responds to Governmental Harassment of Alleged Communist Sympathizers.” Ohio Northern University Law Review 19 (1993): 885–926. Bresler, Robert J. Freedom of Association: Rights and Liberties under the Law. Santa Barbara, Calif.: ABC-CLIO, 2004. Redish, Martin H., and Christopher R. McFadden. “Symposium:The Freedom of Expressive Association: HUAC, the Hollywood Ten, and the First Amendment Right of Non-Association.” Minnesota Law Review 85 (2001): 1669–1728. Schrecker, Ellen W. No Ivory Tower: McCarthyism and the Universities. New York: Oxford University Press, 1986. Simmons, Jerold. Operation Abolition:The Campaign to Abolish the House Un-American Activities Committee, 1938–1975. New York: Garland, 1986. Wiecek, William M. “The Legal Foundations of Domestic Anticommunism: The Background of Dennis v. United States.” Supreme Court Review 2001 (2001): 375–434.
Barnes v. Glen Theatre, Inc. (1991) In a 5-4 decision announced by Chief Justice William H. Rehnquist, the Supreme Court ruled in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), that the state of Indiana could regulate totally nude dancing without violating the First Amendment, even though such performance dancing constituted expressive conduct. The case came before the
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Court on writ of certiorari after two entertainment establishments and the dancers they employed sought an injunction to stop enforcement of an Indiana public indecency statute that made nudity in a public place a misdemeanor. The statute defined nudity in a way that required female dancers to wear G-strings and pasties. All members of the Court except Justice Antonin Scalia found nude dancing performed as entertainment to be expressive conduct for purposes of the First Amendment. Chief Justice Rehnquist treated the regulation of nude dancing as subject to time, place, and manner restrictions requiring application of the four-part test for symbolic speech that the Court articulated in United States v. O’Brien (1968). In applying the O’Brien test, Chief Justice Rehnquist found that Indiana’s public decency statute was clearly within the constitutional power of the state. It also advanced the substantial government interest in protecting societal order and morality, which was well within the traditional police power of the state to provide for the public health, safety, and morals. Furthermore, the state interest in prohibiting public nudity was unrelated to the suppression of free expression in the form of erotic dancing. After all, the state allowed erotic performances, as long as the performers wore some clothing. The requirement that the dancers wear G-strings and pasties did not deprive the dance of whatever erotic message it conveyed; it simply made the message slightly less graphic. Public nudity was the evil the state was seeking to prevent, whether or not it was combined with expressive activity. Finally, the public indecency statute was “narrowly tailored” and prohibited the bare minimum necessary to achieve the state’s purpose.Thus the state’s requirement that the dancers wear at least G-strings and pasties limited little of any message that erotic dancing was seeking to convey. Justice Scalia concurred by arguing that the Indiana law regulated conduct, not expression, and should therefore be upheld as a rational method to achieve the state’s purpose of establishing moral standards. Justice David H. Souter concurred, but he found the state interest justifying the statute was in combating the harmful secondary effects—such as prostitution and other criminal activity—of live nude dancing in adult entertainment establishments. Later, Souter’s opinion achieved prominence in this area because it was the narrowest opinion of the justices in the majority. Justice Byron R.White’s dissent emphasized his view that the First Amendment protected nonobscene nude dancing. In 2000 the Court essentially reaffirmed this decision in City of Erie v. Pap’s A.M. It adopted Justice Souter’s second-
ary effects rationale in Barnes to uphold a similar public nudity law targeting nude dancing at adult entertainment clubs. See also City of Erie v. Pap’s A.M. (2000); Rehnquist,William H.; Secondary Effects Doctrine; Time, Place, and Manner Restrictions; United States v. O’Brien (1968).
Tom McInnis
furthe r reading Bermnardom, Mark.“The Law and Politics of Dancing: Barnes v. Glen Theatre and the Regulation of Striptease Dance.” Hawaii Law Review 14 (1992): 925–948. Blasi,Vincent. “Six Conservatives in Search of the First Amendment: The Revealing Case of Nude Dancing.” William and Mary Law Review 33 (1992): 611–663. Cabaniss, George M., Jr. “The First Amendment, Nude Dancing, and Judicial Activism—Barnes v. Glen Theatre, 111 S. Ct. 2456 (1991).” Florida State University Law Review 19 (1992): 929–949. Fardon, Zachary T.“Barnes v. Glen Theatre, Inc.: Nude Dancing and the First Amendment Question.” Vanderbilt Law Review 45 (1992): 237–272. Hudson, David L., Jr.“Adult Entertainment and the Secondary-Effects Doctrine.” Freedom Forum (2002). Reisman,Andrew L.“Speak of the Devil: First Amendment Protection of Immoral Conduct.” University of Illinois Law Review 1992 (1992): 879–911. Servodidio, Gianni P. “The Devaluation of Nonobscene Eroticisim as a Form of Expression Protected by the First Amendment.” Tulane Law Review 67 (1993): 1231–1261. Tesluk, Timothy M. “Barnes v. Glen Theatre: Censorship? So What?” Case Western Reserve Law Review 42 (1992): 1103–1127.
Barr v. Matteo (1959) This narrow (5-4) Supreme Court decision on libel affirmed immunity from prosecution for statements made by officers of the executive branch. Barr v. Matteo, 360 U.S. 564 (1959), revolved around the objections of former employees of the Office of Rent Stabilization to a press release issued by the acting director of the office in response to congressional criticism. The press release tied the employees to the policy being criticized and indicated that they would be suspended. The employees believed that the statement made was motivated by malice and libelous. Reversing a judgment by a federal appeals court, the Court ruled that the press release was privileged. In a decision written by Justice John Marshall Harlan II, the Court observed that “the law of privilege as a defense by officers of government to civil damage suits for defamation and kindred torts has in large part been of judicial making, although the Constitution itself gives an absolute privilege to mem-
Barrett v. Rosenthal (Cal. S. Ct. 2006) bers of both Houses of Congress in respect to any speech, debate, vote, report, or action done in session.” In his opinion, Harlan specifically cited Spalding v. Vilas (1896), in which the executive officer seeking immunity was the U.S. postmaster general. Harlan also acknowledged the principle put forth by Judge Learned Hand that such immunity was essential if government officials were to carry out their duties without fear and without the burdens that baseless suits might bring. In Harlan’s words: “The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government.” Harlan observed that the petitioner was “the Acting Director of an important agency of government” who was “clothed by redelegation with ‘all powers, duties, and functions conferred on the President.’ ” He further classified the issuance of a press release as “standard agency practice.” In his concurring opinion, Justice Hugo L. Black noted that any restraint on the speech of government officials would have to be placed there by Congress itself, but consistent with the First Amendment. In their dissent, Chief Justice Earl Warren and Justice William O. Douglas focused on the majority’s failure to clarify the extent of the privilege it was granting. They also argued that the majority had failed to give real weight to the interests of the persons who thought they had been defamed. Individuals who were libeled in public statements would find it difficult “to obtain the same hearing that was available for the original press release.” In separate dissents, Justice William J. Brennan Jr. asserted that only a qualified privilege against “honest mistakes” should be extended but not a privilege that would extend to actual malice, and Justice Potter Stewart based his dissent on his view that the press release was not an “action in the line of duty.” In a companion case, Howard v. Lyons (1959), with a similar division of the Court, the justices ruled that a naval officer was also privileged against civil libel for a memorandum about civilian employees that he sent to his superiors. See also Hand, Learned; Harlan, John Marshall, II; Libel and Slander; Speech and Debate Clause.
John R.Vile
furthe r reading Chen, Alan K. “The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law.” American University Law Review 47 (October 1997): 1–104.
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Barrett v. Rosenthal (Cal. S. Ct. 2006) This California Supreme Court decision contributed to the emerging body of case law establishing that section 230 of the Communications Decency Act (CDA) gives those who republish defamatory comments online broad immunity from defamation actions. In Barrett v. Rosenthal, 146 P.3d 510 (Cal. S. Ct. 2006),Web site operators and medical doctors Stephen Barrett and Terry Polevoy brought a defamation action against Ilena Rosenthal, director of the Humantics Foundation for Women and host of an online discussion group. Barrett and Polevoy, whose Web sites were devoted to exposing health fraud, contended that Rosenthal allowed members of her group to post defamatory messages even when she knew the posts were false. The posts attacked the doctors personally and accused them of incompetence and dishonesty. The trial court had dismissed the defamation actions based on section 230 of the CDA. The section states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The trial court reasoned that this federal law prohibited Rosenthal from being held liable for the defamatory comments created by another online poster. The California Court of Appeals vacated part of the ruling, finding that section 230 immunized only publishers, not distributors, of defamatory information. It reasoned that Rosenthal was in part a distributor of the defamatory material and could be subject to California common law libel principles. On appeal, the California Supreme Court reversed and ruled in favor of Rosenthal, relying on the “leading case” of Zeran v.AOL (4th Cir. 1997).The court determined that section 230 protected all “user[s] of an interactive service provider” and that, consistent with Zeran, it applied whether an Internet user was a publisher or a distributor.“The terms of section 230(c)(1) are broad and direct,” the court wrote. “Given that ‘distributors’ are also known as ‘secondary publishers,’ there is little reason to believe Congress felt it necessary to address them separately. . . .We agree with the Zeran court, and others considering the question, that subjecting Internet service providers and users to defamation liability would tend to chill online speech.” And yet the court did acknowledge that “recognizing broad immunity for defamatory republications on the
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Barron v. Baltimore (1833)
Internet has some troubling consequences.” It concluded: “Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.” See also Libel and Slander; Zeran v. AOL (4th Cir. 1997).
David L. Hudson Jr.
furthe r reading Horowitz, Karen Alexander. “When Is § 230 Immunity Lost? The Transformation from Website Owner to Information Content Provider.” Shidler Journal of Law, Commerce and Technology 3 (2007). Richards, David V. “Posting Personal Information on the Internet: A Case for Changing the Legal Regime Created by § 230 of the Communications Decency Act.” Texas Law Review 85 (2006): 1321–1357.
Barron v. Baltimore (1833) Barron v. Baltimore, 7 Pet. 243 (1833), a landmark decision that influenced U.S. constitutional law for almost a century, limited the reach of the Bill of the Rights to the national government.The Supreme Court reasoned that the framers of the Constitution did not intend the Bill of Rights to extend to state actions. The case arose from a series of street improvements made by the city of Baltimore that required diverting several small streams. As a result, large quantities of dirt and sand were swept downstream into the harbor, causing problems for wharf owners, including John Barron, who depended on deep water to accommodate vessels. His business damaged, Barron sued the city of Baltimore to compensate for his financial losses. Barron claimed that the city’s activities violated the Fifth Amendment takings clause—that is, the city’s development efforts effectively allowed it to take his property without just compensation. Barron sued for $20,000, but the county court awarded him only $4,500. When the Maryland Court of Appeals reversed that decision, Barron took his case to the U.S. Supreme Court. There, the case raised the constitutional question of whether the protections of the Fifth Amendment (and more generally of the Bill of Rights) applied to the states and local governments. In a unanimous decision authored by Chief Justice John Marshall, the Court ruled that the Fifth Amendment did not apply to the states.The decision stood in contrast with many of the major landmark decisions of the Marshall Court that
expanded national power. This shift was a function of changes in the composition of the Court and probably a natural retreat from the strong nationalist tendencies of the Marshall Court. In his opinion, Marshall wrote that the question raised by the case was of “great importance, but not of much difficulty.” Indeed, the Court had not even required Maryland’s attorney general, Roger B.Taney (Marshall’s eventual successor), to appear for the state. Marshall argued that the drafters of the Bill of Rights were specifically trying to halt potential abuses by the central government. He wrote:“[T]he provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.” The Barron decision effectively prevented many state cases from making their way to the federal courts. It also left the states free to disregard the Bill of Rights in their relationships with their citizens, who were left to rely instead on state laws and constitutions for protection of their rights. Eventually, the decision was a motivating factor in the construction of the Fourteenth Amendment by the post–Civil War Congress. Some sponsors were intent on ensuring that this amendment applied some or all of the provisions of the Bill of Rights to the states. Although the Supreme Court has never expressly overturned Barron, the selective incorporation of the Bill of Rights to the states, beginning with the incorporation of the takings clause in Chicago, Burlington, and Quincy Railroad Co. v. Louisiana (1897) and spreading to other provisions with Gitlow v. New York (1925), has made the case more of a historical landmark than a limitation on the current reach of the provisions of the Bill of Rights.The Court has now applied all the provisions of the First Amendment to the states. See also Bill of Rights; Gitlow v. New York (1925); Marshall, John.
Richard L. Pacelle Jr.
furthe r reading Amar, Akhil Reed. The Bill of Rights. New Haven, Conn.: Yale University Press, 1998. Cortner, Richard. The Supreme Court and the Second Bill of Rights:The Fourteenth Amendment and the Nationalization of Civil Rights. Madison: University of Wisconsin Press, 1981.
Bartnicki v.Vopper (2001)
Bartnicki v. Vopper (2001) In Bartnicki v.Vopper, 532 U.S. 514 (2001), the Supreme Court found that the First Amendment protects speech that discloses the contents of an illegally intercepted communication. A cell phone call between Gloria Bartnicki, chief negotiator for the Wyoming Valley West School District Teachers’ Union, and Anthony Kane, a teacher and president of the union, was intercepted illegally. The subject of the call was teachers’ contract negotiations. After completion of the negotiations, respondent Frederick Williams (also known as radio personality Frederick Vopper) was given a copy of the tape, and he played excerpts of it on his radio show during a public affairs segment about the contract settlement. Bartnicki and Kane filed suit for damages under federal and state wiretapping laws against Vopper and Jack Yocum, the president of an organization formed to oppose the teachers’ contract. Neither Vopper nor Yocum had actually illegally intercepted the conversation, but Yocum had given the tape to Vopper. The petitioners alleged that the respondents had published the tape of the conversation despite the fact that they ”knew or should have known” that the tape was made illegally. Both petitioners and respondents filed motions for summary judgment. After examining the federal wiretapping statute (18 U.S. 2511), the district court determined that it stated clearly that an individual was in violation when disclosing information that he or she knew or had reason to know had been obtained illegally, regardless of innocence in the actual interception or recording. The district court further concluded that the question of whether the interception by an unidentified person was intentional or accidental represented a genuine issue of material fact that precluded summary judgment.The court, however, refused to accept the respondents’ arguments that, even if their conduct violated the wiretapping statute, such conduct was protected by the First Amendment. Rather, the court upheld the statute, finding that it did not attempt to regulate speech based on content (“content-neutral”), but instead based on the illegal origins of the tape. The Third Circuit Court of Appeals agreed to hear an interlocutory appeal, and the United States intervened as a petitioner to argue the constitutionality of the federal statute. Applying the standard of “intermediate scrutiny” after finding the statute to be “content neutral,” the Court of Appeals determined the statute to be overbroad by “[deterring] significantly more speech than necessary to protect the
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privacy interests at stake.”The Court of Appeals thus found that the statute violated the First Amendment and remanded the case with instructions to grant summary judgment in favor of the respondents. On appeal, the U.S. Supreme Court, in a 6-3 opinion authored by Justice John Paul Stevens, affirmed the decision of the Third Circuit, holding that the First Amendment protected the disclosures. The Court agreed that the wiretapping statute was “a content-neutral law of general applicability,” but also found that the statute could properly be considered a regulation of ”pure speech,” because it punished ”disclosure.” Citing New York Times Co. v. United States (1971) and other cases, the Court asserted that “[a]s a general matter, ‘state action to punish the publication of truthful information seldom can satisfy constitutional standards.’ ”The Court thus carefully limited the question to be decided before considering the two interests asserted by the government in support of the statute. In its ruling, the Court held that an interest in deterring the illegal interception of communications, while sufficient to allow application of the statute to those taking part in the illegal interception, could not be extended to allow the punishment of otherwise innocent third parties to discourage such interceptions. In response to the second interest asserted by the government, that of protecting the privacy of communications, the Court acknowledged the ”strength” of this interest, but held that, under these facts, even “privacy concerns give way when balanced against the interest in publishing matters of public importance.” Justice Stephen G. Breyer, joined by Justice Sandra Day O’Connor, concurred, emphasizing that “the Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual’s interest in basic personal privacy.” In his dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, stressed privacy values and accused the majority opinion of diminishing First Amendment values by “chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day.” See also Content Neutral; New York Times Co. v. United States (1971); Privacy; Stevens, John Paul.
Linda M. Merola
furthe r reading Christakos, Helen A., and Sonal N. Mehta. “Foreword.” Berkeley Technology Law Journal 17 (2002): 1–8.
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Bates v. Little Rock (1960)
Bates v. Little Rock (1960) The finding of the Supreme Court in Bates v. Little Rock, 361 U.S. 516 (1960), reinforced the principle that freedom of association for the purpose of advocating ideas and airing grievances finds protection within the First Amendment’s free speech and assembly clauses and that the Fourteenth Amendment’s due process clause bars state action that might suppress that principle. The case grew out of the conflict surrounding the 1957 attempt to integrate Central High School in Little Rock, Arkansas. The local opposition to integration pushed the danger of violence to such a level that President Dwight D. Eisenhower had to summon U.S.Army troops to keep order. These events leading up to the decision in Bates illustrate the nature of the conflict surrounding the civil rights movement during that period. In an effort to weaken groups such as the National Association for the Advancement of Colored People (NAACP), which had supported racial integration of the public schools in Arkansas, the city council of Little Rock passed an amendment to its local tax ordinances that required certain groups, including the local NAACP chapter, to disclose publicly the names of their members and contributors. But Daisy Bates, president of the Arkansas NAACP and custodian of the relevant records, refused to comply with the public disclosure requirement. Instead, she gave the city council an affidavit in which she cited the “anti-NAACP climate” in Arkansas and pointed out the risk that such a disclosure might cause “harassment, economic reprisals, and even bodily harm” of NAACP members. Bates was then arrested, tried, convicted, and fined $100 for violating the ordinance. Arkansas state courts upheld the conviction and fine, and Bates sought review in the U.S. Supreme Court. Writing for a unanimous Court, Justice Potter Stewart pointed to evidence presented at the trial demonstrating that many members of the Little Rock NAACP chapter had declined to renew their memberships in the organization because of the public disclosure requirement. Moreover, fear of community hostility and economic reprisals had discouraged new members from joining and had induced some of the present members to withdraw. Stewart rejected the argument that these repressive effects were the result of the private attitudes of persons in the community rather than of the city council by asserting that these effects were “brought to bear only after the exercise of governmental power had
threatened to force disclosure of the members’ names.” Stewart paid due regard to the fundamental power of the community to enact tax ordinances such as the one at issue in this case. However, he countered that when state action impinges on constitutionally protected freedom, that action “must bear a reasonable relationship to the governmental purpose asserted in its justification.” Finding that the disclosure of the names of members bore no such relationship to the legitimate purposes of the ordinance, Stewart held the ordinance invalid. Justices Hugo L. Black and William O. Douglas joined in a brief concurring opinion in which they asserted that “First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government.” See also Black, Hugo L.; Civil Rights Movement; Douglas,William O.; NAACP v. Alabama (1958); Stewart, Potter.
John R. Rink
furthe r reading Irons, Peter. “Daisy Bates v. Little Rock.” In The Courage of Their Convictions, ed. Peter Irons, 105–127. New York: Penguin Books, 1990.
Bates v. State Bar of Arizona (1977) The Supreme Court held in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), that attorney advertising was a form of commercial speech protected by the First Amendment. Thus Arizona bar officials could not punish two attorneys who truthfully advertised their routine legal services in a newspaper. Two young attorneys, John R. Bates and Van O’Steen, decided to advertise in order to attract more business in the competitive Phoenix market. According to their ad in the Arizona Republic, they were offering “legal services at very reasonable fees.” The ad also listed prices for various routine legal services, such as noncontested divorces. The Arizona bar charged the attorneys with violating an attorney disciplinary rule:“a lawyer shall not publicize himself . . . through newspaper or magazine advertisements . . . or other means of commercial publicity.” A reviewing committee recommended that Bates and O’Steen be suspended for six months each, but the board of governors recommended only a one-week suspension.
BE and K Construction Co. v. NLRB (2002) Bates and O’Steen, with legal assistance from their former constitutional law professor at Arizona State,William Canby (he later became a judge on the Ninth Circuit Court of Appeals), appealed to the Arizona Supreme Court, arguing that the advertising ban violated antitrust law and the First Amendment.The state high court rejected both claims. On appeal, the U.S. Supreme Court unanimously rejected the attorneys’ antitrust claim, but five members of the Court accepted their First Amendment arguments. Writing for the majority, Justice Harry A. Blackmun reasoned that the attorney advertising at issue in this case was similar to the pharmacy advertising approved by the Court in Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976), the decision that firmly established that commercial speech was entitled to a degree of First Amendment protection. The Arizona bar offered numerous justifications for the ban on attorney advertising. Among others, attorney ads would have an “adverse effect on professionalism,” would be “inherently misleading,” would negatively affect the “administration of justice,” would have “undesirable economic effects,” would harm the quality of legal services, and would be difficult to police. Blackmun rejected all these contentions, writing that none of them rose “to the level of an acceptable reason for the suppression of all advertising by attorneys.” He noted that the restriction on any attorney advertising had “served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable.” Chief Justice Warren E. Burger and Justices Lewis F. Powell Jr. and William H. Rehnquist each wrote dissenting opinions. Burger warned that the majority’s decision “will only breed more problems that it can conceivably resolve.” Powell, joined by Potter Stewart, opined that the decision “will effect profound changes in the practice of law, viewed for centuries as a learned profession.” Rehnquist, who had dissented in Virginia State Board of Pharmacy, again disagreed with granting constitutional protection to advertising: “I continue to believe that the First Amendment speech provision, long regarded by this Court as a sanctuary for expressions of public importance or intellectual interest, is demeaned by invocation to protect advertisements of goods and services.” Powell was prescient in at least one regard; the Bates decision did work “profound changes,” and attorney advertising has become commonplace in various media.
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See also Attorney Advertising; Blackmun, Harry A.; Rehnquist, William H.; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Bates Participants Reflect on Landmark Case.” First Amendment Center Online, November 18, 2004. www.first amendmentcenter.org/analysis.aspx?id=14394. O’Steen,Van. “Bates v. State Bar of Arizona:The Personal Account of a Party and the Consumer Benefits of Lawyer Advertising.” Arizona State Law Journal 37 (2005): 245–253.
BE and K Construction Co. v. National Labor Relations Board (2002) In BE and K Construction Co. v. National Labor Relations Board, 536 U.S. 516 (2002), the Supreme Court held that the National Labor Relations Board (NLRB) could not impose liability on an employer for filing a losing retaliatory lawsuit that was not objectively baseless. In so doing, the Court broadly interpreted the First Amendment right to petition. The opinion drafted for a unanimous Court by Justice Sandra Day O’Connor denied the NLRB’s authority to assess liability on the construction company even though all the NLRB’s claims had been withdrawn or dismissed. The Court viewed the decision as a clarification of Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board (1983), in which the Court reiterated that the First Amendment recognizes a right to petition. California Motor Transport Co. v. Trucking Unlimited (1972) extended this right to include all branches of government, but limited “sham petitioning.” (The NLRB is an independent federal agency.) Choosing to focus not on “the standard for enjoining ongoing suits but on the standard for declaring completed suits unlawful,” the Court believed itself not bound by its own past dicta. Granted that “concerns related to the right of petition must be greater when enjoining ongoing litigation than when penalizing completed litigation,” such reasoning by analogy ”at most suggests that injunctions may raise greater First Amendment concerns, not that after-the-fact penalties raise no concerns.” The Court held it was important to distinguish suits that were “both objectively baseless and subjectively motivated by an unlawful purpose” from those that were “reasonably based but unsuccessful.” Even unsuccessful suits might present genuine grievances.After all, the First Amendment protects both successful and unsuccess-
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Beard v. Banks (2006)
ful petitioning. Thus the Court found that “while baseless suits can be seen as analogous to false statements, that analogy does not directly extent to suits that are unsuccessful but reasonably based.” Ill will is not a sufficient basis for finding a “retaliatory motive,” and the statutory authorization for the NLRB showed no intention of penalizing such suits. Justicees Antonin Scalia and Clarence Thomas, in a concurring opinion argued that the decision indicated that the Court was heading in the direction of interpreting the National Labor Relations Act (NLRA), like the Sherman Act,“to prohibit only lawsuits that are both objectively baseless and subjectively intended to abuse process.” Scalia thought it dangerous to give an executive agency authority to punish “a reasonably based suit filed in an Article III court whenever it concludes—insulated from de novo judicial review by the substantial-evidence standard . . . —that the complainant had one motive rather than another.” Justice Stephen G. Breyer, joined by Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg, authored another concurring opinion, accusing the Court of reopening issues settled by Bill Johnson’s Restaurants, Inc. See also Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board (1983); Breyer, Stephen; California Motor Transport Co. v. Trucking Unlimited (1972); O’Connor, Sandra Day; Scalia,Antonin.
John R.Vile
furthe r reading More, Paul. “Protections against Retaliatory Employer Lawsuits after BE&K Construction v. NLRB.” Berkeley Journal of Employment and Labor Law 25 (2004): 205–273.
Beard v. Banks (2006) In this decision, the Supreme Court upheld against a First Amendment challenge of restrictions imposed by the Pennsylvania Department of Corrections (whose secretary was Jeffrey A. Beard) on inmates’ reading materials. The Court’s 6-2 ruling in Beard v. Banks, 548 U.S. ___ (2006), continues its trend of extending broad deference to prison officials in the face of constitutional challenges. Inmate Ronald Banks filed a federal lawsuit in 2001, contending that the department’s policy of restricting prisoners in its long-term segregation unit from reading newspapers and magazines and viewing photographs violated their free expression rights. A federal district court granted summary judgment to prison officials. However, a divided three-judge panel of the Third Circuit Court of Appeals reversed, find-
ing that the restrictive policy was unreasonable. Judge Samuel A. Alito Jr. dissented while on the Third Circuit panel, which explained why as Justice Alito he did not participate when the case came before the high court. On appeal, the U.S. Supreme Court reversed the Third Circuit and ruled in favor of the prison officials. In his plurality opinion, Justice Stephen G. Breyer pointed out that the Court’s prior precedents—Turner v. Safley (1987) and Overton v. Bazzetta (2003)—require a broad degree of deference to prison officials in their difficult task of administering prisons. Breyer also emphasized a procedural point at the trial court level—that Banks’s counsel had never disputed prison officials’ statement of facts, but instead only filed his own motion for summary judgment. “Although summary judgment rules provided Banks with an opportunity to respond to the Secretary’s materials, he did not offer any fact-based or expert-based refutation in the manner the rules provide,” Breyer wrote. Applying the reasonableness standard from Turner v. Safley, Breyer found that the prison’s policy of withholding reading privileges as a form of behavior modification was reasonable on its face. But Breyer noted that the restriction was “severe,” and he left room for an as-applied challenge to be filed in the future if the restrictions amounted to a “de facto ban.” Justice Clarence Thomas, joined by Justice Antonin Scalia, wrote a concurring opinion in which he reiterated his view, articulated in Overton v. Bazzetta, that prison regulations can be challenged only under the Eighth Amendment. “Judicial scrutiny of prison regulations is an endeavor fraught with peril,” he observed. Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, dissented. Stevens reasoned that the restrictive reading policies had a “highly questionable” connection to the state’s interests in rehabilitation. He wrote that the prison’s rules came “perilously close to a state-sponsored effort at mind control.” See also Alito, Samuel A., Jr.; Overton v. Bazzetta (2003); Prisons; Turner v. Safley (1987).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Ruling Bolsters ‘Deprivation’ of Prisoner Rights.” First Amendment Center Online, June 30, 2006. www.firstamendmentcenter.org/analysis.aspx?id=17100.
Beauharnais v. Illinois (1952)
Beauharnais v. Illinois (1952) Beauharnais v. Illinois, 343 U.S. 250 (1952), remains the central precedent for the constitutionality of state group libel laws, but the decision by the Supreme Court was so divided (5-4) and the subsequent precedents so powerful that the decision may retain little if any force. The Municipal Court of Chicago convicted Joseph Beauharnais, president of the White Circle League of America, of group libel under a state law designed to prevent breach of the peace. Beauharnais had been circulating a pamphlet alleging that African Americans were associated with “aggressions . . . rapes, robberies, knives, guns and marijuana” [ellipses in the original].The judge, who had ordered the jury to convict if it found that Beauharnais had distributed the pamphlet, had refused to give the defendant an opportunity to prove the truth of his assertions. Writing for the majority, Justice Felix Frankfurter upheld the conviction. His review of U.S. libel laws revealed that criminal libel prosecutions had been permitted in the past, and he pointed to race riots and other acts in Illinois related to racial hatred to indicate that such libel of groups could lead to breaches of the peace. According to Frankfurter, states had the right under the due process clause of the Fourteenth Amendment (which he found had not “incorporated” all the provisions of the Bill of Rights) to experiment with laws that might tamp down such violence by restricting the publications that fed them. He clarified, however, that the decision was not based on the “wisdom” or “efficacy” of the legislation. Justice Hugo L. Black wrote a dissent in which Justice William O. Douglas concurred. Black associated the pamphlets in question with the right to petition representatives, which he traced back to the First Continental Congress. He argued that the decision degraded “First Amendment freedoms to the ‘rational basis’ level” and that states should not have the right to “experiment” in this area. Although labeling the statute as a “group libel law” might “make the Court’s holding more palatable . . . the sugar-coating does not make the censorship less deadly,” he wrote. Black opposed the law as a form of “seditious libel” that Britain had conclusively rejected in 1792 when it adopted Fox’s Libel Law. Such “state censorship,” he asserted, was “at war with the kind of free government envisioned by those who forced adoption of our Bill of Rights.” In affirming his absolutist approach to the First Amendment, Black said he could not “agree that the Constitution leaves freedom of petition,
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assembly, speech, press or worship at the mercy of a case-bycase, day-by-day majority of this Court.” Indeed, he argued, “the First Amendment, with the Fourteenth,‘absolutely’ forbids such laws without any ‘ifs’ or ‘buts’ or ‘whereases.’ ” Justice Stanley F. Reed authored a dissent as well, also joined by Douglas. He found that the procedures in the case violated substantive due process. It was not proper for the judge to refuse to allow truth as a defense, and it was not possible to determine which of the vague words in the statute had provided the basis for the conviction.“It is when speech becomes an incitement to crime that the right freely to exhort may be abridged,” Reed wrote. He could find no link between the publication at issue and the racial clashes that Frankfurter had described in his opinion. In his own dissent, Justice Douglas acknowledged that states could suppress a conspiracy, such as that carried out by Adolf Hitler and the Nazis, when it involved “free speech plus,” but prohibitions against regulating speech itself was “couched in absolute terms” for a reason.“Debate and argument . . . are not always calm and dispassionate. Emotions sway speakers and audiences alike. Intemperate speech is a distinctive characteristic of man. Hotheads blow off and release destructive energy in the process.”The decision thus represented “a philosophy at war with the First Amendment.” In his dissent, Justice Robert H. Jackson agreed with Frankfurter that the Fourteenth Amendment did not “incorporate” the provisions of the First Amendment. However, he observed that the “Court has never sustained a federal criminal libel Act,” and he affirmed the decision in United States v. Press Publishing Co. (1911), in which the Court refused to do so. The scope of this decision has been limited by later Supreme Court decisions relative to hate speech, such as Brandenburg v. Ohio (1969) and R.A.V. v. St. Paul (1992). See also Black, Hugo L.; Brandenburg v. Ohio (1969); Breach of the Peace Laws; Clear and Present Danger Test; Douglas,William O.; Frankfurter, Felix; Group Libel; Hate Speech; Jackson, Robert H.; People v. Croswell (N.Y. 1804); R.A.V. v. St. Paul (1992); Seditious Libel; United States v. Press Publishing Co. (1911).
John R.Vile
furthe r reading Polelle, Michael J. “Racial and Ethnic Group Defamation: A SpeechFriendly Proposal.” Boston College Third World Law Journal 23 (2003): 213–273.
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Behind the Green Door
Behind the Green Door Behind the Green Door (1972) was the first hard-core pornographic movie widely distributed in the United States. Created by brothers Artie and Jim Mitchell in San Francisco, it grossed more than $25 million and led to numerous obscenity prosecutions, particularly in the South. The movie starred actress and model Marilyn Briggs, who was already known for her work for Proctor and Gamble and Ivory Snow detergent. Briggs took the stage name of Marilyn Chambers for the movie. In the film, a young woman, played by Chambers, is kidnapped and taken to an underground sex club, where she is forced to perform various sex acts with multiple partners. The film engendered controversy largely because of the interracial sex scene between Chambers, who was white, and African American actor Johnny Keyes. In Atlanta, prosecutors charged the owner of the Paris Adult Theatre, Claude Davis Ballew, with a misdemeanor for showing an obscene movie. In the Criminal Court of Fulton County, the jury of five persons selected to hear the case found Ballew guilty. The Georgia Court of Appeals affirmed his conviction, finding that the movie violated the obscenity standards of Miller v. California (1973). The state appeals court determined that Behind the Green Door was “degrading to sex.” Ballew then appealed all the way to the U.S. Supreme Court, which invalidated his obscenity conviction for another reason. The Court in Ballew v. Georgia (1978) established that juries must consist of more than five members to satisfy Sixth Amendment fair trial standards. The obscenity prosecutions also filed in Louisiana and Colorado against those who sold or showed the movie led to convictions that were overturned on appeal. See also Obscenity and Pornography.
David L. Hudson Jr.
furthe r reading McCumber, David. X-Rated:The Mitchell Brothers: A True Story of Sex, Money, and Death. New York: Simon and Schuster, 1992. Peterson, James D. “The Sex of Joy; Analysis of Sexual Revolution.” Playboy. October 1998.
Beilan v. Board of Education (1958) Whether a Pennsylvania teacher could be discharged for “incompetency” for refusing to answer questions about his
possible membership in the Community Political Association, the precursor to the Community Party of the United States, was the question before the Supreme Court in Beilan v. Board of Education, 357 U.S. 399 (1958). In ruling that the dismissal of longtime teacher Harold Beilan did not violate his due process rights, the majority glossed over First Amendment concerns. However, Justice William O. Douglas wrote in dissent that the dismissal raised just such issues. Writing for the majority, Justice Harold H. Burton relied on Adler v. Board of Education (1952) for the principle that “school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society.” Burton also relied on the Pennsylvania Supreme Court’s earlier ruling in the case that incompetency included Beilan’s “deliberate and insubordinate refusal to answer the questions of his administrative superior in a vitally important matter pertaining to his fitness.” Burton concluded that the Pennsylvania high court’s reasoning was “not inconsistent with the Federal Constitution.” Chief Justice Earl Warren and Justices Douglas and William J. Brennan Jr. authored dissents, although Douglas was the only one to explain at any length why Beilan’s dismissal implicated the First Amendment. He explained that “we have here only a bare refusal to testify; and the Court holds that sufficient to show that these employees are unfit to hold their public posts.That makes qualification for public office turn solely on a matter of belief—a notion very much at war with the Bill of Rights.” Though often ignored today, the Court’s decision in Beilan was cited in many subsequent First Amendment decisions of the Court, including notables such as Konigsberg v. State Bar (1961), Elfbrandt v. Russell (1966), and Keyishian v. Board of Regents (1967). See also Academic Freedom; Adler v. Board of Education (1952); Communist Party of the United States; Douglas, William O.; Elfbrandt v. Russell (1966); Keyishian v. Board of Regents (1967); Konigsberg v. State Bar (1961);Teachers, Rights of.
David L. Hudson Jr.
furthe r reading Metzger, Walter P. “Profession and Constitution: Two Definitions of Academic Freedom in America.” Texas Law Review 66 (1988): 1265–1322.
Bell v.Wolfish (1979)
Bell v. Maryland (1964) Bell v. Maryland, 378 U.S. 226 (1964), arose from the criminal trespass convictions of civil rights demonstrators who in 1960 held a “sit-in” at a Baltimore restaurant to protest its policy of racial segregation. One of the demonstrators was sixteen-year-old student Robert Mack Bell. On appeal, the petitioners argued that the use of Maryland’s trespassing laws to support segregation of public accommodations violated the Fourteenth Amendment. When the case finally came before the Supreme Court, the Court refused to decide whether the state’s trespassing laws could be used to exclude blacks from public accommodations.The majority decision, written by Justice William J. Brennan Jr., centered on the fact that Maryland had subsequently adopted a law making discrimination in places of public accommodation illegal and Congress had passed the Civil Rights Act of 1964. According to Brennan, there was a good possibility that Maryland intended for the new law to void past convictions, and so the Court remanded the case back to the Maryland appeals court for reconsideration. On April 9, 1965, the convictions were reversed and the students were cleared of all charges. In his concurring opinion, Justice William O. Douglas revealed his preference that the Court void the convictions outright. He cited testimony to show that the policy of segregation at the restaurant had been a simple business decision, and he asserted that the provisions of the Fourteenth Amendment, and the constitutional right to travel, made such discrimination illegal. Any attempts to enforce racially discriminatory policies in places of public accommodation would be similar to the enforcement of racially discriminatory covenants that the Court had outlawed in Shelley v. Kraemer (1948). Justice Arthur Goldberg took a similar tack in his concurrence. By contrast, Justice Hugo L. Black, joined by Justices John Marshall Harlan II and Byron R. White, wrote a dissenting opinion in which he argued that the Fourteenth Amendment did not bar enforcement of a trespass law “to convict a person who comes into a privately owned restaurant, is told that because of his color he will not be served, and over the owner’s protest refused to leave.” Focusing specifically on First Amendment issues, Black denied that the law at issue was “void for vagueness.” He observed that “it is hard to take seriously a contention that petitioners were not fully aware, before they ever entered the restaurant, that it was the restaurant owner’s firmly established policy and
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practice not to serve Negroes.The whole purpose of the ‘sitin’ was to protest that policy.” Black also denied “that a person’s right to freedom of expression carries with it a right to force a private property owner to furnish his property as a platform to criticize the property owner’s use of that property.” He took issue as well with the notion that “the Fourteenth Amendment of itself ” compelled “either a black man or a white man running his own private business to trade with anyone else against his will.” He continued:“The right to freedom of expression is a right to express views— not a right to force other people to supply a platform or a pulpit.” Justices Harlan, Black, and White filed a similar dissent in Griffin v. Maryland (1964), in which the Court majority, led by Chief Justice Earl Warren, voided arrests by a deputy sheriff who had tried to enforce segregation in a private amusement park. See also Black, Hugo L.; Brennan, William J., Jr.; Civil Rights Movement; Private Property, Expression on;Vagueness.
John R.Vile
furthe r reading Magid, Laurid. “First Amendment Protection of Ambiguous Conduct.” Columbia Law Review 84 (1984): 467–505.
Bell v. Wolfish (1979) Although many Supreme Court cases deal with the rights of prisoners, Bell v.Wolfish, 441 U.S. 520 (1979), was distinctive because it dealt primarily with the rights of pretrial detainees. Prisoners in the Metropolitan Correctional Center in New York brought challenges to several policies, including the facility’s practice of “double-bunking” inmates; rules prohibiting inmates from receiving hardcover books unless they were mailed directly from publishers, book clubs, or bookstores; restrictions on other incoming packages; searches of inmates’ rooms; and strip searches of inmates after they received visitors.The restriction related to books directly implicated the First Amendment. Chief Justice William H. Rehnquist wrote the majority opinion, which dismissed all challenges. In dealing with the prohibition of incoming books from all but bookstores and publishers, Rehnquist pointed to testimony that indicated that contraband could be smuggled inside books. He observed as well that the policy was further immunized from scrutiny because it was applied “in a neutral fashion, without regard to the content of the expression”—that is, it still
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“allows soft-bound books and magazines to be received from any source and hardback books to be received from publishers, bookstores, and book clubs.” He also noted that the facility had a “relatively large” library for inmate use, and that detainees were affected for no more than sixty days. In his concurrence, Justice Lewis F. Powell Jr. agreed with most of the decision, including the part relative to the First Amendment. Justice Thurgood Marshall dissented.Addressing the book issue, he questioned whether the government had established a “compelling necessity” for its regulations. He also thought it was obligated to consider the “least restrictive alternatives.” Justice John Paul Stevens, joined by Justice William J. Brennan Jr., also dissented. He objected to the Court’s application of the “minimum rationality” standard—“language traditionally applied to restrictions on economic activities such as selling hot dogs or eyeglasses.” See also Marshall, Thurgood; Prisons; Rehnquist, William H.; Stevens, John Paul.
John R.Vile
furthe r reading Rabinowitz, David J. “Comment: Preventive Detention and United States v. Edwards: Burdening the Innocent.” American University Law Review 32 (1982): 191–226.
Benbow, William William Benbow (1784–?), a pamphleteer and public orator, was a member of the English Chartist movement. A shoemaker by trade, he is best remembered as the author of the pamphlet Grand National Holiday and as a champion of press freedoms. Details of Benbow’s early life are unclear, with some sources stating that he was from Manchester and others Lancashire. Some sources also label him as a pornographer, but that moniker likely stems from his publications against church and state, which were called a threat to public morality. In 1817 Benbow took over publication of the Political Register for his friend William Cobbett, who had fled London for the United States to avoid imprisonment for seditious libel. It was through his connection with this publication that Benbow became known for his support of universal suffrage, annual election of Parliament, and secret ballots. For his actions, Benbow was arrested and convicted for
committing seditious libel, and he spent some eighteen months in London’s Cold Bath Fields Prison. Upon his release, Benbow resumed working on behalf of Cobbett and published a series of pamphlets entitled Crimes of the Clergy, which resulted in a second imprisonment for seditious libel. After his second release from prison, he became involved in organizing the National Union of the Working Classes, where he met two other radical publishers, James Watson and Henry Hetherington, as well as Richard Carlile, owner of the Rotunda, a speaking venue in Blackfriar’s Road. It is through his association with these three men that Benbow is tied as a devotee of Robert Owen, the Welsh utopian thinker and social reformer, but no record remains as to whether Benbow himself endorsed those utopian views. In 1832 Grand National Holiday was published as part of a larger effort to organize small trade unions into a larger national organization.The pamphlet introduced the concept of a national general strike. Benbow argued that workers should put aside goods and money so that they could stop working for an entire month in order to hold public meetings to demand government reforms. Ten years would pass before Benbow would gain enough support to put his idea into action. Meanwhile, Benbow, together with Watson, Hetherington, John Cleave (another radical publisher), and others, refused to pay the stamp-duty tax on their newspapers, which would have put the papers beyond the ability of most working-class people to purchase. As part of this campaign, Benbow published the pamphlet Censorship Exposed in 1837. By this time, Benbow was arguing openly for direct confrontation with government power and using force if necessary to defend the rights to assemble and a free press. The influence of fellow Chartist Thomas Spence was apparently responsible for this evolution toward force. With the blessing of the Chartist National Convention of 1839, Benbow began a speaking tour to organize his grand national holiday (strike) for August 1839. But the strike was called off in late July when Benbow was arrested.At his trial in Chester for sedition, Benbow gave an impassioned speech that lasted more than ten hours, but he was found guilty nevertheless. There is some dispute about the date of Benbow’s death, but some reports indicate that he died in prison in 1841. See also Seditious Libel.
Thurman Hart
Benevolent Neutrality furthe r reading Browne, Harry. Access to History in Depth: Chartism. London: Hodder Murray, 1999.
Bender v. Williamsport Area School District (1986) In Bender v. Williamsport Area School District, 475 U.S. 534 (1986), the Supreme Court highlighted the importance of the doctrine of standing for anyone wishing to challenge perceived violations of the First Amendment. The Court ruled that the respondent in the appeal, a member of the local school board, had “no standing to appeal in his individual capacity.” After a group of high school students formed the club Petros to promote “spiritual growth and positive attitudes in the lives of its members,” the school board affirmed the school superintendent’s decision not to allow the group to meet at the same time as secular groups. The students then filed suit in federal district court, charging that the board’s refusal to allow the club to meet on the same basis as other student groups because of its religious activities violated the First Amendment. The district court ruled in the students’ favor, but it entered no injunction and granted no relief against any defendant in his individual capacity. In response, the school district, foregoing appeal, simply complied with the judgment and allowed the student club to hold its meetings as it wanted. However, one school board member, John C. Youngman Jr., did appeal. No one raised any question about his standing to do so, and the Third Circuit Court of Appeals ruled that establishment clause concerns prevailed over the students’ free speech rights. Justice John Paul Stevens wrote the Court’s majority opinion denying Youngman’s standing and remanding the case to dismiss the appeal. He concluded that “although the School Board itself had a sufficient stake in the outcome of the litigation to appeal, an individual Board member cannot invoke the Board’s interest in the case to confer standing upon himself.” Stevens rejected the idea that Youngman could appeal as an individual, as a member of the board, or as a parent. He could not sue as an individual because he had not been sued in his individual capacity but as a member of the board. He could not sue as a member of the board because “members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take.” He could not appeal as a parent because the record did not establish that any of his children was involved when the case was filed or that they
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had suffered any palpable injury. Thus because Youngman had no standing, the appellate court had no jurisdiction, and Youngman’s appeal to it must be dismissed. Justice Thurgood Marshall wrote a concurring opinion, agreeing that the case that Youngman attempted to appeal was not the same case in which he had originally participated. By contrast, Chief Justice Warren E. Burger and Justices Byron R. White and William H. Rehnquist would have accepted jurisdiction and reversed the appeals court decision.They held that the case was covered by the decision in Widmar v.Vincent (1981), which applied to access of religious groups on college and university campuses. Allowing religious activities on high school campuses, they maintained, furthered the laudable goal of state “neutrality.” Justice Lewis F. Powell Jr. filed a separate dissent, agreeing that Youngman had standing and that the Court should decide the case on its merits on behalf of the religious group. He thought the high school had created an open forum that should be open to all. Four years later, in Board of Education of the Westside Community Schools v. Mergens (1990), the Court essentially came to the decision the dissenters wanted when it ruled that the Equal Access Act of 1974 did not violate the establishment clause in mandating that schools that received federal funds should allow religious groups to operate on the same basis as corresponding secular groups. See also Board of Education of the Westside Community Schools v. Mergens (1990); Burger, Warren E.; Equal Access Act of 1984; Neutrality, Religion; Open Meeting Laws and Freedom of Speech; Stevens, John Paul;Widmar v.Vincent (1981).
John R.Vile
furthe r reading Morgenstein, Leah Gallant. “Note: Board of Education of Westside Community Schools v. Mergens: Three ‘R’s’ + Religion = Mergens.” American University Law Review 42 (1991): 221–266.
Benevolent Neutrality One of the challenges of interpreting the two religion clauses of the First Amendment—the free exercise clause and the establishment clause—is ensuring that they complement, not contradict, one another. Justices and scholars have formulated a variety of standards with this objective in mind. Many have called for neutrality, or nonpreferentialism, in the state’s dealings with religion. This standard is, in part, reflected in the endorsement test
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advocated by Justice Sandra Day O’Connor to ensure that government actions do not treat believers or unbelievers as outsiders. Other interpreters, looking chiefly at the establishment clause, have emphasized the separation of church and state. Still others have emphasized accommodationism. From time to time, scholars and others attempt to combine one or another approach. For example, the notion that the government can exercise “benevolent neutrality” toward religion attempts to combine the idea of neutrality and accommodationism. Chief Justice Warren E. Burger used this term in Walz v. Tax Commission (1970) in upholding the property tax exemption that the city had extended to nonprofit groups, including churches. Burger observed: The course of constitutionality neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited.The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. Although Justice William O. Douglas dissented in this case, he had himself taken a similar stance in Zorach v. Clausen (1952), in which he approved of a New York program that released children from school to attend religious instruction off campus. In that case, Douglas had opined: We are a religious people whose institutions presuppose a Supreme Being.We guarantee the freedom to worship as one chooses.We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and
accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Focusing on such statements, Stephen V. Monsma has written a book calling on courts to advance “positive neutrality.” Similarly, scholars Stephen L. Carter, Michael McConnell, and Frank Guliuzza III have stressed the need for governments to balance the idea of separation of church and state with the need to extend positive protection to religious expression and exercise. Both school vouchers for students attending either secular or parochial schools and government support of faith-based initiatives might be considered forms of benevolent neutrality See also Accommodationism and Religion; Burger, Warren E.; Douglas, William O.; Endorsement Test; Faith-based Organizations and Government Aid; McConnell, Michael; Neutrality, Religion; Nonpreferentialism; O’Connor, Sandra Day; School Vouchers; Separation of Church and State; Walz v. Tax Commission (1970); Zorach v. Clauson (1952).
John R.Vile
furthe r reading Carter, Stephen L. The Culture of Disbelief. New York: Basic Books, 1993. Ferguson, John. “Tax Exemptions.” First Amendment Center. www.firstamendmentcenter.org/rel_liberty/establishment/topic.as px?topic=tax_exe. Guliuzza, Frank, III. Over the Wall: Protecting Religious Expression in the Public Square. Albany: State University of New York Press, 2000. Kelley, Dean M. “Statism, Not Separationism, Is the Problem.” www.religion-online.org/showarticle.asp?title=830. Monsma, Stephen V. Positive Neutrality: Letting Religious Freedom Ring. Grand Rapids, Mich.: Baker Publishing Group, 1995.
Berkeley Free Speech Movement The Berkeley Free Speech Movement refers to a group of college students who, during the 1960s, challenged many campus regulations limiting their free speech rights. In the wake of McCarthyism’s anti-communist sentiments during the 1950s, public universities in California had enacted numerous regulations limiting students’ political activities. At the University of California, Berkeley, student groups taking part in any on- or off-campus political activi-
Bethel School District No. 403 v. Fraser (1986) ties were banned from campus. But by the 1960s, students were shunning the old school ideas of paternalistic university supervision. Spurred by the anti–Vietnam War protests and the growing civil rights movement, they began to ignore the prohibitions, and liberal-leaning university administrators ignored the students’ activities. Although students kept political activities just off campus, they were often recruited by outside organizers for public protests.When hundreds of Berkeley students were arrested at these events, the media painted the university as a haven for liberals leaning toward radicalism. Pressured by the state legislature, Berkeley administrators issued orders that students could no longer carry out political activities near the campus. In 1964 Mario Savio and five hundred fellow students marched on Berkeley’s administration building to protest the university’s order. He and other leaders called for an organized student protest to abolish all restrictions on students’ free speech rights throughout the University of California system. Campus representatives for the Congress of Racial Equality (CORE), Student Nonviolent Coordinating Committee (SNCC), and Students for a Democratic Society (SDS) joined the protest. After a stand-off with campus police, a temporary compromise was reached, but by then the Berkeley Free Speech Movement (FSM) had been born. Students and many faculty, united by the liberalism of the times, began to see the FSM as a moral obligation. Savio continued to insist that the First Amendment was the only valid guideline for student activities, especially political, and he condemned the administration’s rules as “prior restraint.” Meanwhile, more political activities were being carried out on campus, further antagonizing the administration. But by then the FSM had gained enough liberal-minded supporters on campus that it was able to temporarily prevent severe administrative retaliation. The Board of Regents, however, failed to recognize the FSM’s seriousness and clamped down hard with punitive sanctions. On December 2, 1964, the five thousand people gathered outside the administration building listened to Savio invoke the “conscience of the community” for a campus-wide strike to bring down the university “machine.” As the first step, fifteen hundred of Savio’s audience entered the building for a nonviolent sit-in demonstration. After thousands witnessed an increasingly violent police action to remove the demonstrators, Berkeley faculty voted overwhelmingly to support the FSM. Although members of the Board of Regents continued to assert their right to control campus activities, within days they hired a new chancellor known to
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be sympathetic to student activism. His first official act was to grant the demands of the Free Speech Movement. See also Civil Rights Movement; Free Speech Zones; Prior Restraint; Students for a Democratic Society; Students, Rights of; Vietnam War.
Karen Aichinger
furthe r reading Burner, David. Making Peace with the Sixties. Princeton, N.J.: Princeton University Press, 1996. Freeman, Jo. “The Berkeley Free Speech Movement.” In Encyclopedia of American Social Movements, ed. Immanuel Ness, 1178–1182. Armonk, N.Y.: M. E. Sharpe, 2004.
Bethel School District No. 403 v. Fraser (1986) This 1986 Supreme Court decision put forth the principle that public school officials can prohibit student speech that is vulgar, lewd, or plainly offensive. Along with Tinker v. Des Moines Independent Community School District (1969) and Hazelwood School District v. Kuhlmeier (1988), Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), remains one of the three most important First Amendment precedents in the public school context. The case arose after school officials at Bethel High School in Pierce County, Washington, disciplined junior Matthew N. Fraser for delivering a speech laced with sexual references before a student assembly. Fraser’s speech, nominating a classmate to a student elective office, referred to the student as “firm in his pants,” who would take it to “the climax.” After school officials suspended Fraser, he sued in federal court.A federal district court and federal appeals court ruled in Fraser’s favor, finding that school officials violated his First Amendment rights. In an ironic twist of fate, the lower court’s actions enabled Fraser to deliver the commencement address at his high school graduation. The school appealed to the U.S. Supreme Court and prevailed by a 7-2 vote.The majority opinion was authored by Chief Justice Warren E. Burger. Fraser contended that he had a First Amendment right to political speech under the principles of Tinker, which protects the vast majority of student speech that does not create a substantial disruption. However, school officials argued that they had a duty to protect younger students from inappropriate and sexual speech. The Court sided with school officials. Burger noted a “marked distinction” between the political speech in Tinker
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Beussink v.Woodland School District (E.D. Mo. 1998)
and Fraser’s sexual speech. “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior,” Burger wrote.“Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” Justice William J. Brennan Jr. concurred, writing that school officials could discipline Fraser because they could reasonably forecast that his speech would be disruptive. Justices Thurgood Marshall and John Paul Stevens authored dissenting opinions. Marshall wrote that school officials failed to present evidence that Fraser’s speech was disruptive. Stevens began his dissent by quoting the famous line from Gone With the Wind “Frankly, my dear, I don’t give a damn.” Stevens wrote that “if a student is to be punished for using offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of its violation. The interest in free speech protected by the First Amendment and . . . the Due Process Clause . . . combine to require this conclusion.” The decision remains vitally important in the public school context, because it enables school officials to punish students for profane and lewd expression. Some lower courts have read the Fraser case quite broadly and have determined, for example, that they can prohibit the display of any Confederate flag clothing because it is plainly offensive. See also Burger,Warren E.; Hazelwood School District v. Kuhlmeier (1988); Stevens, John Paul; Tinker v. Des Moines Independent Community School District (1969).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Matthew Fraser Speaks Out on 15-Year-Old Supreme Court Free-Speech Decision.” First Amendment Center Online, April 17, 2001. www.firstamendmentcenter.org/analysis .aspx?id=5181. ———. The Silencing of Student Voices. Nashville, Tenn.: Freedom Forum, 2003. Hudson, David L., Jr., and John E. Ferguson, Jr. “The Courts’ Inconsistent Treatment of Bethel v. Fraser and the Curtailment of Student Rights.” John Marshall Law Review 36 (2002): 181–209.
Beussink v. Woodland School District (E.D. Mo. 1998) In Beussink v. Woodland School District, 30 F.Supp.2d 1175 (E.D. Mo. 1998), a federal judge ruled that a school district
could not discipline a high school student for maintaining a Web site highly critical of his school unless the student’s expression met the substantial disruption standard of Tinker v. Des Moines Independent Community School District (1969). The First Amendment does not allow school officials to suppress a student’s speech simply because they are upset by the content, said the court. The case arose when the Woodland R-IV School District in Marble Hill, Missouri, suspended Brandon Beussink in 1998 after a student accessed Beussink’s Web site at school and showed it to a teacher, who, in turn, showed it to the principal. On his Web site, Beussink used some vulgar language to criticize teachers, the principal, and the high school’s Web site. Under the school’s grading and attendance policy, Beussink’s ten-day suspension, when added to other absences he had accumulated, would have caused him to fail four classes. Judge Rodney Sippel of the U.S. District Court issued an injunction barring the school from disciplining Beussink. The ruling was one of the first to apply established First Amendment principles for school settings to student expression on the Internet. In Tinker, the U.S. Supreme Court had ruled that students do not give up their right to freedom of speech at school, but that school officials may regulate expression to prevent disruption of school operations. In Hazelwood School District v. Kuhlmeier (1988), the Court ruled that school officials may exercise greater control over speech that is or may appear to be school-sponsored. The Beussink case fell into a gray area, because the expression was not school-sponsored and it took place on a student’s personal Web site. The Court was willing to assume that expression created at home might still have the effect of disrupting school discipline. However, it found no evidence of disruption and concluded, “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker.” The decision in Beussink has influenced the rulings of other courts. In Killion v. Franklin Regional School District (W.D.Pa. 2001), a federal judge overturned the discipline of a student for creating and e-mailing to friends a document mocking the school’s athletic director; the judge found no evidence of disruption. Cases in which a different result has been reached are those involving either substantial disruption at school or alleged threats against teachers, students, or school officials. For example, in J. S. v. Bethlehem Area School District (2002), the Pennsylvania Supreme Court concluded that discipline
Biddle, Francis of a middle school student was justified because of the disruption caused by his Web site, which contained derogatory and threatening statements about a teacher and principal. See also Hazelwood School District v. Kuhlmeier (1988); Students, Rights of; Tinker v. Des Moines Independent Community School District (1969).
Stephen Wermiel
furthe r reading Fossey, Richard, and Jeff Horner.“ Student Misconduct Involving the Misuse of Technology.” Education Law Reporter, September 25, 2003, 1. Wheeler,Thomas E., II.“Slamming in Cyberspace: The Boundaries of Student First Amendment Rights.” Res Gestae 47 (2004): 24.
Bible Reading in Public Schools See Abington School District v. Schempp
Bickel, Alexander Alexander Mordecai Bickel (1924–1974), one of the most well-known legal scholars of the twentieth century, contributed importantly to legal theory and scholarship, including that of the First Amendment. Born in Romania, Bickel arrived in the United States when he was fourteen; later he became a citizen. Bickel graduated from City College of New York and from Harvard Law School before clerking during the 1952–1953 term for Justice Felix Frankfurter. He later worked as a research associate at Harvard before joining the faculty at Yale Law School. Bickel wrote several books, but his most widely recognized work, The Least Dangerous Branch:The Supreme Court at the Bar of Politics, contains the seeds of an ever-growing debate about the political, moral, and adjudicative roles of the Supreme Court. Bickel insightfully noted the seemingly paradoxical situation in which an unelected body of nine justices strikes down congressional legislation as unconstitutional, even though the legislators represent the collective will of the people. Deeming this paradox of the democratically unaccountable few (the Supreme Court justices) overriding the democratically elected many (Congress, proxy to the American people) as a “countermajoritarian difficulty,” Bickel ignited one of the greatest debates of constitutional law: the legitimacy of judicial review.To alleviate the countermajoritarian difficulty, Bickel advocated a system of “private ordering,”
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whereby conflicts are resolved outside the Supreme Court and courts generally. Bickel also thought the Supreme Court could temper the countermajoritarian difficulty by exercising “passive virtues,” which Bickel understood to be the Court’s strategy of deciding cases on the narrowest ground— often procedural—available. Thus, although Bickel favored many decisions of the Warren Court, he often found himself at odds with what he considered to be its “activism.” In 1971 Bickel put aside his work as a legal theorist to represent the New York Times in New York Times Co. v. United States (1971)—the Pentagon Papers case—before the Supreme Court.The case involved the disclosure by the New York Times and the Washington Post of classified Nixon administration documents related to U.S. involvement in the Vietnam War. Bickel argued that newspapers should receive First Amendment protection in publishing the Pentagon Papers against the Nixon administration’s insistence that the material remain undisclosed to the public. Avoiding an absolutist approach to the First Amendment, Bickel advanced the argument that the government must meet a presumptively high burden to justify the prior restraint of information. The case was ultimately decided on this fundamental issue, with the Court holding that the government had not overcome the rigorous burden of restraining information. Accordingly, Bickel proved instrumental in defending newspapers’ First Amendment rights to publish the information in question, even—and perhaps especially—when the federal government insisted on keeping certain knowledge secret. See also New York Times Co. v. United States (1971); Pentagon Papers; Prior Restraint.
Sandeep C. Ramesh
furthe r reading Bickel,Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven, Conn.: Yale University Press, 1986. “Bickel, Alexander Mordecai.” American National Biography Online, July 31, 2006. www.anb.org/articles/bin/asearch.cgi?a=1&f= bickel%2C%Alexander&in=-at&ib. Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 2004. Ward, Kenneth D., and Cecelia R. Castillo, eds. The Judiciary in American Democracy: Alexander Bickel, the Countermajoritarian Difficulty, and Contemporary Constitutional Theory. New York: State University of New York Press, 2005.
Biddle, Francis Francis Beverley Biddle (1886–1968), a federal appeals court judge, solicitor general, and U.S. attorney general, has been
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generally praised for his temperate balancing of freedom and security during World War II. Born in 1886 in Paris while his parents were living abroad, Biddle grew up in a privileged Philadelphia family. After obtaining his undergraduate and law degrees from Harvard University, Biddle clerked for U.S. Supreme Court justice Oliver Wendell Holmes Jr. He then entered private practice at his father’s law firm of Biddle, Paul and Jayne. He later moved to another private law firm. In 1922 Biddle began a three-year stint as an assistant U.S. attorney in Pennsylvania. Biddle then served in a series of government jobs: chair of the National Labor Relations Board (NLRB), judge on the Third Circuit Court of Appeals, U.S. solicitor general, and U.S. attorney general. He practiced law privately in between his stints as head of the NLRB and his appointment to the federal judiciary in 1939.While in private practice, he coauthored with Osmond K. Fraenkel amicus briefs for the American Civil Liberties Union in the U.S. Supreme Court First Amendment cases of Senn v.Tile Layers Protective Union (1937) and Lovell v. City of Griffin (1938). It is his service in the position of attorney general for which Biddle is best remembered. Peter G. Renstrom (2001) writes that “far fewer people were prosecuted for sedition by Biddle’s Justice Department than had been the case during World War I” (p. 54). Biddle told the New York Times in 1941: “In so far as I can, by use of the authority and the influence of my office, I intend to see that civil liberties in this country are protected; that we do not again fall into the disgraceful hysteria of witch hunts, strike breaking and minority persecutions which were such a dark chapter in our record of the last World War” (Blanchard 2002: 365). Biddle resigned as attorney general after President Franklin D. Roosevelt’s death in 1945, but he was later appointed by President Harry S.Truman to serve as a judge at the Nuremberg trials. Biddle wrote numerous books that dealt with civil liberties issues, including The Fear of Freedom (1951) and In Brief Authority (1962). He argued against the practice of guilt by association during the McCarthy era and the activities of the House Un-American Activities Committee. See also Holmes, Oliver Wendell, Jr.; House Un-American Activities Committee; Lovell v. City of Griffin (1938); McCarthyism; Senn v. Tile Layers Protective Union (1937);World War II.
David L. Hudson Jr.
furthe r reading Blanchard, Margaret A.“Why Can’t We Ever Learn? Cycles of Stability, Stress and Freedom of Expression in United States History.” Communication Law and Policy 7 (2002): 347–378. Renstrom, Peter G. “Biddle, Francis Beverley.” In Great American Lawyers: An Encyclopedia, Vol. 1, ed. John R. Vile, 50–57. Santa Barbara, Calif.: ABC-CLIO, 2001. Stone, Geoffrey R.“Free Speech in the McCarthy Era.” California Law Review 93 (2005): 1387–1412.
Bigelow v. Virginia (1975) In Bigelow v. Virginia, 421 U.S. 809 (1975), the Supreme Court established that at least some commercial advertising should receive First Amendment protection, thereby laying the groundwork for its ruling the next year in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), which established the modern commercial speech doctrine. Jeffrey Cole Bigelow, managing editor of the Virginia Weekly, was convicted in Virginia for printing an abortion advertisement from a clinic in New York where abortions were legal.Virginia law prohibited persons from encouraging or procuring abortions. The lower court that convicted Bigelow fined him $500, and his conviction was affirmed through the Virginia state court system. Initially, the U.S. Supreme Court remanded Bigelow’s case in light of its 1973 abortion decisions in Roe v. Wade and Doe v. Bolton. On remand, the Virginia Supreme Court again upheld Bigelow’s conviction, pointing out that Roe v. Wade did not mention “the subject of abortion advertising.” Bigelow again appealed to the U.S. Supreme Court, which granted review and invalidated his conviction by a vote of 7-2. Writing for the majority, Justice Harry A. Blackmun determined that the abortion advertisement at issue was not pure commercial speech. Had it been so, it would not have been entitled, by the precedents of the day, to any legal protection. “The advertisement in appellant’s newspaper did more than simply propose a commercial transaction,” Blackmun wrote. “It contained factual material of clear public import.” Blackmun also noted that some advertising was entitled to a degree of First Amendment protection, though he declined to decide “the extent to which constitutional protection is afforded commercial advertising under all circumstances and in the face of all kinds of regulation.” The Virginia law, he pointed out, sought to limit what “Virginians may hear or read about New York services”—an interest, he wrote that
Billboards was entitled to “little, if any, weight.”The First Amendment, according to Blackmun, prohibited the state from shielding its citizens from truthful information. Justice William H. Rehnquist, joined by Justice Byron R. White, dissented. Rehnquist contended that the abortion advertisement was “a classic commercial proposition” not entitled to First Amendment protection. See also Blackmun, Harry A.; Commercial Speech; Rehnquist, William H.; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976).
David L. Hudson Jr.
furthe r reading Dodge, William S. “Weighing the Listener’s Interests: Justice Blackmun’s Commercial Speech and Public Forum Opinions.” Hastings Constitutional Law Quarterly 26 (1998): 165–217. Tavormina, John.“Limitation of the Commercial Speech Exception to First Amendment Protection.” Tulane Law Review 51 (1976): 149–156.
Billboards Billboards are a ubiquitous part of the U.S. landscape. Indeed, in 2005 alone advertisers spent over $6 billion on displaying some 450,000 billboards. Regulation of the location and content of billboards raises many First Amendment issues. In the realm of First Amendment law, billboards have sparked two main legal controversies. First, to what extent can the government limit access to public billboards, such as on mass transit systems? Second, to what extent can the government prohibit privately owned billboards, such as those appearing on highways? The issue of public billboards flows from whether the advertising space on city-owned public transportation should be recognized as a public forum. In Lehman v. City of Shaker Heights (1974), the U.S. Supreme Court answered in the negative. The Court held that because of the captive nature of public transportation’s audience, a city could prohibit political advertisements while allowing a myriad of other types. Consistent with its decision in Miami Herald Publishing Co. v. Tornillo (1974), the Court held that, as the owner of the advertising space, the city could exercise discretion in selling space to advertisers. Such discretion, however, must not be “arbitrary, capricious, or invidious.” Private billboards, like their public counterparts, are open to extensive government regulation of their location. This regulation stems most directly from the desire of various lev-
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els of government to preserve the aesthetic value of cities and other localities. In Village of Euclid v. Ambler Reality Co. (1926), dealing with zoning, the U.S. Supreme Court established that a city government could regulate the usage of private property—even without providing owners with compensation. This decision paved the way for the Court’s 1954 decision in Berman v. Parker. In Berman, the Court ruled for the first time that aesthetic justification alone could permit government regulation of land issues, in this case slum clearance. The rationale in Berman served in part as the foundation for the Court’s judgment in Metromedia, Inc. v. City of San Diego (1981). At issue in this case was whether the city of San Diego could enact a ban on all off-site commercial billboards. Under San Diego’s ban, businesses could not construct billboards advertising their company or products unless the products or services advertised could be obtained on the same premises as the billboard itself. Noncommercial signs featuring religious symbols or providing time, temperature, and news—among a variety of other exceptions— were permitted, however. By a vote of 6-3, the Supreme Court held that San Diego’s ban was unconstitutional. Justice Byron R.White led a plurality coalition of justices in arguing that although the commercial ban was acceptable, two aspects of the noncommercial ban rendered the statute unconstitutional. First, in exempting some types of commercial speech but not providing for analogous exceptions for noncommercial speech, the statute provided commercial speech with elevated protection. This approach, Justice White argued, was inconsistent with the Court’s previous rulings. Second, by specifying what types of noncommercial speech could be placed on billboards, the city was able to make discretionary choices, but, consistent with the Court’s decision in Consolidated Edison Co v. Public Service Commission (1980), Justice White argued that the city could not retain such power. City Council of Los Angeles v.Tax Payers for Vincent (1984) combined aspects of both Lehman and Metromedia. At issue was whether the city of Los Angeles could prohibit the posting of political campaign advertisements on public property. By a vote of 6-3, the Court held that it could. In view of earlier distinctions made between commercial and noncommercial speech, Vincent seems to be the closest the Court has come to formally deciding whether an outright ban of billboards is permissible. Lower courts, in assessing all-out bans, have generally accepted the bans as constitutional and tend to give the city or municipality in question broad leeway in
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justifying the ban—see, for example, Southlake Property Associates Ltd. v. City of Morrow (11th Cir. 1997). Viewed holistically, the law of billboards suggests a bifurcated approach. In banning billboards, cities must satisfy separate criteria for commercial and noncommercial content. For commercial content, the city must satisfy the four-prong test offered by Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), in which the regulation must directly advance a substantial government interest in a narrowly tailored manner. If noncommercial billboards are prohibited, it must be in a manner that is ultimately neutral to the message being conveyed. Advertisers, in responding to these bans, have become creative. In communities in which billboards have been prohibited, advertisers may use moving billboards to communicate their messages. These advertisements typically amount to nothing more than a large truck with a giant sign on its truck bed. Traffic-plagued cities such as New York have enacted bans on such advertising-only vehicles.When examined in court, these bans have been sustained as constitutional—see, for example, People v.Target Advertising, Inc. (2000). See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); City Council of Los Angeles v. Taxpayers for Vincent (1984); Content Neutral; Lehman v. City of Shaker Heights (1974); Metromedia, Inc. v. City of San Diego (1981); Miami Herald Publishing Co. v.Tornillo (1974); Zoning Laws.
Ryan C. Black
furthe r reading Bond, R. Douglass. “Making Sense of Billboard Law: Justifying Prohibitions and Exceptions.” Michigan Law Review 88 (1990): 2482–2525. Garner, Donald W., and Richard J.Whitney. “Protecting Children from Joe Camel and His Friends: A New First Amendment and Federal Preemption Analysis of Tobacco Billboard Regulation.” Emory Law Journal 46 (1997): 479–585. Outdoor Advertising Association of America, Inc.“Research and Data Facts and Figures,” June 4, 2006. www.oaaa.org/presscenter/ research.asp. Parsons, Katherine Dunn. “Billboard Regulation after Metromedia and Lucas.” Houston Law Review 31 (1995): 1555–1607.
Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board (1983) The Supreme Court in Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731 (1983), vacated and remanded a decision by the NLRB that had halted the
prosecution of a state court libel suit.The NLRB could not make such a decision unless it found that the suit lacked a reasonable basis in fact or law. The decision implicated the First Amendment rights of petition and issues involving freedom of the press and libel. In this case, an employer had initiated the suit against an ex-employee for libel and harassment after she and other workers had picketed his restaurant in Phoenix, Arizona. The NLRB believed the suit was retaliatory. Justice Byron R. White wrote the Court’s unanimous decision. Acknowledging that a lawsuit could be “a powerful instrument of coercion or retaliation” that might have a “chilling effect . . . upon an employee’s willingness to engage in protected activity,” White also pointed to “weighty countervailing considerations” that cautioned against enjoining such suits. The ruling in California Motor Transport Co. v. Trucking Unlimited (1972) had recognized that “the right of access to the courts is an aspect of the First Amendment right to petition the government for redress of grievances.” He further cited state interests in “providing a civil remedy for conduct touching interests ‘deeply rooted in local feeling and responsibility.’ ” Because of the First Amendment interest he concluded: “The filing and prosecution of a wellfounded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plantiff ’s desire to retaliate against the defendant for exercising rights protected by the [National Labor Relations] Act.” “Sham litigation” was no more protected by the First Amendment than “false statements,” but “[w]hen a suit presents genuine factual issues, the state plaintiff ’s First Amendment interest in petitioning the state court for redress of his grievance, his interest in having the factual dispute resolved by a jury, and the State’s interest in protecting the health and welfare of its citizens, lead us to construe the Act as not permitting the Board to usurp the traditional factfinding function of the state-court jury or judge.” If a court eventually found the suit a sham, “the Board may order the employer to reimburse the employees whom he wrongfully sued for their attorney’s fees and other expenses.” Thus “although it is an unfair labor practice to prosecute an unmeritorious lawsuit for a retaliatory purpose, the offense is not enjoinable unless the suit lacks a reasonable basis.” In his concurring opinion, Justice William J. Brennan Jr. further explored the federal dimension of the case. He noted that the right to file cases such as this one in state courts would not always mean that state, rather than national, law would be applied in such cases.
Bill of Rights The Court relied heavily on this precedent in BEand K Construction Co. v. National Labor Relations Board (2002). See also BE and K Construction Co. v. National Labor Relations Board (2002); California Motor Transport Co. v.Trucking Unlimited (1972); Douglas,William O.; SLAPP Suits;White, Byron R.
John R.Vile
furthe r reading Perrine, James B. “Defining the ‘Sham Litigation’ Exception to the Noerr-Pennington Antitrust Immunity Doctrine: An Analysis of the Professional Real Estate Investors v. Columbia Pictures Industries Decision.” Alabama Law Review 46 (1995): 815–841.
Bill of Rights The Bill of Rights consists of the first ten amendments to the U.S. Constitution. In response to the weaknesses of the Articles of Confederation, which guided the fledging nation from 1781 to 1798, the country’s leaders convened a convention in Philadelphia in the summer of 1787 to amend the Articles, but delegates to the Convention thought such a step would be inadequate and took the more radical one of proposing a new document. From the Virginia and New Jersey Plans, a “Great (Connecticut) Compromise” was reached that resolved some of the factional disputes between the large and small states. The Convention also adopted scores of other compromises in forming each of the three branches of the national government and the relationship between this government and the states. When the Convention reported the Constitution to the states for ratification, the nation split between Federalist supporters of the new document and Anti-Federalist opponents, who were especially concerned that it did not, like most state counterparts, have a bill of rights (of the eleven state constitutions in place in the years after independence, seven had bills of rights).To ensure ratification of the document, the Federalists offered concessions, and the First Congress proposed a Bill of Rights as protection for those fearful of a strong national government. The Bill of Rights came into effect in December 1791, after ratification by three-fourths of the state legislatures. The level of support for the new Constitution varied. During the debate over its ratification, the Federalists grounded their support for the document in the shortcomings of the Articles of Confederation. In late October 1787, the first in a series of eighty-five essays appeared in print
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bearing the pen name Publius. These essays, which became known as the Federalist Papers, were written by James Madison,Alexander Hamilton, and John Jay. They presented a succinct series of arguments that, even today, are revered in the annals of political theory.The essays addressed the manner in which the new republican government, based on federalism and separation of powers, would guard against the tyranny of interest groups and other threats. However, the Anti-Federalists were not convinced that these safeguards were adequate. Led by George Mason, Patrick Henry, and Elbridge Gerry, the Anti-Federalists wrote their own essays, basing their arguments on the tyranny of the British monarchy so resented by the thirteen original colonies. This faction sought additional protections that would guard against an overly centralized and oppressive national government. Ratification of the U.S. Constitution was a slow and arduous process. Although the approval of only nine states was needed to ensure the document’s ratification (Article VII), ultimately the support of all thirteen states was secured. Thus from the ashes of the Articles of Confederation emerged a federal system with enduring features such as republicanism, separated institutional powers, and a system of checks and balances. The Constitution set forth the institutional structures, players, processes, and procedures for governing the new nation through a series of seven articles. Despite the seemingly apparent victory achieved in ratifying the Constitution, the founders failed to resolve the continuing debate over limiting the powers of the national government. As Alexander Hamilton remarked in Federalist No. 84, “the most considerable of the remaining objections is, that the plan of the convention contains no bill of rights.” To ease the process toward ratification, supporters such as Revolutionary War hero George Washington had suggested creating a series of guarantees that would ultimately prevent the national government from tampering with certain rights and liberties deemed essential to a democratic form of government. James Madison, who appears to have been influenced on the subject by Thomas Jefferson, took the lead in the First Congress in composing the Bill of Rights. Although the list of rights and liberties suggested by the former colonies was extensive, Madison narrowed it to twelve amendments, known as the Bill of Rights. Ten of these amendments became part of the U.S. Constitution in 1791 after securing the approval of the required three-fourths of the states. The Bill of Rights resolved one of the most glaring deficiencies of the new Constitution—preventing the
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government’s abuse of individual liberties. The First Amendment, one of the more symbolic and litigious of the amendments, guarantees fundamental rights such as freedom of religion, speech, and the press, and the rights to assemble peacefully and to petition the government.The free exercise clause in the First Amendment prohibits the government from restricting religious beliefs and practices, although exceptions have been made in situations in which ceremonial practices threaten an individual’s safety or welfare. The no establishment clause of the First Amendment has been interpreted as calling for separation of church and state.This separation has been observed through various legal precedents and U.S. Supreme Court interpretations of the “wall of separation doctrine,” which states that government laws may not have as their purpose an intent to aid religion.This doctrine has been further reinforced through a three-part Lemon test, named for the 1971 Supreme Court decision Lemon v. Kurtzman. The Lemon test requires that laws have a secular purpose, that their primary effect neither advances nor inhibits religion, and that they do not foster “excessive government entanglement with religion.” The First Amendment also addresses freedom of expression.The free expression clause guarantees the rights of individuals and the press to speak freely about issues, even those deemed controversial. Freedom of speech has generated substantial debate and legal controversy. However, the clear and present danger test developed by Justice Oliver Wendell Holmes Jr. in the 1919 Supreme Court decision Schenck v. United States provides the means for deciding whether a particular speech is protected by the First Amendment. Under this test, the Court has upheld speech that advocates ideas or arguments, but has declared speech that incites violence or creates a “clear and present danger” to society to be unconstitutional. Nor are “fighting words” protected by the First Amendment, because they inflict injury or incite violence. The press is also protected by the doctrine of no prior restraint, which has developed out of the First Amendment. Under this doctrine, government restrictions and the licensing of media content prior to publication are unconstitutional. Interpretations of the right to assemble have been further applied to include the right of association in organizations. Although the right to assemble includes peaceful protests, parades, and demonstrations, it does not extend to the right to prevent access to public buildings. The Second Amendment provides for the maintenance of state militias, and it guarantees the right of citizens to “bear arms.” This amendment was considered important because
in the Revolutionary War citizens had to protect themselves from tyranny and threats to their safety and that of the nation. The Third Amendment also has its roots in the Revolutionary War era. It protects personal privacy by preventing the quartering of soldiers in a private home without the owner’s consent in peacetime, or according to the prescribed law in times of war. The Fourth Amendment prevents “unreasonable searches and seizures,” and requires authorities to show probable cause to obtain warrants to search and seize dwellings and property. The Fifth Amendment also deals with personal rights and certain guarantees against the unconstitutional treatment of accused persons. It requires a grand jury indictment for serious crimes, prohibits repeated prosecution for the same offense (double jeopardy), and prevents the government from taking life, liberty, or property without due process of the law. The well-known saying “taking the Fifth” is derived from the provision that no persons shall be compelled in any criminal case to testify against themselves—that is, submit to self-incrimination. This amendment also addresses the concept of “eminent domain”—that is, the owner of private property seized for public use must receive just compensation for that property. The Sixth Amendment sets forth additional guarantees for accused persons: the right to be informed of an accusation, the right to have a speedy and public trial, the right to confront witnesses, and the right to legal counsel for defense. The Seventh Amendment guarantees the right to a jury in civil cases in which the “value in controversy” exceeds $20. Also related to trials, the Eighth Amendment prohibits excessive bails and fines and “cruel and unusual punishment” for those found guilty of a crime. The Ninth Amendment protects rights not specified in the Constitution, and the Tenth Amendment reserves for the states or citizens all other powers not delegated to the national government or denied to the states. Despite their ratification as formal amendments to the U.S. Constitution, the amendments of the Bill of Rights were initially applied only to the powers of the federal government and not those of the states.This limited application was reaffirmed in the 1833 Supreme Court decision Barron v. Baltimore. That situation changed, however, after ratification of the Fourteenth Amendment on July 9, 1868, after the Civil War. It declared that no state shall “deprive any person of life, liberty, or property, without due process of law,” and provided the basis for the argument that the rights in the first ten amendments now applied to the states. But even then,
Bipartisan Campaign Reform Act of 2002 only selective incorporation, or the application of certain but not all portions of the Bill of Rights, occurred until a series of Court decisions—among them, Gitlow v. New York (1925), incorporating freedom of speech, and Palko v. Connecticut (1937), which failed to incorporate the Fifth Amendment provision against double jeopardy because the Court did not, at that time, consider that right to be fundamental. The Bill of Rights helped to balance the Federalist and Anti-Federalist factions of the Constitution era. Indeed, the promise of the first ten amendments ensured state ratification of the U.S. Constitution, and adoption of the amendments generated support for the new government. This list of guarantees has provided protections against the arbitrary and tyrannical treatment of citizens by their government. Many decisions by the Supreme Court have reinforced the protection of these liberties and further extended the application of the Bill of Rights to state and local governments. See also Anti-Federalists; Barron v. Baltimore (1833); Clear and Present Danger Test; Constitutional Amending Process; Federalists; Gitlow v. New York (1925); Hamilton, Alexander; Holmes, Oliver Wendell, Jr.; Jefferson, Thomas; Lemon Test; Lemon v. Kurtzman (1971); Madison, James; Prior Restraint; Schenck v. United States (1919).
Daniel Baracskay
furthe r reading Alderman, Ellen, and Caroline Kennedy. In Our Defense: The Bill of Rights in Action. New York: Morrow, 1991. Brant, Irving. The Bill of Rights: Its Origin and Meaning. Indianapolis: Bobbs-Merrill, 1965. Cahn, Edmond. The Great Rights. New York: Macmillan, 1963. Cohen, William, Murray Schwartz, and DeAnne Sobul. The Bill of Rights: A Source Book. New York: Benziger Brothers, 1968. Fraenkel, Osmond K. The Rights We Have. New York: Thomas Y. Crowell, 1974. Goodman, Elaine, and Walter Goodman. The Rights of the People: The Major Decisions of the Warren Court. New York: Farrar, Straus and Giroux, 1971. Leone, Bruno, ed. The Bill of Rights: Opposing Viewpoints. San Diego, Calif.: Greenhaven Press, 1994. Peck, Robert S. The Bill of Rights and the Politics of Interpretation. St. Paul, Minn.:West Publishing Co., 1992. Perry, Richard, and John Cooper. Sources of Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights. New York: New York University Press, 1972. Schwartz, Bernard. The Bill of Rights:A Documentary History.Vols. 1 and 2. New York: Chelsea House, 1971.
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Bipartisan Campaign Reform Act of 2002 The Bipartisan Campaign Reform Act of 2002 (BCRA) established additional campaign contribution and spending rules in federal elections and set new standards for electioneering communications. Such rules continue to be controversial to the extent that regulations of contributions and expenditures limit freedom of speech and press. Introduced in 1997 by Senators John McCain, R-Ariz., and Russ Feingold, D-Wis., the BCRA sought to redress shortcomings of the Federal Election Campaign Act of 1971 (FECA) and the abusive campaign fund-raising practices of the 1996 federal elections. Supporters of the BCRA sought to preserve the integrity of the U.S. electoral system, reduce the role of money and corruption in politics, and give ordinary Americans an opportunity to express political ideas without being overshadowed by megacontributors. Critics continued to charge that by limiting contributions and expenditures, the law was limiting First Amendment freedoms. One of the most significant campaign finance regulations introduced by the BCRA was that national political party committees can no longer receive “soft money”—that is, unlimited donations to political parties from individuals, unions, or organizations for “party building” in federal elections. The act also prohibits federal candidates and officeholders from raising, receiving, or spending soft money for local, state, and federal political parties or in federal elections. Furthermore, the BCRA forbids soft money expenditures for “party-building activities,” such as voter registration and get-out-the-vote (GOTV) efforts, linked to a specific federal candidate. However, corporations, unions, and state and local party committees may use contributions of up to $10,000 per donor annually for GOTV efforts in behalf of state and local candidates if state law permits. These voter registration and GOTV activities funded by soft money may not be allocated to federal candidates, and, under these guidelines, a state party committee cannot solicit the money for use in other states. Each political party or local party committee must raise its own GOTV contributions. Part of GOTV expenditures must include “hard money,” or direct contributions to political candidates that are subject to specified limits and disclosure requirements. Another area regulated by the BCRA is issue advocacy advertisements and electioneering communications. Under
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the BCRA, electioneering communication is defined as broadcast, cable, and satellite advertisements that refer to specific candidates within sixty days of the general election or thirty days of primary and that target fifty thousand or more persons in the congressional district or state where the election is being held. Issue advocacy ads are supposed to address specific issues (such as pro-gun control or anti-gun control) rather than specific candidates. In practice, however, these ads have been used to spend unlimited amounts of money on attack ads aimed at certain candidates. To ensure that issue advocacy ads remain genuine and to address electioneering communications, the BCRA requires any state or local party running ads that promote, support, attack, or oppose any federal candidate for federal office to fund the ads with hard money. The BCRA forbids the use, within sixty days of a general election or thirty days of a primary, of corporate or union treasury monies for electioneering advertisements that mention a federal candidate and are aimed at the candidate’s voting populations. Unions and corporate entities can still fund these broadcasts through their political action committees (PACs). To compensate for the anticipated loss in revenues from a soft money ban in federal elections, the BCRA increased individual contribution limits to candidates and political parties and indexed them to rising campaign costs. Instead of a limit of $1,000, individuals may now contribute $2,000 per election (primary, general, and runoff) to candidates for any federal office up to an aggregate of $37,500 per two-year election cycle. The former $20,000 limit was increased to $25,000 per year per political party committee up to an aggregate of $57,500 per cycle to all national party committees and PACs. In addition, the individual donor limit was increased from $5,000 to $10,000 per year to each state, district, and local party committee that engages in federal activities with a maximum aggregate of $57,500 (now indexed at $61,400). No more than $37,500 of the $57,500 (as indexed) may be given to entities other than national party committees. Individuals are allotted a maximum of $37,500 aggregate per cycle to all committees other than national party committees such as state party committees and federal PACs. In total, the BCRA increased the aggregate amount of hard money that an individual may give to political parties, candidates, and PACs to $95,000 (currently indexed to $101,400) per two-year election cycle. The BCRA set variable contribution limits for congressional candidates facing self-financed, wealthy candidates. In Senate and House campaigns, a sliding scale was established
to raise the amount of individual contributions allowed when self-financed candidates spend a certain amount of personal money. The complicated formula was devised to counter the U.S. Supreme Court ruling in Buckley v. Valeo (1976), which allowed candidates to spend unlimited amounts of their own money. Implementation of the Bipartisan Campaign Reform Act has been subject to legal challenges.The first was McConnell v. Federal Election Commission (2003), a case consolidated by the lower federal courts from twelve lawsuits brought by more than eighty plaintiffs challenging thirteen provisions. Opponents of the BCRA believe that the act illegally prevents officeholders from helping their state and local political party organizations, that it unconstitutionally restricts speech sixty days before a general election, and that it unreasonably infringes on political party fund raising. The U.S. Supreme Court, largely disagreeing with the opponents, upheld the act’s soft money and electioneering communications provisions, but it struck down the prohibition on minors making political contributions and the requirement that political parties choose between independent expenditures and coordinated expenditures on behalf of a candidate. The decision in McDonnell was highly fractured, with several justices writing separately. In his partial concurrence and dissent, Justice Clarence Thomas wrote that “the Court today upholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War.” Thomas repeated his calls for the Court to overrule Buckley v.Valeo. Later, the Federal Election Commission (FEC) came under sharp attack, and in Shays v. FEC (D.D.C. 2004) a federal appellate court struck down many of the FEC rules for implementing the BCRA as a violation of the law’s spirit. In Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), the electioneering communication provisions of the law were challenged again.The Supreme Court held in a per curiam opinion that these provisions in specific instances could possibly violate the First Amendment rights to free speech and to petition the government. This ruling, along with Shays, reopens the issue of how to implement the law. Although the BCRA takes steps to regulate money in federal elections, it does not close all the loopholes, and many electioneering activities and communications are left unregulated, including interest groups’ independent expenditures and issue advocacy ads before the sixty- and thirtyday windows. The BCRA also does not regulate voter guides, direct mail, Internet communications, and tele-
Birth Control phone bank calls. In campaign finance reform, every new law creates new loopholes and new controversies. The Bipartisan Campaign Finance Reform Act, like the Federal Election Campaign Act before it, will probably be amended by Congress and revisited by the courts for years to come. See also Buckley v.Valeo (1976); Campaign Regulation; McConnell v. Federal Election Commission (2003).
Ruth Ann Strickland
furthe r reading Abrams, Floyd. Speaking Freely: Trials of the First Amendment. New York: Viking/Penguin Group, 2005. American Civil Liberties Union: ACLU Watch. ”Supreme Court Matters: The ’Never Mind the First Amendment’ Case,” June 12, 2006. www.civilrightsunion.org/acluwatch/040103.asp. Campaign Legal Center. “BCRA/McCain-Feingold,” June 12, 2006. www.campaignlegalcenter.org/BCRA.html. Cantor, Joseph E., and L. Paige Whitaker. “Bipartisan Campaign Reform Act of 2002: Summary and Comparison with Existing Law. Congressional Research Service, Washington, D.C., May 3, 2002. Corrado, Anthony. “Money and Politics: A History of Federal Campaign Finance Law.” In The New Campaign Finance Sourcebook, ed. Anthony Corrado, Thomas E. Mann, Daniel R. Ortiz, and Trevor Potter, 7–47.Washington, D.C.: Brookings Institution Press, 2005. Donovan, Todd, and Shaun Bowler. Reforming the Republic: Democratic Institutions for the New America. Upper Saddle River, N.J.: Pearson Prentice Hall, 2004. Farrar-Myers, Victoria. “Campaign Finance: Reform, Representation, and the First Amendment.” In Law and Election Politics:The Rules of the Game, ed. Matthew J. Streb, 43–58. Boulder, Colo.: Lynne Rienner, 2005. Henderson, Harry. Library in a Book: Campaign and Election Reform. New York: Facts on File, 2004. Jost, Kenneth. “Campaign Finance Showdown.” CQ Researcher. November 22, 2002, 969–992.
Birth Control Birth control, or contraception, is a practice, material, or device by which sexual intercourse can be rendered incapable of producing a pregnancy. Throughout history, women and men have practiced birth control in a wide variety of ways. Only in the last two centuries, however, has birth control become a matter of public debate. Speaking and writing about birth control have not always received strong First Amendment protection. Largely scorned and even condemned by public officials (President Theodore Roosevelt referred to it as “suicide of the race”), birth control was once treated as immoral and
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obscene by lawmakers. The 1873 Comstock Act, a federal law designed to prevent the distribution of immoral material, was used to censor communication about birth control, thereby placing medical advice and pornographic literature on the same plane. The well-known feminist Margaret Sanger, an early advocate of birth control, was arrested in 1929 after giving a speech about its practice. Even though individual states eventually began to allow birth control clinics, many of them publicly funded, the courts did not rule until much later that communication about the subject was protected. As the U.S. culture began to change, especially after the development of an oral contraceptive in the 1960s, opposition to birth control in general was heard infrequently, except from some religious institutions, especially the Roman Catholic Church. Meanwhile, Connecticut, a state with a largely Catholic population, had a rarely enforced law on its books that completely outlawed birth control. In the strange but important case of Griswold v. Connecticut (1965), the U.S. Supreme Court ruled that the state must have compelling reasons for outlawing birth control, finding that there was a fundamental right to privacy, which included the right of married couples to control their fertility. Justice William O. Douglas delivered the opinion (7-2) of the Court in which the First Amendment was implicated only tangentially, as part of the constellation of rights in the Third, Fourth, Fifth, Ninth, and, most important, Fourteenth Amendments, the penumbras of which create a zone of privacy that the government dare not enter lightly. Seven years later, in Eisenstadt v. Baird (1972), the Court further extended the right to birth control by striking down on equal protection grounds a Massachusetts law criminalizing the distribution of birth control to unmarried persons. The Court again refused to base its decision on the First Amendment, even though Justice Douglas urged it to do so in his concurrence. It was not until 1977 that the Court squarely addressed the First Amendment implications of birth control information. In Carey v. Population Services International (1977), the Court extended First Amendment protection to advertisements of contraceptives. A corporation that advertised contraceptives in periodicals had challenged a New York statute prohibiting advertisements and displays of such products. New York based its law on the claims that advertisements of contraceptive products could be offensive and embarrassing and that permitting them would legitimize sex among young, unmarried people.
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The Court rejected both bases as insufficient to support a restriction on First Amendment rights. It said that, short of obscenity, no speech may be suppressed on the grounds that it may offend some, citing Cohen v. California (1971). It also noted that the state could not demonstrate that advertising birth control affected the sexual behavior of minors.Thus the statute suppressed protected consumer information on contraceptives and so was a violation of First Amendment rights. Later, the Court extended the Carey protection to advertisements and products sent to consumers through the mails. In Bolger v. Young’s Drug Products Corp. (1983), the Court held that federal restrictions on the free flow of truthful information on contraception constitutes a basic constitutional defect within the meaning of the First Amendment, regardless of the strength of the government’s interest. Today, a person’s right to obtain and use birth control is still being challenged in a variety of ways, some of which have First Amendment implications. One interesting turnabout is the claim by some pharmacists, citing First Amendment freedom of religion, of a right to refuse to dispense birth control. Yet another example is Catholic Charities of Sacramento, Inc. v. Superior Court (2004) in which the California Supreme Court rejected First Amendment challenges to the state’s compulsory contraceptive health insurance coverage law. Catholic Charities, as a religious employer whose tenets of faith oppose birth control, claimed a constitutional right to refuse such insurance.The U.S. Supreme Court refused to review the decision. See also Bolger v.Young’s Drug Products Corp. (1983); Carey v. Population Services International (1977); Catholics, Roman; Cohen v. California (1971); Comstock Act of 1873; Douglas, William O.; Obscenity and Pornography; Privacy.
James L.Walker
furthe r reading Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v.Wade. New York: Macmillan, 1998. Kennedy, David M. Birth Control In America: The Career of Margaret Sanger. New Haven, Conn.: Yale University Press, 1970.
The Birth of a Nation The Birth of a Nation, perhaps one of the most controversial movies in U.S. history, premiered as The Clansman: An Historical Romance of the Ku Klux Klan in 1915 to be met with both rousing approval and indignant condemnation. Attempts to block the film were common, but resistance to
A 1915 poster for D. W. Griffith’s film epic, The Birth of a Nation.
such efforts during the early part of the twentieth century were not brought under the First Amendment. In fact, one of the first significant free speech cases did not appear until four years later—Schenck v. United States (1919). It was not until the 1931 case of Near v. Minnesota that the Supreme Court considered the prior restraint concept in its First Amendment jurisprudence. The film by producer and director D. W. Griffith was based on one volume of a racist trilogy written by former North Carolina Baptist minister Thomas Dixon Jr. ten years earlier. Depicting the Klan as a group of heroes “saving” the South from blacks and the “horrors” of Reconstruction,” the book, together with the film, sparked the birth of the socalled Second Klan.After the book’s and the movie-playbill’s portrayal of a hooded Klansman riding a hooded horse, with his left hand holding the reins of the horse and his right
Black, Hugo L. hand holding a burning cross above his head, the Klan, the movie, and cross burning became synonymous. Efforts to censor Birth of a Nation were in large part blocked using technicalities or some other existing substantive law. For example, in Wallace v. MacDonough Theater Co. (Cal. App. 1917), the plaintiffs failed to show any possibility of specific harm or that they had standing to complain of a public nuisance. In Epoch Producing Corp. v. Schuettler (Ill. 1917), the attempt to censor was declared void by the trial court on the ground—not raised on appeal—that the obscenity ordinance was void for vagueness. Somewhat of an exception was Bainbridge v. Minneapolis (Minn. 1915), which involved a theater that violated the city’s censorship order. The theater was, however, denied relief for the post-showing revocation of its license because a revocation was deemed to be within the mayor’s discretion. Not only were attempts to censor the film generally unsuccessful, but it actually won some acclaim within the film industry. The film was included in the National Film Registry in 1993 and voted one of the “Top 100 American Films” in 1998 by the American Film Institute. See also Censorship; Film; Near v. Minnesota (1931); Schenck v. United States (1919).
Clyde E.Willis
furthe r reading Gunning,Tom. D. W. Griffith and the Origins of American Narrative Film: The Early Years at Biograph. Urbana: University of Illinois Press, 1991. Schickel, Richard. D. W. Griffith: An American Life. New York: Simon and Schuster, 1984.
Black, Hugo L. Hugo Lafayette Black (1886–1971) served on the U.S. Supreme Court for thirty-four years and is widely considered to be one of the most influential justices of his time, even though his background and unusual path to the Court might have presaged a far more modest impact. The son of a store owner of modest means, Black graduated from the University of Alabama and then served as a captain in the army during World War I. After the war, he was a police court judge in rural Alabama before being elected to the U.S. Senate in a landslide in 1926. In the Senate, he was a strong supporter of President Franklin D. Roosevelt and the New Deal—reportedly a factor in his nomination by Roosevelt to the Supreme Court to replace Justice Willis Van Devanter in 1937.
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Because Van Devanter and his conservative colleagues had been wreaking havoc on the New Deal, in 1937 Roosevelt announced a Court Reorganization Plan, but his “Courtpacking” scheme was controversial and widely panned. Nevertheless, Senator Black initially supported the plan. When Van Devanter, the first in a string of resignations, left the Court, Roosevelt had a chance to change the composition of the Court, and Black was his first appointee. Some controversy surrounded Roosevelt’s motivation for selecting Black. Some have argued that Roosevelt nominated Black to fulfill a particular agenda: to undermine the legitimacy of the Supreme Court in the wake of his battles with it. Choosing Black, a nondescript populist senator who would almost certainly be confirmed by his colleagues, might lessen the prestige of the Court. Two things, though, seemed fairly certain: first, Roosevelt wanted a supporter of the New Deal, and, second, he recognized that nominating a senator was likely to ensure a relatively easy confirmation. But instead of an immediate confirmation, the unwritten rule for nominations of senators at that point, the matter was turned over to the Judiciary Committee. When his nomination finally made it to the floor of the Senate, Black was confirmed by a vote of 63-16. But shortly after the confirmation, the public learned about Black’s past affiliation with the Ku Klux Klan. On the eve of taking his seat on the Supreme Court, Black went public, explaining that membership in the Klan was a practical necessity to enter politics in the South (the KKK supported Black in his Senate campaigns). He went on to say that he had long since renounced the Klan’s beliefs and his membership. Black weathered the storm and eventually became a strong supporter of civil rights. In fact, it became the joke that “as a young man Hugo Black wore white robes and scared black people and as an older man, he wore black robes and scared white people.” Black joined with his new colleagues on the Court— among them Felix Frankfurter and William O. Douglas—to uphold the regulatory schemes of the New Deal and strengthen the hand of the central government. Ultimately, the Court developed consistent doctrine in these areas, and then it began to turn its attention to civil rights and individual liberties. It was in these areas that Black made his most significant mark. Black became an intellectual leader on the Court, often sparring with his colleagues Frankfurter and Robert H. Jackson over important legal and constitutional issues. Indeed, although he was able to coexist with Frankfurter, his
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antipathy for Jackson was well known. Jackson, who had hoped to be elevated to chief justice, blamed Black for his presumed efforts to thwart that move. Black was famous for carrying with him a worn copy of the Constitution and consulting it during conferences with his colleagues. He was considered a literalist or textualist, who believed that “Congress shall make no law” meant no law with respect to the First Amendment. He forcefully rejected the idea of substantive due process, which had been at the center of many of the battles between Roosevelt and the Court prior to Black’s appointment. Almost three decades later, this stance led him to reject the constitutional right to privacy. Black was in the vanguard of an emerging constitutional dialogue on the incorporation of the Bill of Rights to the states—a move he supported. He argued that the due process clause of the Fourteenth Amendment had effected that application. Black’s dissent in Adamson v. California (1947) was his fullest discourse on this topic. Black maintained until his death that he was proudest of this opinion, although a majority of the Court, while eventually incorporating most provisions of the Bill of Rights through the process of selective incorporation, never adopted his perspective. On First Amendment issues, Black was considered an absolutist. In Dennis v. United States (1951) and similar cases, he dissented from the Supreme Court’s opinion upholding the conviction of leading U.S. communists under the Smith Act. But this absolutist stance created some problems for Black. Because he held that only pure speech received this level of protection, in Tinker v. Des Moines Independent Community School District (1969) Black dissented from the Court’s decision to extend free speech protection to several students who wore black armbands to protest the U.S. involvement in Vietnam. Some observers have argued that this decision, coming near the end of Black’s career, was evidence of a growing conservatism in his decision making. But it is more likely that the apparent retreat was the result of the complexity of the later free expression cases and the nontraditional extensions of the meaning of speech. Black’s support for freedom of the press was similar to his support for freedom of speech. He authored one of the opinions in New York Times Co. v. United States (1971) rejecting prior restraint of the Pentagon Papers. He concurred in Justice William J. Brennan Jr.’s opinion in New York Times Co. v. Sullivan (1964) raising the bar for public officials to prove libel. As for religion, Black supported a relatively strict separation of church and state and wrote some of the most impor-
tant decisions in the establishment clause area, including in Everson v. Board of Education (1947), which incorporated the establishment clause to the states, and in Engel v. Vitale (1962), which disapproved of teacher-led prayer in the public school classroom. To belie his brief allegiance to the Ku Klux Klan, Black was a consistent supporter of civil rights. But that support in the early cases cost him popularity in his native Alabama. By contrast, Black was the author of the controversial opinion in Korematsu v. United States (1944), which supported the government’s internment of Japanese Americans in World War II. Black resigned from the Court in 1971. Within a week, he suffered a stroke and died a few days later. President Richard Nixon appointed Lewis F. Powell Jr. to take Black’s seat on the Court. See also Absolutists; Dennis v. United States (1951); Engel v.Vitale (1962); Everson v. Board of Education (1947); Jackson, Robert H.; Ku Klux Klan; New York Times Co. v. Sullivan (1964); New York Times Co. v. United States (1971);Tinker v. Des Moines Independent Community School District (1969).
Richard L. Pacelle Jr.
furthe r reading Ball, Howard. Of Power and Right: Hugo Black,William O. Douglas, and America’s Constitutional Revolution. New York: Oxford University Press, 1992. Dunne, Gerald T. Hugo Black and the Judicial Revolution. New York: Simon and Schuster, 1977. Hockett, Jeffrey D. New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, Md.: Rowman and Littlefield, 1996. Newman, Roger. Hugo Black: A Biography. New York: Fordham University Press, 1997. Simon, James F. The Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties in Modern America. New York: Simon and Schuster, 1989.
Blacklists In the context of the 1940s and 1950s, a blacklist was a list of persons whose opinions or associations were deemed politically inconvenient or commercially troublesome, thereby subjecting them to either difficulty finding work or termination from employment. During this period, blacklists became particularly prominent in the industries, most notably Hollywood film making, investigated by the House Committee on Un-American Activities (HUAC) for possible links to the Communist Party of the United States. HUAC was seeking to purge the country of any communist influences.
Blacklists HUAC hearings concerning Hollywood were prompted when the Screen Writers Guild (SWG) became the writers’ official bargaining agent in the 1930s.The extreme right saw the unionization of writers as the first step toward the domination of the screen by communists.Those who joined the Communist Party often did so because of social conscience at a time when it was in the business of fighting racism and the economic depression at home and fascism abroad. In the 1940s, U.S. communists generally did not see themselves as defending the Soviet Union; rather, they were defending the “free world,” of which Russia was considered to be a part. In the 1930s and 1940s, communist screenwriters defended the Stalinist regime because, as U.S. screenwriter and author Albert Maltz once said, “There was very little available knowledge of the U.S.S.R.” The Motion Picture Alliance for the Preservation of American Ideals (MPA), an organization that wanted to defend the movie industry against communist infiltration, encouraged HUAC to investigate communism in Hollywood. In May 1947, members of the MPA testified before the committee on that subject during closed hearings. As a result, many people in the entertainment industry were subpoenaed for the October 1947 hearings by the HUAC. Those subpoenaed were either “friendly” or “unfriendly” witnesses. Before the hearings began, the “unfriendly” witnesses asserted that the investigation was a violation of their freedom of expression. A group of Hollywood liberals formed the Committee for the First Amendment (CFA) to lend support to the “unfriendly” witnesses. In holding its hearings, HUAC had two main purposes. First, it intended to prove that the SWG had members who were communists. Second, it hoped to show that these writers were able to insert subversive propaganda into Hollywood films. But Jack Warner of Warner Brothers, the first witness at the October hearings, assured HUAC that no “subversive propaganda” had ever been in any Warner Brothers films. When the first of the “unfriendly” witnesses, John Howard Lawson, asked permission to read a statement, HUAC chairman John Parnell Thomas insisted on reading the statement before granting permission. Outraged by Lawson’s critique of HUAC,Thomas denied the request, and the interrogation was under way. Lawson was gaveled into silence every time he started to say something beyond what he was asked. He then grew angrier and angrier as Thomas’s gavel cut him off. He was able, however, to make a few protests by saying, “The question of Communism is in no
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way related to this inquiry, which is an attempt to get control of the screen and to invade the basic rights of American citizens in all fields.” He refused to answer the question “Are you now or have you ever been a member of the Communist Party?” Lawson was eventually ordered off the witness stand and cited for contempt of Congress. The rest of those who became known as the “Hollywood Ten” tried to express their views, but most had little chance to make any form of a protest before being gaveled and hauled off the stand. Others testifying were Albert Maltz and fellow screenwriters Dalton Trumbo, Alvah Bessie, Samuel Ornitz, Ring Lardner Jr., and Lester Cole; directors Herbert Biberman and Edward Dmytryk; and screenwriter and producer Adrian Scott. Shortly after the hearings, the CFA was quickly disbanded. Opponents of the contempt citations argued that HUAC had conducted its inquiry illegally by violating the constitutional rights of free speech and thought. In speaking out against the committee, Rep. Herman P. Eberharter of Pennsylvania asserted that the House had the choice of supporting either HUAC or free speech.“We cannot do both,” he said.“I cannot escape the conclusion . . . that the purpose of this committee was not to destroy an existent subversive threat in Hollywood, but to intimidate and control the movie industry.” In November 1947, film executives and producers met in New York and issued the Waldorf Statement, which declared that they would not hire any member of the Hollywood Ten unless he was acquitted or had declared under oath that he was not a communist. They also would not knowingly hire anyone who was a communist. After being cited for contempt, the Hollywood Ten went to jail in 1950 once their appeals were exhausted. During the second set of HUAC hearings in 1951, many of those subpoenaed used the Fifth Amendment to avoid self-incrimination, and some of them named names of those they believed to be communists. Because of the blacklist, some screenwriters had to leave the country to find work. Many had to resort to using pseudonyms to continue working. The beginning of the end of the Hollywood blacklist took place in 1960 when actor and producer Kirk Douglas gave screenwriting credit to Dalton Trumbo for the movie Spartacus. Unfortunately, after the blacklist was lifted most of those on it were not able to resume their careers in the entertainment industry.
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See also Communist Party of the United States; House UnAmerican Activities Committee.
Brandon R. Burnette
furthe r reading Ceplair, Larry, and Stephen Englund. The Inquisition in Hollywood: Politics in the Film Community, 1930–1960. Berkeley: University of California Press, 1983. Dick, Bernard. Radical Innocence: A Critical Study of the Hollywood Ten. Lexington: University Press of Kentucky, 1989. Doherty, Thomas. Cold War, Cool Medium: Television, McCarthyism, and American Culture. New York: Columbia University Press, 2003. Mills, Michael. “HUAC and Censorship Changes, 1998.” Moderntimes: Classic Film Pages. www.moderntimes.com/ palace/huac.htm. Walz, Jay.“Ten Film Men Cited for Contempt in Overwhelming Votes by House.” New York Times, November 25, 1947, 1, 33.
Blackmun, Harry A. Harry Andrew Blackmun (1908–1997) served as an associate justice on the U.S. Supreme Court from 1970 to 1994. He is best known for writing the majority opinion in Roe v. Wade (1973) that overturned most state abortion laws. That decision was built on Griswold v. Connecticut (1965), which formulated a right of privacy based in part on emanations from the First Amendment. Appointed by President Richard Nixon with the strong approval of his former childhood friend Chief Justice Warren E. Burger, Blackmun was expected to be a thoroughly conservative justice. In fact, early in Blackmun’s tenure on the Court he and Burger were dubbed the “Minnesota twins.” However, Blackmun’s rulings, including those in First Amendment cases, became increasingly liberal as he sat on the Court, displeasing Burger. Justice Blackmun is considered an architect of the Court’s commercial speech doctrine, which concerns whether business-related expression enjoys constitutional protection similar to that extended to political speech. In Bigelow v.Virginia (1975), Blackmun wrote the opinion that held that a Virginia newspaper was within its First Amendment rights in publishing an advertisement for legal abortions available in New York. In 1976 he wrote for the majority in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. in which the Court held that society had a “strong interest in the free flow of commercial information” and that even speech that was bought and paid for enjoyed First Amendment protection. The Court acknowledged, however, that regulation of commercial speech was permissible to ensure that it was accurate as well
as free. Justice Blackmun also wrote the opinion in Bates v. State Bar of Arizona (1977) that allowed lawyers to advertise their services and fees. Blackmun was one of three justices who dissented in the Court’s decision in New York Times Co. v. United States (1971), which used the strong presumption against prior restraint to allow publication of the Pentagon Papers. He and the other two dissenters were particularly concerned about the haste with which the Court decided the case. In 1989 Blackmun agreed with the majority opinion by Justice William J. Brennan Jr. in the flag-burning case Texas v. Johnson. The opinion held that Gregory Lee Johnson’s conviction under a Texas law that prohibited the desecration of the American flag violated his right to free expression. Johnson, who had burned the flag during a nonviolent protest at the 1984 Republican National Convention, clearly intended to convey a political statement. Blackmun joined the Court in stating, “If there is a bedrock principle underlying the First Amendment it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” However, Blackmun wrote in his concurrence that he had struggled with the case and found it “difficult and distasteful.” Several years later, the Court considered a St. Paul, Minnesota, law that prohibited the display of symbols that aroused “anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” A young man had been charged under the ordinance for burning a cross on a black family’s lawn. In R.A.V. v. St. Paul (1992), the majority struck down the law on First Amendment grounds. Blackmun concurred, but he wrote separately that he did not believe it violated the First Amendment to prohibit “hoodlums from driving minorities out of their homes by burning crosses on their lawns.” He was concerned that the people of St. Paul were prevented from outlawing the “race-based fighting words” that threatened their community. Among several cases that tested the establishment clause of the First Amendment, the Court considered whether a nativity scene could be placed inside a courthouse. In County of Allegheny v.American Civil Liberties Union (1989), Blackmun wrote the majority opinion holding that a crèche alone, without other holiday decoration, constituted an endorsement of Christian doctrine. He also pointed out that governments could celebrate Christmas in secular ways without violating the First Amendment. For example, the Court found such an acceptable arrangement at another public
Blackstone,William building where the display included a Christmas tree, a menorah, and a sign proclaiming liberty. In free exercise cases, Blackmun joined Justice Brennan’s dissent in O’Lone v. Estate of Shabazz (1987). They argued that Muslim prisoners were deprived of fundamental First Amendment rights when they were denied the opportunity to participate in Friday prayers because the administrators claimed it would cause discipline problems. The dissenters demanded that government agencies prove they had compelling reasons to limit the free exercise of religion. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court ruled that depriving a Native American who had used peyote at a religious ceremony of his unemployment benefits did not violate the free exercise clause. Justice Blackmun dissented, criticizing the state for its unwillingness to make an exception in its “war on drugs” for religious ceremonies, especially because its claim that ritual peyote would encourage drug use and trafficking was “purely speculative.” Such hypothetical harm hardly justified the restriction of a constitutional right. See also Bates v. State Bar of Arizona (1977); Bigelow v.Virginia (1975); County of Allegheny v. American Civil Liberties Union (1989); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Griswold v. Connecticut (1965); New York Times Co. v. United States (1971); O’Lone v. Estate of Shabazz (1987); R.A.V. v. St. Paul (1992);Texas v. Johnson (1989);Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976).
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Mary Welek Atwell
Friedelbaum, Stanley H. The Rehnquist Court: In Pursuit of Judicial Conservatism. Westport, Conn.: Greenwood Press, 1994. Hudson, David L., Jr. The Rehnquist Court: Understanding Its Impact and Legacy. Westport, Conn.: Greenwood Press, 2007. Yarborough,Tinsley E. The Rehnquist Court and the Constitution. New York: Oxford University Press, 2000.
Blackstone, William William Blackstone (1723–1780) authored what is arguably the most influential treatise on the laws of England. Blackstone attended Oxford University and practiced law briefly before being elected as a fellow of All Souls College at Oxford. His undergraduate lectures on English law were enormously popular and formed the basis for his future published work. Blackstone served as a member of Parliament from 1761 to 1770, and in 1770 he became a justice of the Court of Common Pleas. His judicial career, like his legal career, was largely undistinguished.
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Blackstone’s Commentaries on the Laws of England, published in four volumes from 1765 to 1769, offer a comprehensive examination of English law, from constitutionalism to common law. Although Blackstone was heavily influenced by John Locke’s work, he found the concept of revolution troubling and acknowledged a right to revolution only in theory, contending that power returned to the people only when sovereign power had been utterly destroyed. Thus, as long as Parliament existed, its power remained absolute, a doctrine known as parliamentary sovereignty. Although the leaders of the American Revolution necessarily rejected Blackstone’s views on popular sovereignty and the right to revolution, the framers of the Constitution found themselves returning to Blackstone’s analysis of legal principles in developing a system to govern the former colonies. Blackstone’s work was particularly important in elucidating the rights of individuals against government and the protection of liberty against the actions of officials seeking to silence criticism and suppress the ability of the press to inform the public. Although Blackstone recognized the right of the government to punish “blasphemous, immoral, treasonable, schismatical, seditious or scandalous libels,” he also stood firmly in favor of an extensive freedom of the press and an absolute prohibition on prior restraint of publication. He wrote, in volume 4 of the Commentaries, “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no prior restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.” Although James Madison and other framers argued in the Virginia Report of 1800 that freedom of the press was not limited to the presumption against prior restraint, almost all the American founders agreed that freedom of the press encompassed this presumption. Federalists attempted to justify the Sedition Act of 1798 in part by pointing to the fact that it did not subject critics of the U.S. government or its leaders to prior restraint and that it permitted individuals to defend themselves by attempting to prove the truth of their accusations. This Blackstonian presumption continues to serve as one of the foundational principles of First Amendment jurisprudence, as illustrated by the Supreme Court’s reluctance to countenance such restraint even when an individual
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publishes materials deemed to be defamatory, as in Near v. Minnesota (1931) and New York Times Co. v. United States (1971), the Pentagon Papers case, in which the government asserted that national security interests required such limitations. In the early twenty-first century, First Amendment jurisprudence reflects almost complete acceptance of the Blackstonian view, with prior restraint allowed only in the event of compelling state interests and only then if the government can demonstrate a close nexus between the item it seeks to restrain and a significant threat of public harm. See also Locke, John; Madison, James; Near v. Minnesota (1931); New York Times Co. v. United States (1971); Pentagon Papers; Sedition Act of 1798.
Sara L. Zeigler
furthe r reading Alschuler, Albert W. “Rediscovering Blackstone.” University of Pennsylvania Law Review 145 (1996): 1–55. Lockmiller, David A. Sir William Blackstone. Chapel Hill: University of North Carolina Press, 1938. Orth, John V. “Sir William Blackstone: Hero of the Common Law.” American Bar Association Journal 66 (1980): 155–160.
Blaine Amendments The Blaine amendments—a series of amendments to state constitutions in the late nineteenth century—aimed to prevent the use of public funds to support parochial schools. In effect, they sought to augment the more general language of the establishment clause of the First Amendment to the Constitution by explicitly placing restrictions on the use of public funds by states for the support of religious institutions. The amendments were named for James Gillespie Blaine of Maine, the Republican minority leader in the House of Representatives during the 1870s. Blaine sought to alter and expand the First Amendment as follows: ”No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any state for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.” The amendment easily passed in the House of Representatives but narrowly failed in the Senate. Many states, however, added similar amendments to their constitutions, and some had previously done so in response to Congress passing a law in 1875 requiring new states to put
Blaine-type amendments in their constitutions. An effort by Roman Catholics to obtain a share of state educational spending for the network of parochial schools they were developing, in reaction to the overt Protestantism of public schools, served as the impetus for these measures. By the post–Civil War era, Catholics’ numbers had grown, providing them increasing political strength in those states in which they comprised significant segments of the population. Creators and supporters of Blaine amendments were inconsistent in their espousal of strict separation of church and state.While their opposition to government spending on parochial schools had the effect of making their state constitutions more explicit than the U.S. Constitution in prohibiting state support of religion establishments, they saw no conflict with simultaneously supporting Protestant practices in public schools as well as state legislatures and other public settings. In the 1930s and 1940s, some states began to view Catholic schools as performing a public service and offered to pay for bus transportation to them. When such funding was challenged on the basis of Blaine amendments, efforts arose to abolish these amendments and to allow for spending on school transportation. Attempts to replace the amendments or to omit them from new state constitutions, however, often met with public resistance. In the early twenty-first century, many state constitutions still had Blaine amendments, which became an issue as the voucher movement gathered steam. After the Supreme Court’s ruling in Zelman v. Simmons-Harris (2002) appeared to remove First Amendment obstacles to voucher programs, pro-voucher forces turned their attention to rescinding Blaine amendments, which they viewed as the biggest remaining obstacle to state voucher legislation allowing students to use government funds to attend sectarian schools. They also sought to challenge Blaine amendments in the federal courts as a violation of the Constitution because of their history as products of religious bigotry and antiCatholicism. This situation provided the impetus for Locke v. Davey (2004), in which the Supreme Court ruled 7-2 in favor of the state of Washington and its law prohibiting the use of state funds in sectarian schools. Joshua Davey had claimed that his right to free exercise of religion was infringed by the state of Washington’s refusal, based on a passage in the state’s constitution, to let him participate in its Promise Scholarship Program to pursue a theology degree. The relevant passage in the Washington constitution, article 9, section 4, reads,“All
Blasphemy schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.” The American Center for Law and Justice represented Davey and urged the Supreme Court not to grant certiorari in the case but to let stand the Ninth Circuit Court of Appeals ruling until other Blaine amendment cases were decided in the lower courts; other pro-voucher groups, however, wanted the case to be heard quickly in the hope that a ruling would, in effect, make all Blaine amendments unconstitutional. Chief Justice William H. Rehnquist, in a footnote to his majority opinion, said that neither Davey nor amicus briefs made a credible argument that the Washington constitution’s relevant provision was a product of religious bigotry and “accordingly the Blaine Amendment’s history is simply not before us.” See also Aid to Parochial Schools; Catholics, Roman; Locke v. Davey (2004); Rehnquist, William H.; School Vouchers; Zelman v. Simmons-Harris (2002).
Jane G. Rainey
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public to digest and analyze this information to judge and react to the government’s actions. Blasi also advocates employing a “pathological perspective” in interpreting the First Amendment. In “The Pathological Perspective and the First Amendment,” published in the Columbia Law Review in 1985, Blasi suggests that the “overriding objective [of courts reviewing First Amendment claims] at all times should be to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically” (pp. 449–450). Blasi’s ideas on the First Amendment have received renewed attention from scholars in the wake of the September 11, 2001, attacks and the subsequent enactment of the USA Patriot Act. In addition to the topics noted here, Blasi has written on a wide variety of other First Amendment issues, including the Burger Court, subpoenas of the press, school vouchers, and civic courage. See also Liberty Model; Marketplace of Ideas.
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Scott Hammack
Becket Fund for Religious Liberty, www.becketfund.org. Green, Steven K. “The Blaine Amendments Reconsidered.” American Journal of Legal History 36 (January 1992): 38–69. Larson, Edward J.“The ‘Blaine Amendment’ in State Constitutions.” In The School-Choice Controversy: What Is Constitutional? edited by James W. Skillen. Grand Rapids, Mich.: Baker Books 1993. Morgan, Richard E. The Supreme Court and Religion. New York: Free Press, 1972.
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Blasi,Vincent
Blasphemy laws punish people who make oral or written statements that are understood to express irreverence for sacred things. Long a feature of English and colonial societies and still prominent in some theocratic regimes, laws against blasphemy have disappeared in the United States because of the First Amendment. Such laws were most frequently associated with the kind of religious establishment that the First Amendment limited at the national level and that courts later applied via the Fourteenth Amendment to the states. In the Bible, Leviticus 24:15–16 calls for the stoning of anyone who curses the God of Israel. Ancient Greece and Rome had similar prohibitions against those who spoke ill of the gods. The trial of Jesus was predicated in part on the idea that he had made blasphemous claims to be God. Although Christians initially sought converts through speech and persuasion and stressed the separation of religious and political duties (Jesus had said,“Render unto Caesar the
First Amendment scholar and theorist Vincent Blasi (1943– ) is best known for his “checking value” theory of the free speech and free press clauses of the First Amendment. Blasi, who received his undergraduate degree from Northwestern University in 1964 and his law degree from the University of Chicago Law School in 1967, is the Corliss Lamont Professor of Civil Liberties at Columbia Law School and the James Madison Distinguished Professor of Law at the University of Virginia. In his seminal 1977 article, “The Checking Value in First Amendment Theory,” published in the American Bar Foundation Research Journal, Blasi wrote that a free press can “check the abuse of power by public officials” (p. 127). He perceives the key function of a free press is to serve as a conduit of information to the electorate, allowing the general
Blasi, Vincent. “The Pathological Perspective and the First Amendment.” Columbia Law Review 85 (1985): 449–514. Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech, 3d ed. Vol. 1, sec. 2:31. New York: Clark Boardman Callaghan, 1996.
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things that are Caesar’s and to God the things that are God’s”), after Emperor Constantine I proclaimed Christianity the official religion of Rome, Christians increasingly used state powers to punish both those who blasphemed God and those within their own ranks whom they believed to be heretics. With the dawn of the Reformation, Catholics and Protestants used laws not only to battle one another but also to strike out at unbelievers. The English jurist William Blackstone defined blasphemy as “denying the being or providence of God, contumelious reproaches of our Saviour Jesus Christ, profane scoffing at the Holy Scripture, or exposing it to contempt or ridicule” (as quoted in The Catholic Encyclopedia). Just as the English punished those who blasphemed the doctrines of the established church, so too the Pilgrims set standards of orthodoxy in the infant United States that they enforced by the sword. Massachusetts banished, and occasionally executed, Quaker dissenters who refused to stay away from the state. Most of the thirteen original states established churches, and many officially restricted office-holding to Trinitarians or to those who professed to believe biblical doctrines. By contrast, the U.S. Constitution prohibited test oaths for federal officials, but it did not interfere with existing state practices. In time, however, the prohibition on federal religious oaths, as well as the provisions of the First Amendment, had a liberalizing effect on state practices. Two famous nineteenth-century cases epitomized the lingering remnants of blasphemy laws. In People v. Ruggles (N.Y. 1811), a New York court upheld the conviction of a man who referred to Jesus and his mother in unflattering terms. Even though New York no longer had a statute on the subject, the court’s chief judge, James Kent, ruled that the offense of blasphemy violated the state’s common law as carried over from England (but Kent believed that the state laws prohibited blasphemy only against the Christian religion). In Commonwealth v. Kneeland (Mass. 1838), the Supreme Court of Massachusetts, led by Lemuel Shaw, upheld the conviction of a publisher who denied the existence of God, Jesus, and miracles. Both convictions resulted in relatively short jail terms (and in Ruggles a fine). Meanwhile, Kneeland was the last such conviction in the United States. In Burstyn v.Wilson (1952), the U.S. Supreme Court overruled a state supreme court decision and declared that governments had no business suppressing attacks on religious doctrines. The laissez-faire attitude that the U.S. government takes toward religious doctrine contrasts with practices in other
parts of the world. For example, Iran’s Ayatollah Khomeini issued a fatwa, or legal declaration, in 1989 calling on Muslims to execute novelist Salman Rushdie, whose book The Satanic Verses was judged by Khomeini to be blasphemous. Similarly, mobs in many Arab countries reacted violently in 2005–2006 when Danish newspapers published cartoons that depicted the prophet Mohammed in unfavorable ways. See also Burstyn v. Wilson (1952); Commonwealth v. Kneeland (Mass. 1838); People v. Ruggles (N.Y. 1811).
John R.Vile
furthe r reading “Blasphemy.” The Catholic Encyclopedia. www.newadvent.org/cathen/ 02595a.htm. Constitutional Rights Foundation. “America Responds to Terrorism. Blasphemy! Salman Rushdie and Freedom of Expression.” www.crf-usa.org/terror/rushdie.htm. Levy, Leonard W. Treason against God: A History of the Offense of Blasphemy. New York: Schocken Books, 1981.
Blogging Over the last decade, blogging has become perhaps the most popular new form of communication. Its supporters trace a historical linkage to the pamphleteers of the Revolutionary War era who criticized the British and royal colonial governments, often in anonymous tracts. For its supporters, blogging fulfills the fundamental First Amendment principle of greater participation in the marketplace. Its detractors counter that the mob of blogs has little regard for accuracy and contributes to a more uncivil society. Whatever the truth, there is no question but that blogging has created new challenges for the First Amendment and the legal system. In that sense, it is a First Amendment fantasy or nightmare. In the late 1990s, a new medium developed on the Internet that increased the participatory nature of online expression. Computer programmer and author Jorn Barger coined the term weblog to refer to his Web site, which consisted of a series of links to news articles and other Web sites he found interesting and informative. Barger formed the term by combining the words website and logging. In 1999 Peter Merholz, a writer, speaker, and computer expert, coined the term blog to refer to a weblog.The word caught on like wildfire, even prompting Merriam-Webster, the popular dictionary publisher, to name it the 2004 “Word of the Year.” It has since morphed into a verb—to blog—and now also forms part of a larger noun—blogosphere.
Blood Transfusions and Medical Care against Religious Beliefs Blogs are online journals or diaries where individuals can post entries about the subjects that interest them most. Many bloggers link to other sites that contain interesting articles. Blogs, which exist on every topic imaginable, have become amazingly popular in a short space of time. Technorati.com claims to be tracking 112.8 million blogs and says that 175,000 blogs are created daily. In 2007, during the war in Iraq, the Pentagon for the first time permitted a blogger to cover the military just like any ordinary journalist. Just like any mode of communication, blogs implicate many First Amendment issues. Some of the more common ones are whether bloggers who gather and report news are, for the purpose of shield laws, journalists; whether bloggers who post anonymous messages that other claim are defamatory should be able to hide their identity; whether public employees who blog can be disciplined by their employer consistent with the First Amendment; whether bloggers are subject or should be subject to campaign finance laws; and whether school officials violate the First Amendment when they punish students for the content of their blogs created off campus. In 2007 the issue of bloggers as journalists surfaced in Congress as members of both houses considered a proposed federal shield law, the Free Flow of Information Act. Those who support bloggers contend that any blogger who engages in journalistic functions should be treated the same as writers in the print and broadcast world. Others contend that, unlike the established media, bloggers do not have built-in guards to ensure accuracy and thus are more likely to engage in a reckless disregard for the truth. On their face, some existing state shield laws seem to apply only to the established media. Another major issue is what standard a court would impose on a defamation plaintiff to unmask a blogging flamethrower. Defamation plaintiffs do have a right to seek redress and restore their reputations, but, as the U.S. Supreme Court noted in Talley v. California (1960), “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” In McIntyre v. Ohio Elections Commission (1995), the Court observed that “anonymous speech is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.” A decade later, in Doe v. Cahill (Del. 2005), the Delaware Supreme Court addressed this issue in the context of a defamation suit filed by a town council official and his wife against an anonymous blogger known only as “Proud Citizen.” The Delaware high court ruled that a defamation
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plaintiff can obtain a court order forcing the unmasking of an anonymous blogger only if the plaintiff meets a summary judgment standard—that is, the plaintiff can show that he or she can meet the essential elements of a libel claim.The court explained that “before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.” Another important First Amendment issue is whether public employers can discipline their employees who blog off-duty. In Pickering v. Board of Education (1968), the U.S. Supreme Court established that public employees have a right to speak out on matters of public concern, but that such a free expression right must be balanced against the employer’s interest in an efficient, disruptive-free environment. Future cases will test the application of this line of cases to the blogging public employee. Blogging continues to grow exponentially as more and more people become acquainted with the power to become a pamphleteer. As blogging becomes more popular, the courts will be confronted with many more First Amendment concerns. See also Free Flow of Information Act; Internet; Libel and Slander; McIntyre v. Ohio Elections Commission (1995); Pickering v. Board of Education (1968); Shield Laws;Talley v. California (1960).
David L. Hudson Jr.
furthe r reading Gutman, Paul S. “Say What? Blogging and Employment Law in Conflict.” Columbia Journal of Law and Arts 27 (2003): 145–186. Hudson, David L., Jr. Blogging. New York: Chelsea House, 2007. ———.“Blogs and the First Amendment.” Nexus,A Journal of Opinion 11 (2006): 129–136. Kochan, Donald J. “The Blogosphere and the New Pamphleteers.” Nexus, A Journal of Opinion 11 (2006): 99–104. Lenhert, Amanda, and Susannah Fox. “Bloggers: A Portrait of the Internet’s New Storytellers. Pew Internet and American Life Report” (July 2006). www.pewinternet.org/pdfs/PIP%20Bloggers%20 Report%20July%2019%202006.pdf. Papandrea, Mary-Rose. “Citizen Journalism and the Reporter’s Privilege.” Minnesota Law Review 91(2007): 515–591. Yang, Jonathan. The Rough Guide to Blogging. New York: Rough Guides, 2006.
Blood Transfusions and Medical Care against Religious Beliefs The First Amendment guarantees the free exercise of religion, but debate continues over whether it prevails when
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medical practitioners determine that conventional medical therapies are necessary but individuals or their families are opposed for reasons of conscience. In 1962 a New York state judge ruled that sixty-nineyear-old Jacob Dilgard could refuse a blood transfusion on religious grounds. Dilgard died. One year later, Jesse E. Jones, a twenty-five-year-old Jehovah’s Witness, needed an urgent blood transfusion to prevent her death from a ruptured ulcer. She and her husband, who had a young child, refused the transfusion, so the hospital turned to the federal court for an immediate order permitting it to act to save Jones’s life. Judge J. Skelly Wright met with the couple, who reiterated their opposition, while the physicians affirmed the matter’s urgency. Focusing on the imminent threat to the woman’s life, Judge Wright ordered the transfusions. The Illinois Supreme Court ruled in the case of In re Estate of Brooks (1965) that a county judge’s ordered transfusion for a Jehovah’s Witness was an unconstitutional invasion of a person’s religious beliefs. In similar cases, a Milwaukee judge refused to order blood transfusions for a six-year-old boy whose mother objected. A forty-one-year-old woman, whose refusal of blood because of her religious beliefs was backed by a judge, died. In 1982 in Chicago, a Jehovah’s Witness with a leg amputation was given court-ordered blood transfusions to keep him alive so that his children would have a father. Another Jehovah’s Witness, injured in a road accident, refused blood and was transferred to Chicago to receive an experimental blood substitute, but died. The clash over the free exercise of religion and medical treatment has not been restricted to Jehovah’s Witnesses. A number of controversies have involved Christian Scientists, who believe in healing through prayer. In 1988 Ginger and David Twitchell were charged with manslaughter in the death of their two-year-old son, whom they had sought to treat through spiritual means for a bowel obstruction. In Commonwealth v. David R. Twitchell and Commonwealth v. Ginger Twitchell (Mass. 1993), Massachusetts’s highest court overturned their conviction, ruling that the couple had not received a fair trial. In 2003 Massachusetts state and local prosecutors and agency officials investigated whether parents of a seven-year-old, who became fatally ill from an undiagnosed case of diabetes, should be charged.The boy had died two days after being sent home from school with complaints of stomach pains. When it comes to the exercise of religion and medical treatment, the courts clearly struggle to balance the rights of parents, children, religion, and the state. Many believe that
prosecuting already grieving parents makes little sense. Others argue that there is no religious right to endanger a child’s health. A related issue is whether the state can intervene in the place of a parent. In Jacobson v. Massachusetts (1905), the Supreme Court had upheld compulsory smallpox vaccinations despite individual religious beliefs, ruling that personal freedoms must at times be relinquished for the benefits of the larger society. In 1971 the Court received Miller v.Winter—the case of a Christian Scientist involuntarily residing in a mental institution who refused to take tranquilizers—but declined by a vote of 9-0 to review it. A divided court of appeals upheld the free exercise claim. In 1997 the Court refused to hear Children’s Healthcare Is a Legal Duty, Inc. v. Deters (6th Cir. 1996).The Sixth Circuit Court of Appeals had determined that the Eleventh Amendment provided immunity to a prosecutor upholding an Ohio law that accepted parental use of religiously inspired treatment for their children. Forty-six states have statutes that allow parents to use their religious beliefs as a defense against prosecution for withholding medical treatment from their children. In the Child Abuse Prevention Treatment Act of 1996, Congress legislated that there was no federal requirement that a child must be provided “medical service or treatment against the religious beliefs of the parent or legal guardian.” The minority faiths protected under the act include the End Time Ministries, a group active in Florida, Montana, South Dakota, and the Midwest whose followers believe in delivering babies at home without medical assistance and that illness is the work of Satan, a member’s lack of faith, or an unconfessed sin; the Church of the First Born, a sect active in Colorado and Oklahoma that does not believe in providing medical care for children; the Faith Assembly, a church active in Ohio and Indiana in which the majority of members’ unnecessary deaths have been of children or mothers in childbirth; and the Faith Tabernacle, active mostly in Pennsylvania and New Jersey and with cases of children dying of tumors, pneumonia, starvation, and dehydration (after a fever, infection, vomiting), as well as measles. In the late twentieth and early twenty-first centuries, the United States has served as a refuge to Hmong displaced from their native Cambodia. Some Hmong employ shamans to effect cures for ailments because surgically entering the body violates their religious beliefs. The courts in some instances have addressed the religion-versus-medicine issues in regard to Hmong beliefs. Court opinions continue to differ regarding personal religious beliefs and medical care.The
Blue Sky Laws Supreme Court, at this time, has not taken up the issue itself, and matters continue to be evaluated on a case-by-case basis. See also Christian Scientists; Jehovah’s Witnesses;Wright, J. Skelly.
Martin Gruberg
furthe r reading Abraham, Henry J. “Abraham, Isaac, and the State: Faith Healing and Legal Intervention.” University of Richmond Law Review 27, no. 5 (1993): 951–987. Peel, Robert. Spiritual Healing in a Scientific Age. San Francisco: Harper and Row, 1987. Schoepjlin, Rennie B. Christian Science on Trial: Religious Healing in America. Baltimore: Johns Hopkins University Press, 2003.
Blount v. Rizzi (1971) Constitutionally protected expression and the U.S. mails were the subject before the Supreme Court in Blount v. Rizzi, 400 U.S. 410 (1971). In its ruling, the Court unanimously invalidated two statutory provisions that authorized the postmaster general to deny postal services to purveyors of allegedly obscene materials. The Court found that the postmaster general’s procedures failed to satisfy the requirements of Freedman v. Maryland (1965). The first provision at issue in Blount permitted the postmaster general to determine whether a person was using the mails to sell or advertise obscenity and, if so, to deny that person certain postal services. The government created a procedure for enforcing the statute, providing an administrative hearing and appeal, both within the post office department. If the postmaster general determined there was a violation, he could deny the violator use of the mails.The second provision permitted the postmaster general to obtain an injunction against the individual in federal district court at any time if that official could establish in court that there was “probable cause” to believe that the individual was violating the prohibition in the first provision. The Court invalidated both provisions. Speaking through Justice William J. Brennan Jr., the Court held that the First Amendment requires procedural safeguards to prevent the “curtailment of constitutionally protected expression.” To satisfy the First Amendment, a scheme of administrative censorship must (1) place the burden to initiate judicial review and to prove that the material is unprotected on the government; (2) provide for “prompt” judicial review on the merits within a specified brief period; and (3) limit any restraint of expression prior to a final judicial
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determination to the “shortest, fixed period compatible with sound judicial resolution.” Applying that standard, the Court determined that the first provision violated the First Amendment because it permitted the postmaster general to bar the use of the mails without initiating a court proceeding. Although the second provision did authorize the postmaster general to bring a lawsuit, the Court rejected the argument that this authorization cured the constitutional defect in the first provision because the law did not require the postmaster general to go to court. Finally, the Court invalidated the second provision because it required the district courts to deny use of postal services merely on a showing of “probable cause” that material was obscene rather than an independent judicial determination of its obscenity. See also Freedman v. Maryland (1965); Mail; Obscenity and Pornography.
Anuj C. Desai
furthe r reading Bogen, David S.“First Amendment Ancillary Doctrines.” Maryland Law Review 37 (1978): 679–738. Monaghan, Henry P. “First Amendment ‘Due Process.’ ” Harvard Law Review 83 (1970): 518–551.
Blue Laws See Sunday Blue Laws
Blue Sky Laws Blue sky laws refers to each state’s set of securities laws and regulations. Every state, plus the District of Columbia, Guam, Puerto Rico, and the U.S.Virgin Islands, has its own securities laws. Although these laws vary from state to state, they generally regulate the offer and sale of equity and debt investment instruments (securities) and license brokerage houses, brokers, and investment advisers.The laws were created to protect the public from investing in fraudulent companies and to combat abuses in securities markets. The origin of the term blue sky laws is not clear, but Supreme Court justice Joseph McKenna, in Hall v. GeigerJones Co. (1917), is the first person known to use the phrase. Referring to an Ohio statute that sought to prohibit the sale of shares in companies engaged in illegitimate dealings, he wrote, “The name that is given to the law indicates the evil at which it is aimed, that is, to use the language of a cited case, ‘speculative schemes which have no more basis than so
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Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. (1987)
many feet of blue sky’; or, as stated by counsel in another case, ‘to stop the sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines and other like fraudulent exploitations.’ ” Hall v. Geiger-Jones Co. and its companion cases became known as the Blue Sky Cases. It is not clear to what “cited case” Justice McKenna is referring. Kansas in 1911 became the first state to adopt blue sky laws. From 1911 to 1933, blue sky laws served as the exclusive means by which to regulate securities offers, sales, and distributions in the state.The federal government entered its involvement with the Securities Act of 1933. State securities laws periodically have been subject to constitutional challenge. In the blue sky cases mentioned above, certain state laws were challenged as a violation of the Fourteenth Amendment’s prohibitions that “no person shall be deprived of his life, liberty, or property without due process of law, or denied the equal protection of the laws.” The Supreme Court found that the laws at issue could be adopted and enforced pursuant to proper exercise of the police power of the state. The Supreme Court in Ohralik v. Ohio State Bar Association (1978) ruled similarly that a lawyer’s solicitation of clients could be restricted by the state if doing so protects the public from harm. On First Amendment concerns regarding communications, the Court noted, “[T]he State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity. Neither Virginia Pharmacy nor Bates purported to cast doubt on the permissibility of these kinds of commercial regulation.” By the mid-2000s, the majority of states’ blue sky laws were modeled after the Uniform Securities Act of 1956.This legislation required the registration of brokers and dealers in securities and of securities offerings and contained prohibitions against unlawful and fraudulent acts. Although most states utilized the Uniform Securities Act in formulating their respective blue sky laws, they were not required to follow it.The result was a federal law with no national standard. In response to this problem, Congress issued the National Securities Markets Improvement Act of 1996 (NSMIA) to uniformly regulate particular national securities offerings. Through the NSMIA, Congress partially preempted states’ securities laws and reduced their jurisdiction. If a securities offering falls within the class of securities called federally covered securities, issuers are substantially exempted from state blue sky law regulation and must instead satisfy federal requirements. States do retain certain powers under the
NSMIA, the most important of which is the ability to investigate and seek enforcement against fraudulent conduct in connection with securities activities. See also Securities and Exchange Commission.
John H. Matheson
furthe r reading Macey, Jonathan R., and Geoffrey P. Miller. “Origin of the Blue Sky Laws.” Texas Law Review 70 (1991). Mahoney, Paul. “The Origins of the Blue Sky Laws: A Test of Competing Hypotheses.” University of California, Berkeley, Law and Economics Workshop, Paper no. 5, 2001. http:// repositories.cdlib.org/cgi/viewcontent.cgi?article=1016&context =berkeley_law_econ. Rapp, Robert N. Blue Sky Regulation. 2d ed. Newark, N.J: LexisNexis, 2003.
Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. (1987) This Supreme Court decision invalidated a resolution adopted by the Los Angeles Board of Airport Commissioners that proclaimed that “the Central Terminal Area at Los Angeles International Airport is not open for First Amendment activities by any individual and/or entity.” Jews for Jesus, Inc. challenged the resolution on the grounds that it was facially unconstitutional. It applied to speech in a public forum; the city applied it to Jews for Jesus in a discriminatory fashion; and it was unconstitutionally vague and suffered from overbreadth. The U.S. District Court sided with Jews for Jesus on the first of these grounds, which the Ninth Circuit Court of Appeals affirmed. Justice Sandra Day O’Connor’s decision for the Court in Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987), upheld the lower-court judgments, but found the resolution facially unconstitutional on the overbreadth ground. O’Connor believed overbreadth would apply whether the airport was classified as a traditional public forum, as a public forum created by government designation, or even as a nonpublic forum. She observed, “On its face the resolution at issue in this case reaches the universe of expressive activity, and by prohibiting all protected expression, purports to create a virtual ‘First Amendment Free Zone’ at LAX.” As written, the resolution would apply even to conversation or to wearing campaign buttons or symbolic clothing. O’Connor further pointed out
Board of County Commissioners v. Umbehr (1996) that the Court could not save the resolution simply through judicial construction because it was so vague.A multitude of suits would have to be brought before all the issues raised by the resolution could be resolved. In a brief concurring opinion joined by Chief Justice William H. Rehnquist, Justice Byron R. White indicated that he did not think the decision meant that the majority considered the airport a traditional public forum, and he thought the Court should have decided this issue. See also Facial Challenges; O’Connor, Sandra Day; Overbreadth; Public Forum Doctrine.
John R.Vile
furthe r reading Meier, Luke.“A Broad Attack on Overbreadth.” Valparaiso Law Review 40 (2005): 113–168.
Board of County Commissioners v. Umbehr (1996) The question confronting the Supreme Court was whether termination of a trash hauler’s contract by a county board of commissioners, presumably because of his frequent criticism of the board, constituted a violation of his First Amendment freedom of speech. In Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996), the Court ruled that it did. Prior to his termination, Keen Umbehr, an independent contractor, had repeatedly criticized the three-member Board of County Commissioners of Wabaunsee County, Kansas, in both appearances before the board and letters and editorials in the local newspapers, alleging various illegalities and improprieties by the board. The board terminated Umbehr’s contract in a 2-1 vote against its automatic renewal. Umbehr then filed suit against the two commissioners who voted against him, both personally and in their capacity as commissioners, alleging that the termination had resulted from his criticism of the board and so had violated his First Amendment rights. A federal district court recognized that the contract had likely been terminated in retaliation for Umbehr’s criticisms and that Umbehr had suffered damages as a result. Nevertheless, the court found in favor of the commissioners, granting their motion for summary judgment and holding that the First Amendment did not prohibit consideration of Umbehr’s comments in deciding whether to terminate his trash contract when it came up for renewal.The court’s deci-
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sion hinged on the distinction between a public employee and an independent contractor, Umbehr’s status; a public employee is accorded First Amendment protections. The Tenth Circuit Court of Appeals reversed the trial court’s decision, holding that independent contractors are entitled to First Amendment protection. The court, using a balancing test associated with public employees, determined the extent of First Amendment protection, and in doing so relied on Pickering v. Board of Education (1968). The U.S. Supreme Court granted certiorari. In a 7-2 decision written by Justice Sandra Day O’Connor, the Court affirmed the decision of the Tenth Circuit, holding that the relationship between Umbehr and Wabaunsee County was sufficiently close to merit the recognition of a First Amendment right protecting the holder of an at-will contract from termination (or prevention of automatic renewal) in retaliation for speech. Rejecting a “bright-line rule” that would deny independent contractors such protection, the Court also applied the Pickering balancing test, noting that the interests of the government as contractor (rather than employer) should be weighed against the relevant free speech interests. The Court also held that in order to prevail, Umbehr would have to show that his contract was terminated in response to speech rather than merely showing that he engaged in speech prior to the termination. Citing Mount Healthy City School District Board of Education v. Doyle (1977), the Court noted as well that the board would have a valid defense if it could show, by a preponderance of the evidence, that it would have engaged in the termination irrespective of the speech. Under Pickering, the board might also prevail if it could show that its interests outweighed the free speech interests of Umbehr. In a dissent joined by Justice Clarence Thomas, Justice Antonin Scalia argued that the tradition of patronage was stronger than the First Amendment protections in this case. See also Mount Healthy City School District Board of Education v. Doyle (1977); O’Connor, Sandra Day; O’Hare Truck Service v. City of Northlake (1996); Pickering v. Board of Education (1968).
Linda M. Merola
furthe r reading Shapero, Laurence A.“Note:A Logical Extension:The Supreme Court Extends Rights of Free Speech and Association to Government Contractors.” DePaul Law Review 47 (1997): 155–189.
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Board of Directors of Rotary International v. Rotary Club of Duarte (1987)
Board of Directors of Rotary International v. Rotary Club of Duarte (1987) In Board of Directors of Rotary International v. Rotary Club of Duarte 481 U.S. 537 (1987), the Supreme Court found that Rotary International did not have a First Amendment right to exclude women. The decision affirmed the judgment of the Court of Appeals of California, respecting a state statute requiring that business establishments admit women members. Established in 1977, the Rotary Club of Duarte, California, had granted active membership to three women. Rotary International notified the Duarte branch that by doing so it was in violation of the group’s constitution; after an internal hearing, Rotary International’s board of directors revoked the Duarte club’s charter.The Duarte club and two of the female members filed a complaint in California Superior Court (County of Los Angeles) alleging that Rotary International’s actions violated the Unruh Civil Rights Act under California law. Rotary International challenged the constitutionality of the Unruh Act as applied.The superior court found in favor of Rotary International, concluding that neither the Duarte club nor Rotary International could be considered “business establishments” and therefore were not in violation of the Unruh Act in this instance. The California Court of Appeals reversed, determining that the groups did indeed constitute business establishments and were subject to the Unruh Act. The appeals court rejected Rotary International’s claim that the First Amendment right of association protected its policy of excluding women and ruled that its stance was contrary to the principles set out in Roberts v. United States Jaycees (1984), which limited the rights of large business associations to exclude individuals on the basis of gender. It ordered Rotary International to reinstate the Duarte club and prohibited it from enforcing its gender requirement on the club. (The court, however, acknowledged that it could not prevent Rotary International from adopting or enforcing membership rules or restrictions outside the state of California.) Rotary International appealed to the California Supreme Court, which rejected its petition, and the case proceeded to the U.S. Supreme Court. Roberts v. United States Jaycees provided the framework for the Court’s analysis of Rotary International’s constitutional claims. As it did in Roberts, the Court considered the nature
and degree of constitutional protection under the First Amendment by determining whether a particular association is sufficiently personal or private to warrant constitutional protection by examining such factors as size, purpose, and selectivity and whether others are excluded from critical aspects of the relationship. In the Court’s majority opinion, Justice Lewis J. Powell Jr. rejected the argument that the California law unduly interfered with Rotary Club members’ right of association and refused to address vagueness and overbreadth challenges that had not been presented in state courts. Justice Antonin Scalia wrote a concurring opinion. See also Boy Scouts of America v. Dale (2000); Powell, Lewis F., Jr.; Roberts v. United States Jaycees (1984).
Dale Mineshima-Lowe
furthe r reading “Note: State Power and Private Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations.” Harvard Law Review 104 (June 1991): 1835–1855.
Board of Education v. Allen (1968) This Supreme Court decision upheld a New York law allowing the loan of secular textbooks to all schoolchildren, including those in parochial schools. Justice Byron R.White wrote the 6-3 decision in Board of Education v.Allen, 392 U.S. 236 (1968), rejecting establishment and free exercise challenges based on the First Amendment. White argued that the decision in Everson v. Board of Education (1947), which upheld the provision of bus transportation for all students, helped to justify the textbook expenditures at issue. He further believed that the New York law passed the two-part purpose and effect test that the Court had established in Abington School District v. Schempp (1963). Although books are more inherently religious than buses, the state limited the books it supplied to those that were secular in nature. Indeed, Pierce v. Society of Sisters (1925) had asserted that religious schools served both secular and sectarian purposes, and Cochran v. Board of Education (1930) had affirmed that secular textbooks served a “public benefit.” Having thus addressed the establishment issue, White dismissed the free exercise claim as baseless because no one had shown that the law “coerces” individual religious practice. In a concurring opinion, John Marshall Harlan II saw the law as a neutral way of advancing nonreligious purposes. In his dissent, Justice Hugo L. Black denied that the case was
Board of Education, Island Trees Union Free School District v. Pico (1982) covered by the acceptance in McCollum v. Board of Education (1948) of reimbursement for bus transportation for parochial school students. Unlike buses, books were “the heart of any school,” and James Madison had warned about using any tax funds for religious institutions. In a separate dissent, Justice William O. Douglas objected that the law allowed schools to choose the books they wanted children to read. He cited passages from some texts used in some parochial schools to demonstrate that there was no clear line between secular and sectarian books. And he too cited Madison’s admonitions against any government expenditures for religious institutions. Justice Abe Fortas’s dissent also focused on the fact that the law allowed schools to choose their own textbooks. See also Abington School District v. Schempp (1963); Black, Hugo L.; Child Benefit Theory; Cochran v. Board of Education (1930); Everson v. Board of Education (1947), Pierce v. Society of Sisters (1925);White, Byron R.
John R.Vile
furthe r reading Barthlomew, Paul C. “The Supreme Court of the United States, 1967–1968.” Western Political Quarterly 21 (December 1968): 560–576.
Board of Education, Island Trees Union Free School District v. Pico (1982) Public school officials cannot remove library books because they disagree with the ideas contained in those books. The Supreme Court arrived at this finding in Board of Education, Island Trees Union Free School District v. Pico, 457 U.S. 853 (1982), a constitutional challenge to a local school board’s decision to remove several books from the district’s school libraries. In its splintered decision, with seven of the nine justices writing opinions, the Court held that factual disputes about the school board’s motivation for the removal precluded the school board from prevailing in the lower court without a full trial. The local school board had ordered that certain books written by celebrated authors such as Richard Wright, Maya Angelou, and Kurt Vonnegut be removed from the district’s school libraries.The board characterized the books as “antiAmerican, anti-Christian, anti-Sem[i]tic, and just plain filthy.” Some students at the affected schools brought suit against the school board, arguing that the board’s actions vio-
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lated their First Amendment rights. The trial court granted judgment for the school board without a trial, concluding that courts should generally defer to the school board’s broad discretion to formulate educational policy. The court of appeals reversed, holding that this summary judgment was inappropriate when there was a contested factual issue as to whether the school board was motivated by a desire to remove books containing vulgarities and sexual explicitness, a permissible motivation, or by an “impermissible desire to suppress ideas.” Justice William J. Brennan Jr. wrote the principal opinion of the Supreme Court. The opinion was joined in its entirety by Justices Thurgood Marshall and John Paul Stevens and in part by Justice Harry A. Blackmun. Relying on cases such as West Virginia State Board of Education v. Barnette (1943) and Tinker v. Des Moines Independent Community School District (1969), Justice Brennan’s opinion reaffirmed that though “local school boards have broad discretion in the management of school affairs,” that discretion “must be exercised in a manner that comports with the transcendent imperatives of the First Amendment.” Based on the principle that “the Constitution protects the right to receive information and ideas,” he concluded that the removal of books from the shelves of a school library implicates students’ First Amendment rights in part because of “the special characteristics of the school library.” Justice Brennan then concluded that school officials may not exercise their discretion to remove books from a school library based on “narrowly partisan or political” grounds, because doing so would amount to an “official suppression of ideas.” In a concurrence, Justice Blackmun rejected the notion that a school library was distinct from the school itself and also disagreed with the notion that students had a First Amendment “right to receive” in the context of a public school. He agreed, however, that school officials’ removal of books “for the purpose of restricting access to the political ideas, or social perspectives discussed in them, when that action is motivated simply by the officials’ disapproval of the ideas involved” was a violation of the First Amendment. Based on the factual disputes in the record about whether the school board members had removed the books because of their vulgarity or to suppress the books’ ideas, Brennan, Marshall, Stevens, and Blackmun voted to affirm the appellate court’s decision to reverse the district court’s grant of summary judgment. The fifth vote to affirm the court of appeals was provided by Justice Byron R. White, who concurred in the judgment but expressly disavowed stating any
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Board of Education of Kiryas Joel Village School District v. Grumet (1994)
views on the First Amendment question. Because of this unusual breakdown in the votes of the justices, the legal holding of Pico consists simply of Justice White’s very limited opinion. All four dissenting justices wrote opinions attacking Justice Brennan’s views. The dissents argued that removing the books from the school libraries did not implicate any First Amendment rights because the books were available elsewhere; the “right to receive information” does not apply in the context of a school; and federal courts should leave educational policy decisions to local government officials subject to democratic accountability. See also Students, Rights of; Tinker v. Des Moines Independent Community School District (1969); West Virginia State Board of Education v. Barnette (1943).
Anuj C. Desai
furthe r reading Ingber, Stanley. “Socialization, Indoctrination, or the ‘Pall of Orthodoxy’: Value Training in the Public Schools.” University of Illinois Law Review (1987):15–95. O’Brien, James C. “The Promise of Pico: A New Definition of Orthodoxy.” Yale Law Journal 97 (1988): 1805–1825. Rahdert, Mark A. “Preserving the Archives of Freedom: Justice Blackmun and the First Amendment.” Dickinson Law Review 97 (1993): 437–464. Yudof, Mark. “Library Book Selection and the Public Schools: The Quest for the Archimedean Point.” Indiana Law Journal 59 (1984): 527–564.
Board of Education of Kiryas Joel Village School District v. Grumet (1994) By a vote of 6-3, the Supreme Court held in this case that a public school district created to accommodate the disabled children of a particular religious sect violated the establishment clause because it failed the test of neutrality—that is, government cannot favor one religion over another. Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), centered on a New York law that created a school district to accommodate the needs of the Satmar Hasidic sect—practitioners of a strict form of Judaism—who lived in the village of Kiryas Joel. Initially, Satmar Hasidic children attended their own private religious schools. However, children with mental, physical, and emotional disabilities who needed special education were unable to obtain it because of its high cost for the private schools.
Under the federal Individuals with Disabilities Education Act (IDEA) and similar state laws, disabled students were entitled to receive special education whether they attended public or private schools. Thus the school board of the Monroe-Woodbury Central School District provided publicly funded instruction for these students in an annex of one of the religious schools. In 1985, however, the U.S. Supreme Court struck down similar arrangements in Aguilar v. Felton and Grand Rapids School District v. Ball. The Satmar Hasidic program was therefore discontinued, and the school board required the children who needed special education to attend the public schools that could provide it. But the Satmar parents did not want their children to attend public schools, citing the trauma their children suffered “in leaving their own community and being with people whose ways were so different.” To solve this problem, in 1989 the state of New York passed a special statute creating a separate district following village lines. But taxpayers and the association of state school boards objected, and shortly before the new district began operations, they filed suit, claiming that the statute created a school district limited to the residents of Kiryas Joel. The state trial court, the intermediate appellate court, and the New York Court of Appeals agreed, ruling that the primary effect of the New York statute was to advance religion.The case then proceeded to the U.S. Supreme Court Justice David H. Souter delivered the majority opinion of the Court. Souter explained that states could not “deliberately delegate discretionary power to an individual, institution, or community on the ground of religious identity.” Creating the Kiryas Joel Village School District demonstrated favoritism toward a specific religion and therefore violated the principle of neutrality demanded by the establishment clause, particularly when other means of accommodating the disabled students were available. As Souter also pointed out, “The fact that this school district was created by a special and unusual Act of the legislature also gives reason for concern whether the benefit received by the Satmar community is one that the legislature will provide equally to other religious (and nonreligious) groups.” Unlike in previous establishment cases, Souter did not directly apply the Lemon test, as articulated in Lemon v. Kurtzman (1971). He opted instead for the neutrality principle. Still, he cited approvingly the precedents from which the Lemon test was derived. Other justices wrote separately to express their views on the appropriateness of the neutrality principle, the Lemon test, and other standards for adjudicat-
Board of Education of the City of Cincinnati v. Minor (Ohio S. Ct. 1972) ing establishment claims. In his dissent, Justice Antonin Scalia also weighed in and explained that the “Founders of our Nation” would have been surprised that this “admirably American accommodation of religious practices of a tiny minority sect” was unconstitutional. And he criticized Souter’s reasoning:“Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.” Scalia did, however, like the fact that the Lemon test appeared to be losing adherents among members of the Court. See also Aguilar v. Felton (1985);Agostini v. Felton (1997); Grand Rapids School District v. Ball (1985); Lemon Test; Lemon v. Kurtzman (1971); Scalia, Antonin; Souter, David H.
Artemus Ward
furthe r reading Formicola, Jo Renee. “Everson Revisited: ‘This Is Not . . . Just a Little Case Over Bus Fares.” Polity 28 (1995): 49–66. Kritzer, Herbert M., and Mark J. Richards. “Jurisprudential Regimes and Supreme Court Decisionmaking: The Lemon Regime and Establishment Clause Cases.” Law and Society Review 37 (2003): 827–840. Yarbrough,Tinsley E. David Hackett Souter: Traditional Republican on the Rehnquist Court. New York: Oxford University Press, 2005.
Board of Education of Oklahoma City v. National Gay Task Force (1985) In Board of Education of Oklahoma City v. National Gay Task Force, 470 U.S. 903 (1985), an equally divided Supreme Court (Justice Lewis F. Powell Jr. did not participate in the decision) affirmed the decision of the Tenth Circuit Court of Appeals in a one-sentence per curiam opinion that could well reflect the controversies that are likely to emerge from the continuing discussion of the rights of gays and lesbians. The Tenth Circuit had struck down an Oklahoma law designed to punish state teachers who participated in “public homosexual conduct,” defined to include advocacy of homosexual activity. The trial court had attempted to save the law by applying it only to cases in which such conduct created “a material and substantial disruption,” but the circuit court did not go along. Agreeing that the provisions of the state law permitting the firing of teachers who engaged in public homosexual conduct were permissible, the Court dismissed challenges based on the equal protection and establishment clauses. It
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did not, however, believe that the provisions of the law punishing advocacy of homosexuality could survive facial challenge, because the law at issue was overbroad in punishing “pure speech.” Previous cases had permitted such suppression only where words called for the “incitement to imminent action” that was lacking here. The Court held that although the state “has interests in regulating the speech of teachers that differ from its interests in regulating the speech of the general citizenry,” these interests extended only to cases in which “the expression results in a material or substantial interference or disruption in the normal activities of the school.” This statute did not even confine its reach to statements made by teachers in the classroom. The dissenting opinion in the Tenth Circuit had expressed greater deference to the Oklahoma legislature and viewed sodomy as malum in se (inherently evil). Thus a “teacher advocating the practice of sodomy to school children is without First Amendment protection.” The dissenters found that the advocacy of homosexuality was substantially different from the wearing of black armbands that the Supreme Court upheld in Tinker v. Des Moines Independent Community School District (1969) and that the court’s opinion was a “bow to permissiveness.” Moreover, the court should heed the language of Broadrick v. Oklahoma (1973) and recognize that “[f]acial overbreadth challenges are ‘manifestly strong medicine’ which must be employed ‘sparingly and only as a last resort.’ ” See also Broadrick v. Oklahoma (1973); Facial Challenges; Overbreadth; Teachers, Rights of; Tinker v. Des Moines Independent Community School District (1969);Vagueness.
John R.Vile
furthe r reading Zacharias, Fred C. “Flowcharting the First Amendment.” Cornell Law Review 72 (1987): 936–1024.
Board of Education of the City of Cincinnati v. Minor (Ohio S. Ct. 1872) The ruling in Board of Education of the City of Cincinnati v. Minor (Ohio S. Ct. 1872) upheld a school board decision prohibiting religious instruction from the Bible in public schools, thus serving as a precursor to the debate the Supreme Court would take up in the twentieth century. Although the First Amendment prohibits the establishment
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of religion and protects freedom of speech, its provisions initially limited only the national government, so religious instruction and religious exercises in public schools did not receive much public attention until relatively recently. Part of the Northwest Ordinance of 1787—through which the Second Continental Congress chartered a government for the territory that is now much of the Midwest— commended schools as a means of encouraging “religion, morality, and knowledge.” Citing provisions of the ordinance relative to the teaching of religion, Cincinnati taxpayers had successfully prevented the city’s school board from effectuating two resolutions: The first prohibited instruction about religion or reading from religious books in public schools; the second repealed an existing regulation, in effect since 1852, requiring exercises consisting of Bible reading and singing. The school board had responded to the challenge by claiming that it was defending the rights of those who did not follow the Christian religion or adhere to the manner in which the religious teachings were carried out in the schools. In striking down a superior court decision, Justice John Welch of the Ohio Supreme Court initially centered his opinion upholding the resolutions on the basis that the courts should not usurp the responsibility that the state legislature had accorded to local school boards. He pointed to the provision of the state constitution commending “[r]eligion, morality, and knowledge . . . [as] being essential to good government” and to the provision granting government the power to provide for common schools where “no religious or other sect or sects shall ever have any exclusive right to, or control of, any part of the school funds of this state.”Welch concluded that any power to authorize laws or policies over the subject rested with the legislature and that until laws mandating religious instruction were passed, the courts had no authority to interfere. Indicating that he would normally end his opinion at this point, Welch observed that because the issue “touches our religious convictions and prejudices, and threatens to disturb the harmonious working of the state government,” he considered it essential to address other matters raised by counsel in the case. In so doing, he showed how an individual with deep religious convictions could support the disestablishment of religion articulated in the First Amendment. Welch’s opinion proceeded to celebrate and defend what he considered to be “republican” ideals. Observing that the Ohio and U.S. constitutions referred to “religion” in general rather than to “Christian” religion or the Bible in particular,Welch noted that some of the men involved in writing
these constitutions were not themselves Christians. Taking up an issue prominent in the nineteenth century, Welch denied that Christianity was part of the common law (Supreme Court justice Joseph Story had argued that Christianity was such a part of the common law, a view opposed by Thomas Jefferson.) From Welch’s “Christian republicanism” perspective,“Legal Christianity is a solecism, a contradiction of terms,” because “[w]hen Christianity asks the aid of government beyond mere impartial protection, it denies itself.” Welch affirmed, “Religion is the parent, and not the offspring, of good government.” Welch considered that a Christian teacher operating by the Golden Rule would have to contradict his own Christianity by using state authority to teach Christian doctrine. He further affirmed that any state tax to support religion “is of the very essence of tyranny” and “a first step in the direction of ‘an establishment of religion.’ ” The provision of the state bill of rights on the subject could be summarized by the words “hands off.” Welch continued, “True republican doctrine” called for “a free conflict of opinions as to things divine; and it means masterly inactivity on the part of the state, except for the purpose of keeping the conflict free, and preventing the violation of private rights or of the public peace.” He observed,“The majority can protect itself. Constitutions are enacted for the very purpose of protecting the weak against the strong; the few against the many.” A Christian, an infidel, and a Jew should be able “to carry on a government for their common benefit, and yet leave the religious doctrines and worship of each unaffected thereby, otherwise than by fairly and impartially protecting each, and aiding each in his searches after truth.” Responding to charges that by eliminating religious exercises the state would be teaching infidelity, Welch distinguished between the teaching of infidelity and giving no public school religious instruction at all, although he did note that “charitable, punitive, and disciplinary institutions stand on an entirely different footing,” because in those cases, “the state [is] taking the place of the parent, and may well act the part of a parent or a guardian.” Referring to James Madison as a man “whose purity of life and orthodoxy of religious belief no one questions,” Welch quoted him as saying, “Religion is not within the purview of human government” and that a “connection between them is injurious to both.”Welch also stated that his decision was not intended to exclude “any of the ‘readers,’ so called [this would have included McGuffey’s], or other books used as mere lessonbooks” from common schools.
Board of Regents of the University of Wisconsin System v. Southworth (2000) When the U.S. Senate was debating the Blaine Amendment, which would have limited public funds to private schools, the Senate added an amendment providing that the amendment “shall not be construed to prohibit the reading of the Bible in any school or institution” in apparent reaction to Welch’s decision (Green 1992: 60). See also Abington School District v. Schempp (1963); Blaine Amendments; Emerson, Thomas; Engel v. Vitale (1962); Madison, James; Northwest Ordinance of 1787; Prayer at Public School Events; Story, Joseph.
John R.Vile
furthe r reading Green, Steven K. “The Blaine Amendment Reconsidered.” American Journal of Legal History 36, no. 1 (January 1992): 38–69. Newsom, Michael deHaven. “Common School Religion: Judicial Narratives in a Protestant Empire.” Southern California Interdisciplinary Law Journal 11 (Spring 2002): 219–337.
Board of Education of the Westside Community Schools v. Mergens (1990) The Supreme Court in Board of Education of the Westside Community Schools v. Mergens (1990) upheld the constitutionality of the Equal Access Act of 1984, a federal law prohibiting school officials from discriminating against student clubs because of their religious or philosophical views.The Court ruled 8-1 that the law did not violate the First Amendment’s establishment clause. The Equal Access Act requires all schools that receive federal funds and that host a “limited open forum” to provide equal access to all student groups, without regard to the groups’ focus or interest. Nebraska high school student Bridget Mergens had requested permission to form a Christian club at her school with all the rights and privileges of access and under the same terms and conditions as other student groups, with the exception that it would not have a faculty sponsor. The school denied Mergens’s request, arguing that to allow the formation of such a group would violate the First Amendment’s establishment clause, which prohibits the government from establishing or promoting religion. The Supreme Court ruled that Westside Community Schools operated a limited open forum, which exists when a public school “grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during school time.” A noncurriculum
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group is one not directly related to a course taught by the school. Responding to the school’s contention that allowing the group would cause an excessive entanglement in violation of the third prong of the Lemon test, outlawing “excessive entanglement” between church and state, Justice Sandra Day O’Connor led a plurality in noting that in Widmar v. Vincent (1981), a college equal access case, the Court had held that the open forum policy actually avoided entanglement by treating religion neutrally. So long as neutral treatment existed, the act could not be viewed as impermissibly advancing religion. Justice Anthony M. Kennedy concurred in an opinion joined by Justice Antonin Scalia, parting only on the issue of establishment. Kennedy focused on the fact that the program did not provide a direct benefit to religion and did not coerce students into participating in religious activities. Although also concurring in the judgment, Justice Thurgood Marshall argued that the school must take greater steps to disassociate itself from religious speech so that students, who are compelled to attend school, did not get the impression that the school endorsed the religious speech of a Christian club. In dissent, Justice John Paul Stevens argued that no open forum existed in this case and advocated safeguarding a school’s right to exclude controversial groups while still allowing extracurricular activities. See also Bethel School District No. 403 v. Fraser (1986); Hazelwood School District v. Kuhlmeier (1988); Lemon Test; Perry Education Association v. Perry Local Educators’ Association (1983); Public Forum Doctrine;Widmar v.Vincent (1981).
Alan Tauber
furthe r reading Davis, Dena S. “Religious Clubs in the Public Schools: What Happened after Mergens?” Albany Law Review 64, no. 1 (2000): 225–239. Laycock, Douglas. “Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers.” Northwestern University Law Review 81, no. 1 (1986): 1–67. Martin, Christina Engstrom. “Student-Initiated Religious Expression after Mergens and Weisman.” University of Chicago Law Review 61, no. 4 (Autumn 1994): 1565–1593.
Board of Regents of the University of Wisconsin System v. Southworth (2000) In Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), the Supreme Court held
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Board of Trustees of Scarsdale v. McCreary (1985)
that a public university may charge students an activity fee to fund extracurricular student speech, provided the program is administered in a viewpoint-neutral manner. Justice Anthony M. Kennedy delivered the opinion of the unanimous Court, which was consistent with an earlier decision involving the use of student activity fees to fund religious speech in Rosenberger v. Rector and Visitors of the University of Virginia (1995). The Court had been asked to decide the constitutionality of a university funding system that allocated student activity fees to groups that held political or ideological views with which some students disagreed. The Court borrowed the “viewpoint neutrality” standard from its public forum cases and based its decision on Abood v. Detroit Board of Education (1977), which limited union expenditures collected from nonunion members, and Keller v. State Bar of California (1990), which applied similar limitations to fees collected from individuals who were not members of the bar. Although these cases supplied the basis for identifying the interests of the protesting students, the requirement that the cases established—that monies collected from nonmembers be germane to the purposes of the association—were neither applicable nor workable in the context of extracurricular student speech. Kennedy explained that at public universities, all forms of speech are arguably germane, because one goal of the university is the free exchange of ideas. Regarding activity fees, Kennedy wrote, “When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others.” As long as the university maintained a viewpoint-neutral “operational principle,” it would not violate the First Amendment interests of objecting students. The Court did not address the constitutionality of an alternative funding scheme, which allowed funds to be allocated by student referendum. Justice David H. Souter—who was joined by Justices John Paul Stevens and Stephen G. Breyer—concurred, saying that the Court need not place a “cast-iron” viewpointneutrality requirement. Rather, he felt that the First Amendment interests claimed by Scott Harold Southworth and his fellow students were insufficient to warrant any protection greater than that already afforded by the university. Unlike the teachers and lawyers in Abood and Keller, whose organizations collected dues and engaged in political and ideological activity, the students here were merely funding a distributing agency, which itself had no advocacy or message.
This level of attenuation was enough, in Souter’s mind, to remove the need for a constitutional viewpoint-neutrality requirement. Souter viewed the student activity fee as akin to a tax, and prior case law allows the government to use its tax money to promote general discourse. See also Abood v. Detroit Board of Education (1977); Keller v. State Bar of California (1990); Kennedy, Anthony M.; Public Forum Doctrine; Souter, David H.;Viewpoint Discrimination.
Alan Tauber
furthe r reading Coté, Donna M.“The First Amendment and Compulsory Funding of Student Government Political Resolutions at State Universities.” University of Chicago Law Review 62 (1995): 825–855. Hudson, Kim.“To Fee or Not to Fee: The Use of Mandatory Student Activity Fees to Fund Private Organizations that Engage in Political or Ideological Speech or Activity.” Cumberland Law Review 30 (1999–2000): 277–316. Theroux, Christine. “Assessing the Constitutionality of Mandatory Student Activity Fee Systems:All Students Benefit.” Connecticut Law Review 33 (2001): 691–723.
Board of Trustees of Scarsdale v. McCreary (1985) A Christmas display on public property and the establishment clause of the First Amendment were the issues before the Supreme Court in Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83 (1985).The Court affirmed a decision by the Second Circuit Court of Appeals holding that the display did not violate the establishment clause. The lower court’s decision was affirmed because the Supreme Court was equally divided. Community members petitioned the city of Scarsdale, New York, to permit them to display a crèche—more commonly known as a manger scene—in a public park during the Christmas holiday season.The city, concerned about violating the establishment clause of the First Amendment, refused to give permission. The circuit court noted first that the park was a traditional public forum, because the city had never sought to legally establish the park as anything other than “a park of the kind that is traditionally dedicated to First Amendment activities” and the city had permitted other religious and nonreligious groups to erect displays in the park. Because the community members were refused access to the park based upon the religious content of their proposed speech, the city’s act was a content-based restriction on speech.
Board of Trustees of State University of New York v. Fox (1989) The issue thus before the Supreme Court was whether the city’s content-based restrictions were necessary to serve the compelling state interest of avoiding a violation of the establishment clause. Applying the Lemon test, the Court held that allowing the crèche display had the secular purpose of providing equal access for both religious and nonreligious speech, that allowing access to the park would not foster excessive entanglement between members of the religious community and the city, and that any effect of advancing religion was indirect or incidental. Thus the crèche display would not violate the establishment clause. And because the crèche display did not violate the establishment clause, the city had no compelling state interest in placing the contentbased restriction on use of the public park. See also Content Based; Holidays, Religious; Lemon Test; Lynch v. Donnelly (1984); Public Forum Doctrine.
Winston E. Calvert
furthe r reading Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. Chapel Hill: University of North Carolina Press, 1994. Parish, Daniel.“Private Religious Displays in Public Fora.” University of Chicago Law Review 61 (1994): 253–289.
Board of Trustees of State University of New York v. Fox (1989) The Supreme Court, in Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989), determined that a state regulation prohibiting private commercial activity in the state university’s facilities was “ ‘narrowly tailored’ to serve a significant governmental interest” and thus valid under the First Amendment although it went “beyond the least restrictive means to achieve the desired end.” Students brought the suit, contending that the state had violated their free speech rights by preventing them from conducting commercial product demonstration parties in dorm rooms.The Court held that the government’s interest in regulating commercial activity to protect students and maintain an educational atmosphere was “significant.” With Fox, the Court significantly diluted the four-part test established in Central Hudson Gas and Electric Corp v. Public Service Commission (1980) for determining the constitutionality of commercial speech regulations. The Central Hudson test had required that a restriction on communica-
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tion be the least restrictive means available for regulating free expression, but Fox required “a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends’ ”— “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served.’ ” When the Court put forth the Central Hudson test, Justice Lewis F. Powell Jr. wrote for the majority that “if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.” In the succeeding nine years the Court further considered whether this required a stringent review of all available means of satisfying the state’s interest. Fox raised the issue precisely because when the Second Circuit Court of Appeals remanded the case to the district court for rehearing, it did so with instructions that the regulation be determined to be the “ ‘least restrictive measure’ that could effectively protect the State’s interests.” Justice Antonin Scalia wrote for a six-person majority in Fox that the requirement for a reasonable fit between the state’s ends and means was a more appropriate standard “in a field (commercial speech) ‘traditionally subject to governmental regulation.’ ” The “reasonable fit” language combined analysis from Posadas de Puerto Rico Associates v.Tourism Company of Puerto Rico (1986) and In re R.M.J. (1982) to ground the new standard in precedent law.This modification of the Central Hudson test made it easier for government to regulate commercial speech. The Fox reasonable fit requirement, despite intense criticism, has proven durable; it was invoked by an eight-justice majority in Greater New Orleans Broadcasting Association v. United States (1999). Two of the Fox majority’s assertions, however, have been diminished by recent decisions. First, in Fox, Scalia reiterated the claim that commercial speech occupies a “subordinate position in the scale of First Amendment values.” Nevertheless, the Court in Greater New Orleans also required a careful calculation of “the costs and benefits associated with the burden on speech imposed by its prohibition” to ensure that the courts cannot cite only the harms of commercial speech while ignoring its contributions. Second, Scalia invoked the Posadas mantra that the selection of regulatory means was “up to the legislature” to decide. Subsequent decisions, however—in Rubin v. Coors Brewing Co. (1995), 44 Liquormart, Inc. v. Rhode Island, (1996), and Greater New Orleans (1999)—have prescribed an activist role for the judiciary in reviewing legislative constraints on commercial expression.
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Bobbs-Merrill Co. v. Straus (1908)
See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; 44 Liquormart, Inc. v. Rhode Island (1996); Greater New Orleans Broadcasting Association v. United States (1999); In re R.M.J. (1982); Ohralik v. Ohio State Bar Association (1978); Posadas de Puerto Rico Associates v.Tourism Company of Puerto Rico (1986); Rubin v. Coors Brewing Co. (1995); Scalia, Antonin.
The “first sale doctrine” was subsequently embodied in the 1909 Copyright Act. The ruling and the law that followed undoubtedly enhanced free expression by allowing booksellers to adjust prices to reflect supply and demand. See also Copyright.
John R.Vile
Richard Parker
furthe r reading Booher, Troy L. “Scrutinizing Commercial Speech.” George Mason University Civil Rights Law Journal 15 (Winter 2004): 69–79. DeVore, P. Cameron, and Robert D. Sack. Advertising and Commercial Speech: A First Amendment Guide. New York: Practicing Law Institute, 2003. Locher, Todd J. “Board of Trustees of State University of New York v. Fox: Cutting Back on Commercial Speech Standards.” Iowa Law Review 75 (1990): 1335–1354.
Bobbs-Merrill Co. v. Straus (1908) Article 1, section 8, of the U.S. Constitution gives Congress the right to grant copyrights and patents, which effectively give limited monopoly privileges to those who publish and invent.The issue for the Supreme Court in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), was the degree to which a copyright gave an author the right to control the price of subsequent sales of a book. The Court also examined the relationship between copyrights and patents. In this case, the novel The Castaway was sold by the publisher, Bobbs-Merrill, to a retailer. In publishing the book, the publisher had specified in the copyright notice that it would consider any sales of less than $1 a book to be an infringement of its copyright. Isidor and Nathan Straus, associated with R. H. Macy and Company, had purchased the novels at wholesale and then sold them for $.89 each. Justice William R. Day wrote the Supreme Court’s unanimous opinion distinguishing patents from copyrights and indicating that the only law governing copyrights was statutory and could not be derived from common-law precedents. A book published with statutory protection lost its common-law protection. In granting copyright holders “the sole right of vending the same,” the copyright law did not intend to allow the holder of the copyright to set the prices for which books purchased could be resold, at least not absent a specific “contract limitation” or other “license agreement.” Rather, it sought to allow an author the right “to multiply copies of his work,” and this right was not infringed by subsequent discounts.
furthe r reading Cohen, Amy B. “When Does a Work Infringe the Derivative Works Right of a Copyright Owner?” Cardozo Arts and Entertainment Law Journal 17 (1999): 623–658.
Bob Jones University v. United States (1983) The Supreme Court determined in Bob Jones University v. United States, 461 U.S. 574 (1983), that the Internal Revenue Service (IRS) may deny tax-exempt status to institutions whose policies are “contrary to established public policy,” even if those policies are based on religious beliefs. In this case, consolidated with Goldsboro Christian Schools, Inc. v. United States, religious educational institutions argued that the IRS had violated the First Amendment’s free exercise and establishment of religion clauses, while the IRS maintained that race-based admission and association policies violated federal policy. Section 501(c)(3) of the Internal Revenue Code provides tax exemptions for eight classes of organizations—including charitable, educational and religious institutions—that, according to the Court, provide “beneficial and stabilizing influences in community life.” Such institutions’ racial policies had no impact on their tax status until 1970, when the IRS ruled that racially discriminatory practices would render an institution not “charitable” as they violated federal policy.This new interpretation of section 501(c)(3) followed a federal district court injunction preventing the IRS from granting exempt status to private schools in Mississippi that practiced racial discrimination in admissions. In 1970 the IRS notified Bob Jones University of South Carolina, Goldsboro Christian Schools of North Carolina, and some other private Christian educational institutions that to maintain or receive tax-exempt status, they would have to modify racially discriminatory admissions and association policies. Bob Jones University began to admit African Americans in 1971 but maintained its ban on interracial dating and marriage, while the Goldsboro Christian School
Bolger v.Youngs Drug Products Corp. (1983) refused to admit minority students. Each of these institutions had been granted tax-exempt status years earlier. When the IRS revoked Bob Jones University’s taxexempt status in 1976, retroactive to 1970, the college sued, arguing that the IRS had made two errors. First, the IRS lacked the authority to modify the code in this manner. Second, the university’s policy was based on religious beliefs protected by the First Amendment. The Supreme Court heard the case in 1982. The IRS argued that section 501(c)(3) implied that taxexempt institutions had to meet common law definitions for charitable trusts: they had to provide a public benefit and not be opposed to fundamental public policy. Chief Justice Warren E. Burger, writing for the eight-justice majority, found that the IRS interpretation was correct and that the government’s purpose of eliminating discrimination in education was so fundamental to public policy that it overrode Bob Jones University’s religious convictions. Burger also noted that Congress was aware of the IRS interpretation and had not challenged it, despite a dozen opportunities to do so, which implied congressional approval. The Court held that federal administrative agencies could articulate new policies subject to veto by Congress. After the Court’s decision was handed down, Congress modified the language of section 501(c)(3) to deny exempt status to institutions that have discriminatory policies. See also Burger, Warren E.; Civil Rights Movement; Taxation of Religious Entities.
Michael P. Bobic
furthe r reading Jones, Bob, Jr. The Bomb and Its Fallout: Bob Jones University v. United States, U.S. Supreme Court Decision, May 24 1983 (Greenville, S.C.: Bob Jones University, 1983). Shanor, Charles A. American Constitutional Law: Structure and Reconstruction; Cases, Notes and Problems. St. Paul, Minn.:West Group Publishers, 2001. Vile, John R. “Bob Jones Before the Bench.” Christian Century 100 (1983): 707–711.
Bolger v.Youngs Drug Products Corp. (1983) In Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), the Supreme Court declared unconstitutional a federal regulation prohibiting the mailing of unsolicited advertisements for contraceptives. The Court’s decision demonstrated judicial willingness to invoke First Amendment freedom of
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speech protections to limit the U.S. Postal Service’s regulation of content via nonmailable matter laws. Since 1865, the Postal Service has regulated the content of the mails to protect the public from objectionable materials. In 1979 Youngs Drug Products Corp. filed suit for relief from an 1873 federal statute prohibiting the mailing of unsolicited pamphlets containing information about and advertisements for contraceptives. A federal district court, applying the four-part test for determining the constitutionality of commercial speech developed in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), found that the statute was more extensive than necessary to serve the government’s interests and concluded that the regulation violated the First Amendment. The Postal Service appealed the decision directly to the Supreme Court. The Court unanimously upheld the district court’s decision. Justice Thurgood Marshall wrote an opinion for the majority that expanded the boundaries of commercial speech and portended the durability of the Central Hudson test. Marshall identified three characteristics of the pamphlets in question: their advertising content, their reference to a specific product, and the economic motivation of the sender. He determined that the “combination of all these characteristics . . . provides strong support for the . . . conclusion that the informational pamphlets are properly characterized as commercial speech.”This definitional strategy for classifying communications as commercial speech has been highly influential and equally controversial; see, for example, Nike v. Kasky (2003). Although Marshall applied the Central Hudson test, he framed the controversy by identifying the “ ‘substantial individual and societal interests’ in the free flow of commercial information” about contraceptives and the importance of protecting this information “from unwarranted state interference.” He concluded, therefore, that the government’s interest in shielding recipients from potentially offensive materials was insubstantial and remediable: recipients could simply avert their eyes and throw the materials away. Marshall recognized as substantial the government’s interest in helping parents determine when and how their children are educated about birth control, but noted that, in this case, this interest is achieved by “purging all mailboxes of unsolicited material that is entirely suitable for adults.” Thus, the Court concluded that the means of fulfilling these governmental interests were “more extensive than the Constitution permits.” The Court’s opposition to paternalistic governmental regulation of the content of commercial communications
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Bollinger, Lee C.
began in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976) and has since been extended to include concerns, identified in 44 Liquormart, Inc. v. Rhode Island (1996), that “commercial speech bans . . . impede debate over central issues of public policy.” The framework Marshall provides in Youngs for contrasting popular with government interests has become a mainstay of commercial speech analysis. See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; 44 Liquormart, Inc. v. Rhode Island (1996); Marshall, Thurgood; Nike v. Kasky (2003); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976).
Richard Parker
furthe r reading Hankin, Janet S. “Constitutional Law—Commercial Speech—Federal Statute Prohibiting Mailing of Unsolicited Contraception Advertisements Violates First Amendment as Applied to Accurate Mailings that Contribute to Informed Decision Making. Bolger v. Youngs Drug Products Corp. (1983).” University of Baltimore Law Review 14 (1984–1985): 367–379. Post, Robert. “The Constitutional Status of Commercial Speech.” UCLA Law Review 48 (October 2000): 1–57. “Postal Regulations.” In Ready Reference: Censorship, Vol. II, edited by R. Kent Rasmussen, 628–630. Englewood Cliffs, N.J.: Salem Press, 1997.
Bollinger, Lee C. Lee C. Bollinger (1946– ), a legal scholar of the First Amendment and freedom of speech, is best known for advocating tolerance theory, which argues that broad acceptance for expression will increase tolerance and diversity of ideas. A graduate of the University of Oregon and Columbia Law School, Bollinger served as a law clerk for Second Circuit Court of Appeals judge Wilfred Feinberg and for U.S. Supreme Court chief justice Warren Burger before joining the University of Michigan’s faculty in 1973. In 1987 Bollinger became the dean of the university’s law school and went on to hold the post until 1990. Four years later, he became the provost of Dartmouth College and professor of government before returning to the University of Michigan in 1996 as its twelfth president. During his time as dean of the University of Michigan Law School, Bollinger faced criticism for his lack of response when the university instituted a speech code, which a federal court deemed unconstitutional fifteen months after its introduction. Bollinger repeatedly claimed, after the fact, that
he had always been against the code. In 2002 he became the nineteenth president of Columbia University. In September 2007, Bollinger made news by publicly rebuking Iranian president Mahmoud Ahmadinejad before a speech the Iranian was to deliver at Columbia as part of the World Leaders Forum. The invitation to Ahmadinejad, who has questioned the Holocaust and called for the destruction of Israel, had prompted controversy beyond the campus. In introducing Ahmadinejad, Bollinger observed,“It is a critical premise of freedom of speech that we do not honor the dishonorable when we open our public forum to their voices; to hold otherwise would make vigorous debate impossible.” Bollinger went on to defend extending the invitation to Ahmadinejad not on the basis of “the rights of the speaker” but on the basis of the rights of the academic community “to listen and speak.” Bollinger is the author of numerous works dealing with the First Amendment as well as other subjects. In addition to essays and scholarly articles, he has written two notable books on the First Amendment: Images of a Free Press (1991) and The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986).Along with Geoffrey R. Stone, he co-edited Eternally Vigilant: Free Speech in the Modern Era (2001). Bollinger is a recipient of the Clark Kerr Award, the highest faculty-conferred award of the University of California, Berkeley, as well as the National Conference for Community and Justice’s National Humanitarian Award, and the National Equal Justice Award from the NAACP Legal Defense and Education Fund. See also Tolerance Theory.
Howard Leib
furthe r reading Columbia University. “Biography: Office of the President, Lee C. Bollinger.” www.columbia.edu/cu/president/docs/bio/index .html.
Bond v. Floyd (1966) The Supreme Court’s decision in Bond v. Floyd, 385 U.S. 116 (1966)—that legislators do not forfeit their constitutional rights to speak out on public issues—reaffirmed the principle that the First Amendment protects controversial political speech, even speech critical of the country’s war effort. In June 1965 Julian Bond was elected to a seat in the Georgia House of Representatives, becoming one of the first six African Americans elected to that body since Reconstruction. A few months later, the Student Nonviolent
Book Banning Coordinating Committee (SNCC), a civil rights group in which Bond served as the communications director, issued a press release criticizing U.S. involvement in the Vietnam War and the draft law. Although Bond did not write the release, he endorsed it in a news interview, stating,“I don’t think that I, as a second class citizen of the United States, have a requirement to support that war.” He described himself as a pacifist who opposed all war, but he did not see that as an issue that should prevent him from taking his oath of office. Other members of the Georgia House disagreed, however, and filed challenges to Bond’s right to be seated. He was not permitted to take the oath.After a house hearing, Bond’s colleagues, led by Rep. James “Sloppy” Floyd, voted 184-12 to exclude Bond for his comments, which they argued were not consistent with a legislator’s oath of support for the Constitution. Bond filed a lawsuit in federal court, contending that the move to expel him because of his political speech violated his First Amendment rights.A divided threejudge district court rejected his claim by a 2-1 vote, reasoning that Bond’s free speech rights as a citizen were limited to a degree by his taking a seat in the Georgia House of Representatives and the mandatory oath. Bond appealed to the Supreme Court, which unanimously reversed in an opinion written by Chief Justice Earl Warren. Attorneys for Floyd had contended that Bond’s statements on the war called into question whether he could in good faith take the oath of office. Warren reasoned that “while the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government, surely the oath gives it no interest in limiting its legislators’ capacity to discuss their views of local or national policy.” Warren’s opinion provided broad free speech protection for legislators’ political speech.“The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issue of policy,” Warren wrote. “Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected.” See also Vietnam War;Warren, Earl.
David L. Hudson Jr.
furthe r reading Finkelman, Paul, and Melvin I. Urofsky. Landmark Decisions of the United States Supreme Court. Washington, D.C.: CQ Press, 2008.
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Hudson, David L., Jr. “NAACP’s Julian Bond Speaks on First Amendment and His Supreme Court Triumph.” First Amendment Center Online, August 31, 2001. www.firstamendmentcenter.org/ analysis.aspx?id=4699.
Bong Hits 4 Jesus See Morse v. Frederick (2007)
Book Banning Book banning, a form of censorship, occurs when private individuals, government officials, or organizations remove books from libraries, school reading lists, or bookstore shelves because they object to their content, ideas, or themes. Those advocating a ban complain typically that the book in question contains graphic violence, expresses disrespect for parents and family, is sexually explicit, exalts evil, lacks literary merit, is unsuitable for a particular age group, or includes offensive language. Book banning is the most widespread form of censorship in the United States, with children’s literature being the primary target. Advocates for banning a book or certain books fear that children will be swayed by its contents, which they regard as potentially dangerous. They commonly fear that these publications will present ideas, raise questions, and incite critical inquiry among children that parents, political groups, or religious organizations are not ready to address or that they find inappropriate. Most challenges and bans prior to the 1970s focused primarily on obscenity and explicit sexuality. Common targets included D. H. Lawrence’s Lady Chatterly’s Lover and James Joyce’s Ulysses. In the late 1970s, attacks were launched on ideologies expressed in books. In September 1990, the Thomas Jefferson Center for the Protection of Free Expression declared the First Amendment to be “in perilous condition across the nation” based on the results of a comprehensive survey on free expression. Even literary classics, including Mark Twain’s Adventures of Huckleberry Finn and Maya Angelou’s I Know Why the Caged Bird Sings, were targeted. Often, the complaints arose from individual parents or school board members. At other times, however, the pressure to censor came from such public interest groups as the Moral Majority. Censorship—the suppression of ideas and information— can occur at any stage or level of publication, distribution, or institutional control. Some pressure groups claim that the public funding of most schools and libraries makes community censorship of their holdings legitimate. To counter
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Book Banning
Outside Cedarville High School in Cedarville, Arkansas, in April 2003, attorney Brian Meadors holds a copy of J. K. Rowling’s Harry Potter. Meadors represented parents in the school district who successfully sued to overturn the school board’s ban of the book.
charges of censorship, opponents of publications sometimes use the tactic of restricting access rather than calling for the physical removal of books. Opponents of bans argue that by restricting information and discouraging freedom of thought, censors undermine one of the primary functions of education: teaching students how to think for themselves. Such actions, assert free speech proponents, endanger tolerance, free expression, and democracy. Although censorship violates the First Amendment right to freedom of speech, some limitations are constitutionally permissible.The courts have told public officials at all levels that they may take community standards into account when deciding whether materials are obscene or pornographic and thus subject to censor. They cannot, however, censor publications by generally accepted authors—such as Mark
Twain, for example, J. K. Rowling, R. L. Stine, Judy Blume, or Robert Cormier—in order to placate a small segment of the community. Cormier’s Chocolate War was one of the American Library Association’s Top 10 Banned Books for 2005 and 2006. Those who oppose book banning emphasize that the First Amendment protects students’ rights to receive and express ideas. The Supreme Court in Board of Education, Island Trees Union Free School District v. Pico (1982) ruled 5-4 that public schools can bar books that are “pervasively vulgar” or not right for the curriculum, but they cannot remove books “simply because they dislike the ideas contained in those books.”The Court’s decision was, however, narrow, applying only to the removal of books from school library shelves. The American Library Association’s Office for Intellectual Freedom documents censorship incidents around the country and suggests strategies for dealing with them. Each September, the American Library Association, the American Booksellers Association, the American Society of Journalists and Authors, the Association of American Publishers, and the National Association of College Stores sponsor Banned Books Week—Celebrating the Freedom to Read. Designed to “emphasize that imposing information restraints on a free people is far more dangerous than any ideas that may be expressed in that information,” the week highlights banned works, encourages citizens to explore new ideas, and provides a variety of materials to promote free speech events. The American Library Association publishes the bi-monthly Newsletter on Intellectual Freedom, which provides information on censorship, as well as an annual annotated list of books and other materials that have been censored. See also American Library Association; Banned Books Week; Board of Education, Island Trees Union Free School District v. Pico (1982); Censorship; Obscenity and Pornography.
Susan L.Webb
furthe r reading Egendorf, Laura K., ed. Censorship. San Diego, Calif.: Greenhaven Press, 2001. “First Amendment First Aid Kit.” www.randomhouse.com/teens/ firstamendment/FirstAmend.Brochure.pdf. Foerstel, Herbert N. Banned in the U.S.A.: A Reference Guide to Book Censorship in Schools and Public Libraries. Westport, Conn.: Greenwood Press, 2002. Hull, Mary E. Censorship in America: A Reference Handbook. Santa Barbara, Calif.: ABC-CLIO, 1999. Marsh, Dave. Fifty Ways to Fight Censorship—and Important Facts to Know about the Censors. New York:Thunder’s Mouth Press, 1991.
Borgner v. Florida Board of Dentistry (2002)
Boos v. Barry (1988) In Boos v. Barry, 485 U.S. 312 (1988), the Supreme Court ruled that a District of Columbia law violated the First Amendment by banning the display of signs criticizing a foreign government outside that government’s embassy. Section 22-1115 of the District of Columbia Code contained two provisions concerning protests at embassies. The display clause prohibited signs from being displayed within 500 feet of an embassy if the signs tended to bring the government of the embassy’s country into “public odium” or “public disrepute,” The congregation clause banned any gathering of three or more people within 500 feet of an embassy. Writing for the Court, Justice Sandra Day O’Connor determined that the display clause of the law was unconstitutional, whereas the congregation clause was permitted as limited by the court of appeal’s interpretation. O’Connor began her analysis of the display clause by explaining that the prohibited speech—protests of governments—was “at the core of the First Amendment” as it was “classically political speech.” In addition, the law restricted speech in the traditionally public forum of the public sidewalk. O’Connor further found that the ban comprised content-based regulation of speech. For these three reasons, she noted, the display clause would have to pass strict scrutiny to be upheld. O’Connor specifically compared the statute to an analogous statute passed by Congress, which prohibited intimidating or harassing foreign officials, and noted that the vastly broader application of the display clause, with its outright ban of protest signs, whether intimidating or not, was not narrowly tailored. She expressly avoided addressing whether the law’s purpose—protecting the dignity of foreign diplomats and embassies—was a compelling state interest. O’Connor rejected the District of Columbia’s argument that the clause was a content-neutral law justified under the secondary effects doctrine, which arose out of land-use zoning cases involving adult businesses. Under this doctrine, seemingly content-based laws are considered content-neutral if the laws regulate harmful side effects associated with the speech. O’Connor limited the secondary effects doctrine here by noting that “listeners’ reactions to speech” and “the emotive impact of speech on its audience” are not valid secondary effects. Regarding the congregation clause, O’Connor indicated that the U.S.Appeals Court for the District of Columbia had determined that it allowed the police to order a congregation of three or more persons outside an embassy to disperse
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only when the police reasonably believed that such a congregation directed at an embassy posed “a threat to the security or peace of the embassy.” O’Connor held that with this narrower application, the statute was a restriction only on the place and manner of speech, and was not overbroad or vague as the challengers had argued. The decision featured a number of concurring opinions, some of which dissented from individual sections of O’Connor’s opinion. See also O’Connor, Sandra Day; Public Forum Doctrine; Secondary Effects Doctrine;Time, Place, and Manner Restrictions.
Dara Purvis
furthe r reading Andrew, Christopher J. “The Secondary Effects Doctrine: The Historical Development, Current Application, and Potential Mischaracterization of an Elusive Judicial Precedent.” Rutgers Law Review 54 (Summer 2002): 1175–1220. Finzer v. Barry, 255 U.S. App. D.C. 19 (1986). Hudson, David L., Jr. “The Secondary Effects Doctrine: ‘The Evisceration of First Amendment Freedoms.” Washburn Law Journal 37 (1997): 55–94. Kelso, Charles D., and R. Randall Kelso. “Sandra Day O’Connor: A Justice Who Has Made a Difference in Constitutional Law.” McGeorge Law Review 32 (Spring 2001): 915–952.
Borgner v. Florida Board of Dentistry (2002) In Borgner v. Florida Board of Dentistry, 537 U.S. 1080 (2002), the Supreme Court declined to review a federal appeals court decision that upheld a Florida law requiring dentists to include disclaimers when advertising specialties that are not recognized by the American Dental Association (ADA) or the Florida Board of Dentistry. Dr. Robert Borgner had obtained certification as an implant dentistry specialist from the American Academy of Implant Dentistry (AAID), but the ADA and state of Florida did not recognize this specialty or certification. Florida law prohibited licensed dentists from advertising unrecognized specialty practices until Borgner successfully challenged the law in federal court in Borgner v. Cook (N.D. Fla. 1998). Following that ruling, Florida amended its law to allow dentists to advertise such a practice provided they include a disclaimer indicating that the specialty area is not recognized. An additional disclaimer would be required to advertise credentials not endorsed by the state. In Borgner’s case, that language would read: “[THE AMERICAN ACADEMY OF
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IMPLANT DENTISTRY] IS NOT RECOGNIZED AS A BONA FIDE SPECIALTY ACCREDITING ORGANIZATION BY THE AMERICAN DENTAL ASSOCIATION OR THE FLORIDA BOARD OF DENTISTRY.” Borgner again sued successfully in federal court in Borgner v. Brooks (N.D. Fla. 2001), contending that the forced inclusion of the two disclaimers violated his First Amendment rights.The state board of dentistry appealed to the Eleventh Circuit Court of Appeals. In Borgner v. Brooks (11th Cir. 2002), the three-judge panel of the Eleventh Circuit ruled 2 to 1 in favor of the state, finding the law to be constitutional under the traditional commercial speech analysis of Central Hudson Gas and Electric Corp. v. Public Service Commission (1980). The majority reasoned that the state had several substantial interests for its law, including establishing uniform standards for certification and ensuring that dentists’ advertisements did not mislead consumers.The opinion cited the Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985) for the proposition that “warnings or disclaimers might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception.” Borgner appealed to the Supreme Court, which denied certiorari on December 9, 2002. Justice Clarence Thomas, joined by Justice Ruth Bader Ginsburg, dissented, writing that the Court should take the case because it “presents an excellent opportunity to clarify some oft-recurring issues in the First Amendment treatment of commercial speech and to provide lower courts with guidance on the subject of state-mandated disclaimers. . . . [O]ur resolution of this case can provide needed guidance on this important issue.” See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Disclaimers; Thomas, Clarence; Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Advertising and the First Amendment: What’s On the Horizon.” First Amendment Center Online. www.first amendmentcenter.org/speech/advertising/horizon.aspx?topic= advertising. Smolla, Rodney A. “Lawyer Advertising and the Dignity of the Profession.” Arkansas Law Review 59 (2006): 437–469.
Bork, Robert Robert Bork (1927– ) is a former federal judge, a rejected Supreme Court nominee, and a staunch Republican and conservative legal scholar who advocates an originalist reading of the First Amendment. Bork received his law degree from the University of Chicago and practiced law in Chicago until 1962, when he joined the faculty of Yale Law School. He served as solicitor general under President Richard Nixon in 1973 and in October of that year famously dismissed Watergate special prosecutor Archibald Cox—who was engaged in an effort to force the White House to turn over tapes of conversations in the Oval Office—after Attorney General Elliot Richardson and his deputy resigned rather than fire Cox. As solicitor general, Bork argued numerous First Amendment cases before the Court, including Parker v. Levy (1974); Saxbe v.Washington Post Co. (1974); Wolff v. McDonnell (1974); Greer v. Spock (1976); and Marks v. United States (1977). The cases variously concerned freedom of speech limitations in prisons and military installations, as well as restrictions regarding the transportation of pornography. Bork returned to Yale in 1977 and worked in a Washington, D.C., law firm from 1981 to 1982. President Ronald Reagan appointed him to the U.S. Court of Appeals for the District of Columbia Circuit, from where he advocated judicial restraint. As a professor and as a judge, he consistently attacked the record of the Supreme Court as departing from the language and original intent of the framers. He was especially critical of the Court’s development of a right to privacy. In 1987 Reagan nominated Bork to the Supreme Court, but the Senate rejected the nomination by a vote of 58–42 after a heated debate about his conservative ideology and judicial philosophy. Conservatives called the hearing an “ideological inquisition.”The contentious debate resulted in the coining of a new expression, ”borked,” in reference to the rejection of a judicial nominee through a concerted attack on his character, background, and philosophy. Bork continues to adhere to an originalist constitutional philosophy, which advocates following a literal interpretation of the framers’ language and intent. He believes that unelected, unrepresentative judges should defer to elected officials when making rulings. Bork also favored amending the Constitution to allow congressional supermajorities to overrule Supreme Court decisions. His writings have influenced the opinions of Justices Antonin Scalia and William H. Rehnquist, who have also espoused originalism. In terms of
Boudin, Leonard the First Amendment, Bork argues in favor of a narrow reading of free expression that would extend protection only to pure political speech for individuals. Because he does not think the same protection extends to nonpolitical speech, he is more likely to accept censorship of what he considers to be pornography in television, film, and music. In his bestselling Slouching towards Gomorrah (1996), Bork indicts modern liberalism, arguing that the sexual revolution and the rise of feminism has led to a dangerous social and moral decline in the United States. In recent years, Bork has taught at a number of institutions and currently serves as a distinguished fellow at the Hudson Institute. See also Greer v. Spock (1976); Obscenity and Pornography; Original Intent; Marks v. United States (1977); Parker v. Levy (1974); Saxbe v.Washington Post Co. (1974).
Martin Gruberg
furthe r reading Boyle, James. “A Process of Denial: Bork and Post–Modern Conservatism.” Yale Journal of Law and the Humanities 263, no. 3 (1991). www.law.duke.edu/boylesite/bork.html. Gitenstein, Mark. Matter of Principle: An Insider’s Account of America’s Rejection of Robert Bork’s Nomination to the Supreme Court. New York: Simon and Schuster, 1992. McGuigan, Patrick B., and Dawn M. Weyrich. Ninth Justice:The Fight for Bork. Washington, D.C.: Free Congress Research and Education Foundation, 1990.
Bose Corp. v. Consumers Union of United States, Inc. (1984) In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), the Supreme Court ruled that federal appeals courts hearing defamation or libel cases must conduct “independent appellate review” to determine whether the evidence proves actual malice under New York Times Co. v. Sullivan (1964), regardless of the deference appellate judges usually accord trial courts in evaluating testimony and witness credibility. The May 1970 issue of Consumer Reports included a review critical of a new Bose speaker system. One statement noted that the “individual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to wander about the room.” After the magazine refused to retract its article, Bose Corporation successfully sued the publisher, Consumers Union of the United States, Inc., in federal court for product disparagement. The engineer who supervised the test for Consumer Reports testified
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that although he wrote in his report that the sound moved “around the room,” which the magazine’s editors published as “about the room,” he heard only lateral sound movement along the wall and had intended that meaning in his report. The trial judge found his testimony about his intent to be “impossible to believe” and concluded that the false statement had been made with actual malice—published while knowing the statement was false or entertaining serious doubts about its truthfulness. A federal appeals court overturned the ruling and it was upheld by the Supreme Court in a 5-4 decision authored by Justice John Paul Stevens, with Chief Justice Warren E. Burger concurring. Justices Byron R.White and William H. Rehnquist penned dissents in favor of deferring to the trial court’s factual determinations. The majority of the Court found insufficient evidence that the engineer knew that he had misstated a fact about the Bose system at the time the article was published. Importantly, the Court in a lengthy analysis rejected the argument that appeals judges should overturn trial judges’ determinations on actual malice only when such findings are “clearly erroneous.” The Court concluded that the independent appellate review discussed in Sullivan is a rule of federal constitutional law that “reflects a deeply held conviction that judges—and particularly members of this Court— must exercise such review in order to preserve the precious liberties established and ordained by the Constitution.” As such, even on factual issues where appeals courts typically defer to trial judges, such as witness credibility, in defamation cases, appeals courts must review the evidence on their own, or de novo. See also Actual Malice; Harte-Hanks Communications v. Connaughton (1989); Libel and Slander; New York Times Co. v. Sullivan (1964); Stevens, John Paul.
Chad R. Bowman
furthe r reading Levine, Lee. “Judge and Jury in the Law of Defamation: Putting the Horse behind the Cart.” American University Law Review 35, no. 3 (1985): 3–92. Sack, Robert D. Sack on Defamation, 3d ed. New York: Practicing Law Institute, 2006.
Boudin, Leonard Leonard B. Boudin (1912–1989), a prominent civil liberties lawyer, argued many First Amendment cases before the U.S.
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Supreme Court. Among them were Kent v. Dulles (1958), which the Court ultimately decided on Fifth Amendment due process grounds; Braden v. United States (1961), which involved the activities of the House Un-American Activities Committee; Lamont v. Postmaster General (1965), which struck down a postal regulation limiting delivery of “Communist political propaganda”; and Bond v. Floyd (1966), which invalidated the expulsion of a Georgia state legislator for comments critical of the U.S. war effort. A native of Brooklyn, New York, Boudin obtained his undergraduate degree from City College and his law degree from St. John’s Law School. Upon his graduation from the latter in 1936, Boudin practiced law with his uncle, Louis Boudin, a well-known constitutional lawyer and socialist. In the late 1940s, Boudin formed a law firm with another young lawyer, Victor Rabinowitz, and the two handled many high-profile labor law and then civil liberties cases. Through the years, Boudin represented many celebrities and controversial clients, including actor Paul Robeson, pediatrician Benjamin Spock, and former Teamsters leader Jimmy Hoffa. Boudin also represented Daniel Ellsberg, who was charged in connection with the theft of the Pentagon Papers. His son, Michael Boudin, is chief judge of the First Circuit Court of Appeals, and his daughter, Kathy Boudin, is in a New York prison for her participation in the 1981 armed robbery of an armored truck. See also Bond v. Floyd (1966); Ellsberg, Daniel; Lamont v. Postmaster General (1965); Rabinowitz,Victor.
David L. Hudson Jr.
furthe r reading Ravo, Nick. “Leonard Boudin, Civil Liberties Lawyer, Dead at 77.” New York Times, November 26, 1989, 45.
Bowdler, Thomas The verb to Bowdlerize—to modify written texts to remove offensive language, possibly distorting the material—is taken from the name of Thomas Bowdler (1754–1825), who edited Shakespeare’s plays to ensure that “those words and expressions are omitted which cannot with propriety be read aloud in a family.” Bowdler focused his efforts on revising sexual references and blasphemy. Various eighteenth-century editors published editions of Shakespeare’s work from which they eliminated what they perceived as indelicacies; some even rewrote plays such as
King Lear to produce a happy ending. In 1807, however, Bowdler’s The Family Shakespeare set a new standard of thoroughness in policing the morality of the Bard’s plays. The first edition, published anonymously in four volumes, included twenty plays and was largely, if not entirely, the work of Bowdler’s sister Henrietta Maria (“Harriet”) Bowdler (1750–1830). It was not very successful; when Bowdler negotiated for a new edition in 1817, publishers initially responded unenthusiastically. In 1818 the second edition of The Family Shakespeare was published under Thomas Bowdler’s name, this time in ten volumes containing thirty-six plays, including reedited versions of the twenty plays of the first edition. After a slow start, the book became a steady seller, with new printings every few years through the 1880s. This success was the result of a dispute in 1821–1822 between Blackwood’s Magazine and the Edinburgh Review, the leading literary journals of the day.When Blackwood’s mocked Bowdler as a peddler of “prudery in pasteboard,” the Edinburgh thanked him for sparing readers from “awkwardness” and “distress.” Bowdler’s Othello illustrates his approach. Some of the play’s most famous lines are missing or altered in The Family Shakespeare. Where Iago says of Othello, “ ’twixt my sheets, he has done my office” (1.3.369–370), Bowdler substitutes, “in my bed, he has done me wrong.” Bowdler omits Iago’s effort to inflame Desdemona’s father by telling him,“an old black ram / Is tupping your white ewe” (1.1.88–89). Iago’s similarly goading assertion that “your daughter and the Moor are now making the beast with two backs” (1.1.117–118) becomes “your daughter and the Moor are now together.” Bowdler’s editorial changes contrasted with condensed and forceful imagery elsewhere in the play. Toward the end of his life, Bowdler also produced a fivevolume edition of Gibbon’s Decline and Fall of the Roman Empire featuring “the careful omission of all passages of an irreligious tendency.” The effort was not a success, and the book was never reprinted. Bowdler is referred to in just one Supreme Court case, Ginsberg v. New York (1968). Justice William O. Douglas, in his dissent, provided a short biographical sketch of anti-obscenity activist Anthony Comstock in which Bowdler is mentioned in a footnote as a “notable forerunner of Comstock” who was “[a]rmed with a talent for discovering the ‘offensive.’ ” Since Douglas’s day, some studios have sought to clean up movies by deleting offensive words and scenes for family viewing.
Bowen v. Roy (1986) See also Censorship; Comstock, Anthony; Ginsberg v. New York (1968).
Simon Stern
furthe r reading Perrin, Noel. Dr. Bowdler’s Legacy: A History of Expurgated Books in England and America. Boston: Godine, 1992.
Bowen v. Kendrick (1988) In Bowen v. Kendrick, 487 U.S. 589 (1988), the Supreme Court ruled that the 1981 Adolescent Family Life Act (AFLA)—which channels federal funds to religious organizations via nonprofit organizations offering adolescent pregnancy prevention and care services—does not violate the establishment clause of the First Amendment. AFLA requires nonprofits receiving funds for research and services related to preventing premarital adolescent sexual activity to involve religious groups as well as government agencies in their programs. Among the grant recipients in the 1980s were some organizations with institutional ties to religious denominations. In response, several taxpayers and groups filed a lawsuit. Writing for the 5-4 majority, Chief Justice William H. Rehnquist ruled that AFLA does not, on its face, violate the three prongs of the Lemon test from Lemon v. Kurtzman, (1971).The Court held that the legislation had a “legitimate secular purpose”—the prevention of teen pregnancy and the resulting social and economic costs. Rehnquist explained that AFLA’s purpose and effect were neutral with respect to religion because religious affiliation was not a criterion in allocating funds. He reasoned that because the application for funds required groups to detail how the money would be spent, the government could ensure that the money was not allocated to advance religion, even if grants were made to religiously affiliated organizations.Although the third part of the Lemon test prohibits “excessive government entanglement” with religion, the Court determined that government monitoring of applications was not enough to violate the establishment clause. In dissent, Justice Harry A. Blackmun—the author of the Supreme Court’s decision in Roe v.Wade (1973), protecting a woman’s right to choose an abortion—argued that the statute was a clear violation of the establishment clause. He asserted that the record made clear that funds were being used for religious teaching by teachers and counselors who were under the direction of religious authorities.
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Bowen was an important case at the intersection of the controversial issues of abortion and religion. The legislation itself as well as the accommodationist outcome in the case signaled that strict separationism was giving way to a much closer relationship between government and religion. See also Abortion Protests; Blackmun, Harry A.; Lemon Test; Rehnquist,William H. .
Artemus Ward
furthe r reading Alley, Robert S. The Constitution and Religion: Leading Supreme Court Cases on Church and State. Amherst, N.Y.: Prometheus Books, 1999. Greenhouse, Linda. Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey. New York:Times Books, 2005. Tushnet, Mark. A Court Divided:The Rehnquist Court and the Future of Constitutional Law. New York:W. W. Norton and Co., 2005.
Bowen v. Roy (1986) In Bowen v. Roy, 476 U.S. 693 (1986), the Supreme Court ruled 8-1 that the federal government did not violate the free exercise clause of the First Amendment by assigning a Social Security number for welfare benefits. Steven J. Roy, a Native American, did not want the federal government to use a Social Security number for his daughter to provide her with welfare benefits. According to Roy, the use of the Social Security number would prevent his daughter from “becoming a holy person,”“rob [her] spirit,” and violate the free exercise clause of the First Amendment. The Supreme Court disagreed with Roy’s contention. Writing on behalf of the Court, Chief Justice Warren E. Burger held that “the Free Exercise Clause . . . does not afford an individual a right to dictate the conduct of the Government’s internal procedures.” Complying with Roy’s religious claim could unilaterally set the terms and conditions of his dealings with the federal government. Using the valid secular policy test rather than the prevailing strict scrutiny standard of Sherbert v.Verner (1963), Burger reasoned that “the statutory requirement that applicants provide a Social Security number is wholly neutral in religious terms and uniformly applicable” across the more than twenty million people requesting assistance. The Court also concluded that the federal government’s use of the identification numbers had a legitimate purpose of preventing fraudulent activity. Both Justices Harry A. Blackmun and Sandra Day O’Connor believed that the Court should have used the
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strict scrutiny standard, mandating that the federal government demonstrate a compelling governmental interest and use the least restrictive means. O’Connor, who concurred in part and dissented in part, further argued that granting an exemption for religious purposes would not hinder the government’s goal of combating fraud. This case raised an important issue: Was the Supreme Court subjecting Native American claims to a different standard? Or was the Court already moving toward the abandonment of the strict scrutiny standard as evident in its later decision in Employment Division, Department of Human Resources of Oregon v. Smith (1990)? See also Burger,Warren E.; Compelling State Interest; Employment Division, Department of Human Resources of Oregon v. Smith (1990); Native Americans; Sherbert v.Verner (1963).
John R. Hermann
furthe r reading Brown, Brian Edward.“Religion, Law, the Land: Native Americans and the Judicial Interpretation of Sacred Land.” Journal of Law and Religion 16, no. 2 (2001): 743–750. Wunder, John R. “Retained by The People”:A History of American Indians and the Bill of Rights. New York: Oxford University Press, 1994.
Boycotts Through boycotts, groups agree and often attempt to convince others to refuse to patronize certain businesses. Courts have recognized boycotts as having First Amendment protection under limited circumstances. In a series of cases, the Supreme Court has established an analysis of boycotts that considers the following issues: Is economic damage to the targeted businesses the goal or the means of the boycott? Is the goal to influence political action or merely to inflict economic harm on the businesses? An individual consumer’s choice of whether to patronize a certain business is a private action that does not raise any First Amendment issues. Boycotts, however, are organized campaigns to influence other peoples’ choices.There is thus a tension between the First Amendment rights of boycott organizers to convince others to join their campaign of petitioning for change, and antitrust and restraint of trade laws intended to prohibit harmful economic manipulation, such as price fixing or conspiratorial behavior. In Eastern Railroad Presidents Conference v. Noerr Motor Freight (1961), the Supreme Court confronted a conflict that developed after an association of railroad presidents hired a
public relations firm both to lobby the Pennsylvania government to pass laws restricting the ability of truckers to carry freight on the state’s roads and to conduct a negative publicity campaign against truckers.A group of Pennsylvania truck operators and their trade association sued, alleging that the railroads’ campaign violated the Sherman Anti-Trust Act of 1890 by seeking to destroy trucking competition. Justice Hugo L. Black, writing for the Court, described the “true nature of the case—a ‘no-holds-barred fight’ between two industries both of which are seeking control of a profitable source of income.” He found that the main goal of the railroads’ public relations campaign was to influence government policy and legislation—specifically, to enforce existing trucking regulations more strictly and to pass new legislation tightening restrictions.The Court therefore ruled that “solicitation of government action” could not be a violation of the Sherman Act.As the main question decided was whether the public relations firm’s actions had violated the Sherman Act, the decision did not speak directly to any First Amendment concerns. Noerr became an important precedent, however, in perhaps the best-known case regarding a boycott: NAACP v. Claiborne Hardware Co. (1982). In 1966 African Americans in Clairborne County, Mississippi, participated in a sustained boycott of white-owned businesses, hoping to put pressure on local government and business leaders to meet their nineteen “Demands for Racial Justice.” The document, drafted by the local chapter of the National Association for the Advancement of Colored People (NAACP), laid out specific measures to advance the civil rights of African Americans, from desegregation of bus stations to asking that blacks be addressed as “Mr.” and “Mrs.” rather than derogatory terms such as “boy.”Three years later, a group of white business owners sued the NAACP and its leaders, who had organized and enforced the boycott, for the economic damages they had suffered. After the case made its way through the lower courts, the Supreme Court ruled that the NAACP’s boycott was composed of elements protected by the First Amendment: speech, assembly, and petition.The Court also paid particular attention to the end goal of the boycotters. Writing for the Court, Justice John Paul Stevens compared the NAACP boycott campaign with the railroad association’s public relations campaign in Noerr and concluded that the boycott was entitled to even greater protection. Stevens first noted the similarities: “the petitioners certainly foresaw—and directly intended—that the merchants
Boyle v. Landry (1971) would sustain economic injury as a result of their campaign.” However, he continued, “unlike the railroads, . . . the purpose of petitioners’ campaign was not to destroy legitimate competition.” Whereas the railroads had attempted to threaten the competing trucking industry’s economic survival, the NAACP leaders and African American boycotters “sought to vindicate rights of equality and of freedom that lie at the heart of the Fourteenth Amendment itself.” The Court’s focus on boycotts’ goals led to a different result in Federal Trade Commission v. Superior Court Trial Lawyers Association (1990). In this case, a group of court-appointed lawyers who represented indigent criminal defendants began a boycott, refusing to take on new cases in a successful attempt to convince the District of Columbia government to raise their salaries. Writing for the Court, Justice Stevens upheld the FTC’s complaint that the boycott had violated the Federal Trade Commission Act’s prohibition of agreeing to restrain trade in violation of anti-trust laws. Stevens drew a distinction between Noerr, in which “the alleged restraint of trade was the intended consequence of public action,” and the lawyers’ boycott, in which “the boycott was the means by which respondents sought to obtain favorable legislation.” Stevens further explained that the goal of the boycott also resulted in an important distinction: whereas the lawyers sought economic gain for themselves, the boycotters in Clairborne Hardware “sought only the equal respect and equal treatment to which they were constitutionally entitled.” In analyzing whether a boycott is a protected First Amendment activity, a court first determines whether the boycott’s goal is political reform—with particular attention paid to whether the boycotters are acting on behalf of a constitutional right—or purely economic in nature. If a boycott is an attempt to influence political reform, it will likely be considered to be protected by the First Amendment. If the boycott’s goal is economic, however, the court will likely consider it as purely economic activity rather than First Amendment expression or petition. Using this logic, a number of “secondary boycotts,” or boycotts against third parties in the hope of convincing them to stop doing business with the primary target of the boycott, have been ruled outside the protection of the First Amendment and properly prohibited by labor union laws.
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furthe r reading Covington, George Carruthers. “The First Amendment and Protest Boycotts: NAACP v. Claiborne Hardware Co.” North Carolina Law Review 62 (1984): 399–414. “Note: Political Boycott Activity and the First Amendment.” Harvard Law Review 91 (1978): 659–691.
Boyle v. Landry (1971) In Boyle v. Landry, 401 U.S. 77 (1971), decided the same day as Younger v. Harris (1971) and other related cases, the Supreme Court reversed injunctions against enforcement of Illinois statutes and Chicago ordinances prohibiting “mob action, resisting arrest, aggravated assault, aggravated battery, and intimidation.” African Americans had challenged these laws and statutes as attempts to intimidate them from exercising their First Amendment rights through enforcing these laws and statutes, making arrests without probable cause, and requiring exorbitant bail. In rejecting the appeal, Justice Hugo L. Black found that “the allegations of the complaint in this case fall far short of showing any irreparable injury from threats or actual prosecutions under the intimidation statute or from any other conduct by state or city officials.” He observed that the state had not prosecuted any of the citizens who were bringing the complaint, and they had shown no likelihood of “bad faith prosecutions” or any “irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner.” Citing both Younger and Samuels v. Mackell (1971), Black concluded that “the normal course of state criminal prosecutions cannot be disrupted or blocked” by allegations that “amount to nothing more than speculation about the future.” He continued, “The policy of a century and a half against interference by the federal courts with state law enforcement is not to be set aside on such flimsy allegations as those relied upon here.” Justices William J. Brennan Jr., Byron R. White, and Thurgood Marshall concurred in the result while Justice William O. Douglas cited his dissent in a companion case. Overall, like Younger, Boyle represents the deference the federal courts will give to pending state criminal proceedings, even when a First Amendment question is at issue.
See also Federal Trade Commission; NAACP v. Claiborne Hardware Co. (1982); Federal Trade Commission v. Superior Court Trial Lawyers Association (1990).
See also Black, Hugo L.; Samuels v. Mackell (1971);Younger v. Harris (1971).
Dara Purvis
John R.Vile
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furthe r reading Mason, David. “Note: Slogan or Substance? Understanding ‘Our Federalism’ and Younger Abstention.” Cornell Law Review 73 (1988): 852–881.
Boy Scouts of America v. Dale (2000) In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme Court ruled that the Boy Scouts of America had the expressive association right to revoke the membership of an assistant scoutmaster after he publicly announced his sexual orientation by leading a gay group at Rutgers University. The Scouts revoked James Dale’s membership on the basis that the “the Boy Scouts ‘specifically forbid membership to homosexuals.’ ” Dale filed a complaint against the Scouts in New Jersey state court, alleging that this action violated the state’s public accommodations law. The Boy Scouts responded that the First Amendment granted the organization the right to expressive association, allowing the Scouts to refuse employment to individuals who violated its moral code, because employing such individuals would impinge on the Scouts’ ability to impart that code to its members. The New Jersey Supreme Court ruled in favor of Dale, holding that the forced inclusion of Dale would not significantly affect the Scouts’ ability to disseminate its message, as the Scouts did not associate to promote the message that homosexuality is immoral. The court added that any infringement on the Scouts’ right to expressive association was justified by the state’s compelling interest in preventing discrimination. The New Jersey Supreme Court’s opinion was consistent with the expressive association doctrine the U.S. Supreme Court had developed in Roberts v. United States Jaycees (1984) and subsequent cases. The U.S. Supreme Court, however, reversed the lower courts’ holdings in a 5-4 opinion written by Chief Justice William H. Rehnquist. The Court determined that Dale’s forced inclusion in the Scouts would significantly affect the organization’s right of expressive association. The Court found that groups do not have to associate for the purpose of disseminating a specific message to be entitled to First Amendment protection. Further, even if the Boy Scouts discourages leaders from disseminating views on sexual issues, this does not negate the sincerity of its belief that homosexuality is immoral. Finally, the First Amendment does not require that every member of
a group agree on every issue in order for the group’s policy to be “expressive association.” Consistent with Justice Sandra Day O’Connor’s concurring opinion in Roberts, the Court seemed to limit its analysis to noncommercial organizations like the Boy Scouts; the relevance to commercial organizations is unclear. The Court proceeded to apply the compelling interest test, which the Roberts line of cases suggested almost always justified antidiscrimination laws challenged on expressive association grounds. In Dale, by contrast, the Court gave the test short shrift, stating simply that “the state interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association” and leaving no doubt that the test had been repudiated. The four dissenters did not argue for the use of the Roberts-style compelling interest test. Rather, they argued that the Boy Scouts’ message against homosexuality was too vague, unpublicized, and irrelevant to the organization’s core mission to warrant expressive association protection. Dale marked a substantial step toward the recognition of expressive association as a full-fledged First Amendment right with the same weight as the general right of free speech, at least for noncommercial associations. Roberts and its progeny had treated expressive association as a secondclass right, which could be infringed upon in most instances due to the Court’s narrow definition of an association’s expressive interests and the nature of the compelling interest test. Dale, in contrast, held that the expressive association right could be asserted by an organization even though the organization does not associate for the purpose of expressing a particular message, propounds that message only implicitly, and tolerates dissenting views. Moreover, under Dale the courts will skeptically review governments’ claims that their invasions of expressive association rights serve interests sufficiently compelling to justify those invasions. See also Compelling State Interest; Rehnquist,William H.; Roberts v. United States Jaycees (1984).
David E. Bernstein
furthe r reading Reuveni, Erez. “Note: On Boy Scouts and Anti-Discrimination Law: The Associational Rights of Quasi-Religious Organizations.” Boston University Law Review 86 (2006): 109–171.
Brandeis, Louis D.
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Braden v. United States (1961)
Bradfield v. Roberts (1899)
This companion case to Wilkinson v. United States (1961) was decided by the same 5-4 Supreme Court vote. As in Wilkinson, the majority in Braden v. United States, 365 U.S. 431 (1961), upheld the conviction of a person who refused to answer questions before the House Un-American Activities Committee (HUAC). The evidence indicated that the committee may have targeted Carl Braden, a member of the Southern Conference Education Fund, for expressing fear that the committee was using charges of communist affiliation to target people like him who were speaking out against racial segregation. Justice Potter Stewart’s majority opinion found little difference between Braden’s claim and the one the Court had rejected in Barenblatt v. United States (1959). Stewart believed that the committee had shown the pertinency of its questions and that it was clear that Braden had deliberately and intentionally refused to answer. Justice Hugo L. Black was convinced that the committee had targeted Braden for his views on segregation, and he saw the decision as the result of flawed rulings in Beauharnais v. Illinois (1952) and Barenblatt. Black posed his own First Amendment absolutism against the majority’s more malleable standards and denied “that this Nation’s ability to preserve itself depends upon suppression of the freedoms of religion, speech, press, assembly and petition.” In a separate dissent, Justice William O. Douglas observed that HUAC was operating under the same broad authorization that the Court had questioned in Watkins v. United States (1957). Douglas thought the committee’s attempt to classify Braden as a communist amounted “to little more than innuendo.”
In Bradfield v. Roberts, 175 U.S. 291 (1899), the first case to challenge a federal expenditure as a violation of the establishment clause, the Supreme Court ruled that the federal government’s agreement to provide funding to a Catholic hospital in exchange for care for indigents did not violate the First Amendment. During the Civil War, Congress had provided construction money to build Providence Hospital in Washington, D.C., and Joseph Bradfield, a citizen, resident, and taxpayer, had challenged the continued funding as a violation of the separation of church and state. Justice Rufus W. Peckham Jr., writing for the unanimous Court, passed over possible difficulties regarding the standing of the parties. Like the appeals court, Peckham favorably cited the appellate court decision finding that the hospital, though administered by Catholic nuns, was “an ordinary private corporation whose rights are determinable by the law of the land, and the religious opinions of whose members are not subjects of inquiry.” Peckham thought the religious avocations and affiliations of the staff and corporate board members were “wholly immaterial.” This case established the precedent, which still largely applies today, of treating governmental aid to religiously affiliated hospitals and social services organizations differently than aid to schools and other institutions.
See also Barenblatt v. United States (1959); Beauharnais v. Illinois (1952); Congress; House Un-American Activities Committee; Stewart, Potter;Watkins v. United States (1957);Wilkinson v. United States (1961).
John R.Vile
furthe r reading Bigel, Alan I. “The First Amendment and National Security: The Court Responds to Governmental Harassment of Alleged Communist Sympathizers.” Ohio Northern University Law Review 19 (1993): 885–926.
See also Lemon Test.
John R.Vile
furthe r reading Bassett, William W. “Private Religious Hospitals: Limitations upon Autonomous Moral Choices in Reproductive Medicine.” Journal of Contemporary Health Law and Policy 17 (2001): 455–583. Finkelman, Paul, and Melvin I. Urofsky. Landmark Decisions of the United States Supreme Court. 2d ed. Washington, D.C.: CQ Press, 2008.
Brandeis, Louis D. Louis Dembitz Brandeis (1856–1941) was born in Louisville, Kentucky, to Jewish parents who had immigrated from Bohemia after 1848.At age eighteen, Brandeis enrolled in Harvard Law School, graduating first in his class in 1877. Working as a lawyer in Boston, he became known as the “people’s attorney” for his involvement in social justice movements and representation of workers’ interests. His advocacy in Muller v. Oregon (1908) included the “Brandeis
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Louis D. Brandeis
Brief,” in which he employed extensive empirical data to make the case for restricting the hours of labor for women. Appointed by President Woodrow Wilson to the Supreme Court in 1916, Brandeis became the first Jewish member of the Court and served as an associate justice until 1939. During Brandeis’s tenure, the Court heard a number of important First Amendment cases and began the process of applying the provisions of this amendment to the states as well as to the national government. Brandeis’s stance evolved on issues of free speech from one that upheld governmental restrictions on expression to his concurring opinion in Whitney v. California (1927), which laid out an elegant argument on the virtues of freedom of speech. Shortly after the United States entered World War I in 1917, Congress passed the Espionage Act, which criminalized the willful obstruction of the military draft, actions causing “insubordination, disloyalty, mutiny or refusal of duty,” and false statements about the armed forces. The law
was amended via the Sedition Act of 1918 to include very broad language that, in effect, outlawed statements criticizing the U.S. government. Although this sedition act was repealed in 1921, the Supreme Court heard a number of cases that fell under its provisions. Justice Oliver Wendell Holmes Jr. wrote opinions for the Court in three 1919 cases—Schenck v. United States, Frohwerk v. United States, and Debs v. United States—in which the justices, including Brandeis, unanimously upheld the constitutionality of the Espionage Act. According to Holmes, Congress had the authority to limit political speech to protect against a “clear and present danger.” The Court found that during wartime words—in Schenck’s case a pamphlet urging resistance to the draft—were dangerous and therefore not protected speech. Even if the words did not lead to acts that harmed the United States, the speakers or writers could be penalized for the dangers that their words posed. Later that year, in Abrams v. United States (1919), however, Holmes and Brandeis joined in a dissent that reinterpreted the “clear and present danger” standard that Holmes had articulated in Schenck. Jacob Abrams and his colleagues had written and distributed leaflets criticizing President Wilson for sending American troops to fight in Russia.Although the Court majority applied the clear and present danger test and found that the leaflets were “an attempt to defeat the war plans of the Government,” Holmes and Brandeis reinterpreted the standard in a more liberal way.The dissenters argued that the First Amendment protected political opinions “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Holmes suggested “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.” During the 1920s Brandeis defended the First Amendment against what he saw as attempts to stifle free expression, and he shared his ideas on the crucial nature of free expression in a democracy. He believed that repression would not defeat radicalism; rather, unorthodox groups should be encouraged to enter into the market competition of the political arena. In his dissent in Schaefer v. United States (1920), he stressed that the appropriate response to fiery rhetoric is not censure but calmness. In Pierce v. United States (1920), Brandeis again dissented, arguing that a wide definition of free speech is necessary in a pluralistic political system.
Brandenburg v. Ohio (1969) In the years after World War I, a wave of anti-Bolshevik hysteria swept the United States, based on a fear, intensified by occasional bombings and other acts of violence, that the Russian Revolution and its radical ideology would spread around the world. Across the country, states outlawed activities perceived as radical; a majority banned the display of red flags, while some state and local officials were granted the power to silence controversial groups and opinions. It was in such a case, Whitney v. California, that Brandeis wrote his most influential and expansive statement on the subject of freedom of speech. Some scholars have suggested that this concurring opinion provided the theoretical framework for future Courts’ First Amendment jurisprudence. Brandeis voted with the majority to uphold Charlotte Anita Whitney’s conviction, on non–First Amendment grounds, for violating California’s Criminal Syndicalism Act by belonging to the Communist Party. In his concurring opinion, joined by Holmes, Brandeis addressed free speech issues at length. He traced the roots of free expression to the intent of the nation’s founders:“They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government.” According to Brandeis, the founders not only valued free speech as a means to sort out political truths, but they also knew “that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” He reiterated that an imminent danger of serious evil is the only justification for suppressing free speech. This was in direct contradiction to the view in Schenck that words could be criminalized on the basis of their possible effect at some distant time. Brandeis also expressed what later became known as the counterspeech doctrine, writing that the best remedy to combat harmful speech is “more speech, not enforced silence.” In 1931 the majority of the Court accepted Brandeis’s position on free speech in Stromberg v. California (1931).Yetta Stromberg, who worked at a summer camp sponsored by the Young Communist League, had been arrested for leading young campers in a daily ritual where they saluted a red flag.
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Seven justices signed on to an opinion by Chief Justice Charles Evans Hughes that echoed the ideas in Brandeis’s Whitney concurrence. They ruled that free political discussion was “essential to the security of the Republic” and a “fundamental principle in our constitutional system.” Brandeis stayed on the Court long enough to see it also adopt the deferential posture toward governmental economic regulation that he had long advocated. He died in 1941, two years after retiring. President Franklin D. Roosevelt appointed William O. Douglas to replace him. See also Clear and Present Danger Test; Counterspeech Doctrine; Debs v. United States (1919); Espionage Act of 1917; Frohwerk v. United States (1919); Holmes, Oliver Wendell, Jr.; Marketplace of Ideas; Pierce v. United States (1920); Schaefer v. United States (1920); Schenck v. United States (1919); Stromberg v. California (1931);Whitney v. California (1927).
Mary Welek Atwell
furthe r reading Bhagwat, Ashutosh A. “The Story of Whitney v. California: The Power of Ideas.” In Constitutional Law Stories, edited by Michael Dorf. New York: Foundation Press, 2004. Collins, Ronald K. L., and David M. Skover. “Curious Concurrence: Justice Brandeis’s Vote in Whitney v. California. In The Supreme Court Review, 2005, edited by Dennis J. Hutchinson, David A. Strauss, and Geoffrey R. Stone, 333–397. Chicago: University of Chicago Press, 2006. Mason,Alpheus Thomas. Brandeis:A Free Man’s Life. New York:Viking Press, 1946. Sturm, Phillipa. Louis Brandeis: Beyond Progressivism. Lawrence: University of Kansas Press, 1993.
Brandenburg v. Ohio (1969) In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court established that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.” The Court also made its last major statement on the application of the clear and present danger doctrine of Schenck v. United States (1919). In that case, Justice Oliver Wendell Holmes Jr. had ruled that the government could punish speech if it posed “a clear and present danger of bringing about the substantive evils that Congress may prohibit.” Clarence Brandenburg had addressed a small gathering of Ku Klux Klan members in a field in Hamilton County, Ohio. During the address, which was recorded by invited media representatives, Brandenburg bemoaned the fate of the “White Caucasian race” at the hands of the government. He made anti-Semitic and anti-black statements and alluded
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to the possibility of “revengeance” (sic) in the event that the federal government and Court continued to “suppress the white, Caucasian race.” He also announced that the Klan members were planning to march on Washington, D.C., on Independence Day. Brandenburg was convicted of violating Ohio’s Criminal Syndicalism law, which made it a crime to “advocate . . . the duty, necessity, or propriety of crime, sabotage, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” He was fined and sentenced to serve one to ten years in prison. Although the case was ultimately important in First Amendment jurisprudence, the Brandenburg matter received little attention in the Ohio court system. With the help of the American Civil Liberties Union (ACLU) and others, Brandenburg appealed to the Ohio intermediate appeal court, which upheld his conviction without opinion. The Ohio Supreme Court declined to hear the issues, saying in its dismissal that the case presented “no substantial constitutional question.”The U.S. Supreme Court disagreed, and granted certiorari in 1968. The Court’s unsigned, per curiam opinion was presumably drafted by Justice Abe Fortas, who had resigned by the time the final decision was handed down. The eight remaining members of the Court unanimously overturned Brandenburg’s conviction and issued a new test for all future restrictions on speech. Henceforth, advocacy could be punished only “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In so deciding, the Court specifically overruled Whitney v. California (1927), a case in which a women had been convicted of belonging to a syndicalist organization in violation of a California law. The Court, however, did not explicitly overrule Dennis v. United States (1951), which had upheld the convictions of Communist Party leaders even though the danger their speech posed was far from imminent. In Dennis, the Court said that the correct interpretation of the clear and present danger doctrine allowed legislatures to decide what was dangerous; the courts in applying the clear and present danger test were simply to determine whether, on balance, the “gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” In fact, in Brandenburg, the Court cited Dennis as good law. The Court is loathe to overturn decisions it has made in recent memory, and Brandenburg was decided only seventeen
years after Dennis. Scholars are divided on whether Brandenburg essentially empties Dennis of any content, or merely restricts it to its particular context, that of a struggle against a large and well-organized worldwide movement. Justice Hugo L. Black filed a brief concurrence in Brandenburg, stating his opinion that “the ‘clear and present danger’ doctrine should have no place in the interpretation of the First Amendment.” Justice William O. Douglas wrote a separate concurrence agreeing with this sentiment. See also Black, Hugo L.; Clear and Present Danger Test; Criminal Syndicalism Laws; Dennis v. United States (1951); Douglas,William O.; Feiner v. New York (1951); Holmes, Oliver Wendell, Jr.; Incitement; Ku Klux Klan; Schenck v. United States (1919);Whitney v. California (1927).
James L.Walker
furthe r reading Rohr, Marc. “Grand Illusion? The Brandenburg Test and Speech that Encourages or Facilitates Criminal Acts.” Willamette Law Review 38 (2002): 1–92. Crocco,Thomas E.“Comment: Inciting Terrorism on the Internet:An Application of Brandenburg to Terrorist Websites.” Saint Louis University Public Law Review 23 (2004): 451–484.
Branti v. Finkel (1980) In Branti v. Finkel, 445 U.S. 507 (1980), the Court ruled that the First and Fourteenth Amendments protect government workers from dismissal based solely on their political beliefs. The case was the second in the line of Supreme Court cases pitting workers’ First Amendment rights against party patronage practices; the first was Elrod v. Burns (1976). A sixmember majority in Branti, led by Justice John Paul Stevens, considered Elrod controlling, while the dissenters determined the firings in this case were different from those ruled unconstitutional in Elrod. Aaron Finkel and Alan Tabakman, both Republican assistant public defenders in Rockland County, New York, filed suit in federal district court alleging the new public defender, Peter Branti Jr., a Democrat, was about to dismiss them because they were not affiliated with or sponsored by a Democrat. The district court ruled that Branti had selected Finkel and Tabakman for termination based solely on their Republican Party affiliation and that the only way their discharges would be consistent under Elrod was if assistant public defenders were policymaking, confidential employees. The district court ruled they were not.The Second Circuit Court of Appeals affirmed the decision.
Branzburg v. Hayes (1972) In Elrod the Supreme Court found the Cook County, Illinois, Sheriff Department’s patronage-based dismissals of non–civil service employees to violate those workers’ First and Fourteenth Amendment rights to political belief and association. Applying the logic of Justice William J. Brennan Jr.’s plurality opinion in Elrod to Branti, Stevens found that Rockland County’s patronage system violated the First Amendment for two reasons. First, in order to keep their jobs, employees had to swear their allegiance to a particular political party, thereby “compromising their true beliefs.” Second, the patronage had the effect of “imposing an unconstitutional condition on the receipt of a public benefit,” that is, a job. This brought the case in line with Perry v. Sindermann (1972), in which the Court ruled that a college could not dismiss a nontenured professor simply because of speech critical of the institution’s administration. If the First Amendment protects an employee’s right to speak, Stevens reasoned, it also protects an employee’s right to his or her political beliefs, at issue in this case. Because Branti was unable to convince the Court of Rockland County’s “overriding interest of vital importance” in having assistant public defenders’ beliefs in line with the appointed public defender, the Court ruled that conditioning the job on political beliefs was not constitutional. Justice Lewis F. Powell Jr., writing in dissent for himself and Justices William H. Rehnquist and Potter Stewart, criticized the majority for developing a new, vague standard for determining which government employees can be dismissed because of political beliefs, for relying on inapplicable precedents, and for rejecting the body of political science literature that speaks to the value of party patronage practices for democratic governance. Stewart, who was in the majority in Elrod, also filed a separate dissent in which he expressed his belief that the public defender should be allowed to dismiss the assistant public defenders because they are not “nonconfidential” employees and because there needs to be mutual trust and confidence between all workers in the office. See also Elrod v. Burns (1976); Rutan v. Republican Party of Illinois (1990); Perry v. Sindermann (1972); O’Hare Truck Service v. City of Northlake (1996).
Kyle L. Kreider
furthe r reading Bowman, Cynthia Grant. “The Supreme Court’s Patronage Decisions and the Theory and Practice of Politics.” In The U.S. Supreme Court and the Electoral Process, 2d ed, edited by David K. Ryden. Washington, D.C.: Georgetown University Press, 2002.
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Koby, Michael H. and Paul Fischer. “The Supreme Court Cries ‘Foul’ to Patronage Contracting: Where Have You Gone Joe McDonough?” New England Law Review 32 (1997): 1–46.
Branzburg v. Hayes (1972) In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court ruled that that freedom of press did not create a constitutional privilege protecting reporters from having to testify in grand jury proceedings about the identity of news sources or information received in confidence.The case was consolidated with In re Pappas and United States v. Caldwell. Newspaper reporter Paul Branzburg of Kentucky refused to answer questions before grand juries regarding stories that he had authored and published involving illegal drugs. Journalists Paul Pappas of Massachusetts and Earl Caldwell of California also refused to appear before grand juries to answer questions about illegal activities they might have observed in writing about the Black Panthers. All three reporters had promised their sources confidentiality and feared that revealing their sources would compromise their effectiveness as reporters. Writing for the majority in the 5-4 decision, Justice Byron R. White clarified that this case did not involve the core values of the First Amendment. The reporters had not been required to reveal their sources nor had they been prevented from using any source of information, confidential or otherwise. Further, the reporters had not been threatened with tax for publication or any penalty, criminal or civil, related to the content of a publication. Rather, the case concerned whether reporters’ obligation to be subject to grand jury subpoenas—by answering questions relevant to criminal investigations as all other citizens are required to do— would so burden newsgathering that they should be granted a privileged position. Having established the primary question before the Court, White noted that the First Amendment does not invalidate all incidental burdens on the press that may be the result of generally applicable laws. Instead, he explained, laws that advance a substantial public interest have been upheld even when they impose a burden on a free press; such laws include those regulating the requirements of the National Labor Relations Act, libel, the right of access to government information, and the need to protect a defendant’s right to a fair trial. Observing that a majority of the states had failed to protect reporters from having to testify before grand juries, White announced that the Court was also unwilling to do
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so. Noting that both the common law and American history frowned upon those who concealed crime by not reporting felonies,White did not anticipate that the ruling would have much impact on newsgathering. Justice Lewis F. Powell Jr. penned a short concurrence that almost read like a dissent. He emphasized that government officials could not harass journalists with bad-faith investigations. He also wrote that “if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered.” Justice Potter Stewart’s dissent, which Justices William J. Brennan Jr. and Thurgood Marshall joined, suggested that reporters should only have to testify before grand juries when the government shows a compelling interest in the testimony. Stewart reasoned that the government must establish the following three elements before compelling a journalist to testify: “(1) show . . . probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.” These three elements formed the blueprint for reporter shield laws adopted by many states. Justice William O. Douglas penned a separate dissent. See also Compelling State Interest; Reporters’ Privilege; Shield Laws;White, Byron R.
Tom McInnis
furthe r reading Langley, Monica, and Lee Levine. “Branzburg Revisited: Confidential Sources and First Amendment Values.” George Washington Law Review 57 (1988): 13–50. Malheiro, Sharon K. “The Journalist’s Reportorial Privilege—What Does It Protect and What Are Its Limits?” Drake Law Review 38 (1988–1989): 79–101. Mullen, Lawrence J.“Developments in the New Media Privilege:The Qualified Constitutional Approach Becoming Common Law.” Maine Law Review 33 (1981): 401–444. Osborn, John E. “The Reporter’s Confidentiality Privilege: Updating the Empirical Evidence after a Decade of Subpoenas.” Columbia Human Rights Law Review 17 (1985): 57–81. Parrell, Mark J. “Press/Confidential Source Relations: Protecting Sources and the First Amendment.” Communications and the Law 15 (1993): 47–73.
Schmid, Karl H. “Journalist’s Privilege in Criminal Proceedings: An Analysis of the United States Courts of Appeals’ Decisions from 1973 to 1999.” American Criminal Law Review 39 (2002): 1441–1499.
Braunfeld v. Brown (1961) In Braunfeld v. Brown, 366 U.S. 599 (1961), the Supreme Court ruled that a Pennsylvania state law that required certain types of retail businesses to close on Sunday did not violate the First Amendment’s free exercise clause. In a companion case, Two Guys from Harrison-Allentown, Inc. v. McGinley (1960), the Court had already decided that such laws did not violate the establishment clause. Abraham Braunfeld and other Orthodox Jews brought the case. Due to their religious beliefs, they shut their businesses at nightfall each Friday until nightfall on Saturday. They argued that being forced by the state to close on Sunday as well would impair their ability to earn a livelihood. A three-judge district court panel dismissed the complaint, and the Supreme Court heard it on appeal. The Court could not agree on an opinion, but a majority of six justices found that the Sunday closing law did not violate the Constitution. Chief Justice Earl Warren’s opinion expressed the views of a plurality of four justices. He relied on Cantwell v. Connecticut (1940) and Reynolds v. United States (1879) to demonstrate that the freedom to act on one’s religious convictions is not totally free from legislative restrictions that seek to enforce important social goals or duties or protect good order. Warren explained that determining whether a law that interferes with a person’s religious practice is constitutional depends on a number of factors. First, the law has to be a generally applicable law within the power of the government. The law in this case was applied to all people, regardless of religious faith, and did not intentionally target any religious practice. Furthermore, in McGowan v. Maryland (1961) the Court had ruled that the government’s proper powers include providing a weekly reprise from all labor by setting aside one day a week for rest, recreation, and tranquility. Second, the law may not make any religious practices unlawful. If the purpose or effect of a law is to impede the practice of religion or to discriminate among religions, that law is constitutionally invalid even though the burden may only be indirect. This law, Warren wrote, simply regulated a secular activity, and even though it indirectly operated so as to make the practice of Braunfield’s religious beliefs more costly, it did not attempt to criminalize those practices.
Breach of the Peace Laws Warren noted that finding legislation that imposes only an indirect burden on the exercise of religion to be unconstitutional would radically restrict the operating latitude of the legislature. Justice Felix Frankfurter, supported by Justice John Marshall Harlan II, wrote a concurring opinion supporting Warren’s findings, but he believed that the case should be remanded to determine whether the law was irrational and arbitrary. Justices William O. Douglas,William J. Brennan Jr., and Potter Stewart all wrote dissents. See also Cantwell v. Connecticut (1940); McGowan v. Maryland (1961); Reynolds v. United States (1879); Sunday Blue Laws;Two Guys from Harrison-Allentown, Inc. v. McGinley (1960); Warren, Earl.
Tom McInnis
furthe r reading Cord, Robert L. Separation of Church and State: Historical Fact and Current Fiction. Grand Rapids, Mich.: Baker Book House, 1988. Urofsky, Melvin I. Religious Freedom, Rights and Liberties under the Law. Santa Barbara, Calif.: ABC-CLIO, 2002.
Bray v. Alexandria Women’s Health Clinic (1993) In Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993), the Supreme Court ruled that abortion protestors’ actions did not constitute a conspiracy against a protected class and therefore did not violate the Civil Rights Act of 1871. Although Bray is generally considered an abortion/women’s rights case, it sits at the intersection of the First Amendment rights of political assembly and protest and the right to obtain an abortion under Roe v.Wade (1973). In the late 1980s, antiabortion groups such as Operation Rescue staged demonstrations in which protestors attempted to block the entrances of clinics providing abortions and verbally or physically confronted people entering them. Between 1987 and 1990, more than 400 such blockades occurred and thousands of protesters were arrested. Many demonstrations turned violent. During this period, several clinics were bombed and some clinic staff members were assaulted and even murdered. In 1989 Operation Rescue announced that it would target the Women’s Health Clinic in Alexandria, Virginia. Fearing disruption of business and possible violence, the clinic attempted to stop the protest by obtaining an injunction from a federal court under section 1985(3) of the Civil
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Rights Act of 1871. The law, often referred to as the “Ku Klux Klan Act,” was passed after the Civil War to protect newly freed slaves from intimidation. Among its provisions, the act bars conspiracy on the part of private actors to deny “any person or class of persons the equal protection of the laws.”The district court ruled that under section 1985(3), the actions of Operation Rescue comprised a conspiracy to deprive women of their right to obtain an abortion. The Fourth Circuit Court of Appeals affirmed the district court. On appeal, the Supreme Court reversed the lower courts. Relying on the reasoning in Geduldig v.Aiello (1974), Justice Antonin Scalia held that although sex is a legally protected class, the proper classification in this case was not sex but pregnancy. While all pregnant people were women, not all women were pregnant. Moreover, in Griffin v. Breckinridge (1971) the Court found that under section 1985(3), a hostile intent toward the protected class must be shown; in this case, the hostility shown was not toward women but toward abortion. Therefore, the law did not apply, and the injunction had been improperly granted. Scalia noted that existing state laws were sufficient to cover any illegal conduct that might occur. Justices John Paul Stevens and Sandra Day O’Connor dissented. Stevens argued that an interstate conspiracy to violate rights existed and was therefore a federal issue. O’Connor, rejecting Geduldig, argued that women were indeed the class in question. Even though the law under review in this case does not specifically deal with free speech and the Court’s opinions do not directly address it, Bray raises a significant First Amendment question concerning limits on the right of protest.A ruling favoring the clinic might have brought into question the rights of individuals to gather and cross state lines to conduct political protest. The Court’s decision thus strengthens First Amendment rights to political speech. See also Abortion Protests; O’Connor, Sandra Day; Scalia,Antonin; Stevens, John Paul.
Stephen L. Robertson
furthe r reading Wardle, Lynn D. “The Quandary of Pro-Life Free Speech: A Lesson from the Abolitionists.” Albany Law Review 62 (1999): 853–966.
Breach of the Peace Laws Breach of the peace laws typically cover conduct that is disorderly and disturbs the public peace and quiet of a commu-
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nity. Most states have breach of the peace laws that criminalize certain speech and conduct, including use of obscene or abusive language in a public place, engaging in noisy behaviors (such as firing guns or playing loud music in the late night or early morning), obstructing vehicular or pedestrian traffic, fighting in a public place, resisting lawful arrest, and disrupting a lawful assembly or meeting. Some laws extend to vagrancy, loitering, and public intoxication. Persons who cause public disturbances that breach the peace may be fined, imprisoned, or both. Due to loss of liberty, property, or both, those convicted of breach-of-the-peace violations may assert due process claims. As breach of the peace laws are broad in scope and regulate a wide range of conduct and speech, many have been challenged as violating constitutional rights. Certain speech has been classified by the courts as “lowvalue” speech, or speech that is not essential to the expression of ideas and has so little social value that any benefits are outweighed by society’s need for public order.This doctrine is drawn from the Supreme Court’s fighting-words decision in Chaplinsky v. New Hampshire (1942). While distributing Jehovah’s Witness literature in Rochester, New Hampshire, Walter Chaplinsky attracted a crowd. He was confronted by a city marshal who warned him that his activities were disturbing some citizens. In response, Chaplinsky called the city marshal a “God damned racketeer” and a “damned Fascist.” He was subsequently charged and convicted under a city ordinance that prohibited use of offensive language toward persons in public places. Chaplinsky appealed, claiming the city ordinance violated his First Amendment rights. The Court ruled that Chaplinsky’s utterances were “fighting words” and therefore not protected speech under the First Amendment; by their nature, his words inflicted injury or tended to incite an immediate breach of the peace. In sum, the Court found that fighting words could provoke the average person to retaliate and cause a breach of the peace. The Court, however, subsequently limited the scope of the fighting words doctrine. In Terminiello v. Chicago (1949), it ruled that controversial speakers could not be charged with breach of the peace simply for stirring up a dispute.The Court held that Chicago’s ordinance was being used to regulate protected speech in this instance and was not aimed solely at “fighting words.” Later, in Cohen v. California (1971), the Court further stipulated that offensive or vulgar speech that was not directed at a person or did not cause a violent reaction (such as wearing a jacket in a courthouse emblazoned with the words “Fuck the Draft”) could not be inter-
preted as disturbing the peace. Generally the Court has struck down statutes and ordinances using vague terminology to regulate speech, such as “opprobrious” or “abusive” language and “opposing” a police officer, by holding that such terminology can apply to more than just fighting words.The Court has sent a clear message through these rulings that free speech, however offensive and controversial, is afforded a high level of protection. During the 1960s, civil rights activists were frequently arrested under breach of the peace statutes that came under review in cases appealed to the Supreme Court. In Garner v. Louisiana (1961), African American protestors were arrested and charged with disturbing the peace for sitting quietly at a “white only” lunch counter. The Court overturned their convictions, holding that the city lacked sufficient evidence to support a breach of the peace charge. In Taylor v. Louisiana (1962), the Court, again citing insufficient evidence, overturned the convictions of six African Americans for violating Louisiana’s breach of the peace law by sitting in a segregated waiting room at a bus depot. In Edwards v. South Carolina (1963),African American students staged a march to the state house to protest segregation. Although the protest march and assembly were peaceful, the protestors refused to disperse when so ordered and were convicted of breach of the peace.The Court ruled that states could not criminalize the peaceful expression of unpopular views and overturned the students’ convictions. Louisiana’s breach of the peace statute was tested again in Cox v. Louisiana (1965).Two thousand African American students marched against racial segregation and assembled at the courthouse in Baton Rouge, Louisiana. The assembly was tolerated until Elton Cox, the leader of the demonstration, exhorted the group to sit in at segregated lunch counters. The demonstrators were at that point dispersed by tear gas, and Cox was arrested the next day for disturbing the peace. The Court struck down the breach of the peace statute as too broad and vague. Finally, in Brown v. Louisiana (1966), five African Americans who sat in a public library, peacefully protesting segregation, were convicted of intent to breach the peace. The Court invalidated the convictions, stating that no “intent” to breach the peace had been substantiated and that peaceful assembly was protected by the First and Fourteenth Amendments. Breach of the peace laws have also been invoked in cases of symbolic speech. In Texas v. Johnson (1989), Gregory Lee Johnson burned a flag during the 1984 Republican
Breard v. Alexandria (1951) National Convention, protesting the policies of President Ronald Reagan. The state of Texas argued that it had a compelling interest in preventing the breaches of the peace that could result if flags were desecrated in public.The state claimed that flag desecration was inherently inflammatory and that state should be able to regulate it to prevent dangers to the public peace.The Supreme Court ruled that the breach of the peace statute referenced in this case was not tailored narrowly enough to encompass only those flag burnings that would result in serious disturbances; thus, it could not be invoked under these circumstances—especially when no public disturbance occurred at this particular flag burning. Some constitutional scholars have proposed reforming breach of the peace laws, arguing they should be more narrowly tailored to avoid restricting protected speech. Following court rulings indicating that various laws are too broad in scope, many state and local governments have reformed their ordinances and statutes to define unprotected speech more narrowly and to provide law enforcement officers with better guidelines on speech and conduct that constitute breaches of the peace. See also Brown v. Louisiana (1966); Chaplinsky v. New Hampshire (1942); Civil Rights Movement; Cohen v. California (1971); Cox v. Louisiana (1965); Edwards v. South Carolina (1963); Fighting Words; Flag Desecration; Garner v. Louisiana (1961); Narrowly Tailored Laws;Terminiello v. Chicago (1949);Texas v. Johnson (1989).
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furthe r reading Force, Robert. “Decriminalization of Breach of the Peace Statutes: A Nonpenal Approach to Order Maintenance.” Tulane Law Review 46 (1972): 367–487. Friedlieb, Linda. “The Epitome of Insult: A Constitutional Approach to Fighting Words.” University of Chicago Law Review 72 (2005): 385–415. Hudson, David L., Jr. “Fighting Words.” First Amendment Center Online, July 19, 2006. www.firstamendmentcenter.org/speech /personal/topic.aspx?topic=fighting_words. Place,Thomas M. “Offensive Speech and the Pennsylvania Disorderly Conduct Statute.” Temple Political and Civil Rights Review 12 (2002): 47–77. Volokh, Eugene. “Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct,‘Situation-Altering Utterances,’ and the Uncharted Zones.” Cornell Law Review 90 (2005): 1277–1348.
Breard v. Alexandria (1951) The Supreme Court, in Breard v. Alexandria, 341 U.S. 622 (1951), upheld a local ordinance prohibiting unsolicited
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door-to-door sales, ruling that it did not violate the First Amendment, the Fourteenth Amendment, or the commerce clause. Jack H. Breard, a regional magazine salesman, challenged his arrest and conviction in Alexandria, Louisiana, under a local “Green River ordinance.” His company argued that the law violated the commerce clause by restricting interstate commerce and that magazine sales were protected by the First Amendment’s freedoms of speech and the press. Writing for the six-justice majority, Justice Stanley F. Reed found that the ordinance did not interfere unduly with “the right to engage in one of the common occupations of life,” because the regulation left open other means of commercial soliciting, such as radio advertisements or mass mailings. Moreover, while states cannot discriminate against interstate commerce, in the absence of federal legislation specifying otherwise, they are not barred from regulation indirectly affecting such commerce. Further, governments have the right to restrict even legitimate businesses in the public interest to protect people from “practices deemed subversive of privacy and of quiet.” Reed also dismissed arguments based on First Amendment freedoms of speech and press because the laws at issue were “commercial” in nature. He thus distinguished this case from Martin v. City of Struthers (1943), which had invalidated a more general ban on door-todoor solicitations, on the basis that Martin’s ban was not limited to commercial activities. Reed concluded that it would be “a misuse of the great guarantees of free speech and free press to use those guarantees to force a community to admit the solicitors of publications to the home premises of its residents.” Dissenting, Chief Justice Frederick M.Vinson, joined by Justice William O. Douglas, considered whether such antisolicitation laws would affect interstate commerce. Justice Hugo L. Black’s dissent, also joined by Douglas, focused on First Amendment issues and on the tension between this case and prior decisions like Martin, Jones v. City of Opelika (1943) and Murdock v. Pennsylvania (1943), which had in part involved noncommercial transactions. Black supported the doctrine that First Amendment rights have a “preferred position” within the Constitution. He tied the “liberty to publish and circulate” to the economic right to solicit paying subscribers, who are free to reject such solicitations. Increasingly expansive Supreme Court decisions applying First Amendment protection to commercial speech make it difficult to know whether the Court would still regard this
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decision as good law. It is clear, however, that today’s Court would devote more attention to the impact of such laws on First Amendment rights than to the property-related issues that dominated the majority decision in this case. See also Black, Hugo L.; Commercial Speech; Door-to-door Solicitation; Green River Ordinance; Jones v. City of Opelika (1942) (1943); Martin v. City of Struthers (1943); Murdock v. Pennsylvania (1943); Preferred Position Doctrine; Privacy.
agent of ambivalence: he helped producers translate the ‘dangerous’ into the ambiguous and, on occasion, even into the subversive” (p. 443). Breen retired from the PCA in February 1954; he died ten years later. In 1968 the Production Code Seal of Approval was replaced by the Motion Picture Association of America (MPAA) film ratings. See also Censorship; Motion Picture Ratings.
John R.Vile
furthe r reading Gormley, Ken.“One Hundred Years of Privacy.” Wisconsin Law Review 1992 (September/October): 1335–1441.
Breen, Joseph I. From 1934 to 1954, Joseph Ignatius Breen was one of the most powerful people in Hollywood. As director of the motion picture industry’s Production Code Administration (PCA), which censored “indecent” and “vulgar” material from films, he developed the moral guidelines that shaped the content and language of the films shown in America for twenty years. Will Hays, the president of the Motion Picture Producers and Distributors of America (MPPDA), appointed Breen to help the film industry censor itself so it could avoid government censorship and improve Hollywood’s image to avoid costly boycotts by moral guardian groups, such as the Catholic Legion of Decency. An Irish Catholic with a background in journalism and public relations, Breen was accused by some of being an anti-Semite because, for example, he blamed the Jews who controlled Hollywood studios for the sex, violence, and perceived decadence in films. Morality groups and film financiers welcomed the PCA as an idea “with teeth,” since now no movie script could go into production without Breen’s consent and finished films had to receive the PCA’s seal of approval. Among Breen’s innovations were portraying married couples as sleeping in separate, single beds and bathrooms without toilets. Although Variety frequently referred to Breen as the “Production Code Czar,” film historian Leonard J. Leff (1991) argues that Breen’s “censorship” was an essential part of Hollywood’s Golden Age. According to Leff, Breen was the one who permitted production of “dangerous political dramas” like The Grapes of Wrath, Dead End and Black Fury. Leff writes,“Breen was not the voice of Hays,Wall Street, the Legion of Decency, or the state censor; rather, he was the
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furthe r reading Black, Gregory D. Hollywood Censored: Morality Codes, Catholics, and the Movies. New York: Cambridge University Press, 1994. Doherty, Thomas. “ ‘Hollywood’s Censor’: Joseph I. Breen and the Production Code Administration. New York: Columbia University Press, 2007. Leff, Leonard J.“The Breening of America.” PMLA 106, no. 3. (1991), 432–445. Walsh, Frank. Sin and Censorship: The Catholic Church and the Motion Picture Industry. New Haven, Conn.:Yale University Press, 1996.
Brennan, William J., Jr. William J. Brennan Jr. (1906–1997) served more years as an associate justice of the Supreme Court (1956–1990) than all but seven other justices in the Court’s history. Brennan believed that the law should preserve the dignity of individuals and was concerned with the impact the Court’s decisions would have on people’s lives. As a result, he was an outspoken defender of the First Amendment freedoms of speech and the press against threats of government restriction, and he contributed to significant opinions on free exercise and establishment of religion. The son of Irish immigrants, Brennan was born in Newark, New Jersey. After graduating from Harvard Law School in 1931, he practiced law in New Jersey. He was a nationally known state appellate judge when President Dwight Eisenhower nominated him for the Court in 1956. Some scholars consider him to have been the Court’s most influential associate justice, reflecting the important role he played in shaping decisions under Chief Justice Warren E. Burger. Writing for the majority in New York Times Co. v. Sullivan (1964), Brennan declared that public officials may not sue news media for slander or libel unless the injurious statement is made with actual malice or reckless disregard for the truth. The decision struck down an Alabama law under which the Montgomery city commissioner had sued the New York Times
Brennan,William J., Jr. for libel after the paper published an advertisement accusing the city of unleashing “an unprecedented wave of terror” against civil rights demonstrators.The commissioner claimed that the advertisement contained minor factual errors and that, although he had suffered no actual loss, he had been libeled.Alabama courts awarded him an historic $500,000 in damages. Had the Supreme Court upheld the Alabama libel judgment, newspapers would be reluctant to print items critical of public officials for fear that minor factual errors would make them vulnerable to lawsuits. Brennan noted that the nation’s interest in “uninhibited, robust, and wide-open” debate on public issues might include “vehement, caustic, and sometimes unpleasantly sharp attacks on public officials.” The Constitution requires those officials to endure such criticism unless the statements were made with “actual malice—with knowledge that it was false or with reckless disregard of whether it was false or not.” While Sullivan reduced public officials’ protection from libelous statements, the Court believed that free discussion must include the freedom to criticize those in power. Brennan also participated in decisions that attempted to determine what should be categorized as obscene expression, which is not protected by the First Amendment. The line separating obscene from protected speech is difficult to draw, however. Brennan wrote the majority opinion in Roth v. United States (1957), in which the Court defined obscenity as “material which deals with sex in a manner appealing to the prurient interest.” This test would be met if “to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interests.” Nine years later, Brennan wrote in Memoirs v. Massachusetts (1966) that obscenity was material “with no redeeming social value.” By 1973 Brennan had decided that it was impossible to construct a workable definition. He expressed that view in his dissent in Paris Adult Theatre I v. Slaton (1973): “No one definition, no matter how precisely or narrowly drawn, can possibly suffice for all situations, or carve out fully suppressible expression from all media without also creating a substantial risk of encroachment upon the guarantees of the Due Process Clause and the First Amendment.” He noted that governments could prevent children and nonconsenting adults from being exposed to certain materials but could not completely ban the materials. Brennan also dissented in Hazelwood School District v. Kuhlmeier (1988), when the Court approved a principal’s censorship of a student newspaper. Traditionally the Court
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had held that freedom of the press prohibited repressing expression before it was printed. Brennan wrote that because students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court’s decision taught the wrong civics lesson. Among Brennan’s last and most significant opinions on free expression was the majority decision in Texas v. Johnson (1989). Gregory Lee Johnson had burned an American flag in protest at the 1984 Republican National Convention. Although no one was injured or threatened by the demonstration, Johnson was charged under a Texas criminal statute for desecrating a venerated object. The Court determined that Johnson’s act was “expressive conduct” intended to convey a political message. Brennan wrote,“If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The protection of the freedom to express unpopular ideas, symbolized by burning the flag, was more important than protecting the “cherished emblem.” The extremely unpopular Johnson decision led to protests, attempts to amend the Constitution, and the enactment of a federal law prohibiting flag desecration. In another opinion written by Brennan, United States v. Eichman (1990), the Court found the federal statute to be just as unconstitutional as the Texas law. Brennan consistently supported a high wall of separation between church and state. He wrote an important concurrence in Abington School District v. Schempp (1963), finding mandatory Bible reading in public schools unconstitutional. He noted that even if such practices were acceptable at the time the Constitution was written, the educational landscape in the mid-twentieth century was significantly different. For example, education had become the responsibility of the government rather than the private schools the founders knew. In addition, the religious beliefs of the U.S. population had become vastly more diverse. Finally, he believed that public schools could best serve their civic functions if they were free of divisive or parochial concerns. Brennan’s view differed from that of the majority of his colleagues on the Court in Marsh v. Chambers (1983), in which the Court upheld prayers in legislative chambers. He asserted that such prayers failed the Lemon test, devised by the Court in 1971 to determine whether a policy violated the constitutional ban on the establishment of religion. Under Lemon, to be constitutional a governmental action must have a secular purpose, must neither advance nor
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inhibit religion, and must not foster “an excessive government entanglement with religion.” Brennan believed the Court majority ignored the Lemon test in Lynch v. Donnelly (1984), when the Court ruled that Pawtucket, Rhode Island’s display of a life-sized nativity scene in a public park paid for with public funds was constitutional. By contrast, Brennan found that the “inescapable effect of the crèche will be to remind the average observer of the religious roots of the celebration he is witnessing and to call to mind the scriptural message that the nativity symbolizes.” Brennan also delivered the Court’s opinion in Sherbert v. Verner (1963), an important free exercise case. Adeil Sherbert, a Seventh Day Adventist, had been fired and denied unemployment benefits after she refused to work on Saturday, the Sabbath in her religion. Brennan wrote that she was being forced to choose either to follow the teachings of her faith and give up benefits or to abandon her religious beliefs to accept work. Ruling that Sherbert did qualify for state unemployment benefits, Brennan stated, “Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” In another free exercise case, Brennan dissented in Goldman v. Weinberger, arguing that an air force officer who was an Orthodox Jew should be allowed to wear a yarmulke with his uniform. Congress later enacted a law that reflected Brennan’s position. He also dissented in O’Lone v. Estate of Shabazz (1987), which concerned Muslim inmates’ complaints that prison rules prevented them from participating in Friday prayers, their most important weekly religious ritual. Although the majority of the Court deferred to the prison administration’s claim that it would be disruptive to interrupt work to permit Friday prayers, Brennan rejected that position. He likened the situation to preventing Catholic prisoners from attending Sunday Mass. In both cases, inmates would be “foreclosed from participating in the core ceremony that reflects their membership in a religious community.” See also Abington School District v. Schempp (1963); County of Allegheny v. American Civil Liberties Union (1989); Goldman v. Weinberger (1986); Hazelwood School District v. Kuhlmeier (1988); Lynch v. Donnelly (1984); New York Times Co. v. Sullivan (1964); Obscenity and Pornography; O’Lone v. Estate of Shabazz (1987); Paris Adult Theatre I v. Slaton (1973); Roth v. United States (1957); Sherbert v.Verner (1963); United States v. Eichman (1990);Warren, Earl.
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furthe r reading Marion, David E. The Jurisprudence of William J. Brennan Jr.: The Law and Politics of “Libertarian Dignity.” Lanham, Md.: Rowman and Littlefield, 1997. Pederson,William D., and Norman W. Provizer, eds. Leaders of the Pack: Polls and Case Studies of Great Supreme Court Justices. New York: Peter Lang, 2003. Richards, Robert D. Uninhibited, Robust, and Wide Open: Mr. Justice Brennan’s Legacy to the First Amendment. Boone, N.C.: Parkway Publishers, 1994. Sepinuck, Stephen L. and Mary Pat Treuthart, eds. The Conscience of the Court: Selected Opinions of Justice William J. Brennan Jr. on Freedom and Equality. Carbondale: Southern Illinois University Press, 1999.
Breyer, Stephen G. Stephen G. Breyer (1938– ) took his seat on the Supreme Court bench in 1994, replacing retired justice Harry A. Blackmun. Appointed by President Bill Clinton, he is generally regarded as a moderate liberal who decides cases pragmatically rather than on the basis of rigid ideology. His First Amendment jurisprudence reflects this approach, often making his votes more difficult to predict than those of fellow justices. Born in San Francisco in 1938, Breyer was educated at Stanford University, Oxford University, and Harvard Law School; he later taught administrative law at Harvard as well. As a law clerk, Breyer wrote the first draft of Justice Arthur J. Goldberg’s concurring opinion on the right to privacy in Griswold v. Connecticut (1965). From 1965 to 1967, Breyer was a special assistant to Assistant Attorney General Donald F.Turner in the Justice Department, where he developed his expertise in anti-trust law. He then worked as an assistant special prosecutor during the Watergate investigations. Breyer served as a judge on the First Circuit Court of Appeals from 1981 to 1990 and was a member of the United States Sentencing Commission from 1985 to 1989. Breyer was the determinative vote in two Supreme Court cases involving the display of the Ten Commandments. In Van Orden v. Perry (2005), he voted to uphold a long-standing display of the commandments in a public park, and in McCreary County v. American Civil Liberties Union (2005), he voted against the display of two plaques in county courthouses. Breyer authored the Court’s majority opinion in Beard v. Banks (2006), upholding prison officials’ broad restrictions on inmates’ reading materials. He also authored the Court’s main opinion in Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996), which upheld two provisions and struck down another relat-
Bridges v. California (1941) ed to the regulation of indecent programming on cable television. Breyer concurred with the Court’s ruling in Bartnicki v.Vopper (2001) that prevented criminal liability from being imposed on those who published illegally intercepted wire communications. He stirred concern among some First Amendment experts, however, when he stated in his concurrence that ”the Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual’s interest in basic personal privacy.” In Morse v. Frederick (2007), he sided with the majority in supporting a principal’s right to suspend a student for holding up a banner tied to drug use, but he would have done so on the basis of the principal’s immunity from liability rather than on the basis of the First Amendment. He dissented in the Court’s upholding of the Copyright Term Extension Act of 1998 in Eldred v. Ashcroft (2003), emphasizing that the copyright clause must be read consistently with the First Amendment: “The Copyright Clause and the First Amendment seek related objectives—the creation and dissemination of information. When working in tandem, these provisions mutually reinforce each other. . . .At the same time, a particular statute that exceeds proper Copyright Clause bounds may set Clause and Amendment at cross-purposes, thereby depriving the public of the speech-related benefits that the Founders, through both, have promised.” Professor Eugene Volokh ranked Breyer in last place among the justices with regard to how often he issued pro–First Amendment opinions in free speech cases from 1994 to 2002. Breyer wrote Active Liberty (new ed. 2008) to explain his judicial philosophy of interpreting the Constitution, including criticism of originalist, or textualist, methods as a primary method for approaching difficult constitutional questions. In the book, he encourages citizens to increase their understanding of the Constitution. See also Bartnicki v. Vopper (2001); Beard v. Banks (2006); Blackmun, Harry A.; Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996); Eldred v. Ashcroft (2003); Griswold v. Connecticut (1965); McCreary County v.American Civil Liberties Union (2005); Morse v. Frederick (2007);Van Orden v. Perry (2005).
John R.Vile
furthe r reading Cushman, Clare. The Supreme Court Justices: Illustrated Biographies, 1789–1995. 2d ed. Washington, D.C.: Congressional Quarterly, 1995. Hudson, David L., Jr. The Rehnquist Court: Understanding Its Impact and Legacy. Westport, Conn.: Praeger, 2007.
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McCombs, Alan J. “Editors Can Hear Breyer’s Take on First Amendment.” American Society of Newspaper Editors, March 28, 2007. www.asne.org/index.cfm?id=6534. Volokh, Eugene. “How the Justices Voted in Free-Speech Cases, 1994–2002.” www.law.ucla.edu/volokh/howvoted.htm.
Bridges v. California (1941) The Supreme Court in Bridges v. California, 314 U.S. 252 (1941), consolidated with Times-Mirror Co. v. Superior Court of California, used First and Fourteenth Amendment guarantees of freedom of speech and press to overturn contempt convictions against a newspaper and an individual who had criticized judicial proceedings in pending cases. In Bridges, labor leader Harry Bridges sent a telegram to the U.S. secretary of labor, threatening a strike if the state enforced its decision in a labor dispute.The telegram was later published in newspapers. Times-Mirror involved statements in Los Angeles Times editorials that strongly urged a judge to sentence two men to prison. Writing for the majority, Justice Hugo L. Black observed that punishment for contempt—in these cases out-of-court publication of material that could influence a trial—was based in English common law and not “encased in the armor wrought by prior legislative deliberation.” He observed that in cases since Schenck v. United States (1919) the Court had applied the “clear and present danger” test before upholding practices that impinged on the First Amendment. In explaining the Court’s decision, Black quoted a scholar to argue that “one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.” He also cited James Madison to show that the framers of the Constitution intended to give the press “the broadest scope that could be countenanced in an orderly society.” Congress, Black noted, had further declared its understanding in adopting a law limiting the contempt power in 1831. Although many states retained this power, it had not previously been tested in federal courts, which “cannot allow the mere existence of other untested state decisions to destroy the historic constitutional meaning of freedom of speech and of the press.” States had adopted contempt laws to prevent “disrespect for the judiciary” and “disorderly and unfair administration of justice.” Black did not consider the telegram or editorials at issue in these cases to threaten either value. Judges already knew the Los Angeles Times’ opinion on the pending criminal case, and Bridges’s threat to strike in the event of a particular ruling was not a threat of illegal activity.
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Justice Felix Frankfurter’s long dissent was joined by Chief Justice Harlan Fiske Stone and Justices Owen J. Roberts and James F. Byrnes. In the case of the Times editorial, Frankfurter believed the case centered on “a powerful metropolitan newspaper” attempting “to overawe a judge in a matter immediately pending before him.” Frankfurter stressed that First Amendment prohibitions against abridging speech and press were not absolute. In addition, he traced the history of contempt through English history and state practice, citing, among other cases, Patterson v. Colorado (1907). He thought the Court should give great deference to state legislative judgments on the subject. He added that the judges who had found Bridges and the paper guilty of contempt were not the judges to whom the editorials were directed. See also Black, Hugo L.; Clear and Present Danger Test; Frankfurter, Felix; Patterson v. Colorado (1907); Schenck v. United States (1919);Toledo Newspaper Co. v. United States (1918).
John R.Vile
furthe r reading Krause, Stephen J. “Punishing the Press: Using Contempt of Court to Secure the Right to a Fair Trial.” Boston University Law Review 76 (1996): 537–574.
Broadcast Decency Enforcement Act of 2005 The Broadcast Decency Enforcement Act of 2005 increases fines against broadcasters tenfold—from $32,500 to $325,000 per incident for broadcast networks, up to $3 million per incident if aired on multiple stations—for violating obscenity and indecency standards. President George W. Bush signed the act into law on June 15, 2006. The bipartisan measure, which amends the Communications Act of 1934, passed by a vote of 379 to 35 in the House of Representatives and by unanimous consent in the Senate. The law was designed to make broadcast radio and television networks more family oriented by imposing significant fines for violations. It does not apply to satellite radio or satellite and cable television stations. Following standards the Supreme Court established in Miller v. California (1973), broadcasts are considered obscene when they appeal to prurient interests, depict or describe sexual conduct in an offensive manner, and lack literary, artistic, political, or scientific value. Obscene material has no First Amendment protection.
Broadcasts are deemed indecent when they describe or depict any sexual or excretory activities in an offensive manner, as defined by community standards, when children might be in the audience (between the hours of 6:00 a.m. and 10:00 p.m.). Although indecent material has limited First Amendment protection, in Federal Communications Commission v. Pacifica Foundation (1978), the Court ruled that the FCC could fine radio stations that broadcast indecent speech during daytime hours. In 2002, for example, the FCC fined Viacom for indecency violations by shock jocks Opie and Anthony for the duo’s broadcast descriptions of a couple engaging in sexual intercourse in New York City’s St. Patrick’s Cathedral.The FCC has also levied fines for indecent television broadcasts, most notably against the CBS network for a 2004 Super Bowl half-time performance during which Janet Jackson’s breast was exposed. Although the Broadcast Decency Enforcement Act of 2005 continues to permit broadcasters to air indecent material during the safe harbor period of 10:00 p.m. to 6:00 a.m., some First Amendment advocates are concerned that the enhanced fines will have a chilling effect on free speech. See also Communications Act of 1934; Federal Communications Commission; Federal Communications Commission v. Pacifica Foundation (1978); Indecency and the Electronic Media; Miller v. California (1973); Obscenity and Pornography.
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furthe r reading Bolden, J. “Congress Ups Indecency Fines Tenfold: Sweeping Votes Boosts Maximum to $325K.” Academy of Television Arts and Sciences, June 8, 2006. www.emmys.org/news/2006/june/ fines.php. Bush, George W. “Remarks on Signing the Broadcast Decency Enforcement Act of 2005.” Weekly Compilation of Presidential Documents 42, no. 24, 1144–1146. Washington, D.C.: U.S. Government Printing Office, June 19, 2006. Available at GPO Access Online, www.gpoaccess.gov/wcomp/v42no24.html. Eggerton, J.“Indecency Fines Jump.” Broadcasting & Cable 136 (June 12, 2006): 4.
Broadrick v. Oklahoma (1973) In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Supreme Court decided that states can limit their employees’ partisan political activities without violating employees’ First Amendment rights. Additionally, the Court ruled that individuals may not contest statutes that might violate the First Amendment rights of others if the statutes are not overbroad.
Brockett v. Spokane Arcades, Inc. (1985) An Oklahoma statute prohibited certain types of state civil service employees from engaging in a variety of partisan political activities, such as campaigning or soliciting funds for candidates and running for office themselves. The Oklahoma State Personnel Board charged William M. Broadrick and two other classified employees with patent violations of the statute. Broadrick and the others filed suit against the state, arguing that portions of the statute were vague and overbroad (that is, reaching so broadly as to prohibit protected speech), and therefore unconstitutional. In addition, they challenged the state’s classification of employees, saying that it violated the Fourteenth Amendment’s guaranty of equal protection under the law. After a threejudge district court upheld the law, Broadrick and the others appealed to the Supreme Court. Writing for the five-justice majority, Justice Byron R. White determined that “the statute . . . seeks to regulate political activity in an even-handed and neutral manner” and that it “regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass.” He disposed of Broadrick’s equal protection argument by finding that a state could distinguish between classes of employees. Moreover, White found that the Oklahoma statute was constitutional on its face and did not violate the First Amendment. Earlier that day, the Court had approved the Hatch Act’s similar restrictions on political activity for federal civil servants in United States Civil Service Commission v. National Association of Letter Carriers (1973). Like the federal government, states have interests in a fair, impartial, and efficient public service, which justifies limits on the political activities of government employees.According to White, the Oklahoma law limited conduct more than it did speech; he cited the state attorney general’s interpretation of the law as “prohibiting ‘clearly partisan political activity’ only.” Further, the Court determined that the state statute was not unconstitutionally vague. White explained that all language involves some imprecision, but the language of the statute was clear enough that an “ordinary person exercising ordinary common sense can sufficiently understand and comply” with it. Finally, Broadrick and the others were accused of conduct clearly prohibited by the statute.They challenged the statute on the basis that it was overly broad: it might be unconstitutional in some situations and therefore could not be applied to them in situations in which the statute was constitutional.White pointed out that ordinarily litigants may not com-
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plain about a statute because it might “be applied unconstitutionally to others, in other situations not before the Court.”The overbreadth must be real and substantial, measured against the legitimate sweep of the statute. Only in special circumstances do courts allow litigants to attack statutes facially for overbreadth for prohibitions that do not or might not apply to the litigants: the statutes must only seek to regulate only spoken words; the statutes control the time, place, and manner of speech; the speech at issue requires some prior official approval; or the claim involves criminal laws that might apply to protected speech.White concluded that because the statute at issue involved conduct more than pure speech and any overreach was modest, a claim of overbreadth was not appropriate. Justice William O. Douglas dissented because he considered the Oklahoma statute to be unconstitutional and overbroad. Justice William J. Brennan Jr. joined by two other justices, also thought that the Oklahoma statue was unconstitutional and that the litigants should not have been prevented from challenging it. See also Brennan,William J., Jr.; Douglas,William O.; Overbreadth; Public Employees; United Public Workers of America v. Mitchell (1947); United States Civil Service Commission v. National Association of Letter Carriers (1973);White, Byron R.
Leonard W. Peck
furthe r reading Fallon, Richard H., Jr. “Making Sense of Overbreadth.” Yale Law Journal 100 (1991): 853–908. Isserles, Marc E.“Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement.” American University Law Review 48 (1998): 359–463.
Brockett v. Spokane Arcades, Inc. (1985) One of several “obscenity” cases decided by the Supreme Court after Miller v. California (1973), Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985), provides a gloss or clarification of the controversial three-prong Miller test. Chief Justice Warren E. Burger’s opinion for the five-vote majority in Miller held, among other things, that in obscenity cases “[a] basic [guideline] for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . .” (the first of Miller’s three “prongs”). But what is “prurient interest”? In
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Brockett, six justices persisted in the endeavor to square the circle of obscenity and to clarify the term. A 1982 Washington state statute declared a “moral nuisance” any place “where lewd films are publicly exhibited as a regular course of business” and any place of business “in which lewd publications constitute a principal part of the stock in trade.” Lewd was defined to be synonymous with obscene, and both terms were defined with reference to prurient interest, which, in turn, was defined to mean “that which incites lasciviousness or lust.” In the course of upholding Washington’s law against a facial challenge that had resulted in its being overturned in its entirety, the Supreme Court, through Justice Byron R.White, deferred to the analysis by the Ninth Circuit Court of Appeals of what prurient meant, even while reversing that court’s holding. “The Court of Appeals,” Justice White wrote,“was of the view that neither Roth v. United States . . . nor later cases should be read to include within the definition of obscenity those materials that appeal to only normal sexual appetites.”White continued:“The Court of Appeals [held] . . . that the term ‘lust’ had . . . come to be understood as referring to a ‘healthy, wholesome, human reaction common to millions of well-adjusted persons in our society,’ rather than to any shameful or morbid desire.” “Construed in this way,” White concluded, “the statutory definition of prurience would include within the first part of the Miller definition of obscenity material that is constitutionally protected by the First Amendment: material that, taken as a whole, does no more than arouse, ‘good, old fashioned, healthy interest’ in sex.” Only two of the four Miller dissenters remained on the Court—Justices William J. Brennan Jr. and Thurgood Marshall. Justices Potter Stewart and William O. Douglas were gone. Stewart’s replacement, Sandra Day O’Connor, joined the majority, albeit expressing her reservation in a concurring opinion “that the federal courts should have abstained and allowed the Washington courts an opportunity to construe the state law in the first instance.” Douglas’s successor, John Paul Stevens, also voted with the majority. Although Stevens’s goal in doing so is difficult to determine, he may have signed onto an opinion clarifying the ambiguities of the Miller test, knowing that Miller was not likely to be overturned. See also Miller v. California (1973); Obscenity and Pornography.
James C. Foster
furthe r reading Robbins, H. Franklin, Jr., and Steven G. Mason. “The Law of Obscenity—or Absurdity?” St. Thomas Law Review 15 (2003): 517–544.
Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar (1964) In Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964), the Supreme Court lifted an injunction against a railroad union on the basis that preventing union members from recommending legal counsel to one another violated their First and Fourteenth Amendment freedoms of speech, petition, and assembly. Railroad workers experienced a high rate of injuries, so the Brotherhood of Railroad Trainmen maintained a legal counsel department to advise injured workers and their families to consult certain “honest and competent” lawyers before settling claims. The state of Virginia considered this “unlawful solicitation of litigation and the unauthorized practice of law” on the part of the union and obtained an injunction, which the union appealed. Writing for the majority in a 6-2 decision, Justice Hugo L. Black noted the railroad workers’ high injury rate and Congress’s efforts to protect them by adopting the Safety Appliance Act of 1893 and the Federal Employers’ Liability Act of 1908. Black determined that the First Amendment secures employees’ rights of association “to gather together for the lawful purpose of helping and advising one another in asserting their rights.”Although Virginia has the right “to regulate the practice of law within its borders,” it cannot “foreclose the exercise of constitutional rights by mere labels.” Black cited precedents to support the Court’s finding that the union had not practiced law illegally simply by recommending lawyers. In Gideon v.Wainwright (1963), the Court had established the difficulty of individuals representing themselves. Quoting from NAACP v. Button (1963), in which the Court ruled that the NAACP could urge legal action and provide legal counsel, Black wrote that the state had “failed to advance any substantial regulatory interest, in the form of substantive evils flowing from petitioner’s activities, which can justify the broad prohibitions which it has imposed.” In his dissent, Justice Tom C. Clark, joined by John Marshall Harlan II, argued that the Court’s decision “overthrows state regulation of the legal profession and relegates
Brown v. Hartlage (1982) the practice of law to the level of a commercial enterprise.” Clark noted that the union president controlled the selection of attorneys and that, in the past, the union had taken twenty-five percent of the fees of attorneys it recommended. Virginia was not regulating “political expression” but providing “a procedure for the settlement of damage claims.” Clark feared that the decision “will bring disrepute to the legal profession,” an argument that would appear in later cases dealing with attorney advertising. The Court has subsequently relied on this case to support similar rulings in United Mine Workers of America, District 12 v. Illinois State Bar Association (1967) and in United Transportation Union v. State Bar of Michigan (1971). See also Attorney Advertising; Black, Hugo L.; NAACP v. Button (1963); United Mine Workers of America, District 12 v. Illinois State Bar Association (1967); United Transportation Union v. State Bar of Michigan (1971).
John R.Vile
furthe r reading FindLaw Constitutional Law Center. “U.S. Constitution: First Amendment: Right of Association.” http://supreme.lp.findlaw .com/constitution/amendment01/12.html.
Brown v. Glines (1980) The Supreme Court in Brown v. Glines, 444 U.S. 348 (1980), ruled that persons serving in the military have the right to petition Congress via single-signature letters but may not circulate petitions to Congress without prior approval from a base commander.The Court determined that military regulations limiting the right to petition for armed forces personnel do not violate the First Amendment. While on active duty, Albert Glines, a captain in the air force reserves, drafted and circulated petitions to members of Congress complaining about air force grooming standards. His actions violated air force regulations requiring prior approval for circulation of petitions, and he was removed from active duty. Glines sued, claiming that the regulations constituted an unconstitutional prior restraint and violated his First Amendment right to petition. A federal district court decided in his favor, and an appeals court affirmed. The Supreme Court reversed the lower courts’ decisions. Justice Lewis F. Powell Jr., writing for a 5-3 majority, analogized the case to Greer v. Spock (1976), in which the Court upheld a base commander’s power to “prevent the circulation of materials that he determines to be a clear threat to
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the readiness of his troops.” Powell grounded his analysis in the claims, announced in Parker v. Levy (1974), that the “military is, by necessity, a specialized society separate from civilian society” and that the risk of undermining the authority of commanding officers justifies the regulations. The Court concluded that the right of petition for service personnel is limited to “the communication of individual grievances” via writing. Justices William J. Brennan Jr. and Potter Stewart wrote spirited dissents. Brennan argued that application of relevant civilian case law justified a decision for Glines, that Spock was an unsuitable precedent for the majority’s decision, and that the concept of military necessity is too overbroad and unclear to justify denial of service personnel’s First Amendment rights. Stewart challenged the majority’s conclusion that guaranteeing service members’ right to petition could be satisfied via its limitation to individual letters. The Court’s much-criticized decisions in Levy and Glines highlight the deference of the courts to the military’s need to maintain order and discipline. Glines reached the court with Secretary of the Navy v. Huff (1980), in which the Court issued a brief per curiam opinion asserting that Huff was settled by Glines. See also Greer v. Spock (1976); Military Personnel, Rights of; Parker v. Levy (1974); Powell, Lewis F., Jr.; Secretary of the Navy v. Huff (1980); Stewart, Potter.
Richard Parker
furthe r reading Carr, John A. “Free Speech in the Military Community: Striking a Balance between Personal Rights and Military Necessity.” Air Force Law Review 45 (1998): 303–368. Dash, Andrew S. “Brown v. Glines: Bowing to the ‘Shibboleth of Military Necessity.’ ” Brooklyn Law Review 47 (1980): 249–282. Packer, Cathy. Freedom of Expression in the American Military: A Communication Modeling Analysis. New York: Praeger, 1989.
Brown v. Hartlage (1982) In Brown v. Hartlage, 456 U.S. 45 (1982), the Supreme Court struck down a Kentucky court’s decision, which had invalidated the election of a county commissioner, under a provision of Kentucky’s Corrupt Practices Act, which prohibited candidates from offering benefits in exchange for votes. While running for commissioner, Carl Brown and his opponent had pledged to take less than the $20,000 per year that the law allocated for the commissioner’s salary. When Brown, who won the election, realized that this pledge
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might be illegal under Sparks v. Boggs (Ky. 1960), he retracted it; his opponent challenged his election. The Jefferson County Circuit Court and Kentucky’s Court of Appeals nonetheless declared his election void. Justice William J. Brennan Jr., in the opinion for the court, began by acknowledging that the states had “a legitimate interest in preserving the integrity of their electoral processes.” Political campaigns were, however, “traditionally at the heart of American constitutional democracy,” and a “political candidate does not lose the protection of the First Amendment when he declares himself for public office.” Any state restriction of that right must be “compelling.” Although states had the right to prevent candidates from buying votes, “there are constitutional limits on the State’s power to prohibit candidates from making promises in the course of an election campaign.” In this case, Brown had made his promise “openly, subject to the comment and criticism of his political opponent and to the scrutiny of the voters.” His offer scarcely amounted to “a particularized acceptance or a quid pro quo arrangement.” Although the state might fear only those of independent wealth being in a position to seek political office, it must choose acceptable means to avoid such an end. Brennan added that the First Amendment “embodies our trust in the free exchange of ideas as the means by which the people are to choose between good ideas and bad, and between candidates for political office.” Further analogizing the law at hand with judicial decisions relative to libel law, including New York Times Co. v. Sullivan (1964), Brennan observed that Brown had made his decision in “good faith,” had no knowledge of its falsity, and had quickly repudiated it when its legality was called into question. Justice William H. Rehnquist authored a brief concurring opinion in which he said that the Court should “give more weight to the State’s interest in preventing corruption in elections” and argued that the precedent in Mills v. Alabama (1966) provided a stronger foundation for the majority decision than did its reliance on libel law precedents. See also Brennan,William J., Jr.; Campaign Regulation; Libel and Slander; Mills v. Alabama (1966); New York Times Co. v. Sullivan (1964); Rehnquist,William H.; Retraction.
John R.Vile
furthe r reading Hasen, Richard L. “Vote Buying.” California Law Review 88 (2000): 1323–1371.
Brown v. Louisiana (1966) The Supreme Court ruled in Brown v. Louisiana, 383 U.S. 131 (1966), that a silent sit-in demonstration protesting segregation in a public library was protected symbolic speech under the First and Fourteenth Amendments. The Louisiana parishes of East Feliciana, West Feliciana, and St. Helena had jointly operated three segregated libraries along with segregated bookmobiles. The three parishes had been the scene of prior civil rights demonstrations, and white public officials in East and West Feliciana parishes were known for their attempts to suppress protests against segregation and attempts to register black voters. In early March 1964 in Clinton, Louisiana, five black men entered the Audubon Regional Library, a member of the three-parish library system. A library staff member asked if she could help the five men. Henry Brown, reportedly a member of the Congress of Racial Equality (CORE), requested a book.The librarian told him that the library did not have a copy, but that she could order one and notify Brown when it arrived.The book would be mailed to him, and he could mail it back or return it to the bookmobile for blacks. After completing this transaction, Brown sat in the only chair available to patrons, and the other four men stood around him. They said nothing. Another librarian and the sheriff asked them leave, but they refused. The sheriff then arrested the three men for violating Louisiana’s breach of the peace statute. They were given a bench trial and convicted. The Louisiana Supreme Court denied their appeal, so the men petitioned the U.S. Supreme Court. The justices ruled 5-4 that the demonstration did not violate Louisiana’s breach of the peace law, but they did not agree on a majority opinion. In an opinion joined by Chief Justice Earl Warren and Justice William O. Douglas, Justice Abe Fortas held that the right of peaceful protest is not confined to speech, but also includes such expression as silent protest. Justices Byron R. White and William J. Brennan Jr. concurred in the result, each writing separate opinions. Justice Hugo L. Black, whose strong support for freedom of speech did not include symbolic speech, wrote a dissenting opinion, in which Justices Tom C. Clark, John Marshall Harlan II, and Potter Stewart joined. Brown was the fourth Supreme Court case involving convictions by the Louisiana courts for civil rights protests against segregation involving the state’s breach of the peace statutes. Garner v. Louisiana (1961) involved sit-ins at segregated lunch counters; Taylor v. Louisiana (1962) concerned
Bruce, Lenny sit-ins in a segregated bus depot waiting room; and Cox v. Louisiana (1965) involved a large-scale demonstration near a courthouse and jail. See also Black, Hugo L.; Breach of the Peace Laws; Civil Rights Movement; Fortas, Abe; Symbolic Speech.
Judith Haydel
furthe r reading De Jong, Greta. A Different Day: African American Struggles for Justice in Rural Louisiana, 1900–1970. Chapel Hill: University of North Carolina Press, 2002. Fairclough, Adam. Race and Democracy: The Civil Rights Struggle in Louisiana, 1915–1972. Athens: University of Georgia Press, 1995.
Brown v. Socialist Workers ’74 Campaign Committee (1982) In Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982), the Supreme Court ruled that the First Amendment right of association prohibits states from compelling minor political parties to disclose the names of contributors and recipients of disbursements when there is a reasonable probability that those persons will be subject to threats, harassment, or reprisals. In 1974 the Socialist Workers Party (SWP) challenged an Ohio law requiring candidates for political office to disclose the names and addresses of those who had contributed to and received payments from their campaigns. The SWP argued that the disclosure requirements violated its First Amendment rights to privacy of association and belief. In 1981 the district court, citing Buckley v.Valeo (1976), agreed. According to the precedent established in Buckley, the First Amendment prohibits government-forced disclosure of political associations and beliefs, unless there is a “subordinating interest of the state [that is] compelling.” For major political parties, requiring disclosure of contributions serves the government’s interest in enhancing voters’ knowledge about candidates’ alliances, deterring corruption, and enforcing contribution limits. For minor parties, however, the state’s interest in disclosure is less compelling. Such parties’ views are well publicized, and the improbability of their electoral success diminishes the chance of corrupting contributions. Therefore, minor parties are exempt from disclosure requirements when there is a reasonable probability that disclosure will subject contributors to threats and reprisals, threatening the survival of the party.
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On appeal to the Supreme Court, Ohio assistant attorney general Gary Brown argued that Buckley did not exempt minor parties from disclosing the recipients of party disbursements. According to Brown, Ohio had a compelling interest in preventing the misuse of campaign funds, and disclosure of the names of recipients imposed no burden on the SWP’s First Amendment rights. Recipients of disbursements were not likely to be subject to reprisal as receiving payment for services did not indicate support for the party. In an opinion that was unanimous in part, Justice Thurgood Marshall wrote that compelling the SWP to disclose its contributors or recipients of disbursements violated the First Amendment. He explained that disbursements are often wages for party workers or payments to service providers who are expressing support for an unpopular cause. Disclosure may therefore subject recipients to harassment and potentially limit the party’s ability to attract workers or purchase services. Dissenting in part, Justice Sandra Day O’Connor, joined by Justices William H. Rehnquist and John Paul Stevens, argued that compelling minor parties to disclose contributors is unconstitutional, but compelling disclosure of recipients of disbursements is not. O’Connor noted that even minor parties may spend funds in ways that are illegal. Requiring disclosure of recipients of disbursements serves a compelling government interest in preventing illegal or corrupt campaign spending. See also Buckley v.Valeo (1976); Campaign Regulation; NAACP v. Alabama (1958); Political Parties.
Raymond B.Wrabley Jr.
furthe r reading Stone, Geoffrey R., and William P. Marshall.“Brown v. Socialist Workers: Inequality as a Command of the First Amendment.” In The Supreme Court Review, 1983, ed. Philip B. Kurland, 583–626.Chicago: University of Chicago Press, 1984. Whittaker, L. Paige. Campaign Finance Regulation under the First Amendment: Buckley v. Valeo and Its Supreme Court Progeny. Congressional Research Service, Library of Congress, July 9, 2003. Available at First Amendment Center Online. www.first amendmentcenter.org/pdf/CRS.campfi2.pdf.
Bruce, Lenny Stand-up comedian Lenny Bruce (1925–1966), a forerunner of comedians and shock jocks such as Richard Pryor, George Carlin, and Howard Stern, was arrested numerous times in the 1950s and 1960s due to the alleged obscene
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During the period when he faced narcotics and obscenity charges, comedian Lenny Bruce gives the victory sign to reporters in April 1963.
content of his nightclub routines. Through his legal struggles, Bruce brought his craft more First Amendment protection and inspired other comedians to challenge social mores and boundaries. Born in Mineola, New York, in 1925 as Leonard Alfred Schneider, Lenny Bruce had a troubled early life. His parents divorced when he was five, and he moved around to live with many different relatives. In 1942 he joined the Navy and served until his discharge in 1946. The next year, he changed his name and performed his first comedy routine, as a mimic in a Brooklyn nightclub. He was arrested in Miami, Florida, in 1951 for impersonating a priest and soliciting funds for a leper colony; although he was not convicted, he admitted later that only a third of the thousands of dollars he collected went to the colony. Early in his career, Bruce wrote screenplays. He also released four albums of his comedy material on the Fantasy Records label, covering wide-ranging topics such as dis-
crimination, abortion, and religion. He eventually appeared on television on the Steve Allen Show and other programs.Yet as his fame grew, so did the edge to his comedy and social commentary, which led to his legal troubles. Bruce was arrested at the Jazz Workshop in San Francisco in 1961 for using sexually explicit language. Although he was acquitted, law enforcement agencies put him under greater scrutiny, resulting in drug arrests in Philadelphia and Los Angeles. In a December 4, 1962, performance at the Gates of Horn club in Chicago, Bruce was arrested for and eventually convicted of violating a state obscenity statute. On appeal, he was defended by distinguished First Amendment scholar and law professor Harry Kalven Jr. In a landmark decision on artistic freedom, the Illinois Supreme Court in People v. Bruce (Ill. 1964) ruled that Bruce’s comedy routine was social commentary and not obscenity. In 1963 Manhattan district attorney Frank Hogan, who was working with Francis Cardinal Spellman, the Archbishop of New York, began to investigate Bruce. Undercover police detectives attended his two 1964 appearances at Cafe Au Go Go in Greenwich Village, and they arrested him on obscenity charges after each show. His trial attracted media attention, and artists including Woody Allen and Norman Mailer testified on his behalf. A three-judge panel convicted him of obscenity and sentenced him to serve four months. After Bruce’s conviction, nightclubs across the country blacklisted him for fear they would face obscenity charges. While he was free on parole during his appeal, Bruce died of a drug overdose in 1966 at age forty. The New York Court of Appeals later overturned his conviction in 1970. Dustin Hoffman portrayed Bruce in Lenny, a 1974 film that depicted the comedian’s personal and legal troubles. Governor George Pataki of New York pardoned Bruce in 2003, calling the state’s first posthumous pardon “a declaration of New York’s commitment to upholding the First Amendment.” See also Censorship; Kalven, Harry, Jr.; Obscenity and Pornography; Satire.
David Schultz
furthe r reading Bruce, Lenny. How to Talk Dirty and Influence People. Chicago: Playboy Publishing, 1967. Collins, Ronald K. L., and David M. Skover. The Trials of Lenny Bruce: The Rise and Fall of an American Icon. Naperville, Ill.: Sourcebook, 2002. www.law.seattleu.edu/fachome/skover/trialsoflennybruce.
Buckley v. American Constitutional Law Foundation (1999) Thomas,William Karl. Lenny Bruce: The Making of a Prophet. New York: Archon Books, 1989.
Bryan, William Jennings William Jennings Bryan (1860–1925) was a prominent progressive politician and American statesman in the late nineteenth and early twentieth centuries. During the final years of his life, his defense of Christian fundamentalism in the famous Scopes monkey trial of 1925 clashed with the First Amendment’s prohibition of state sponsorship of religion. A former member of Congress from Nebraska, Bryan ran for president three times as the Democratic Party’s candidate. In the watershed 1896 election, he advocated the free coinage of silver, an income tax, and the selection of more liberal Supreme Court justices—all progressive demands at the time—but he lost to Republican candidate William McKinley. In his 1900 campaign, Bryan stressed the dangers of imperialism, but he lost again to McKinley. In 1908 he ran unsuccessfully against Republican William H.Taft. After his party won the White House with Woodrow Wilson as its candidate in 1912, Bryan became Wilson’s secretary of state. As a nationalist, Bryan endorsed U.S. control of the Panama Canal and advocated for a strong presence in the Caribbean. He was horrified by the slaughter of war and was able to induce thirty countries to pledge to investigate and discuss their disagreements before going to war. As World War I began in Europe, Bryan argued for maintaining neutrality. He resigned his cabinet position when he perceived that the Wilson administration was heading toward war with Germany. After the war, Bryan had less political power than at any point in the preceding thirty-five years, and he began criticizing American culture and society aggressively. He deplored the consumption of alcoholic beverages and led the “dry” forces in making Prohibition part of the U.S. Constitution. Bryan also believed the nation was becoming increasingly godless, and in championing a “Christian Commonwealth,” he seemed at times to ignore the establishment clause of the First Amendment. Bryan’s greatest concern was the public’s increasing acceptance of Darwinian thought and theories of evolution; he pleaded with state legislatures to pass laws barring public schools from teaching evolution. His efforts were successful in Tennessee, where a state statute made it illegal to teach “any theory which denies the story of the Divine creation
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of man as taught in the Bible and to teach instead that man is descended from a lower order of animals.” When Tennessee high school biology teacher John T. Scopes allegedly broke the law, Bryan joined the prosecution team. Clarence Darrow, one of the era’ s most prominent lawyers, defended Scopes, with assistance from Arthur Garfield Hays, counsel to the American Civil Liberties Union. As the Supreme Court had not yet applied the First Amendment to the states via the Fourteenth Amendment, the presiding judge barred any consideration of whether the Tennessee statute violated the First Amendment. Toward the end of the trial Bryan himself took the stand and faced skillful questioning by Darrow that revealed Bryan’s limited knowledge of modern biological science and of the Bible’s content. Bryan died in 1925, five days after Scopes was convicted and fined.The Tennessee Supreme Court reversed the conviction on a technicality without ruling on the constitutionality of the law. More than forty years later, the U.S. Supreme Court, in a unanimous opinion in Epperson v. Arkansas (1968), ruled that a comparable Arkansas law violated the First Amendment proscription of the state establishment of religion. See also American Civil Liberties Union; Darrow, Clarence; Epperson v. Arkansas (1968); Evolution; Scopes Monkey Trial.
David Ray Papke
furthe r reading Ashby, LeRoy. William Jennings Bryan: Champion of Democracy. Boston: Twayne Publishers, 1987. Kazin, Michael. A Godly Hero:The Life of William Jennings Bryan. New York: Knopf, 2006. Larson, Edward. Summer of the Gods: The Scopes Trial and America’s Continuing Debate over Science and Religion. New York: Basic Books, 1997. Levine, Lawrence W. Defender of the Faith: William Jennings Bryan: The Last Decade. Cambridge, Mass.: Harvard University Press, 1987.
Buckley v. American Constitutional Law Foundation (1999) In Buckley v.American Constitutional Law Foundation, 525 U.S. 182 (1999), the Supreme Court struck down Colorado’s requirements that people circulating petitions to place items on the general ballot must be registered voters, wear identification tags with their names and addresses, and file lengthy monthly disclosures.The decision followed an earlier ruling in Meyer v. Grant (1988), in which the Court struck down
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the state’s prohibition of payments to individuals for circulating petitions. In the majority opinion, Justice Ruth Bader Ginsburg wrote that restricting those who could circulate petitions to registered voters would severely limit the number of such individuals and produce “a speech diminution of the very kind produced by the ban on paid circulars at issue in Meyer.” Although it was relatively easy for those eighteen and older to register, this did “not lift the burden on speech at circulation petition time.” Acknowledging the state’s right to require those circulating petitions to file an affidavit stating their names and addresses, Ginsburg found that requiring them to wear badges “inhibits participation in the petitioning process.” She observed that the Court had struck down a ban on the distribution of anonymous campaign literature in McIntyre v. Ohio Elections Commission (1995). Moreover, “the badge requirement compels personal name identification at the precise moment when the circulator’s interest in anonymity is greatest.” Although the Court had upheld some campaign disclosure provisions in Buckley v. Valeo (1976), it also required “exacting scrutiny” in such cases. Ginsburg argued that there was less danger of “ ‘quid pro quo’ corruption” when money was given to volunteers rather than to candidates and was also less at the petition stage than at the voting stage. She agreed with the circuit court that “listing paid contributors and their income from circulation ‘forces paid circulators to surrender the anonymity enjoyed by their volunteer counterparts.’ ” Justice Clarence Thomas wrote a concurring opinion arguing that the laws at issue should be subject to strict scrutiny and that Colorado’s did not meet this burden. Chief Justice William H. Rehnquist would have upheld the provision requiring petition circulators to be registered voters as a means of preventing fraud and assuring that state citizens decided state issues; he would have also upheld the disclosure requirements, but he thought the badge requirements to be unconstitutional. Justice Sandra Day O’Connor argued for striking down the badge requirements but felt that requiring state citizenship for circulators was “a permissible regulation of the electoral process.” She considered the disclosure requirements only an incidental burden on First Amendment rights. See also Buckley v.Valeo (1976); Campaign Regulation; Ginsburg, Ruth Bader; McIntyre v. Ohio Elections Commission (1995); Meyer v. Grant (1988); Rehnquist,William H.; Thomas, Clarence.
John R.Vile
furthe r reading Modersohn, Jennifer. “Note: Constitutional Law—First Amendment Rights of Direct Democracy Participants versus the State’s Interest in Regulating the Election Process.” University of Arkansas at Little Rock Law Review 22 (1999): 105–123.
Buckley v. Valeo (1976) In the landmark Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court found that statutory limits on campaign contributions were not violations of the First Amendment freedom of expression but that statutory limits on campaign spending were unconstitutional. The decision also upheld disclosure requirements for contributions and expenditures. In 1974 Congress had amended the Federal Election Campaign Act of 1971 to impose greater regulation on federal election campaigns. Senator James L. Buckley of New York led a coalition of legislators, candidates, contributors, parties, and political groups in filing suit against the secretary of the Senate, the clerk of the House of Representatives, and the Federal Election Commission (FEC, which the amendment had established) on the ground that the new provisions were unconstitutional. The suit originated in the U.S. District Court for the District of Columbia, seeking declaratory judgment that the provisions of the act were unconstitutional and asking for an injunction against its enforcement. The district court transferred the case to the Court of Appeals for the District of Columbia, which entered an order en banc remanding the case to the district court for fact-finding and certification of the constitutional issues. On plenary review, a majority of the appeals court mostly rejected the appellants’ constitutional attacks.The appeals court found clear and compelling interests in preserving the integrity of the electoral process, upholding (with only one exception) the substantive provisions of the act with respect to contributions, expenditures, and disclosure and sustaining the constitutionality of the FEC. In a per curiam opinion, the Supreme Court stated that it did not find contribution ceilings to be violations of the First Amendment’s free expression clause. Instead, it voted 6-2 in upholding a $1,000 limit on individual contributions to a single candidate, a $5,000 ceiling for PAC contributions to a single candidate, and a $25,000 limitation on all individual contributions for a given year.The Court also upheld the portion of the statute requiring disclosures for all contributions. In a vote of 7-1, however, the Court found restrictions on the amount of money that could be spent by a candidate
Bumper Stickers an infringement of free expression. As a result, sections 608(a), (c), and (e)(1) were declared unconstitutional. In addition to ruling on campaign spending and contributions, the Court upheld the amendment’s record-keeping and disclosure requirements and creation of the FEC, but struck down the manner in which FEC officials were selected. It also approved the federal financing of presidential election campaigns and allowed the voluntary acceptance of spending limits as a prerequisite for a candidate to receive federal funds. The Court would later uphold aspects of Buckley in Nixon v. Shrink Missouri Government PAC (2000) and Federal Election Commission v. Beaumont (2003). In giving a constitutional stamp of approval to the regulation of federal campaigns, Buckley lent validity to congressional initiatives aimed at restricting soft money in campaigns. These subsequent reforms, however, have not produced the effect desired by campaign finance reformers. See also Campaign Regulation; Federal Election Campaign Act of 1971; Federal Election Commission v. Beaumont (2003); Nixon v. Shrink Missouri Government PAC (2000).
Minton cited a number of decisions indicating that picketing was protected by the free speech provision of the U.S. Constitution, but he also observed that the practice was “more than speech” and could be regulated. In this case, the picketers were attempting to compel behavior that violated state law and state policy, and the injunction against this picketing had been designed specifically to prohibit “coercion of workers by employers.” The decision in Giboney v. Empire Storage and Ice Co. (1949) provided an appropriate precedent for the principle that courts could enjoin pickets that advocated violation of state laws. Minton rejected the argument that the cases should be distinguished because Giboney involved criminal sanctions:“It is not the presence of criminal sanctions which makes a state policy ‘important public law.’ Much public policy does not readily lend itself to accompanying criminal sanctions.” Wise or unwise, the state had the right to prevent pickets from circumventing its laws. In a one-sentence concurring opinion, Justice Hugo L. Black chose to rely solely on the Giboney decision. See also Giboney v. Empire Storage and Ice Co. (1949); Picketing.
Kyle Scott and Matthew A. Kern
furthe r reading Henderson, Harry. Campaign and Election Reform. New York: Facts on File, 2004. Slabach, Frederick G., ed. The Constitution and Campaign Finance Reform: An Anthology. Durham, N.C.: Carolina Academic Press, 1998.
Building Service Employees International Union v. Gazzam (1950) In Building Service Employees International Union v. Gazzam, 339 U.S. 532 (1950), the U.S. Supreme Court upheld an injunction issued by the Supreme Court of Washington against picketers who had sought to force the owner of a small inn into compelling his employees to join a union.The state’s policy was that no one should have to join a union as a condition of employment. Although the employer had allowed union representatives to meet with his employees, they had voted against joining the union, and the employer had resisted the union’s demand that he limit future hires to union members. Justice Sherman Minton wrote the Court’s unanimous opinion (Justice William O. Douglas did not participate).
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John R.Vile
furthe r reading Kahn, Peggy. Picketing: Industrial Disputes,Tactics, and the Law. London: Routledge and Kegan Paul, 1983.
Bumper Stickers Bumper stickers remain a ready outlet for citizens to express themselves on a variety of topics—political candidates, environmental causes, religion, sports teams, just about any subject imaginable.They also present intriguing free expression issues when the government decides to prosecute the displayer of an offensive bumper sticker. A few states have statutes that criminalize the display of obscene bumper stickers. For example, a Tennessee law prohibits the display of “obscene or patently offensive bumper stickers.” And a South Carolina law prohibits the display of any obscene or “indecent” bumper sticker. Violators may be subject to a $200 fine. The constitutionality of criminalizing bumper stickers remains in serious doubt, because it is hard to imagine a bumper sticker that actually meets the legal definition of obscenity. Several courts have invalidated convictions based on the display of profane bumper stickers. For example, in
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Cunningham v. State (1991) the Georgia Supreme Court reversed the conviction of a man whose vehicle displayed a bumper sticker that said “Shit Happens.” The court concluded that “the provision regulating profane words on bumper stickers reaches a substantial amount of constitutionally protected speech and unconstitutionally restricts freedom of expression” under the First Amendment. Similarly, a federal district court in Alabama reversed the conviction of a truck driver whose vehicle bore the bumper sticker “How’s My Driving? Call 1-800-EAT SHIT!” Ruling in Baker v. Glover (1991), the court held that the bumper sticker was protected under the First Amendment “because it has serious literary and political value.”The judge wrote: “Although surely not a likely candidate for a literary prize, Baker’s bumper sticker has serious literary value as a parody of stickers, such as ‘How’s My Driving? Call 1-8002-ADVISE. . . . Baker’s sticker also has political value as a protest against the ‘Big Brother’ mentality promoted by such other bumper stickers that urge the public to report the indiscretions of truck drivers.” In Louisiana, an appeals court reversed the conviction of a former deputy for disturbing the peace—his truck displayed a bumper sticker that said,“Fuck Charles Foti, Jr.,” the sheriff of Orleans parish, for whom Meyers had previously worked. The state appeals court reasoned in Louisiana v. Meyers (1984) that the conviction could not stand in light of the U.S. Supreme Court decision in Cohen v. California (1971), which invalidated the conviction of a man who wore in a California courthouse a jacket bearing the words “Fuck the Draft.” The outcome becomes less clear when the possessor of a bumper sticker is a public employee or member of the armed forces. In Connealy v. Walsh (1976), a federal district court in Missouri ruled that a juvenile court social worker could be fired for refusing to remove a political bumper sticker from her car.The court noted that a partisan political bumper sticker could adversely affect the social worker’s efficiency. However, other courts have sided with public employees who have challenged restrictions on bumper stickers. In Fire Fighters Association v. Barry (1990), a federal district court in the District of Columbia invalidated the fire department’s regulation on bumper stickers, finding that the regulation was overbroad and the viewpoint discriminatory. The court reasoned that the regulation discriminated on the basis of viewpoint because it punished only those who displayed bumper stickers critical of the employer. In Goodman v. Kansas City (1995), a federal district court in Missouri
invalidated a regulation that prohibited city employees from displaying political bumper stickers on their vehicles. The court concluded that “the right to express oneself about issues and candidates at election time is an essential part of our constitutional democracy.” Members of the armed forces and civilians on military bases may well have little First Amendment protection from a bumper sticker regulation. In Ethredge v. Hail (1995), the U.S. Eleventh Circuit Court of Appeals upheld an air force administrative order that barred bumper stickers that “embarrass or disparage” the president. Jesse Ethredge, a civilian aircraft mechanic on an air force base, unsuccessfully challenged the policy in federal court. The Eleventh Circuit granted great deference to military authorities and reasoned that the regulation furthered the military’s interests in maintaining good order and discipline. See also Cohen v. California (1971); Obscenity and Pornography; Profanity; Specialty License Plates.
David L. Hudson Jr.
furthe r reading Guggenheim, Jack Achiezer, and Jed M. Silversmith. “Confederate License Plates at the Constitutional Crossroads: Vanity Plates, Special Registration Organization Plates, Bumper Stickers, Viewpoints, Vulgarity, and the First Amendment.” University of Miami Law Review 54 (2000): 563 –588. Hudson, David L., Jr. “Bumper Stickers: An Overview.” First Amendment Center Online. www.firstamendmentcenter.org/ Speech/personal/topic.aspx?topic=bumper_stickers.
Burdick v. Takushi (1992) In Burdick v. Takushi, 504 U.S. 428 (1992), the Supreme Court upheld Hawaii’s ban on write-in voting, deciding that the state possessed important regulatory interests for the ban. The Court further ruled that such bans do not violate voters’ First Amendment rights of free expression and political association. Alan Burdick, a citizen of Honolulu, wished to write in a candidate’s name in the 1986 election. When he was informed that the state’s electoral laws did not allow write-in votes on primary or general election ballots, he filed a lawsuit against the state director of elections. Burdick alleged this ban restricted his First Amendment expressive and associational rights because it prevented his casting a ballot for his candidate of choice. The federal district court agreed with Burdick, but the Ninth Circuit Court of Appeals reversed, holding that the ban was “justified” in light of the totality of
Burger,Warren E. the state’s election scheme and the availability of various other means that Burdick had to express his opinions. Writing for the six-justice majority, Justice Byron R. White declared that when states impose “reasonable, nondiscriminatory” burdens on individuals’ right to vote in an effort to provide stable and efficient electoral systems, they need only to demonstrate their “regulatory interests are generally sufficient to justify the restrictions.”Applying this standard to Burdick’s claim, the Court ruled the restrictions placed on voters in Hawaii were minimal because the state provided numerous ways for candidates to get their names on the primary ballot. Therefore, White reasoned, the only voters wishing to write in a candidate’s name would be those who had not decided on their candidate until days before the primary. In addition, the state’s interests in preserving the general election ballot for “major struggles,” thwarting soreloser candidacies, and keeping unrestrained factionalism at bay were sufficient to justify the write-in ban. Writing for the three dissenters, Justice Anthony M. Kennedy argued that the write-in prohibition placed significant burdens on Hawaiian voters as candidates, typically Democrats, often run unopposed.Voters may only vote for a candidate they do not like or cast a blank ballot. Kennedy concluded that “at least some voters would cast write-in votes for other candidates if given this option.” The ban, therefore, prohibits voters from participating in the process in a “meaningful manner.” Although Kennedy agreed with the majority’s standard regarding restrictions, he argued that the write-in ban placed significant burdens on voters and that the state’s interests did not rise to the level of “sufficient importance.” See also Anderson v. Celebrezze (1983); Ballot Access; Jenness v. Fortson (1971); Kennedy, Anthony M.; Munro v. Socialist Workers Party (1986); Norman v. Reed (1992); Storer v. Brown (1974); Timmons v.Twin Cities Area New Party (1997);White, Byron R.
Kyle L. Kreider
furthe r reading Logan, Michele. “The Right to Vote-In: Voting Rights and the First Amendment.” Hastings Law Journal 44 (1993): 727–751. Winkler, Adam.“Expressive Voting.” New York University Law Review 68 (1993): 330–388.
Burger, Warren E. In 1969 President Richard M. Nixon appointed Warren Earl Burger (1907–1995) as the fifteenth chief justice of the
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United States, a position Burger held for seventeen years. Burger was born in St. Paul, Minnesota, on September 17, 1907, the fourth of the seven children of railroad cargo inspector and traveling salesman Charles Burger and his wife Katherine. Suffering from polio at the age of eight, Burger spent a year at home, reading autobiographies of judges and attorneys; he knew at a very young age that he wanted to be a lawyer. When Burger reached college age, he turned down an insufficient scholarship from Princeton University and instead enrolled in extension classes at the University of Minnesota in 1925. Two years later, he started to attend night classes at the St. Paul College of Law (now the William Mitchell College of Law), from which he graduated magna cum laude in 1931. He was admitted to the Minnesota Bar the same year. Burger began his legal career in 1931 as an associate at a law firm where he became a partner in 1935.While practicing law, Burger also taught contract law at his alma mater from 1931 to 1953. A lifelong Republican, Burger played an active part in politics. During the 1952 Republican National Convention, he supported the eventual party nominee, Dwight D. Eisenhower, which led to his appointment in 1953 to head what is today the civil division of the Justice Department. President Eisenhower later nominated Burger to the District of Columbia. Circuit Court of Appeals in 1955. Although Burger’s record during his thirteen years on the appeals court was largely conservative, especially with respect to criminal cases, he was considered a surprise choice for the Supreme Court when Nixon nominated him to replace retiring chief justice Earl Warren. Burger, who critics said lacked analytical rigor and great eloquence, brought a commonsense approach to his decisions, and he was a strong advocate for the Court. He worked to balance liberal and conservative extremes on the Court, to the disappointment of hard-line conservatives who had hoped he would take the Court in a more conservative direction. On religious liberty, for example, the Burger Court kept and extended many of the liberal Warren Court’s precedents outlawing state-sponsored religious exercises in public schools.Writing for the Court in Lemon v. Kurtzman (1971), Burger established a three-prong test for determining whether laws or government actions effectively established religion in violation of the First Amendment. The Lemon test permitted laws supporting religion only if they had a secular purpose, had a primary effect that neither advanced nor harmed religion, and did not create an exces-
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sive entanglement between church and state. In one application of the Lemon test, the Burger Court voted 5 to 4 in Stone v. Graham (1980) to invalidate a Kentucky law that required the posting of the Ten Commandments on classroom walls on the grounds that it violated the first prong of the test and thereby the First Amendment. The Burger Court, however, sometimes took a more expansive view of the First Amendment religion clauses. For example, in Widmar v. Vincent (1981) the Court concluded that a state university, which had feared violating the establishment clause, could not exclude religious student groups from meeting in facilities available to secular student organizations. Separately in Wisconsin v. Yoder (1972), Burger wrote the majority decision that rejected compulsory high school education for the Amish, deeming it a violation of their freedom of religion. In First Amendment free expression and association cases, the Burger Court clarified the Court’s position on prior restraints on the press, maintaining that the government must demonstrate a “heavy burden” of justification to impose such restraints. Burger himself was protective of the freedom of the press; for example, he argued in Miami Herald Publishing Co. v. Tornillo (1974) that newspapers should not be required to give space to people who were criticized in their pages and wished to reply, and he struck down a gag order restricting coverage of a criminal case in Nebraska Press Association v. Stuart (1976). However, Burger dissented in New York Times Co. v. United States (1971), when the majority prohibited prior restraint in the publication of the Pentagon Papers. In addressing other issues that often arose under the First Amendment, Burger showed willingness to regulate pornography, dirty words, and disruptive speech in schools. He wrote the Court’s decision articulating standards under which government could prosecute obscenity in Miller v. California (1973) and its companion case, Paris Adult Theatre I v. Slaton. In Bethel School District No. 403 v. Fraser (1986), his last opinion for the Court, Burger wrote that public school officials could punish students for lewd and vulgar speech. Burger retired in order to chair the Commission on the Bicentennial of the United States Constitution. He was delighted that the Constitution’s 200th birthday, September 17, 1987, was also his 80th birthday. After his wife, Elvera Stromberg Burger, passed away in 1994, Burger’s health rapidly deteriorated; he died of congestive heart failure on June 25, 1995. He was laid in state in the Great Hall of the Supreme Court and buried next to his wife at Arlington National Cemetery.
See also Bethel School District No. 403 v. Fraser (1986); Lemon v. Kurtzman (1971); Miami Herald Publishing Co. v.Tornillo (1974); Miller v. California (1973); Nebraska Press Association v. Stuart (1976); New York Times Co. v. United States (1971); Paris Adult Theatre I v. Slaton (1973); Rehnquist,William H.; Stone v. Graham (1980); Warren, Earl; Widmar v. Vincent (1981); Wisconsin v.Yoder (1972).
Salmon A. Shomade
furthe r reading Lamb, Charles M., and Stephen C. Halpern, eds. The Burger Court: Political and Judicial Profiles. Urbana: University of Illinois Press, 1991. Maltz, Earl M. The Chief Justiceship of Warren Burger, 1969–1986. Columbia: University of South Carolina Press, 2000. Yarborough, Tinsley E. The Burger Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-CLIO, 2000.
Burns v. United States (1927) In Burns v. United States, 274 U.S. 328 (1927)—a companion case with Fiske v. Kansas and Whitney v. California—the Supreme Court followed the latter in upholding the California Syndicalism Act and departed from the former in upholding a conviction under this law of a member of the Industrial Workers of the World (IWW) charged with sabotage. In the majority opinion, Justice Pierce Butler relied on Whitney to dismiss charges that the law was “void for uncertainty” and then proceeded to review the instructions to the jury in Burns’s trial.Acknowledging that the judge’s instructions had included job slow downs in his description of sabotage, Butler noted that these words were not intended to have been taken alone, but in the context of other instructions. Butler dismissed objections to another part of the judge’s instructions to the jury on the basis that the matter had not been properly raised in the lower courts. Justice Louis D. Brandeis authored a dissent that rested not on constitutional grounds, but on the basis that the jury instructions had improperly described slowing down at work as one aspect of sabotage and that such faulty instructions should be considered “presumptively prejudicial” rather than dismissed as harmless errors. In Brandenburg v. Ohio (1969), the Court eventually overturned laws like the one at issue in Burns on the ground that they punished speech that did not create a threat of imminent lawless action. See also Brandenburg v. Ohio (1969); Criminal Syndicalism Laws; Fiske v. Kansas (1927);Whitney v. California (1927).
John R.Vile
Burson v. Freeman (1992)
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furthe r reading
Hunter, Nan D. “Escaping the Expression-Equality Conundrum: Toward Anti-Orthodoxy and Inclusion.” Ohio State Law Journal 61 (2000): 1671–1724.
Bittle, Edgar. “The Tinker Case: Reflecting Thirty Years Later.” Drake Law Review 48 (2000): 491–506. Hudson, David L., Jr. The Silencing of Student Voices. Nashville, Tenn.: Freedom Forum, 2003.
Burnside v. Byars (5th Cir. 1966) In Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966), a federal appeals court protected students’ First Amendment rights on school grounds. The decision served as a key precedent for the landmark Supreme Court decision Tinker v. Des Moines Independent Community School District (1969). A controversy arose when students at the all-black Booker T. Washington High School in Philadelphia, Mississippi, began wearing “freedom buttons” provided by the Council of Federated Organizations. Many of the buttons proclaimed “One Man One Vote” and protested racial discrimination in voting and other aspects of public life.The high school principal banned the buttons, saying they had no relevance to the students’ education and “would cause commotion.” Three parents, including Mrs. Margaret Burnside, objected and filed a lawsuit. A federal district court entered an order preventing the principal from punishing the students for wearing the buttons. On appeal, the principal contended that the ban was a reasonable regulation designed to ensure order in the school. A three-judge panel of the Fifth Circuit Court of Appeals unanimously affirmed the district court’s decision and ruled in favor of the students. The appeals court declared that school officials “cannot infringe on their students’ right to free and unrestricted expression as guaranteed to them under the First Amendment to the Constitution, where the exercise of such rights in the school buildings and schoolrooms do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” A few years later, the U.S. Supreme Court cited Burnside three times in its 1969 Tinker decision. The Court used Burnside as its key precedent in establishing the “substantial disruption” test for student expression: school officials may not censor student expression unless they can reasonably forecast that the expression would cause a substantial disruption or material interference with school activities or invade the rights of others. See also Students, Rights of; Tinker v. Des Moines Independent Community School District (1969).
David L. Hudson Jr.
Burson v. Freeman (1992) The Supreme Court in Burson v. Freeman, 504 U.S. 191 (1992), upheld a Tennessee law that provided for a 100-foot “campaign free zone” around the entrance to polling places. It is one of the few cases in which a law limiting speech successfully survived strict scrutiny. Mary Rebecca Freeman had successfully challenged the law in question before the Tennessee Supreme Court as an infringement of First Amendment rights of free speech. Justice Harry A. Blackmun, in the plurality opinion, began by recognizing that the decision in Mills v. Alabama (1966) had invalidated a state law prohibiting an editor from telling electors how they should vote on election day. Tennessee’s law regulated political speech in a public forum based on its content. Blackmun recognized that each of these considerations meant that the Court must subject the law to “exacting scrutiny”: finding a “compelling state interest” that is “narrowly drawn to achieve that end.” Tennessee cited two compelling interests: “protecting the right of its citizens to vote freely for the candidates of their choice” and seeing that elections were “conducted with integrity and reliability.” Blackmun accepted both, tracing the long history of influence and corruption that had preceded the widespread U.S. adoption of the Australian (secret) ballot. Blackmun observed that all fifty states had regulations limiting access to areas surrounding polling places designed to battle “voter intimidation and election fraud.” He further rejected other challenges to the law. The law was not overinclusive because laws simply making intimidation or interference with voting illegal might not prove as effective.The law was not underinclusive on the ground that it only regulated campaigning in the 100-foot zone and did not regulate charitable or commercial solicitations. (The state had the right to limit legislation to immediate problems.) Responding to a criticism that Justice John Paul Stevens made in dissent, Blackmun further denied that his analysis confused “history with necessity,” stating that history clearly validated a zone around polling places. Freeman had challenged the size of the boundary, believing it should be smaller, but Blackmun denied that the state had to show that the
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law was “perfectly tailored” to its objective. Shorter boundaries would constitute “a difference only in degree, not a less restrictive alternative in kind.” Justice Anthony M. Kennedy’s concurring opinion focused on content-based laws. He thought this was a case in which freedom of expression had to yield to accommodate the right to vote. In a separate concurring opinion, Justice Antonin Scalia argued that the sidewalks around polling places were not a “traditional public forum.” He considered the laws to be “a reasonable, viewpoint-neutral regulation of a nonpublic forum.” Justice Stevens’ dissent, joined by Justices Sandra Day O’Connor and David H. Souter, argued that Tennessee had not shown that its law was narrowly tailored to meet the compelling interest needed to limit classic political expression. Stevens noted that other states had successfully achieved the same objective with zones of fifty feet or less and questioned whether the same restrictions should be required outside the polling places as inside. Stevens accused the Court of confusing “history with necessity” and mistaking “the traditional for the indispensable.” Regulations that proved necessary in the late nineteenth century, when politics was far different, were not necessarily needed today. Focusing on the fact that Tennessee allowed speech in the zones not related to campaigning, he thought such contentbased distinctions called for higher scrutiny than the state could meet. Stevens viewed the “hubbub of campaign workers outside a polling place” not simply as a “nuisance” but as “the sound of a vibrant democracy.” A number of subsequent lower court decisions have limited the application of state laws regulating exit polling, in some cases permitting no restrictions on such polling beyond twenty-five feet of the voting booth. See also Compelling State Interest; Content Based; Mills v.Alabama (1966).
John R.Vile
furthe r reading Barlow, Anthony M. “Restricting Election Day Exit Polling: Freedom of Expression vs. the Right to Vote.” University of Cincinnati Law Review 58 (1990): 1003–1021. Schuer, Richard A. “Burson v. Freeman: Where the Right to Vote Intersects with the Freedom to Speak.” Whittier Law Review 15 (1994): 859–896.
Burstyn v. Wilson (1952) In Burstyn v.Wilson, 343 U.S. 495 (1952), the Supreme Court ruled that a New York education law allowing a film to be banned on the basis of it being sacrilegious violated the First Amendment. In The Miracle, a highly controversial Italian film, a peasant girl is seduced by a stranger she imagines to be St. Joseph and then gives birth to a son she believes to be the Christ child.The New York Board of Regents rescinded the license to show the film, finding it “sacrilegious.” Joseph Burstyn, the film’s distributor, challenged the ruling. The New York Appellate Division upheld the decision, and the New York Court of Appeals affirmed.The Supreme Court unanimously reversed. Justice Tom C. Clark’s opinion for the Court was the first concerning film censorship since Mutual Film Corp. v. Industrial Commission of Ohio (1915), which held that motion pictures were not protected expression, but merely theatrical business products. Clark observed that the constitutional landscape had changed since 1915. In particular, the decision in Gitlow v. New York (1925) had made the First Amendment’s speech and press guarantees applicable to states by means of the Fourteenth Amendment’s due process clause. He also observed that motion pictures were increasingly used to reflect and influence public opinion and had thus changed so substantially that they could no longer be bound by Mutual Film. Clark rejected the arguments supporting censorship of movies: that movies entertained as well as informed, that they were a large-scale business conducted for private profit, and that they possessed a great capacity for evil. Rather, motion pictures, Clark held, were a significant medium for the communication of ideas protected by the First Amendment. Clark then examined the film licensing scheme of New York that required government permission to show motion pictures. The Court in Near v. Minnesota (1931) had held prior restraint permissible only in exceptional circumstances and asserted that government bore a heavy burden in demonstrating the need for it. Clark concluded that New York had not met this burden. Granting a government censor unlimited control over motion pictures and permitting the censor to suppress real or imagined attacks upon a religious doctrine was not, Clark argued, a legitimate interest of government. In a lengthy concurring opinion, Justice Felix Frankfurter focused on the term sacrilegious. As a consequence of his
Butterworth v. Smith (1990) analysis, he determined sacrilegious to be an unconstitutionally vague statutory term, pointing to a violation of due process because it neither provides notice of illegal behavior nor provides the courts with a standard to judge administrative action. See also Blasphemy; Censorship; Clark,Tom C.; Frankfurter, Felix; Gitlow v. New York (1925); Mutual Film Corp. v. Industrial Commission of Ohio (1915); Narrowly Tailored Laws; Near v. Minnesota (1931); Overbreadth; Prior Restraint;Vagueness.
William Crawford Green
furthe r reading Randall, Richard S. Censorship of Movies:The Social and Political Control of a Mass Medium. Madison: University of Wisconsin Press, 1970. Westin, Alan F. The Miracle Case: The Supreme Court and the Movies. Inter-University Consortium Case Program Series, no. 68. Indianapolis, Ind.: Bobbs-Merrill, 1961.
Butler v. Michigan (1957) The Supreme Court in Butler v. Michigan, 352 U.S. 380 (1957), unanimously held that a Michigan law violated the due process clause of the Fourteenth Amendment in making it illegal to make available to the general public printed material thought to be obscene because of its potentially harmful influence on youths. Section 343 of the Michigan penal code made it illegal to sell to an individual “any book, pamphlet, or other printed paper or other thing, containing obscene language, or obscene prints, pictures, figures or descriptions tending to the corruption of the morals of youth, or any newspapers, pamphlets or other printed paper devoted to the publication of criminal news, police reports, or criminal deeds.”Alfred E. Butler was convicted of violating two parts of the law after he sold a book to a police officer. At Butler’s trial, the judge found that the book in question contained “obscene, immoral, lewd, lascivious language, or descriptions, tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth.” Justice Felix Frankfurter, who announced the decision in Butler, asserted that the state had too broadly defined its power in attempting to promote the general good. He found it disturbing that in trying to protect children, the Michigan law limited grown men and women from accessing materials that may be appropriate for them.This would result in the adult population of Michigan only reading material fit for
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children. Frankfurter thus concluded that the statute was not reasonably restricted to the evil it was meant to stop. The Court ruled, therefore, that the Michigan law’s overbreadth arbitrarily curtailed freedom of press—an individual liberty protected by the due process clause of the Fourteenth Amendment—rendering it unconstitutional. See also Frankfurter, Felix; Obscenity and Pornography;Winters v. New York (1948).
Tom McInnis
furthe r reading Hixson, Richard F. Pornography and the Justices:The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996. Kauper, Paul G. Civil Liberties and the Constitution. Ann Arbor: University of Michigan Press, 1962. Schauer, Frederick F. The Law of Obscenity. Washington, D.C.: Bureau of National Affairs, 1976.
Butterworth v. Smith (1990) In Butterworth v. Smith, 494 U.S. 624 (1990), the Supreme Court ruled that states may not prohibit grand jury witnesses from disclosing their testimony after the grand jury term has expired. Such a prohibition, the Court said, violates witnesses’ First Amendment rights. Michael Smith was a reporter for the Charlotte HeraldNews in Charlotte County, Florida.While writing a series of articles, Smith gathered information concerning alleged wrongful conduct in the county’s state attorney’s office and sheriff ’s department. He was called to testify before a Florida grand jury investigating those improprieties. After the grand jury ended its investigation, Smith desired to write about both the information he had obtained and his grand jury experience.At the time, however, a Florida statute prohibited him from disclosing his grand jury testimony, so he filed a lawsuit in a U.S. district court, charging that the statute violated his free speech rights. The trial court found that the ban was necessary to protect the proper functioning of grand juries. On appeal, the Eleventh Circuit Court of Appeals reversed, holding that Florida’s interests in protecting its grand juries’ confidentiality were outweighed by witnesses’ First Amendment rights. The Supreme Court unanimously affirmed. Writing for the Court, Chief Justice William H. Rehnquist agreed that most of a state’s interests in grand jury secrecy diminish when the jury completes its term. Therefore, while a state can prohibit witnesses from revealing their testimony while
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Byrne v. Karalexis (1969) (1971)
the grand jury is sitting, it cannot silence them after the investigation is completed. In reaching its decision, the Court carefully considered a state’s interests in grand jury secrecy. The Court recognized that these include making it easier for reluctant witnesses to come forward voluntarily with the knowledge that the subject of the investigation will not know of the witness’s testimony, and encouraging honest testimony, as unknown witnesses will not be subject to harassment or retribution. In addition, secrecy minimizes the risk that persons about to be indicted will flee or attempt to influence grand jurors’ voting on the indictment. Confidential proceedings also protect persons who are investigated and ultimately exonerated. The Court noted that the state’s interests in protecting and encouraging witnesses, while important, are adequately protected because each witness reserves the right to decide whether to disclose his or her own testimony. The interests related to looming indictments cease to exist. According to the Court, the state’s only interest to survive a grand jury’s term is the desire to protect the reputation of those who are exonerated. When weighed against the First Amendment rights of witnesses, however, the reputational interest is insufficient to support a perpetual ban. “Absent exceptional circumstances,” Rehnquist wrote, “reputational interests alone cannot justify the proscription of truthful speech.” The Court further held that an automatic, permanent ban on witnesses’ speech increased the risk that grand jury subpoenas would be used for improper purposes. Rehnquist noted, “The potential for abuse of the Florida prohibition, through its employment as a device to silence those who know of unlawful conduct or irregularities on the part of public officials, is apparent.”
Byrne v. Karalexis (1969) (1971) In Byrne v. Karalexis, 396 U.S. 976 (1969), the Supreme Court stayed a temporary injunction that a federal district court had issued against further prosecutions of theater owners pending appeal of a state obscenity conviction for showing the film I Am Curious (Yellow). In dissent, Justice William O. Douglas argued that the injunction would not interfere with the criminal conviction already obtained; he also thought that the threat of additional prosecutions jeopardized free speech. He further used the occasion to argue that the First Amendment protected obscenity, not because it was good, but because “we cannot be faithful to our constitutional mandate and allow any form or shadow of censorship.” Douglas believed that the First Amendment protected “obscenity,” along with “sacrilege,” “malice,” or “false, scandalous, and malicious writings.” Justice Hugo L. Black agreed with Douglas that the Constitution prohibited such prosecutions, but he also thought that it had been inappropriate for a federal court to step in to enjoin a pending state criminal prosecution. In another opinion, Justice Potter Stewart also expressed the view that such intervention was inappropriate. In Byrne v. Karalexis, 401 U.S. 216 (1971), the Court vacated the lower court judgment and remanded the case for reconsideration in light of its opinions rendered the same day in Younger v. Harris and Samuels v. Mackell, which involved instances of federal courts intervening in pending state prosecutions. Justice William J. Brennan Jr., joined by Justices Byron R.White and Thurgood Marshall, would have reversed the district court judgment rather than remand the case.
See also Branzburg v. Hayes (1972); Landmark Communications, Inc. v.Virginia (1978); Miller, Judith; Rehnquist,William H.
See also Black, Hugo L.; Brennan,William J., Jr.; Douglas,William O.; Obscenity and Pornography; Samuels v. Mackell (1971);Younger v. Harris (1971).
Douglas E. Lee
John R.Vile
furthe r reading
furthe r reading
Natoro, John M. “Grand Jury Secrecy: Prohibitions on Witness Disclosure.” NU Forum 2 (1997): 29–49.
Mason, David. “Note: Slogan or Substance? Understanding ‘Our Federalism’ and Younger Abstention.” Cornell Law Review 73 (May 1988): 852–881.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
Cable Communications Policy Act of 1984 As an amendment to the Communications Act of 1934, the Cable Communications Policy Act of 1984 formally gave the Federal Communications Commission (FCC) jurisdiction over the cable television industry.The act subsequently elicited several First Amendment challenges for allegedly interfering with the expressive rights of the cable industry. The 1984 act codifies many of the regulations governing cable that had developed during the 1960s. One result was that the FCC no longer has to justify its regulation of cable television based on cable’s interface with over-the-air, broadcast television.The four most significant provisions of the act affect franchises, cable rates, public, educational, and government channels, and programming. State and local governments received power to award franchises and to determine the qualifications necessary for systems to be awarded local franchises. State or local governments can revoke an operator’s franchise or deny renewal of it if the operator fails to comply substantially with the existing agreement, provides inferior service, proves to be legally or technically unqualified, or fails to meet the future needs of the community. The act allows regulation of rates only for basic cable service, and then only if no effective competition exists. Cable operators claimed a victory because, given competition from other communication technologies, they perceived rate regulation as unnecessary. Those who opposed the provision argued that cable operated as a monopoly. The 1984 act requires cable operators to set aside channels for public, educational, and governmental use, common-
ly known as PEG channels.The cable operator exercises little control over the content on these channels, which are used for a wide variety of programming, including but not limited to public meetings, delivery of instructional material, and student-produced television programs. Although the cable act includes a provision punishing the transmission of obscenity over the cable system, it gives cable operators First Amendment protection for program content (unlike over-the-air broadcasters). State and local government franchisors may specify the number and types of channels and authorize public access, but cannot require specific program services. The Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996 revised the Cable Communications Policy Act of 1984 and the Communications Act of 1934.The primary effect of these changes was to increase competition. Although cable companies could now offer telephone services, telephone companies could also offer cable television.The deregulation of ownership rules set forth by the Telecommunications Act of 1996 encouraged mergers and buyouts of cable companies. See also Cable Television Consumer Protection and Competition Act of 1992; Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996); Federal Communications Commission;Telecommunications Act of 1996.
Roger Heinrich
furthe r reading Craft, John E., Frederic A. Leigh, and Donald G. Godfrey. Electronic Media. Belmont, Calif.:Wadsworth Thomson Learning, 2001. Creech, Kenneth C. Electronic Media Law and Regulation. 5th ed. Boston: Focal Press, 2007.
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Cable Television Consumer Protection and Competition Act of 1992 The Cable Television Consumer Protection and Competition Act of 1992 amended the Cable Communications Policy Act of 1984 (which had in turn amended the Communications Act of 1934). The 1992 act marked a return to regulation in the areas of cable rates, services, and programmer access; the establishment of further protection and provision for public access channels; and the extension of obscenity regulations to include cable and public access channels. The 1984 cable act had deregulated much of cable broadcasting, and court decisions had further weakened regulations. An alliance of interest groups comprised of programmers, consumer groups, public interest advocates, and some cable companies opposed this state of affairs, arguing that they were being placed at a competitive disadvantage by deregulation or that the act had neglected abiding public interests. These groups successfully lobbied for reforms and re-regulation. The 1992 act recognized that cable had become the primary delivery system for broadcast programming and that most customers had little freedom of choice. It also put independent programmers and stations, as well as ultra high frequency (UHF) technologies, at a disadvantage. Both groups sought protection against excessive market power. Although the 1992 bill affirmed the primacy of the market approach, it instituted such reforms as rate regulation and the creation of a basic tier of local channels and PEG channels at a relatively inexpensive rate. The act also reinstituted must-carry regulations that had been overturned on First Amendment grounds in Quincy Cable RV, Inc. v. Federal Communications Commission (D.C. Circuit 1985). In addition to the requirement that franchisors require cable companies to provide access channels, the 1992 act also gave franchisors the ability to require facilities financial support (section 451 (a) (4) (B)). It legislated that satellite broadcasters set aside 4 to 7 percent of channel capacity for educational or informational programming. The 1984 act had relieved cable companies of their obligation to regulate obscene programming. Section 10(c) of the 1992 act allowed the Federal Communications Commission (FCC) to establish regulations for such content and to hold cable operators responsible for it. Several court cases challenged the obscenity provisions and the requirement for facilities and financial
support for PEG channels. In Daniels Cablevision v. United States (D.D.C. 1993), a federal district court upheld PEG access provisions against First Amendment challenges as valid regulatory requirements based on “affording speakers with less market appeal access to the nation’s most pervasive video distributions technology.” Courts have generally held that PEG is content neutral and enables a broad range of speakers to access audiences that would otherwise never hear them. The obscenity challenge, however, has not been completely upheld. The Daniels decision rejected the argument that the obscenity provision would result in self-censorship and fear of controversial programming among timid operators. It held that obscenity is a constitutional issue that applies to all equally and from which no one can be granted immunity. In Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996), the Supreme Court ruled that indecent programs could be censored on leased access, but not on PEG, channels. See also Cable Communications Policy Act of 1984; Communications Act of 1934; Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996).
Brian Caterino
furthe r reading Aufderheide, Patricia. Communications Policy and the Public Interest. New York: Guilford 1999. Linder, Laura. Public Access Television: America’s Electronic Soapbox. Westport, Conn.: Praeger, 1999. Paglin, Max D., ed. A Legislative History of the Communications Act of 1934. New York: Oxford University Press, 1989. Paglin, Max D., Joel Rosenbloom, and James R. Hobson, eds. The Communications Act: A Legislative History of the Major Amendments, 1934–1996. Silver Spring, Md.: Pike and Fischer, 1999.
Cafeteria Employees Union v. Angelos (1943) In Cafeteria Employees Union v. Angelos (1943), the Supreme Court ruled that a New York state court had violated the free-speech rights of peaceful picketers in issuing two broad injunctions against them. One case involved picketers outside a cafeteria owned by Angelos and others, who operated without the help of additional employees. The other involved an incident outside another cafeteria in which picketers were said to have insulted customers. In both cases, the picketers accused the owners of being unfair to organized labor.
California v. LaRue (1972) In the opinion for the unanimous Court, Justice Felix Frankfurter observed that the decision in Senn v.Tile Layers Protective Union (1937) had established that the constitutional guarantee of freedom of speech protected the rights of individuals to make public “the facts of a labor dispute.” American Federation of Labor v. Swing (1941) and Baker and Pastry Drivers and Helpers Local v. Wohl (1942) had further established the right of workers to use pickets to seek public support. The pickets at issue in Cafeteria Employees were peaceful, and although marchers used the terms unfair and fascist, Frankfurter concluded that “loose languages or undefined slogans . . . are part of the conventional give-and-take in our economic and political controversies.” He also stated that Cafeteria Employees differed from Milk Wagon Drivers Union v. Meadowmoor Co. (1941), in which the Court had upheld an injunction in a situation in which abuses by picketers were more widespread. Frankfurter stressed that the right to picket cannot be “taken away merely because there may have been isolated incidents of abuse falling far short of violence occurring in the course of that picketing.” See also American Federation of Labor v. Swing (1941); Bakery and Pastry Drivers and Helpers Local v.Wohl (1942); Frankfurter, Felix; Picketing; Senn v.Tile Layers Protective Union (1937).
John R.Vile
furthe r reading Kahn, Peggy. Picketing: Industrial Disputes,Tactics, and the Law. London: Routledge and Kegan Paul, 1983.
Cain v. Kentucky (1970) In Cain v. Kentucky, 397 U.S. 310 (1970), the Supreme Court reversed the Kentucky appeals court decision in Cain v. Kentucky (S.W. 1969), which had found the movie I, A Woman obscene. It is one of numerous per curiam decisions prior to the Court’s obscenity ruling in Miller v. California (1973), in which it overturned state convictions simply by citing its opinion in Redrup v. New York (1967). In dissent, Chief Justice Warren E. Burger argued that the Court “should not inflexibly deny to each of the States the power to adopt and enforce its own standards as to obscenity and pornographic materials.” Justice John Marshall Harlan II also dissented. He said that he would “unhesitatingly reverse the conviction,” for reasons he stated in Roth v. United States (1957), if the case involved a regulation by the national government; as per his dissenting opinion in Jacobellis v. Ohio (1964), however, he thought states should
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have greater leeway. He could not say that in the case of Cain “Kentucky has exceeded the constitutional speed limit in banning public showing of the film within its borders.” In Walker v. Ohio (1970), another case in which a per curiam plurality reversed a pornography conviction on the basis of Redrup, Chief Justice Burger reiterated his dissent in Cain. He wrote, “I find no justification, constitutional or otherwise, for this Court’s assuming the role of a supreme and unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before it without regard to the findings or conclusions of other courts, state or federal.” Harlan also dissented, citing precedents that he had cited in the earlier case. See also Burger,Warren E.; Harlan, John Marshall, II; Jacobellis v. Ohio (1964); Miller v. California (1973); Obscenity and Pornography; Redrup v. New York (1967); Roth v. United States (1957).
John R.Vile
furthe r reading Hixson, Richard F. Pornography and the Justices:The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996.
California v. LaRue (1972) The Supreme Court held in California v. LaRue, 409 U.S.109 (1972), that given the states’ broad authority to regulate alcoholic beverages under the Twenty-first Amendment, California provisions regulating explicitly sexual live entertainment and films presented in establishments licensed to sell liquor did not, on their face, violate the First or Fourteenth Amendments. In a later case, Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee County (11th Cir. 2003), LaRue was described as the Court’s first decision recognizing “the existence of First Amendment freedom of expression rights in the adult entertainment context.” The decision spawned one concurrence and three dissents. Justice Potter Stewart, in concurrence, noted that the Twenty-first Amendment broadly delegates the states’ power to “specify the times, places, and circumstances where liquor may be dispensed.” Justice Thurgood Marshall offered a comprehensive dissent, arguing that the regulations were overly broad and imprecise and therefore unconstitutional. Justice William O. Douglas dissented on jurisprudential grounds, reasoning that California needed time to give the “generalized provisions of the rules . . . particularized meaning.” Justice William J. Brennan Jr. dissented separately to
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California Democratic Party v. Jones (2000)
express his view that the state imposed an unconstitutional condition on the grant of an alcohol license. Each justice noted that the case involved a facial challenge only. Justice William H. Rehnquist wrote the Court’s opinion for six justices.Though acknowledging that “at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression,” the Court found it critical that the state had not forbidden these performances across the board but had “merely proscribed such performances in establishments that it licenses to sell liquor by the drink.” Later, in New York State Liquor Authority v. Bellanca (1981), the Court would hold that the Twenty-first Amendment authorizes states to regulate nude dancing in places serving alcoholic beverages. The reasoning behind LaRue and Bellanca, however, was in turn “disavowed” in 44 Liquormart, Inc. v. Rhode Island (1996), in which the Court overturned a law banning all advertising of liquor prices. See also City of Newport v. Iacobucci (1986); Dancing, Nude; 44 Liquormart, Inc. v. Rhode Island (1996); New York State Liquor Authority v. Bellanca (1981); Rehnquist,William H.
Cary Wiggins
furthe r reading Gerard, Jules B. Local Regulation of Adult Businesses. Rev. ed. Eagan, Minn.:Thompson West, 2004. Sec. 7.03.
California Democratic Party v. Jones (2000) In California Democratic Party v. Jones, 530 U.S. 567 (2000), the Supreme Court declared unconstitutional a state law that changed California political primaries into “open” primaries, in which individuals of any political affiliation can vote. The Court based its decision on the First Amendment freedom of association. Political parties generally have broad political discretion and freedom to govern their internal affairs. For example, in Tashjian v. Republican Party of Connecticut (1986), the Court invalidated a state primary law that prevented a party from inviting independent voters to participate in its primaries. Yet in other cases, for example, Smith v. Alwright (1944), the Court limited parties’ use of racial criteria. Jones presented the Supreme Court with the issue of whether political parties must open their primaries to anyone who wants to participate.
Until 1996 California had had a “closed” primary system, in which individuals can participate only if they have indicated a party affiliation when they register to vote. In other words, to vote in the Republican primary, an individual would need to be registered as affiliated with the Republican Party. In 1996 California voters adopted Proposition 198, creating an “open” primary in their state. The law provided that “[a]ll persons entitled to vote, including those not affiliated with any political party, shall have the right to vote . . . for any candidate regardless of the candidate’s political affiliation.” The California Democratic Party, the California Republican Party, the Libertarian Party of California, and the Peace and Freedom Party all challenged the law as a violation of their First Amendment rights.A federal district court ruled that the law’s infringement upon the associational rights of the parties was not severe enough to invalidate the law. The Ninth Circuit Court of Appeals affirmed, but the Supreme Court reversed in a 7-2 vote. Writing for the Court, Justice Antonin Scalia stated that although the government may regulate some of the structure of parties, the issue of how and whom parties select to be their candidates is not wholly a public affair. According to the Court, the First Amendment protects the internal affairs of a party from state regulation. Drawing upon Tashjian and other cases, Scalia noted that freedom of association included the choice of whom to associate with as well as whom not to associate with, leaving parties free to decide whether to open up their primaries to outsiders and to control the selection of their nominees.The determining of a candidate for the party is an important policy decision that the First Amendment protects. Therefore Proposition 198 violated the associational rights of parties. In dissent, Justices John Paul Stevens and Ruth Bader Ginsburg agreed with the lower courts that the First Amendment rights of parties were not absolute. Drawing upon Alwright and other such cases, they contended that elections and primaries were not private affairs and could be subject to such regulations as Proposition 198. Laws that allow for open primaries do not inhibit freedom of association but instead facilitate it by opening more avenues for political participation. Despite the importance of the Jones decision in defending the freedom of association rights of political parties against government regulation, in Washington State Grange v. Washington State Republican Party (2008) the Court upheld a blanket primary system. In contrast to California, in Washington state the primary system allows voters to select
Cameras in the Courtroom their choice for each office regardless of their or the candidates’ party affiliation; the overall top vote getters for each office are then put on the general ballot. Writing for the Court, Justice Clarence Thomas noted that under the Washington system, the primaries do not determine the party nominees (unlike under the California system). Thus, Washington’s blanket primary does not interfere with party associational rights as did the California process. In light of the Washington State Grange decision, states may be permitted to regulate internal party affairs more than Jones seems to have suggested. See also Anderson v. Celebrezze (1983); Campaign Regulation; Eu v. San Francisco County Democratic Central Committee (1989); Munro v. Socialist Workers Party (1986); Norman v. Reed (1992); Political Parties; Scalia, Antonin; Tashjian v. Republican Party of Connecticut (1986);Timmons v.Twin Cities Area New Party (1997).
David Schultz
furthe r reading Hasen, Richard L. The Supreme Court and Election Law. New York: New York University Press, 2003.
California Motor Transport Co. v. Trucking Unlimited (1972) In California Motor Transport Co. v.Trucking Unlimited, 404 U.S. 508 (1972), the Supreme Court decided that the First Amendment right of petition did not necessarily shield companies from antitrust laws when they engaged in concert to deter others from “free and unlimited access” to courts and agencies. Writing for five members of the Court, Justice William O. Douglas reviewed the civil action that one group of highway carriers had brought against another under the Clayton Act of 1914 for allegedly conspiring to monopolize trade and commerce in violation of antitrust laws. Citing Eastern Railroad Presidents Conference v. Noerr Motor Freight (1961), Douglas observed that antitrust action could not be brought against petitioning actions to political, responsive branches of government because such actions are protected by the First Amendment petition clause. Such rights equally extend to administrative agencies and courts. In accordance, the rights of petition and association allow groups “to advocate their causes and points of view respecting resolution of their business and economic interests vis-á-vis their competitors.”The Court, however, pointed out in Noerr that at times such rights had been used as a “mere sham to cover what is actu-
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ally nothing more than an attempt to interfere with the business relationship of a competitor and the application of the Sherman Act would be justified.” Because the instant case involved charges that highway carriers had not only sought to influence public officials but that they had done so by seeking “to bar their competitors from meaningful access to adjudicatory tribunals and to usurp that decisionmaking process,” Douglas agreed that the lower court should ascertain whether said charges were true. Wrote Douglas,“Misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process.” Citing Associated Press v. United States (1945), he further observed,“Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.” Justices Lewis F. Powell and William H. Rehnquist did not participate in the decision. Potter Stewart wrote a concurring opinion, joined by William J. Brennan Jr. Stewart saw no difference between attempts to influence the elected branches and administrative or judicial bodies. He feared the decision watered down the Noerr precedent but agreed that petitioners should be entitled the opportunity to prove “that the real intent of the conspirators was not to invoke the processes of the administrative agencies and courts, but to discourage and ultimately to prevent the respondents from invoking those processes.” See also Associated Press v. United States (1945); Douglas,William O.; Eastern Railroad Presidents Conference v. Noerr Motor Freight (1961); Noerr-Pennington Doctrine; Stewart, Potter.
John R.Vile
furthe r reading Tsai, Robert L. “Conceptualizing Constitutional Litigation as Government Expression: A Speech-Centered Theory of Court Access.” American University Law Review 51 (2002): 835–904.
Cameras in the Courtroom Placing cameras in the courtroom has historically stirred controversy. Opponents and proponents have variously invoked First Amendment provisions guaranteeing the public’s right to public information, the Sixth Amendment’s rights to a fair and public trial, and the Fourteenth Amendment’s due process protection. Broadcasters have waged perennial battles, petitioning the courts to allow them to record judicial proceedings. Concern
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about media coverage of trials stems in part from past media trial circuses. Not until State v. Hauptmann (N.J. 1935) were cameras in the courtroom significantly challenged. Some 700 members of the media, including 120 cameramen, attended the trial of Bruno Hauptmann, who had been charged with the kidnapping and murder of aviator Charles Lindbergh’s baby son. Messenger boys ran about, and unruly photographers climbed on witness tables to get shots, blinding witnesses with their flash bulbs.Although the New Jersey Court of Appeals rejected Hauptmann’s allegation that the presence of courtroom cameras denied him a fair trial, the American Bar Association in 1937 and again in 1952 amended canon 35 of its Canons of Judicial Ethics to forbid photographic, television, and other broadcast coverage of trials. In the 1960s,Texas ignored canon 35 and gave presiding judges broad discretion in allowing cameras in the courtroom. Texas subsequently produced the landmark Estes v. Texas (1965), which served for almost twenty years as the basis for denying such access. Allegations of massive swindling against financier Billie Sol Estes had attracted national media attention. The trial judge permitted television and photographic coverage of the pretrial and trial proceedings. The Supreme Court overturned Estes’s conviction on the ground that the camera coverage so distracted trial participants as to deprive him of a fair trial.The following year, in Sheppard v. Maxwell (1966), the Court ordered a retrial of Dr. Samuel H. Sheppard, whose trial for the murder of his wife was also marred by extensive media coverage. In the late 1970s, Florida began a pilot program in which electronic media covered judicial proceedings in all its state courts without the consent of trial participants. This led to Chandler v. Florida (1981). In this case, two Miami Beach police officers were exposed by an amateur radio operator who overheard and recorded conversations between them over their walkie-talkies during their commission of a burglary. The case attracted national media attention. The defendants, objecting to televised coverage of their trial, sought to have Florida’s experimental program declared unconstitutional. Despite their attempts to prevent the coverage, a single television camera was placed in the courtroom during the state’s presentation of its case; no camera was present when the defense presented its evidence. Only a brief part of the trial, the prosecution’s presentation, was actually telecast. After being convicted, the defendants asserted that the television coverage had deprived them of a fair and impartial trial.The Supreme Court held that absent a constitutional prohibition of such coverage, states should
be allowed to experiment with it even if a defendant objected. Furthermore, it ruled that barring a showing that coverage is prejudicial to a fair trial, an absolute ban on news reporting and broadcasting of trials could not be justified. This ruling, while not requiring states to admit cameras into their courtrooms, went a long way toward putting to rest the fears expressed in Estes respecting the influence of cameras on the fairness of trials. Although defendants have a right to a public trial, the courts have yet to rule that they have a right to a televised trial. The Judicial Conference and most federal judges have generally rejected television and camera coverage of court proceedings, arguing that live television broadcasts, in particular, distract trial participants, prejudice trial outcomes, and thus deprive defendants of fair trials. Some witnesses fidget nervously before cameras, possibly harming their credibility with jurors. Opponents also argue that the broadcasting of trials leads lawyers to grandstand for the camera, diminishing courtroom decorum. Broadcasters counter that today’s technology is no longer disruptive and that the courts as well as the general public benefit from broadcasts of court proceedings. They assert that such broadcasts educate the public and allow them to see how justice is (or perhaps is not) carried out.They claim that under the watchful eyes of thousands of viewers, the judge, attorneys, and jurors are more likely to pay careful attention to the facts of a case and be on their best behavior, helping to ensure fairer trials. State court judges have traditionally been more open to broadcaster arguments than have federal judges. As of 2006, all fifty states allowed some type of camera presence in their courtrooms. Fifteen states moderately restricted coverage, and nineteen had a more liberal approach. Sixteen states had rules that disallowed most coverage. Starting in 1997, various members of Congress introduced “sunshine in the courtroom” acts to give presiding judges in federal courts the discretion to permit camera coverage.Two federal appellate circuits currently allow camera coverage in civil appellate proceedings. So far, most federal judges have declined to voluntarily permit cameras in their courts. Renewed debate on cameras in the courtroom followed in the wake of Court TV’s gavel-to-gavel coverage of the trial of former football star O. J. Simpson—for the 1994 murders of his ex-wife Nicole Brown Simpson and one of her acquaintances, Ron Goldman—and the controversy surrounding the jury verdict. Judges, asserting a desire to avoid
Cammarano v. United States (1959) a media feeding frenzy, banned television cameras from their courtrooms in a number of high-profile trials, including that of Timothy McVeigh, on the charge of bombing the Federal Building in Oklahoma City; Susan Smith, for the murder of her children; Richard Allen Davis, for the murder of Polly Klass; and Scott Peterson, for the murder of his wife, Laci Peterson. Such precedents leave the status of future coverage in doubt. See also Chandler v. Florida (1981); Estes v. Texas (1965); Sheppard v. Maxwell (1966).
Ruth Ann Strickland
furthe r reading Alexander, S. L. Media and American Courts:A Reference Handbook. Santa Barbara, Calif.: ABC-CLIO, 2004. Cohn, Marjorie, and David Dow. Cameras in the Courtroom: Television and the Pursuit of Justice. Jefferson, N.C.: McFarland and Co., 1998. Hudson, David L. Open Government: An American Tradition Faces National Security, Privacy, and Other Challenges. Philadelphia: Chelsea House Publishers, 2005. Johnson, Jeffrey S. “The Entertainment Value of a Trial: How Media Access to the Courtroom Is Changing the American Judicial Process.” Villanova Sports and Entertainment Law Journal 10 (2003): 131–152. Nasheri, Hedieh. Crime and Justice in the Age of “Court TV.” New York: LFB Scholarly Publishing, 2002. Radio-Television News Directors Association and Foundation. “Cameras in the Court: A State-by-State Guide.” www.rtnda.org/ pages/media_items/cameras-in-the-court-a-state-by-stateguide55.php. Sarner, Joshua. “Justice, Take Two: The Continuing Debate over Cameras in the Courtroom.” Seton Hall Constitutional Journal 10 (Summer 2000): 1053–1083. Strickland, Ruth Ann, and Richter H. Moore Jr. “Cameras in State Courts: A Historical Perspective.” Judicature 78 (November– December 1994).
Cameron v. Johnson (1965) (1968) In Cameron v. Johnson, 381 U.S. 741 (1965) and 390 U.S. 611 (1968), the Supreme Court first remanded the case—concerning allegations that a Mississippi anti-picketing statute was overly broad and was designed to discourage civil rights activities—and then affirmed a lower court’s order for injunctive relief. In 1965 the Supreme Court had remanded the case after a federal district court refused to grant an injunction against the law, which made it unlawful for individuals engaged in picketing “to obstruct or interfere with free ingress or egress to and from any public premises, State property, county or municipal courthouses, city halls, office buildings, jails, or
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other public buildings or property.”The Court said the district court needed to reconsider the case in light of Dombrowski v. Pfister (1965), which permitted an injunction against subversion laws in Louisiana that were being used to suppress First Amendment activities. Justice Hugo L. Black authored a dissenting opinion joined by John Marshall Harlan II and Potter Stewart. Black argued that the law was not overly broad, vague, or unconstitutional on its face. He also did not think that Dombrowski applied, and therefore saw no reason for the district court to reconsider its decision in light of this precedent. He noted that Cox v. Louisiana (1965) had upheld state power to regulate picketing and parading “even though [they are] entwined with expression and association.” States had the right to maintain “an atmosphere of peace and quiet.” In a separate dissent, Justice Byron R.White also questioned the applicability of the Dombrowski precedent and denied that the Mississippi law seemed overly broad or vague. The case reappeared before the Supreme Court in 1968. Justice William J. Brennan Jr. wrote the opinion for the 7-2 decision affirming a lower court’s dismissal of injunctive relief. The Court agreed that Dombrowski did not warrant invalidation of the Mississippi law, which was understood to apply only to blocking access to public facilities. In a dissenting opinion, Justice Abe Fortas, joined by William O. Douglas, agreed that the law was not facially unconstitutional, but thought the circumstances of the law’s adoption and its application to individuals registering voters demonstrated that the state was not engaged in good-faith enforcement and that the law was part of “a deliberate plan to put an end to the voting-rights demonstration.” Younger v. Harris (1971) subsequently limited the scope of the Dombrowski decision. See also Black, Hugo L.; Brennan, William J., Jr.; Civil Rights Movement; Cox v. Louisiana (1965); Dombrowski v. Pfister (1965); Overbreadth; Picketing;Vagueness;White, Byron R.
John R.Vile
furthe r reading Baird, Bryce M. “Federal Court Abstention in Civil Rights Cases: Chief Justice Rehnquist and the New Doctrine of Civil Rights Abstention.” Buffalo Law Review 42 (Spring 1994): 501–553.
Cammarano v. United States (1959) Cammarano v. United States, 358 U.S. 498 (1959), affirmed federal appeals court decisions arising in the states of
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Campaign Regulation
Washington and Arkansas that had upheld an interpretation by the commissioner of internal revenue disallowing deductions for expenditures that businesses made to defeat legislation. In the Supreme Court’s opinion, Justice John Marshall Harlan II stated that the Court’s earlier decision on the subject in Textile Mills Securities Corp. v. Commissioner (1941) applied, rejecting the argument that the cases could be properly distinguished by drawing a line between monies spent to influence the general public from those designed to persuade legislators. He also rejected the idea that monies spent to defeat initiative measures should differ from those used to defeat state legislation. Of most importance, the Court held that the legislation did not violate the First Amendment. Harlan pointed to the consistency of interpretations disallowing such deductions over a number of years and to the fact that Congress was aware of such interpretations and had made no attempt to alter them. Harlan also refuted the notion that Speiser v. Randall (1958), in which the court struck down a loyalty oath as a condition of receiving a property tax exemption, mandated the law’s invalidation. Citing that case, he observed, “Nondiscriminatory denial of deduction from gross income to sums expended to promote or defeat legislations is plainly not ‘aimed at the suppression of dangerous ideas.’ ” Such denial simply reflected congressional determination that all who spend money opposing legislation stand on an equal footing. In a separate concurring opinion, Justice William O. Douglas expressed concern over the restrictions on commercial speech that the Court had accepted in Valentine v. Chrestensen (1942). He wrote,“Those who make their living through exercise of First Amendment rights are no less entitled to its protection than those whose advocacy or promotion is not hitched to a profit motive.” Acknowledging that opposing initiative measures represented an exercise of First Amendment rights, however, Douglas observed that Congress “has not undertaken to penalize taxpayers for certain types of advocacy; it has merely allowed some, not all, expenses as deductions.” He further argued,“Deductions are a matter of grace, not of right.” Douglas rejected the idea “that First Amendment rights are somehow not fully realized unless they are subsidized by the State.” He observed “that a complete hands-off policy on the part of government is at times the only course consistent with First Amendment rights.”
See also Commercial Speech; Douglas, William O.; Harlan, John Marshall, II; Speiser v. Randall (1958); Valentine v. Chrestensen (1942).
John R.Vile
furthe r reading Casarez, Nicole B. “Public Forums, Selective Subsidies, and Shifting Standards of Viewpoint Discrimination.” Albany Law Review 64 (2000): 501–581.
Campaign Regulation The conduct of political campaigns is subject to numerous regulations: who can run for office, who can vote, how money is contributed and spent, how political parties operate, and so on. Efforts to regulate campaigns often involve competing First Amendment concerns, forcing the courts to adjudicate which rights deserve more protection.
Ballot Access Issues Neither the Constitution nor the Bill of Rights explicitly states that a right to vote exists, but the Supreme Court in Reynolds v. Sims (1964) and Harper v.Virginia Board of Elections (1966) has ruled that Article 1, section 2, of the Constitution gives citizens the right to vote for members of Congress. Although voting rights per se do not present First Amendment challenges, related issues, such as ballot access, do. In Burdick v.Takushi (1992), the Court ruled that a state law prohibiting voters from casting write-in ballots did not violate the First Amendment. In Burson v. Freeman (1992), it held that a Tennessee law prohibiting the solicitation of votes within 100 feet of a polling place on election day was narrowly tailored to prevent voter intimidation. In Bullock v. Carter (1972) and Harper v. Virginia Board of Elections (1966), the Court ruled as unconstitutional the imposition of poll taxes and filing fees to run for office, respectively. Although relying upon the equal protection clause of the Fourteenth Amendment, the justices noted that the practices also affected First Amendment activities. Beginning in the 1960s, the Court increasingly addressed the rights of independent and third-party candidates to appear on the ballot. In Williams v. Rhodes (1968), the Court used the equal protection clause to invalidate state laws mandating extensive numbers of signatures and the formation of party committees far in advance of elections that would have made it virtually impossible for Alabama governor George Wallace to appear on the Ohio presidential ballot. In Storer v. Brown (1974), the Court upheld a state law requiring an
Campaign Regulation independent candidate to demonstrate disaffiliation from a party for at least one year on the basis that the state’s compelling interest in preventing party factionalism outweighed the competing First Amendment right to run for office. In contrast, in Anderson v. Celebrezze (1983), the Court struck down a state law imposing early filing requirements for an independent presidential candidate to appear on the general election ballot. The justices ruled that the First Amendment rights of independent candidate John Anderson and his supporters outweighed the interest of Illinois in imposing an early filing deadline. In some cases, independent and third-party candidates are required to file a requisite number of signatures to appear on the ballot. If the minimum threshold is too high, the courts may intervene. For example, in Illinois State Board of Elections v. Socialist Workers Party (1979), the Court ruled that a state law requiring a minor party to obtain more than 25,000 signatures to get on the ballot violated their First Amendment rights. A few years later, however, the Court decided in Norman v. Reed (1992) that requiring 25,000 signatures within the city of Chicago to appear on the ballot was not a First Amendment violation. Yet in Munro v. Socialist Workers Party (1986), the Court upheld a requirement that a party secure at least 1 percent of the vote in a primary for its name to appear on the general election ballot. The justices noted that although the 1 percent requirement impinged upon the First Amendment rights of the party, these rights were not absolute, and it was not burdensome to require that the party demonstrate some minimum level of support to get on the ballot. In Timmons v.Twin Cities Area New Party (1997), the Court upheld a state law barring a candidate from one political party from appearing on the ballot as an endorsed candidate for another political party.The majority reasoned that the compelling interest in preventing fraud and voter confusion outweighed any First Amendment claims to ballot access.
Parties, Campaign Speech, Money, and Disclosure The Supreme Court has addressed several cases in which the First Amendment rights of parties were at issue. In Tashjian v. Republican Party of Connecticut (1986), the Court invalidated Connecticut’s closed primary law, which prevented parties from inviting independent voters to participate in their primaries. In Eu v. San Francisco County Democratic Central Committee (1989), the Court used the First Amendment to strike down a state law banning political parties from making political endorsements. In California Democratic Party v.
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Jones (2000), the justices invalidated a state law that turned California primaries into “open primaries,” whereby anyone of any affiliation could vote in a party primary. The Court in Jones, as well as in Tashjian and Eu, asserted that the right to free association applied to political parties and that they have the right to decide with whom to affiliate. In Clingman v. Beaver (2005), however, the Court upheld an Oklahoma semi-closed primary system restricting who could vote in a primary. It ruled that the law so burdened the First Amendment rights of party members that it required strict scrutiny. Another First Amendment issue involves the content of what can be said during a campaign.Although in Burson the Court upheld an anti-electioneering law in Tennessee that banned the solicitation of voters within 100 feet of polling places, the First Amendment generally gives candidates and groups broad rights to say whatever they want in a campaign, including lies.The libel standard of New York Times Co. v. Sullivan (1964), designed to encourage robust political debate, seems to be the threshold candidates must cross before their speech can be found to violate the First Amendment.To prove libel, public figures have to meet the high standard of proving by clear and convincing evidence that alleged libelers have made statements either with knowledge that they were false or with “reckless disregard” of the truth. The regulation of money and politics and disclosure further implicate First Amendment issues. In Buckley v. Valeo (1976), the Supreme Court upheld some parts and struck down other parts of the 1974 amendments to the Federal Election Campaign Act (FECA) imposing political contribution and expenditure limits and disclosure requirements. The Court upheld contribution limits, stating that while money given for political purposes implicates First Amendment concerns, the governmental interest in preventing corruption or its appearance permitted such action.The decision in Buckley struck down expenditure limits because they were more closely associated with free speech concerns. Later, in Nixon v. Shrink Missouri Government PAC (2000), the Court indicated that contribution limits would be upheld unless they were so low that they made it impossible to raise the funds sufficient to mount an effective campaign. In McConnell v. Federal Election Commission (2003), the Court upheld a ban on soft money contributions to political parties under the Bipartisan Campaign Reform Act (BCRA) of 2002, also known as the McCain-Feingold Act. In Randall v. Sorrell (2006), however, the Court cited Buckley to strike
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Campbell v. Acuff-Rose Music, Inc. (1994)
down parts of a Vermont campaign finance law that established strict contribution and expenditure limits as First Amendment violations. Buckley had established the constitutionality of disclosure of contributions and expenditures, with the Court ruling that such disclosure was necessary to detect and prevent fraud and to ensure compliance with campaign rules. The McConnell Court also upheld disclosure requirements in BCRA that candidates state their approval of ads produced for their campaign. In McIntyre v. Ohio Elections Commission (1995), the Court struck down a law preventing individuals from distributing anonymous literature, noting that since the days of the American Revolution, individuals had retained a right to remain anonymous. See also Anderson v. Celebrezze (1983); Buckley v.Valeo (1976); Clingman v. Beaver (2005); Eu v. San Francisco County Democratic Central Committee (1989); Illinois State Board of Elections v. Socialist Workers Party (1979); Munro v. Socialist Workers Party (1986); New York Times Co. v. Sullivan (1964); Nixon v. Shrink Missouri Government PAC (2000); Norman v. Reed (1992); Political Parties;Tashjian v. Republican Party of Connecticut (1986); Timmons v.Twin Cities Area New Party (1997).
David Schultz
furthe r reading Hasen, Richard L. The Supreme Court and Election Law. NewYork: New York University Press, 2003.
Campbell v. Acuff-Rose Music, Inc. (1994) In Campbell v.Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the Supreme Court ruled that the rap group 2 Live Crew did not violate copyright law with the song “Pretty Woman,” a parody of the previously released “Oh, Pretty Woman.” Although the decision pertains primarily to the Copyright Act of 1976, and the concept of fair use, it illustrates how the Supreme Court views the relationship between the First Amendment and parody. In this case, Acuff-Rose Music, Inc. brought a suit against Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs—collectively known as 2 Live Crew.The sometimes-raunchy rap group produced a parody of “Oh, Pretty Woman” that began with the original’s opening line and then substituted plays on words for the other lyrics; the music was obviously identifiable as derived from the original.A federal district court in Nashville,Tennessee, ruled that
2 Live Crew’s song had made “fair use” of the original, but the Sixth Circuit Court of Appeals reversed on the basis of the copyright act. The Supreme Court reversed the circuit court ruling.The Court’s opinion, written by Justice David H. Souter, stated that the rap song would have infringed on copyright were it not “for a finding of fair use through parody.” It further noted that the doctrine of fair use had been “judge-made doctrine” until the Copyright Act of 1976. That law established four criteria for fair use based on the purpose and character of the use, including whether use is of a commercial nature or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. Souter noted that these four criteria could not “be treated in isolation, one from another,” but were to “be explored and the results weighed together, in light of the purposes of copyright.” Souter thought that the circuit court had unduly focused on the first factor without acknowledging that parody, by its nature, transforms an original. He wrote, “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” That parody may not be in good taste “does not and should not matter to fair use.”Again referring to the circuit court’s focus on the first criteria of the copyright law, Souter further responded, “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the uses” Congress intended to authorize. In examining the other factors the law outlined, Souter noted that the value of the derivative song “lies in the tension between a known original and its parodic twin.” In a concurring opinion, Justice Anthony M. Kennedy acknowledged that “some parodies, by their nature, require substantial copying.” See also Commercial Speech; Copyright; Copyright Act of 1976; Fair Use; Satire; Souter, David H.; 2 Live Crew.
John R.Vile
furthe r reading Lape, Laura G. “Transforming Fair Use: The Productive Use Factor in Fair Use Doctrine.” Albany Law Review 58 (1995): 674–724.
Campus Speech Codes
Campus Speech Codes Speech codes at public U.S. colleges and universities remain common features on campus despite federal courts having consistently ruled that they violate students’ First Amendment speech rights. Debates over the appropriateness and constitutionality of campus speech codes focus on whether school officials’ drive to protect students from offensive comments justify limiting freedom of speech. After the 1970s, the number of women and minority students on campuses significantly increased as a result of expanded recruiting efforts by colleges and universities and federal policies. Incidents of racist, homophobic, and sexist harassment also increased. Universities, beginning with the University of Wisconsin, responded with campus speech codes prohibiting offensive or intolerant speech directed at individuals or groups based on their race, color, religion, ethnicity, disability, sex, age, or sexual orientation. Although speech codes limit student speech, universities justify such limitations on any or all of three grounds: educational purposes, the limited protection provided certain kinds of speech, and the rights of the victim. Justification concerning educational purposes resembles the compelling interest argument used by the Supreme Court in United States v. O’Brien (1968), in which the justices declared incidental restrictions of speech rights as permissible if these restrictions are narrowly tailored and necessary to pursue compelling governmental interests. Proponents of university speech codes claim that one of the essential interests of education is to promote a diverse and tolerant society, and limiting speech that is injurious, offensive, or demeaning furthers that essential interest. Universities also note that the First Amendment’s speech guarantee is qualified and does not protect certain kinds of speech. The First Amendment offers absolute protection of speech only when its purpose is to advance worthy societal and political objectives. In Chaplinsky v. New Hampshire (1942), the Supreme Court determined that the right to free speech does not extend to a lower class of discourse characterized as “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words.’ ” Campus speech codes specifically prohibit these categories of speech. Speech codes protect the rights of the victim by preventing the so-called heckler’s veto, a lawful function upheld by the Supreme Court in Terminiello v. Chicago (1949). A heckler’s veto occurs when an opponent effectively silences a speaker by either causing a disturbance or threatening a dis-
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turbance. Campus speech codes prevent the equivalent of a heckler’s veto by prohibiting harassing or demeaning speech directed at such speakers. A student who suffers such a verbal attack may be so intimidated and humiliated that he or she cannot respond.To allow free speech for all, the offensive speech of some can and must be curtailed. Doe v. University of Michigan (E.D. Mich. 1989), brought by a graduate student, became the first challenge to speech codes heard in federal court.The court ruled the code to be unconstitutional on the grounds of vagueness, overbreadth, and viewpoint discrimination.The code’s vagueness included wording that made it “simply impossible to discern any limitation on its scope,” because the terms used in it—for example, stigmatize and victimize—were not self-defining. That vagueness also resulted in the code being overly broad, as the court found it “impossible to discern between protected and unprotected conduct.” The university’s policy prohibited “certain speech because it disagreed with ideas of messages sought to be conveyed.” This is the essence of viewpoint discrimination and a violation of the First Amendment. Since the Doe decision, other courts have applied its rationale to similar speech code challenges. Although the Supreme Court has not offered an opinion in a speech code case, its ruling in R.A.V. v. St. Paul (1992) indicates that it would likely be sympathetic to the reasoning used by the Michigan court. The City of St. Paul had enacted an ordinance prohibiting the display of such symbols as swastikas or burning crosses if it was known or should be known that such an action would arouse “anger, alarm or resentment in others” on the basis of their race, gender, color, religion, or creed. Under this ordinance, a local teenager (R.A.V.) was charged and convicted for burning a cross on the front lawn of an African American family. On appeal, the Supreme Court held that St. Paul’s hate crime law violated the First Amendment. As Justice Antonin Scalia explained for the Court, the First Amendment “prevents the government from proscribing speech because of its disapproval of the ideas” expressed by that speech.Viewpoint discrimination is prohibited, even if the views are offensive, intolerant, or simply incorrect in the minds of many or most in society. Should the question of campus speech codes reach the Court, it would, in all likelihood, apply the doctrines of vagueness, overbreadth, and viewpoint discrimination in its deliberations. Opponents of campus speech codes generally adopt the position expressed by Justice Oliver Wendell Holmes Jr. in his dissent in Abrams v. United States (1919): “The best test of
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Canady v. Bozzier Parish School Board (5th Cir. 2001)
truth is the power of the thought to get itself accepted in the competition of the market.”Although the views expressed by some individuals, including students, may be incorrect, demeaning, or offensive, the best way to counter these views is to challenge them in the open marketplace of ideas, not to silence them. The controversy over campus speech codes continues. The Foundation for Individual Rights in Education (FIRE), a Philadelphia-based civil liberties group, has taken particular interest in challenging such speech codes. See also Abrams v. United States (1919); Academic Bill of Rights; American Association of University Professors; Chaplinsky v. New Hampshire (1942); Chilling Effect; Compelling State Interest; Foundation for Individual Rights in Education; Heckler’s Veto; Libel and Slander; Narrowly Tailored Laws; Overbreadth; Political Correctness; R.A.V. v. St. Paul (1992);Terminiello v. Chicago (1949); United States v. O’Brien (1968); Vagueness; Viewpoint Discrimination.
Alex Aichinger
furthe r reading Ma, Alice K. “Campus Hate Speech Codes: Affirmative Action in the Allocation of Speech Rights.” California Law Review 83 (March 1995): 693–732. Silvergate, Harvey A., David French, and Greg Lukianoff. FIRE’s Guide to Free Speech on Campus. Philadelphia: Foundation for Individual Rights in Education, 2005. Smolla, Rodney A.“Academic Freedom, Hate Speech, and the Idea of a University.” Law and Contemporary Problems 53 (Summer 1990): 195–225.
Canady v. Bozzier Parish School Board (5th Cir. 2001) In Canady v. Bossier Parish School Board, 240 F3d 437 (5th Cir. 2001), the Fifth Circuit Court of Appeals ruled that a public school district did not infringe upon students’ First Amendment rights when it required students to wear uniforms. The decision affirmed a district court judge’s ruling that a uniform policy implemented by a northwest Louisiana school board represented a constitutional means of trying to improve the quality of education. The case stems from a decision by the Bossier Parish School Board to require all students to wear uniforms beginning with the 1999–2000 academic year. The board argued that the uniform policy would reduce behavioral problems and improve test scores. Several parents opposed the plan, and forty of them filed a federal lawsuit seeking an injunction against its enforcement. The parents claimed that the uniforms “violated their children’s First Amendment rights
to free speech, failed to account for religious preferences, and denied their children’s liberty interest to wear the clothing of their choice in violation of the Fourteenth Amendment.” The parents tried to fit the case into one of three categories of student speech regulation established by the Supreme Court: Tinker v. Des Moines Independent Community School District (1969), permitting students to wear black armbands to protest the Vietnam War; Bethel School District No. 403 v. Fraser (1986), punishing a vulgar student speech before the school assembly; and Hazelwood School District v. Kuhlmeier (1988), upholding a principal’s censorship of a school newspaper. As Judge Robert M. Parke explained in the decision, however, the facts of the case did not “readily conform” to any of the three categories. The three-judge panel consequently found what they considered a more appropriate legal standard in the four-point test from United States v. O’Brien (1968). In O’Brien, the Supreme Court ruled that the federal government did not violate the Constitution by punishing people for burning their draft cards in protest. The Court arrived at its decision by applying a test determining a government regulation to be constitutional if it is within the power of the government to enact; it furthers an important or substantial government interest; its interest is unrelated to the suppression of speech; and it prohibits no more speech than needed to further the interest. The circuit court determined that the policy on uniforms met all elements by advancing an important government interest without having as its goal the suppression of speech. The policy only incidentally restricted expression because students could “express their views through other mediums during the school day.” Although the Fifth Circuit upheld the district court ruling, it disagreed with the lower court’s decision that a person’s clothing does not have enough expressive content to warrant First Amendment protection. “While a person’s choice of clothing may be predicated solely on considerations of style and comfort,” Parker noted, “an individual’s choice of attire also may be endowed with sufficient levels of intentional expression to elicit First Amendment shelter.” See also Bethel School District No. 403 v. Fraser (1986); Dress Codes; Hazelwood School District v. Kuhlmeier (1988); Students, Rights of; Tinker v. Des Moines Independent Community School District (1969); United States v. O’Brien (1968).
Neil Ralston
Cantwell v. Connecticut (1940) furthe r reading Hudson, David L., Jr. The Silencing of Student Voices. Nashville, Tenn.: Freedom Forum, 2003. ———. The Rights of Students. Cambridge, Mass: Chelsea House Publishers, 2004. Miller, Andrew D. M. “Balancing School Authority and Student Expression.” Baylor Law Review 54 (Fall 2002): 623.
Cantrell v. Forest City Publishing Co. (1974) In Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974), a widely publicized case of fictionalization, the Supreme Court upheld a verdict against the Cleveland Plain Dealer, a newspaper of Forest City Publishing, for an article casting the plaintiff, Margaret Mae Cantrell, in false light. Cantrell demonstrates one of the limitations to the freedom of the press. Mrs. Cantrell’s husband had been among a number of people killed when the Silver Bridge across the Ohio River collapsed. Five months later, a photographer with the Cleveland Plain Dealer visited the Cantrell home. Mrs. Cantrell was not there, so the photographer, Joseph Eszterhas, talked with the Cantrell children and took as many as fifty photographs during the visit. In a story that appeared on August 4, 1968, in the paper’s Sunday magazine, the photographer emphasized the children’s “old clothes and poor condition of the Cantrell home. . . . Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. She says after it happened, the people in town offered to help them out with money and they refused to take it” (Teeter and Loving 2004: 377). A U.S. district court allowed Mrs. Cantrell to collect $60,000 for proving that the newspaper showed a reckless disregard for the truth in publishing the story and for implying that she was present during the interview with her children. Writing for the Supreme Court, Justice Potter Stewart noted the court’s agreement with the district court—which had asked the jury to hold the magazine liable for false statements if the jury found evidence of false or reckless disregard of the truth—but disagreement with the court of appeals decision concluding that no evidence existed of knowledge of inaccuracies in the article. Stewart found sufficient evidence of what the Court considered “calculated falsehoods” in the article, especially the implication that Mrs. Cantrell was present during the interview. Justice William O. Douglas dissented because he believed that the First Amendment grant-
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ed the press broader leeway in covering issues like this, which he considered to be “matters of public impact.” The tort of false light—or putting a plaintiff in a false light—is the most controversial of the four elements in the law of privacy; some state courts do not recognize it. Although some view false light as a deliberate distortion of the truth (Pember and Calvert 2004), mostly for the purposes of drama, others, while acknowledging that certain speech may put a plaintiff in a false light, think that such speech may not necessarily be considered defamatory by the public (Teeter and Loving 2004).The courts approach this issue on a case-by-case basis, but generally, actions susceptible to false light are highly offensive to a “reasonable” person and require presentation in a publication or broadcast to become actionable (Zelezny 2004). Television programming, especially docudramas and motion pictures, are especially vulnerable to this type of offense. A potential safeguard against fictionalization includes purchasing the rights to a story from the actual people involved, by which they forfeit their right to sue in the event that they are not pleased with the way they are portrayed. See also False Light; Privacy.
John O. Omachonu
furthe r reading Pember, Don R., and Clay Calvert. Mass Media Law, 2005–2006. Boston: McGraw Hill College, 2004. Teeter, Dwight L., Jr., and Bill Loving. Law of Mass Communications: Freedom and Control of Print and Broadcast Media. 11th ed. New York: Foundation Press, 2004. Zelezny, John D. Communications Law: Liberties, Restraints and the Modern Media. 4th ed. Belmont, Calif.:Wadsworth, 2004.
Cantwell v. Connecticut (1940) Cantwell v. Connecticut, 310 U.S. 296 (1940) stands as the first case in which the Supreme Court applied First Amendment freedom of religion rights to the states via the due process clause of the Fourteenth Amendment. Newton Cantwell, a Jehovah’s Witness, and his sons had canvassed individuals in New Haven, Connecticut, without first obtaining a permit. The state charged Cantwell and his sons with a number of offenses including soliciting without a permit and inciting breach of the peace. Cantwell’s conviction of the latter charge stemmed from an incident in which he had approached two Roman Catholics and played a record denouncing their church.The Court ruled in Cantwell’s favor.
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Capitol Square Review and Advisory Board v. Pinette (1995)
Writing for a unanimous Supreme Court, Justice Owen Roberts observed that the First Amendment “embraces two concepts,—freedom to believe and freedom to act. . . . The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” In the case at hand, Roberts believed that requiring a permit to canvass constituted an unconstitutional prior restraint on publication.Acknowledging that the state had the right to safeguard “against the perpetration of frauds under the cloak of religion,” he believed the licensing requirement left too much discretion in the hands of the official who would determine whether to grant permission. Roberts also believed the breach of the peace statute to be too broad, finding no evidence that Cantwell’s actions constituted a “clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order.” Although the individuals to whom Cantwell had played his recordings had found them to be offensive, Cantwell promptly moved on when asked to do so, and his language did not consist of “profane, indecent, or abusive remarks directed to the person of the hearer”; there was “no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse.” Roberts observed sharp differences respecting religious and political faith, but that “the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.” Cantwell is a landmark case because it “embraces the dual aspects of ‘belief ’ and ‘action,’ ” reaffirms the incorporation of First Amendment guarantees into the Fourteenth Amendment, and “emphasizes the close link of the free exercise of religion with the other freedoms spelled out in the First Amendment” (Abraham and Perry 2003: 272). See also Breach of the Peace Laws; Jehovah’s Witnesses; Narrowly Tailored Laws.
John R.Vile
furthe r reading Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2003.
Capitol Square Review and Advisory Board v. Pinette (1995) In Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), the Supreme Court ruled that the Klu Klux Klan had the right to erect a cross next to a Christmas tree and a menorah on public property. The Court majority concluded that the display did not violate the establishment clause of the First Amendment and was consistent with the free speech rights of the Klan and other such organizations. Capitol Square, the state capitol grounds in Columbus, Ohio, had long been used by diverse groups for gatherings, speechmaking, and erecting displays. In December 1993, the Capitol Square Review Board authorized placing a Christmas tree and a menorah in the area but denied a request by the Ku Klux Klan to erect a cross on the grounds for a two-week period ending on Christmas eve. The Klan sued in a case that raised intriguing questions about the relationship of the establishment and free exercise clauses; limits to free speech and “open public forums”; context, proximity, and symbolism; activities on government grounds versus unattended displays; solitary versus multiple displays; and the nature of a “reasonable observer.” Although the Supreme Court ruled 7-2 in the Klan’s favor, the mix of concurrences, partial concurrences, and dissents reflect the difficulty the justices had in agreeing on the issues. The Court addressed the display within the framework of the establishment clause because the review board had denied the Klan’s request on the grounds that its approval would violate this clause. Justice Clarence Thomas, although concurring in the judgment, argued that the case did not present an establishment clause issue because the “Klan had a primarily nonreligious purpose in erecting the cross” and had “appropriated one of the most sacred of religious symbols as a symbol of hate.” Capitol Square resembled Lynch v. Donnelly (1984), in which the Supreme Court had permitted a city to display a crèche as part of a larger Christmas display in a private park, the difference being that Capitol Square involved a private display on public property. It also recalled County of Allegheny v. American Civil Liberties Union (1989), in which the Court had rejected a privately sponsored religious display placed prominently inside a government building. In Capitol Square, the Court plurality looked to Lamb’s Chapel v. Center Moriches Union Free School District (1993) and Widmar v. Vincent (1981), both of which permitted private religious
Captive Audience expression in a public forum. Both also involved the religious activities of groups, rather than an unattended display. The Court found this difference to be significant. The justices disagreed about the appropriateness of the endorsement test in Capitol Square. Justice Antonin Scalia, who wrote the plurality opinion, thought it inappropriate because the display did not involve expression by the government itself. To him, private religious expression in an acknowledged public forum could not violate the establishment clause. Justices Sandra Day O’Connor and David H. Souter, on the other hand, preferred the endorsement test for analyzing the case, believing that government endorsement can be an issue even when private, symbolic speech is involved. They were satisfied, however, that a disclaimer placed on the cross offered sufficient protection against perceptions of government endorsement. A related discussion involved whether a “reasonable person” seeing a cross close to the capitol would assume government sponsorship or approval of the display and what constituted a “reasonable person.” Justice John Paul Stevens, dissenting, was bothered by any unattended religious displays on public property. Whereas activities outside government buildings often involve groups seeking redress of grievances and thus do not imply government endorsement, a freestanding display, according to Stevens, would send a very different message to all but the “ultra-reasonable observer.” Many reasonable people, he wrote, do not understand the concept of a “public forum,” but they “do know the difference between a state capitol and a church.” Stevens quoted at length from the majority and dissenting opinions in the landmark Everson v. Board of Education (1947), in which the court—although upholding government reimbursement for the transportation cost to parents to send their children to parochial schools—had used strong separationist language relative to the establishment clause. Stevens underscored that his disagreement with the Court was over basics, not incidentals. See also Everson v. Board of Education (1947); Ku Klux Klan; Lamb’s Chapel v. Center Moriches Union Free School District (1993); Lynch v. Donnelly (1984); Public Forum Doctrine; Symbolic Speech;Widmar v.Vincent (1981).
Jane G. Rainey
furthe r reading Swanson, Wayne R. The Christ Child Goes to Court. Philadelphia: Temple University Press, 1990.
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Captive Audience The captive audience doctrine protects people in certain places and circumstances from unwanted speech. The doctrine serves as an exception to the First Amendment rule articulated in Cohen v. California (1971) requiring people exposed to unwanted speech to avert their eyes and ears. In Cohen, the Supreme Court had refused to permit censorship of an expletive printed on the back of a jacket worn in the public corridors of the Los Angeles courthouse although passersby might be involuntarily exposed to and offended by the message. The Court has chiefly applied the captive audience doctrine to individuals’ homes. In Kovacs v. Cooper (1949), the Court upheld an ordinance prohibiting the use of sound trucks, stating that citizens in their homes should be protected from the invasion of “loud and raucous noises” beyond their control.Although the statute essentially created a regulatory wall blocking otherwise constitutionally protected speech, the Court noted that without the government’s protection, unwilling listeners would be helpless to escape intrusions upon their privacy by messages broadcast from loudspeakers on the trucks. In Rowan v. U.S. Post Office Department (1970), the Court invoked the captive audience doctrine to uphold a statute permitting individuals, with the assistance of the postal service, to prevent the delivery of offensive mail. Although conceding that the statute impeded the flow of ideas, the Court held that this impediment was subordinate to the right of people in their homes to be free from unwanted material. According to the Court in Hynes v. Mayor of Oradell (1976),“home is one place where a man ought to be able to shut himself up in his own ideas if he desires.” Further expanding on the right of home dwellers to shield themselves from unwanted speech, the Court in Frisby v. Schultz (1988) sustained restrictions on picketing in residential neighborhoods, ruling that protestors had no right to force speech into the home of an unwilling listener. In upholding a zoning ordinance prohibiting adult theaters from locating within 500 feet of a residential area, the Court in Young v. American Mini Theatres (1976) effectively found that an entire neighborhood constituted a captive audience. The courts have also recognized the rights of captive audiences outside the home to be free of unwanted speech. In Lehman v. City of Shaker Heights (1974), finding that streetcar riders are a captive audience, the Court upheld restrictions on political advertisements played over speaker systems
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in public transit vehicles.As the Court recognized, individuals riding in a moving vehicle for an extended period of time are unable to avoid objectionable speech. Lehman stemmed from Justice William O. Douglas’s dissent in the earlier case of Public Utilities Commission. v. Pollak (1952), in which he argued that people should have a right to be let alone from unwanted messages while taking the street car.The courts have also employed the doctrine to situations involving the exposure of minors to certain types of expression. When employing the doctrine, the courts elevate the desire of the audience to exclude speech over that of the speaker to convey it, but aside from the few cases in which it has been applied, the captive audience doctrine has not exerted a prominent influence in First Amendment jurisprudence. See also Cohen v. California (1971); Frisby v. Schultz (1988); Hynes v. Mayor of Oradell (1976); Kovacs v. Cooper (1949); Lehman v. City of Shaker Heights (1974); Public Utilities Commission v. Pollak (1952); Rowan v. U.S. Post Office Department (1970);Young v. American Mini Theatres (1976).
Patrick M. Garry
furthe r reading Balkin, J. M. “Free Speech and Hostile Environments.” Columbia Law Review 99 (1999): 2295–2320. Black, Charles L. Jr. “He Cannot Choose But Hear:The Plight of the Captive Auditor.” Columbia Law Review 53 (1953): 960. Bollinger, Lee C. The Tolerant Society: Freedom of Speech and Extremist Speech in America. New York: Oxford University Press, 1986. Garry, Patrick M. Rediscovering a Lost Freedom: The First Amendment Right to Censor Unwanted Speech. New Brunswick, N.J.: Transaction Publishers, 2006. Heyman, Steven. “Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression.” Boston University Law Review 78 (1998): 1275–1392. Smolla, Rodney. Smolla and Nimmer on Freedom of Speech. New York: Clark, Boardman, Callaghan, 2006 update. Secs. 5:1–5:15.
Cardozo, Benjamin N. Benjamin Nathan Cardozo (1870–1938), appointed to the Supreme Court in 1932, became one of the most respected jurists to sit on the bench. Cardozo is remembered as much for his dissents as for his majority opinions, which often dealt with the application of the due process clauses of the Fifth and Fourteenth Amendments. He was known as an incrementalist justice who usually supported government positions. He based his judicial decisions according to how they meshed with his views of justice, morality, and social welfare. Cardozo and his twin sister, Emily, were born into an affluent family in New York City. His early education took
place at home, where Horatio Alger, known for his rags to riches children’s stories, tutored him. Cardozo entered Columbia College (now Columbia University) at fifteen and graduated in 1889 with top honors. After two years of study at Columbia Law School, Cardozo opted to leave and practice law, joining his father’s old firm and passing the bar in 1891. In 1913 Cardozo was elected to the New York Supreme Court and in 1914 appointed to the state court of appeals. He was appointed chief judge of the appeals court in 1926 and began developing a national reputation as a writer of elegant, persuasive opinions, a pioneer of tort law, and a legal philosopher. Cardozo’s first book, The Nature of the Judicial Process (1920), is a compilation of lectures delivered at Yale University. He subsequently published The Growth of the Law (1924) and The Paradoxes of Legal Science (1928). President Herbert Hoover appointed Cardozo to replace the retiring Oliver Wendell Holmes Jr. in 1932, two years after the retirement of Chief Justice William Howard Taft, who had earlier opposed a seat on the bench for Cardozo, whom he considered to be too liberal. Cardozo’s nomination received broad approval, and his confirmation made him the second Jew appointed to the Court, Louis D. Brandeis being the first. Identifying himself as a progressive liberal, Cardozo eschewed partisan politics. He was generally supportive of the constitutionality of most of President Franklin D. Roosevelt’s New Deal legislation, which was initially resisted by a majority of the justices. The Court’s actions led to Roosevelt’s “Court-packing” effort to increase the number of justices in order to save the New Deal. In the infamous “switch in time that saved nine”—when Justice Owen J. Roberts, who had previously voted against most New Deal programs, began to vote with more liberal members—the Court reversed its position on Roosevelt’s policies. In his short tenure on the Court, Cardozo wrote more than 100 opinions, including a concurrence in Hamilton v. Regents of the University of California (1934). Joined by Justices Brandeis and Harlan Fiske Stone, Cardozo rejected the notion that California had violated the establishment clause by requiring students to take military science, even in peacetime, without providing exceptions for conscientious objectors. Citing Davis v. Beason (1890), which had upheld state laws punishing polygamists, Cardozo stated that he saw no validity in petitioner’s argument that California had interfered with the free exercise of religion as established in the First Amendment.
Carey v. Brown (1980) In Grosjean v. American Press Co. (1936), Cardozo filed a concurring opinion arguing that the First Amendment’s guarantee of a free press rendered unconstitutional a tax imposed by Louisiana on newspapers that circulated more than 20,000 copies per week. Although some judicial scholars believe that Cardozo’s reasoning in Grosjean was the most innovative civil liberties argument of his career, it was never published. Instead, Justice George Sutherland rewrote his majority opinion to incorporate Cardozo’s arguments. Throughout the 1920s and 1930s, the Supreme Court grappled with the issue of sedition, as socialism and communism attracted followers in the United States. Although the Court recognized the government’s interest in preventing overt attempts to overthrow the democratic process, the justices maintained a healthy respect for the First Amendment. In fact, First Amendment rights prevailed in most cases of the period through the application of the bad tendency doctrine, which held speech unconstitutional only if it would likely lead to criminal acts, or the clear and present danger test, which posited that speech was protected unless it precipitated sedition, riots, or destruction of life and property. Cardozo’s first sedition case on the bench was Herndon v. Lowry (1937), in which a Georgia communist had been convicted of inciting insurrection although a trial court had found Georgia’s statute vague. Cardozo joined the majority in the 5-4 decision, holding that Georgia had violated Herndon’s First Amendment rights because it had failed to prove him guilty of sedition or to show that he had intended to incite insurrection. Cardozo’s position on civil liberties was inconclusive at times, but he nonetheless remained a strong advocate of free speech and accepted the Court’s position in Gitlow v. New York (1925) that the Fourteenth Amendment incorporated the First Amendment, thus binding the states to upholding the latter’s provisions. In Palko v. Connecticut (1937), Cardozo held that the Fifth Amendment’s protection from double jeopardy was not incorporated into the due process clause of the Fourteenth Amendment. Citing De Jonge v. Oregon (1937) and Herndon v. Lowry (1937) in his Palko opinion, Cardozo reiterated the Court’s position that the Fourteenth Amendment prohibited states from infringing on the right to free speech, which he viewed as the foundation of liberty. In Associated Press v. National Labor Relations Board (1937), the Court heard a plea from the Associated Press (AP), attempting to use the First Amendment to justify its firing of an employee for engaging in union activities.The AP further insisted that the National Labor Relations Board, as empow-
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ered by the National Labor Relations Act to protect labor organizers, exceeded Congress’s power to regulate commerce. Cardozo joined the majority in upholding the National Labor Relations Board on economic grounds rather than voting with conservatives, who would have upheld the right of the Associated Press to fire employees on First Amendment grounds. Cardozo’s tenure on the Court was short, beginning in 1932 and ending with his death on July 9, 1938, after a paralyzing stroke the previous January. See also Associated Press v. National Labor Relations Board (1937); Brandeis, Louis D.; Davis v. Beason (1890); De Jonge v. Oregon (1937); Gitlow v. New York (1925); Grosjean v. American Press Co. (1936); Herndon v. Lowry (1937); Holmes, Oliver Wendell, Jr.; Hughes, Charles Evans; Palko v. Connecticut (1937); Stone, Harlan Fiske;Taft,William Howard.
Elizabeth R. Purdy
furthe r reading Cushman, Clare. The Supreme Court Justices: Illustrated Biographies, 1789–1995. 2d ed. Washington, D.C.: Congressional Quarterly, 1995. Kaufman, Andrew L. Cardozo. Cambridge, Mass.: Harvard University Press, 1998. Levy, Beryl Harold. Cardozo and Frontiers of Legal Thinking. Cleveland and London: Press of Case Western Reserve University, 1969. Oyez.“U.S. Supreme Court Media: Benjamin N. Cardozo.” www.oyez .org/justices/benjamin_n_cardozo. Posner, Richard A. Cardozo:A Study in Reputation. Chicago: University of Chicago Press, 1990.
Carey v. Brown (1980) The Supreme Court in Carey v. Brown, 447 U.S. 455 (1980), struck down an Illinois statute barring picketing of residences, except in cases of peaceful picketing of homes doubling as places of employment.The majority concluded that the regulation was an “impermissible content-based restriction on protected expression,” similar to the one invalidated in Police Department of Chicago v. Mosley (1972). Writing for the Court, Justice William J. Brennan Jr. also noted that the Illinois law violated the equal protection clause of the Fourteenth Amendment. According to the Court, once a state opens a forum “to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.” Illinois attempted to distinguish the case from Mosley by arguing that the statute helped ensure privacy in the home, but Brennan saw no reason to exempt
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labor from picketing in such circumstances since picketing over labor issues was no more deserving than other forms of speech. Brennan noted that, nonetheless, the decision did not mean “that residential picketing is beyond the reach of uniform and nondiscriminatory regulation.” In a concurring opinion, Justice Potter Stewart indicated that he thought the case centered on the protection of free speech rather than on equal protection. Justice William H. Rehnquist wrote a dissenting opinion, joined by Chief Justice Warren E. Burger and Justice Harry A. Blackmun, arguing that the Court had misread the statute, which he interpreted as permitting four types of peaceful picketing of residences and allowing far more speech than would an absolute ban. He concluded that the majority decision “can only mean that the hymns of praise in prior opinions celebrating carefully drawn statutes are no more than sympathetic clucking, and in fact the State is damned if it does and damned if it doesn’t.” He considered the state regulations to be reasonable “time, place, and manner” restrictions protecting residential privacy, which he viewed as “a substantial governmental interest unrelated to the suppression of free expression.” He further argued, “Content regulation, when closely related to a permissible state purpose, is clearly permitted.” He ended by quoting Justice Felix Frankfurter’s concurring opinion in Kovacs v. Cooper (1949), observing, “[It] is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection.” See also Brennan,William J., Jr.; Content Neutral; Kovacs v. Cooper (1949); Picketing; Privacy; Police Department of Chicago v. Mosley (1972); Rehnquist, William H.; Stewart, Potter; Time, Place, and Manner Restrictions.
John R.Vile
furthe r reading Bodensteiner, Ivan E., and Rosalie Berger Levinson. “Civil Liberties: Adherence to Established Principles.” Chicago-Kent Law Review 58 (1982): 269–347.
Carey v. Population Services International (1977) In Carey v. Population Services International, 431 U.S. 678 (1977), the Supreme Court invalidated a New York law prohibiting the advertisement and display of contraceptives to consumers. The law also forbade the sale or provision of contraceptives to individuals under sixteen years of age and
limited the dispensing of contraceptives to adults to licensed pharmacists. The plaintiffs in this case included commercial distributors of contraceptive and birth control services and information that advertised their products and services in New York periodicals. Citing its invalidation of state bans on the sale and dissemination of contraceptives in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), the Court held that the New York statute’s limiting distribution to pharmacists and disallowing advertising violated the right of privacy. Although conceding that not every regulation on contraception is unconstitutional, the Court in this case ruled that because New York’s limitation on access to contraception through licensed pharmacists included nonmedical contraception, it “clearly imposes a significant burden on the right of individuals to use contraceptives if they so choose.” It noted that the expertise of a licensed pharmacist is not required to protect citizens from nonmedical (and thus nonhazardous) contraception. The Court also dismissed the state’s prohibition on providing contraception to minors under sixteen. First, an absolute ban on nonhazardous contraception failed to advance the state’s interest in the health of minors. Second, the state’s interest in discouraging adolescent intercourse by making contraception unavailable increased the hazards of sex for these young people, essentially making pregnancy (or a sexually transmitted disease) a state-prescribed punishment for teenage fornication. In dismissing the advertising and display regulations of the statute, the Court employed the reasoning of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), which dealt with the regulation of commercial speech.The statute in the Virginia case, like the one in Carey, did not prohibit false advertising or the promotion of illegal activity. The statute also did not restrict speech based on legitimate considerations of time, place, and manner, which are permissible state interests in the regulation of commercial speech. Quoting from its holding in Virginia State Board of Pharmacy, the Court in Carey “held that a State may not ‘completely suppress the dissemination of concededly truthful information about entirely lawful activity,’ even when that information could be categorized as ‘commercial speech.’ ” Several years later, the Supreme Court extended Carey in Bolger v. Youngs Drug Products Corp. (1983), ruling that a state could not prohibit the unsolicited mailing of contraceptive advertisements.
Carlin, George See also Birth Control; Bolger v. Youngs Drug Products Corp. (1983); Commercial Speech; Privacy; Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976)
Francis J. Beckwith
furthe r reading Ross, Catherine J. “An Emerging Right for Mature Minors to Receive Information.” University of Pennsylvania Journal of Constitutional Law 2 (December 1999): 223–275.
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no evidence that the risk in this case had reached the “unacceptable” level. He observed that a majority of lower courts that examined the issue in other cases had let the convictions stand. He further thought the First Amendment issue needed clearer focus than it had been given in this case. See also Kennedy, Anthony M.; Souter, David H.; Stevens, John Paul;Thomas, Clarence.
John R.Vile
Carey, Warden v. Musladin (2006) In Carey,Warden v. Musladin, 549 U.S. 70 (2006), the Supreme Court rejected an appeal by Mathew Musladin, who had argued that his Sixth Amendment right to a fair trial for the alleged murder of Tom Struder had been violated by a trial court’s decision to allow Struder’s family members to wear to court buttons bearing the victim’s picture. In so ruling, the Court overturned a decision of the Ninth Circuit Court of Appeals reversing the trial court’s decision on the buttons. Writing for the Court, Justice Clarence Thomas rejected the appeals court’s conclusion that the trial court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Limiting the scope of such holdings to the holdings themselves, rather than to their dicta,Thomas observed that prior cases had dealt with governmental conduct rather than with private spectator conduct, so the case posed a new issue. Because no Court ruling applied to such private actions, the trial court decision “was not contrary to or an unreasonable application of clearly established federal law.” In a concurring opinion, Justice John Paul Stevens questioned Thomas’s attempted distinction between actual rulings and the dicta supporting them. Of significance, Stevens separated himself from Justice David H. Souter’s concurrence by observing that “there is no merit whatsoever to the suggestion that the First Amendment may provide some measure of protection to spectators in a courtroom who engage in actual or symbolic speech to express any point of view about an ongoing process.” Justice Anthony M. Kennedy’s concurrence pointed to the need for trials to be conducted “free from a coercive or intimidating atmosphere.” He saw no evidence of such coercion in this case, although he thought that courts needed to explore the issue and eventually formulate a clearer rule. Souter thought that those who wore the buttons intended for them to elicit sympathy for the victim, but he found
furthe r reading Mears, Bill. “Justices Rule on Family Members Wearing Victim Buttons at Murder Trial.” CNN, December 11, 2006, www.cnn .com/2006/WORLD/europe/12/11/monday/index.html.
Carlin, George Famous for pushing the boundaries of free speech, comedian George Carlin (1937–2008) sparked Federal Communications Commission v. Pacifica Foundation (1978), a Supreme Court case concerning government regulation of indecent speech. Born in New York City, Carlin had established himself as a highly successful mainstream comedian by the early 1960s. After growing disillusioned with entertaining what he called “middle class morons,” however, he transformed himself into a rebel and his inoffensive comedy into biting social and political satire. Carlin emerged as a leading counterculture performer in the early 1970s. In October 1973, a New York City radio station aired a twelve-minute recording of a Carlin monologue entitled “Filthy Words,” a sequel to an earlier routine called “Seven Words You Can Never Say on Television” (popularly known as “Seven Dirty Words”). Carlin used these scatological and sexual terms in various forms throughout the performance to satirize a puritanical streak in American culture and to question what made those particular words so objectionable. The piece aired around 2:00 in the afternoon and was heard by John Douglas, a member of Morality in Media, and his young son while in their car. The father filed a complaint with the Federal Communications Commission (FCC), which ruled that although the broadcast was not necessarily “obscene,” it was “indecent” and “patently offensive” and therefore violated federal law. The station battled the finding all the way to the Supreme Court, which decided that the FCC had the power to regulate radio broadcasts considered indecent but not obscene. The controversy fueled Carlin’s already flourishing career. He continued to use his comedy to address volatile topics,
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including censorship, religion, politics, illegal drugs, foreign policy, and the American consumer culture. He hosted the first episode of Saturday Night Live in 1975, worked as a substitute host on The Tonight Show, and made a series of onehour specials for cable’s Home Box Office. In addition, Carlin played roles in numerous movies, including Bill and Ted’s Excellent Adventure and The Prince of Tides, and wrote several best-selling books, among them Brain Droppings (1997), Napalm and Silly Putty (2001), and When Will Jesus Bring the Pork Chops? (2004). He released some twenty concert albums. See also Federal Communications Commission; Federal Communications Commission v. Pacifica Foundation (1978).
Mark Byrnes
furthe r reading Contemporary Authors. Farmington Hills, Mich.:Thomson Gale, 2006. Cooper, Marc. “George Carlin.” Progressive, July 2001, 32–37. Menez, Joseph F., and John R. Vile. “Federal Communications Commission v. Pacifica Foundation.” In Summaries of Leading Cases on the Constitution. 14th ed. Lanham, Md.: Rowman and Littlefield Publishers, 2004.
Carlson v. California (1940) In Carlson v. California, 310 U.S. 106 (1940), the Supreme Court struck down a Shasta County, California, ordinance that prohibited loitering or picketing “for the purpose of inducing or influencing, or attempting to induce or influence” persons to enter businesses or “to refrain from purchasing or using any goods, wares, merchandise, or other articles.” The case stemmed from an incident involving Carlson, who displayed a sign discouraging individuals from entering a business. Although Carlson’s actions drew no reports of intimidation, coercion, or other acts of violence or breach of the peace, a reviewing state court affirmed his conviction. In the opinion for the Court, Justice Francis W. Murphy relied largely on the companion decision in Thornhill v. Alabama (1940), which protected peaceful picketing, and on the “sweeping and inexact” nature of the terms loiter and picket, which he believed disclosed “the threat to freedom of speech.” He further ruled that carrying a sign or banner was no less protected than waving a flag, which the Court had upheld in Stromberg v. California (1931). Murphy observed that the county had abridged “liberty of discussion under circumstances presenting no clear and present danger of sub-
stantive evils within the allowable area of state control.” Justice James C. McReynolds dissented without an opinion. See also Clear and Present Danger Test; Loitering; Murphy, Francis W.; Picketing; Stromberg v. California (1931); Thornhill v. Alabama (1940).
John R.Vile
furthe r reading St. Antoine, Theodore J. “Justice Frank Murphy and American Labor Law.” Michigan Law Review 100 (June 2002): 1900–1926.
Carlson v. Landon (1952) In Carlson v. Landon, 342 U.S. 524 (1952), the Supreme Court upheld a decision by the attorney general, as executive head of the Immigration and Naturalization Service, to detain resident aliens without bail, pending a determination on deportability. The case involved the arrest of detainees under the Internal Security Act of 1950, also known as the McCarran Act, for membership in or ties to the Communist Party of the United States.The Court’s 5-4 decision upheld the detention of all but one of the aliens. In the opinion for the Court, Justice Stanley F. Reed portrayed residence of aliens in the United States as a privilege rather than a right and stated that the government had not abused its discretion in this case. He wrote, “As all alien Communists are deportable, like Anarchists, because of Congress’s understanding of their attitude toward the use of force and violence in such a constitutional democracy as ours to accompany their political aims, evidence of membership plus personal activity in supporting and extending the Party’s philosophy concerning violence gives adequate ground for detention.” In dissent, Justice Hugo L. Black argued that the government had violated the First (“thought, speech and press”), Fifth (due process), and Eighth (bail) Amendments and asserted that if the McCarran Act gave discretion to anyone, it limited it to the attorney general. Black maintained that “the First Amendment grants an absolute right to believe in any governmental system, discuss all governmental affairs, and argue for desired changes in the existing order.” He further observed that “those who wrote and adopted our First Amendment weighed those dangers [of liberty] against the dangers of censorship and deliberately chose the First Amendment’s unequivocal command that freedom of assembly, petition, speech and press shall not be abridged.”
Carolene Products Footnote Four Justice Felix Frankfurter’s dissent focused on the government’s generalized assumption of guilt. Like Black, Justice William O. Douglas did not think that aliens could be detained or expelled “for their past actions or present expressions unaccompanied by conduct.” Justice Harold H. Burton’s dissent focused on the bail provision of the Eighth Amendment. See also Black, Hugo L.; Communist Party of the United States; McCarran Act of 1950.
John R.Vile
furthe r reading Burr, Steven J.“Immigration and the First Amendment.” California Law Review 73 (1985): 1889–1928.
Carolene Products Footnote Four Footnote four of United States v. Carolene Products Company, 304 U.S. 144 (1938), presages a shift in the Supreme Court from predominately protecting property rights to protecting other individual rights, such as those found in the First Amendment. It is arguably the most important footnote in U.S. constitutional law. In the early 1800s, under Chief Justice John Marshall, the Court had first used the contract clause of Article 1 to protect property rights against state and federal regulation. In Barron v. Baltimore (1833), the Court had held that the Bill of Rights did not apply to the states, leaving the federal judiciary unable to enforce at the local level the freedoms set out in the first ten amendments. Throughout the nineteenth century, the Court therefore emphasized the protection of property more than it did individual rights. The Fourteenth Amendment, adopted in 1868, recognized the citizenship of African Americans who had been born in the United States and protected their rights as well as those of others. The amendment limited the ability of states to interfere with the privileges or immunities, due process right, or right to equal protection of citizens. From the adoption of the Fourteenth Amendment until 1938, the Court articulated a variety of new legal doctrines and concepts—including substantive due process, liberty of contract, and economic due process—giving heightened or increased scrutiny to economic rights and regulations. At the same time, however, it continued to leave the states relatively free to enact laws, without federal judicial oversight, that affected individual expressive rights. This period for the Court, often called the Lochner era, derives its name from Lochner v.
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New York (1905), in which the Court struck down laborfriendly workplace regulations under the liberty of contract doctrine, over a spirited dissent by Justice Oliver Wendell Holmes Jr.The Lochner era continued until the New Deal. Although the Court initially expressed hostility toward the New Deal’s economic regulation, striking down its provisions in such cases as United States v. Schechter Poultry Corporation (1935), political pressures on the Court and the appointment of new justices began to erode the approach to property and individual rights characteristic of the Lochner era. The Carolene Products footnote four embodies this change. In Carolene Products, the Court upheld a federal law regulating “filled” milk, an imitation or adulterated milk product. In upholding a federal ban on the shipment of this product via interstate commerce, Justice Harlan Fiske Stone, writing for the Court, indicated that the justices would no longer subject economic legislation to heightened scrutiny, but would instead now apply a rational basis test. He then inserted a footnote, number four, indicating that the Court would, however, continue to apply a form of heightened scrutiny in situations in which a law or statute conflicts with Bill of Rights protections, where the political process has closed or is malfunctioning, and when regulations adversely affect “discrete and insular minorities.” The language of footnote four launched a new role for the federal courts. Some justices, most notably Felix Frankfurter, questioned the double standard of review supported by the footnote, but with increasing frequency, especially during the Warren Court of the 1960s, the Court drew inspiration from the note to provide more constitutional protection to individual rights, especially those of the First Amendment.The footnote defined a role that led the Court to protect voting rights, invalidate mandatory school prayer, and to enlarge individual free expressive rights. Footnote four still articulates an important rule affecting how the Supreme Court operates although some argue that the Court under Chief Justice William H. Rehnquist and his successor, John G. Roberts Jr., has adopted a “post Carolene Products” jurisprudence that no longer protects individual rights as much as it did during the Warren Court era. See also Barron v. Baltimore (1833); Stone, Harlan Fiske.
David Schultz
furthe r reading Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.
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Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Café (1942)
Smith, Christopher, and David Schultz. The Jurisprudential Vision of Justice Antonin Scalia. Lanham, Md.: Rowman and Littlefield, 1996.
Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Café (1942) The Supreme Court decision in Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Café, 315 U.S. 722 (1942), upheld state-imposed limitations on picketing. Ritter, who owned a restaurant that employed union workers in Texas, had contracted with a company called Plaster to construct a building without requiring Plaster to use union help. Ritter subsequently sought an injunction under state antitrust laws to prevent the union from picketing his restaurant because of Plaster’s labor practices. Justice Felix Frankfurter observed for the majority that Thornhill v. Alabama (1940) had established that the “constitutional right to communicate peaceably to the public the facts of a legitimate dispute is not lost merely because a labor dispute is involved,” but he also wrote that “the circumstance that a labor dispute is the occasion of exercising freedom of expression does not give that freedom any greater constitutional sanction or render it completely inviolable.”Texas had decided that “its general welfare would not be served if, in a controversy between a contractor and building workers’ unions, the unions were permitted to bring to bear the full weight of familiar weapons of industrial combat against a restaurant business, which, as a business, has no nexus with the building dispute but which happens to be owned by a person who contracts with the builder.” Frankfurter noted that those favoring union labor had other means to disseminate their ideas. He thus held that “forbidding such conscription of neutrals” was permissible. In contrast, Justice Hugo L. Black’s dissent, joined by Justices William O. Douglas and Francis W. Murphy, focused on the role that picketers played in conveying information to the public. Black observed that such information was truthful and peaceful and thought it fell within the protection of the freedom of speech and press. Justice Stanley F. Reed also focused on the peaceful nature of the pickets and on the inconsistency with the First Amendment of banning truthful information conveyed by pickets.
furthe r reading Bock, Richard A. “Secondary Boycotts: Understanding NLRB Interpretations of Section 8(b) (4) (b) of the National Labor Relations Act.” University of Pennsylvania Journal of Labor and Employment Law 7 (Summer 2005): 905–969.
Carroll v. President and Commissioners of Princess Anne (1968) In Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175 (1968), the Supreme Court struck down a ten-day injunction that a Maryland court had issued against rallies by the National States Rights Party, a white supremacist group. The organization had earlier rallied near Princess Anne, Maryland, where speakers had delivered speeches with racist content directed toward Jews and African Americans, some of whom were in the audience. Local officials then sought an injunction to prohibit the white supremacist group from participating in rallies in Somerset County for a period of ten months. Justice Abe Fortas observed for the Court that the case was not moot. He noted that in Walker v. City of Birmingham (1967) the Court had upheld the conviction of people who had proceeded to demonstrate after being issued an injunction not to do so. The injunction at issue in Princess Anne constituted a form of prior restraint and had been issued without the participation of the National States Rights Party.Although Cantwell v. Connecticut (1940) and other cases had established that the government might limit speech in cases where it was “interlaced with burgeoning violence,” prior restraint came to the court with a “heavy presumption against its constitutional validity.”The record offered no reason for the petitioners having not been offered the right to attend the hearing; the failure to provide such notice and to hold an adversary hearing was “incompatible with the First Amendment.” Justice Hugo Black concurred in the opinion. Justice William O. Douglas’s concurrence referred to his dissent in Kingsley Books, Inc. v. Brown (1957), in which he opposed the prior restraint of booklets alleged to be obscene, and to Freedman v. Maryland (1965), which had opposed prior restraint of movies.
See also Black, Hugo L.; Frankfurter, Felix; Picketing;Thornhill v. Alabama (1940).
See also American Nazi Party and Related Groups; Cantwell v. Connecticut (1940); Fortas, Abe; Freedman v. Maryland (1965); Kingsley Books, Inc. v. Brown (1957); Prior Restraint;Walker v. City of Birmingham (1967).
John R.Vile
John R.Vile
Catholics, Roman furthe r reading Groce, Carolyn.“ ‘Put Your Body on the Line’: Civil Disobedience and Injunctions.” Brooklyn Law Review 59 (Winter 1994): 1497–1550.
Carter, Robert L. Robert Lee Carter (1917– ), a federal district court judge in New York and one of the great lawyers of the civil rights movement, successfully argued numerous cases before the Supreme Court, including part of the historic group of school segregation cases known collectively as Brown v. Board of Education (1954). In his distinguished career, Carter presented at least six First Amendment cases before the high court, including NAACP v. Alabama (1958); Bates v. Little Rock (1960); Shelton v. Tucker (1960); Louisiana ex. rel. Gremillion v. NAACP (1961); Gibson v. Florida Legislative Investigation Committee (1963); and NAACP v. Button (1963). A native of Careyville, Florida, Carter obtained his undergraduate degree from Lincoln University, in Pennsylvania, in 1937. He went on to earn a law degree from Howard University in 1940 and a master of laws from Columbia Law School in 1941 before serving in the army in World II. Carter began his career at the NAACP Legal Defense and Education Fund, where he served under Thurgood Marshall. He eventually succeeded Marshall as the group’s general counsel, serving in that capacity until 1968. Carter worked for a few years in private practice before President Richard M. Nixon nominated him to become a federal district court judge for the Southern District of New York in 1972. He took senior status in 1986. See also Civil Rights Movement; Marshall,Thurgood; NAACP v. Alabama (1958); NAACP v. Button (1963).
David L. Hudson Jr.
furthe r reading Carter, Robert L. A Matter of Law: A Memoir of Struggle in the Cause of Equal Rights. New York: New Press, 2005. Judges of the United States Courts. www.fjc.gov/servlet/tGetInfo ?jid=392.
The Catcher in the Rye Published in 1951, The Catcher in the Rye, J. D. Salinger’s bildungsroman about sixteen-year-old Holden Caulfield, is one of the most controversial novels in recent U.S. history. Since the early 1960s, disputes over Catcher in the Rye have arisen in more than seventy communities across the United States.
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In some instances, school boards banned the novel, while others removed it from school reading lists or “restricted” it, requiring students to obtain parental permission to read it. In Harris v. Mechanicville Central School District (N.Y. 1978), a high school English teacher was dismissed for insubordination when he refused to drop the book from his curriculum. School boards and parent-teacher associations have been hostile toward the novel because of Holden’s profanity-laden speech and his sexual adventures following his expulsion from prep school.These include an episode with a pimp and a prostitute (with whom Holden does not have sex) and a visit to an old teacher, Mr. Antolini, who gets drunk and makes what Holden interprets as a sexual advance. In recent years, the novel has also been blamed for promoting alienation among students responsible for high-school shootings. Nevertheless, Catcher in the Rye is widely regarded as one of the most important contributions to American literature since the end of World War II. See also Censorship; Students, Rights of.
Simon Stern
furthe r reading Steinle, Pamela Hunt. In Cold Fear:“The Catcher in the Rye” Censorship Controversies and Postwar American Character. Columbus: Ohio State University Press, 2000.
Catholics, Roman The Roman Catholic Church is a Christian denomination that accepts the supremacy of the pope as the successor to Jesus Christ. The Church itself considers the qualifier “Roman,” which derives from the geographical seat of the papacy, to be erroneous because it believes that it is the true “catholic,” or universal, Christian church. Issues relating to the free exercise of religious liberties or the establishment of religion by the government are not unique to any particular religious affiliation. Indeed, it is the neutrality and inclusiveness of the First Amendment’s religion clauses—resulting in part from the framers’ knowledge of conflicts between Catholics and Protestants in Europe— that make the religious clauses a powerful force in support of the free exercise of religious liberties and the separation of church and state. The United States was largely founded by Protestants, with Catholics playing a smaller role. Some early colonies discriminated against Catholics.The hegemony of Protestant thought and practice in public schools through much of the
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At the Vatican on July 2, 1963, Pope Paul VI greets John F. Kennedy, the first Catholic U.S. president.
nineteenth century led many Catholics to form their own schools, which led to tensions concerning what, if any, type of government aid was appropriate. State Blaine amendments, which restricted all aid to parochial schools, were one mechanism of limiting such assistance. Although the Supreme Court used strong separationist language in its decision in Everson v. Board of Education (1947), it nonetheless permitted states to reimburse parents for bus service for their children to parochial school. City of Boerne v. Flores (1997), which arose from a denial of a permit request by a Texasbased Catholic church to enlarge its building, struck down a provision of the Religious Freedom Restoration Act of 1993 in a battle over the meaning of the free exercise clause and fundamental concerns over separation of powers. In Zelman v. Simmons-Harris (2002), the Court upheld a school voucher program in Cleveland, Ohio, against an establishment clause challenge based on the overwhelming use of the vouchers to send kids to private Catholic schools. For a time, many Protestants were wary of Catholic politicians, fearing that they would divide their loyalty between the nation and the papacy. It was not until 1960 that a Catholic, John F. Kennedy, was elected president.The current Supreme Court is composed of a majority of Catholics. See also Aid to Parochial Schools; Blaine Amendments; Everson v. Board of Education (1947); Murray, John Courtney; Vatican, U.S. Recognition of.
John H. Matheson
furthe r reading Miller, Adam S. The Roman Catholic Church: A Divine Institution or a Human Invention? 2d ed. Monrovia, Md.: Tower of David Publications, 2006. Noll, Mark A., and Luke E. Harlow. Religion and American Politics. 2d ed. New York: Oxford University Press, 2007. Witte, John, Jr. “Religious Liberty.” www.firstamendmentcenter.org/ rel_liberty/overview.aspx.
Cato’s Letters Between November 1720 and December 1723, John Trenchard and Thomas Gordon wrote an extraordinary series of 144 weekly essays for the London Journal, taking their pen name, Cato, from the Roman statesman who had defied the emperor Julius Caesar. Compiled in 1724 as a four-volume set, Cato’s Letters had gone through six printings by 1755; the essays frequently reappeared in American periodicals. Inflamed by corrupt corporations, warmongering politicians, and their flatterers, Trenchard and Gordon called for liberty, accountability, and checks upon the wealthy interests who manipulated government for their own ends. No single work had as much direct influence on the revolutionary generation’s understandings of free speech and conscience as did Cato’s Letters. Trenchard and Gordon made an unlikely pair.Trenchard, born in 1662, was a wealthy country gentleman several decades older and much wealthier than Gordon, a young Scottish lawyer and tutor. After striking up a friendship in a coffeehouse, they went on to write essays called the
Cato’s Letters “Independent Whig,” attacking Episcopal “high church” pretensions. Their most important collaboration, however, was Cato’s Letters, which attracted a wide audience. The occasion for the letters was the collapse in 1720 of the “South Sea bubble,” a corrupt stock scheme involving the South Sea Company, a trading operation with private stockholders, chartered by Parliament, and given monopoly privileges over trade with Spanish South America.The company had been formed to help manage England’s public debts, which had been exacerbated by various royal military adventures. Debt certificates were convertible to company stock. Although the company produced nothing of value, its stock rose through speculation, pumped up by the company’s officers and the public officials they had bribed. When the bubble burst, the directors fled the country. Cato called for vengeance:“what we can have of them, let us have; their necks and their money” (1995: 50). Cato’s Letters is a work of synthetic genius.Although their ideas are not always original,Trenchard and Gordon create a seamless merger of Machiavelli’s republicanism, John Locke’s liberalism, and Algernon Sidney’s anti-authoritarian populism. The result is an impassioned defense of the industrious individual fighting against corporate privilege and the forces of “tyranny.” As Gordon wrote in his preface to the 1724 edition,“Let us therefore . . . brand those as enemies to human society, who are enemies to equal and impartial liberty” (1995: 12).Trenchard asserted more specifically that “a free trade, a free government, and a free liberty of conscience, are the rights and blessings of mankind” (1995: 653). For Cato, freedoms of conscience take priority over all others: “Whigs think all liberty to depend upon freedom of speech, and freedom of writing . . . there is often no other way left to be heard by their superiors, nor to apprize their countrymen of designs and conspiracies against their safety” (1995: 721). Restricted speech is the hallmark of tyranny, since absolutists always promote “abject sycophancy and blind submission” (1995: 115). The First Amendment drew much of its language from Cato, who wrote that the people must be able “to represent their public grievances, and to petition for redress to those whose duty it is to right them” (1995: 178). Historian Forrest McDonald points out that “free speech” was never a central political claim prior to the 1720s:“It was John Trenchard and Thomas Gordon . . . who first gave unreserved endorsement to free speech as being indispensable . . . and who were willing to extend the privilege to all, including those who disagreed with them” (1985: 47).
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Following Machiavelli, Cato offers a deeply pessimistic account of human nature, skeptical of how the wealthy and powerful pursue self-interest at the public’s expense, while also expressing a constant faith in the goodness of “the people.” As Gordon writes,“the people, when they are not misled or corrupted, generally make a sound judgment of things” (1995: 174).The people could be trusted to criticize government, even at risk of libel, a subject Cato tackles at length. Libels are “a sort of writing that hurts particular persons” and, unlike in modern American law, are “not the less a libel for being true.” Cato contends that “There are some truths not fit to be told. . . . But this doctrine only holds true as to private and personal failings; and it is quite otherwise when the crimes of men come to affect the publick” (1995: 228). While individuals should ignore “the private vices or weaknesses of our governors,” Cato celebrates public accusation on matters of state, suggesting that any government restrictions on the press would have a dangerous chilling effect that could only benefit the corrupt and despotic (1995: 231–232). Cato’s advocacy of religious liberty was more complex and reflects the pragmatic compromises of his era. Echoing Locke, Cato asserts, “Every man’s religion is his own . . . ; which action utterly excludes all force, power or government. . . . It is a relation between God and our own souls only. . . . Religion therefore, which can never be subject to the jurisdiction of another, can never be alienated to another, or put in his power” (1995: 414).Yet tolerance for religious dissenters did not suggest a complete separation of church and state, and Cato defended England’s Episcopalian establishment that barred dissenters from public office. The reason was political. Cato feared on practical grounds that any change would empower either the Catholics or Presbyterians, both of whom he saw as far more intolerant of dissent (1995: 588–593). Cato left a profound mark on the United States, including the anti-absolutist suspicions of the revolution, the defenses of free speech and conscience embodied in the Constitution, and the rowdy passions of Jacksonian democracy. Like the Jacksonians, Trenchard warned, “O Companies, Companies! ye bane of honesty, and ruin of trade; the market of [stock-] jobbers, the harvest of managers, and the tools of knaves, and of traitors!” (1995: 72) For Trenchard and Gordon, liberty meant that “every cobbler can judge, as well as a statesman” (1995: 103). Freedom of speech, a “sacred privilege . . . so essential to free government” would lead to truth, and with it, all good things:
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peace, prosperity, the widespread ownership of property, and a government as good as its people (1995: 110). See also Locke, John; Sidney, Algernon.
Robb A. McDaniel
furthe r reading Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge, Mass.: Belknap Press, 1992. Huyler, Jerome. Locke in America: The Moral Philosophy of the Founding Era. Lawrence: University Press of Kansas, 1995. Kramnick, Isaac. Republicanism and Bourgeois Radicalism: Political Ideology in Late Eighteenth Century England and America. Ithaca, N.Y.: Cornell University Press, 1990. McDonald, Forrest. Novus Ordo Seclorum:The Intellectual Origins of the Constitution. Lawrence: University Press of Kansas, 1985. Trenchard, John, and Thomas Gordon. Cato’s Letters, or Essays on Liberty, Civil and Religious, and Other Important Subjects, ed. Ronald Hamowy. Indianapolis, Ind.: Liberty Fund, 1995.
CBS, Inc. v. Federal Communications Commission (1981) In CBS, Inc. v. Federal Communications Commission, 453 U.S. 367 (1981), the Supreme Court ruled that the First Amendment rights of political candidates and the public outweigh the First Amendment rights of broadcasters in their obligation to provide federal candidates “reasonable access” for political advertising. The Court’s 6-3 decision upheld section 312(a)(7) of the Federal Election Campaign Act of 1971, which Congress had adopted to allow candidates for federal office to purchase air time for political advertising on broadcast stations. In December 1979, the reelection campaign of President Jimmy Carter attempted to purchase thirty minutes of prime time on each network for a documentary on Carter’s first term in office. CBS offered two five-minute segments, one of which would air during prime time, and ABC indicated that it would make time available in January 1980. NBC rejected the request on the ground that it was “too early in the political season for nationwide broadcast time to be made available for paid political purposes.” The Federal Communications Commission (FCC) ruled that the networks had failed to meet the “reasonable access” requirement stipulated for federal candidates under section 312(a)(7). Writing for the majority, Chief Justice Warren E. Burger noted that the FCC was not required to honor all requests
for air time by federal candidates, but was well within its authority in ordering the three networks to grant the Carter campaign access. Burger added that the FCC had established guidelines for broadcasters in determining when candidates could purchase airtime under section 312(a)(7). He concluded that in this circumstance, the FCC’s contention that the three major networks had violated those guidelines was warranted and that section 312(a)(7) represented an “effort by Congress to assure that an important resource—the air waves—will be used in the public interest.” Burger added that the statutory right of access as defined by the FCC “properly balances the First Amendment rights of federal candidates, the public, and broadcasters.” Justice Byron R.White dissented on the ground that the decision negated “the long standing statutory policy of deferring to editorial judgments that are not destructive of the goals of the Act [the Communications Act of 1934].”White argued that the FCC had misinterpreted section 312(a)(7) and that Congress intended only “to codify what it conceived to be the pre-existing duty of the broadcasters to serve the public interest by presenting political broadcasts.” Since the Court’s decision, the general rule for candidates for federal office is that broadcasters cannot set across-theboard policies, but rather must consider the needs of each individual candidate. Broadcast stations may, however, establish a policy of not selling any political advertisements during news programming. See also Burger,Warren E.; Federal Communications Commission; Political Parties.
Roger Heinrich
furthe r reading Carter, T. Barton, Marc A. Franklin, and Jay B. Wright. The First Amendment and the Fifth Estate. 7th ed. New York: Foundation Press; St. Paul, Minn.:Thomson/West, 2008. Overbeck, Wayne. Major Principles of Media Law. Belmont, Calif.: Thompson Wadsworth, 2005.
Censorship Censorship occurs when individuals or groups try to prevent others from saying, printing, or depicting words and images. Censors seek to limit freedom of thought and expression by restricting spoken words, printed matter, symbolic messages, freedom of association, books, art, music, movies, television programs, and Internet sites.When the government engages in censorship, First Amendment freedoms are implicated.
Censorship Private actors—for example, corporations that own radio stations—also can engage in forms of censorship, but this presents no First Amendment implications as no governmental, or state, action is involved. Various groups have banned or attempted to ban books since the invention of the printing press. Censored or challenged works include the Bible, The American Heritage Dictionary, The Autobiography of Benjamin Franklin, Bury My Heart at Wounded Knee,To Kill A Mockingbird, and the works of children’s authors J. K. Rowling and Judy Blume. The First Amendment guarantees freedom of speech and press, integral elements of democracy. Since Gitlow v. New York (1925), the Supreme Court has applied the First Amendment freedoms of speech and press to the states through the due process clause of the Fourteenth Amendment. Freedom of speech and press are not, however, absolute. Over time, the Supreme Court has established guidelines, or tests, for defining what constitutes protected and unprotected speech. Among them are the bad tendency test, established in Abrams v. United States (1919), the clear and present danger test from Schenck v. United States (1919), the preferred freedoms doctrine of Jones v. City of Opelika (1943), and the strict scrutiny, or compelling state interest, test set out in Korematsu v. United States (1944). Justice Oliver Wendell Holmes Jr. offered the classic example of the line between protected and unprotected speech in Schenck when he observed that shouting “Fire!” in a theater where there is none is not protected speech. Categories of unprotected speech also include libel and slander, “fighting words,” obscenity, and sedition. Determining when defamatory words may be censored has proved to be difficult for the Court, which has allowed greater freedom in remarks made about public figures than those concerning private individuals. In New York Times Co. v. Sullivan (1964), the Court held that words can be libelous (written) or slanderous (spoken) in the case of public officials only if they involve actual malice or publication with knowledge of falsehood or reckless disregard for the truth. Lampooning has generally been protected by the Court. In Hustler Magazine v. Falwell (1988), for example, the Court held that the magazine had not slandered Rev. Jerry Falwell by publishing an outrageous “advertisement” containing a caricature of him because it was presented as parody rather than truth. On the issue of press freedoms, the Court has been reluctant to censor publication of even previously classified materials, as in New York Times v. United States (1971)—the
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Pentagon Papers case—unless the government can provide an overwhelming reason for such prior restraint.The Court has accepted some censorship of the press when it interferes with the right to a fair trial, as exhibited in Estes v. Texas (1965) and Sheppard v. Maxwell (1966), but the Court has been reluctant to uphold gag orders, as in the case of Nebraska Press Association v. Stuart (1976). In Chaplinsky v. New Hampshire (1942), the Supreme Court defined “fighting words” as those that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Racial epithets and ethnic derisions have traditionally been unprotected under the umbrella of “fighting words.” Since the backlash against so-called political correctness, however, liberals and conservatives have fought over what derogatory words may be censored and which are protected by the First Amendment. In its early history, the Supreme Court left it to the states to determine whether materials were obscene. Acting on its decision in Gitlow v. New York (1925) to apply the First Amendment to limit state action, the Warren Court subsequently began dealing with these issues in the 1950s on a case-by-case basis and spent hours examining material to determine obscenity. In Miller v. California (1973), the Burger Court finally adopted a test that elaborated on the standards established in Roth v. United States (1957). Miller defines obscenity by outlining three conditions for jurors to consider:“(a) whether the ‘average person, applying contemporary community standards,’ would find that the work taken as a whole appeals to the prurient interest; (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c)whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.” Proposals to censor music date back to Plato’s Republic. In the 1970s, some individuals thought anti-war songs should be censored. In the 1980s, the emphasis shifted to prohibiting sexual and violent lyrics. The Federal Communications Commission (FCC) also sought to fine radio stations for the broadcast of indecent speech. In general, rap and hard-core rock-n-roll have faced more censorship than other types of music. Caution must be used in this area to distinguish between governmental censorship and private censorship. Courts have not interpreted the First Amendment rights of minors, especially in school settings, to be as broad as those of adults; their speech in school newspapers or in speaking to audiences of their peers may accordingly be censored.
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Advancing technology has opened up new avenues in which access to a variety of materials, including obscenity, is open to minors, and Congress has been only partially successful in restricting such access. Parental controls on televisions and computers have provided parents and other adults with some monitoring ability, but no methods are 100 percent effective. In general, sedition is defined as trying to overthrow the government with intent and means to bring it about; the Supreme Court, however, has been divided over what constitutes intent and means. In general, the government has been less tolerant of perceived sedition in times of war than in peace.The first federal attempt to censor seditious speech occurred with the passage of the Alien and Sedition Acts of 1798 under President John Adams.These acts made it a federal crime to speak, write, or print criticisms of the government that were false, scandalous, or malicious. Thomas Jefferson compared the acts to witch hunts and pardoned those convicted under the statues when he succeeded Adams. During World War I, Congress passed the Espionage Act of 1917 and the Sedition Act of 1918, and the Court spent years dealing with the aftermath. In 1919 in Schenck, the government charged that encouraging draftees not to report for duty in World War I constituted sedition. In this case, the court held that Schenck’s actions were, indeed, seditious because, in the words of Justice Holmes, they constituted a “clear and present danger” of a “substantive evil,” defined as attempting to overthrow the government, inciting riots, and destruction of life and property. In the 1940s and 1950s,World War II and the rise of communism produced new limits on speech, and McCarthyism destroyed the lives of scores of law-abiding suspected communists. The Smith Act of 1940 and the Internal Security Act of 1950, also known as the McCarran Act, attempted to stamp out communism in the country by establishing harsh sentences for advocating the use of violence to overthrow the government and making the Communist Party of the United States illegal. After the al-Qaida attacks of September 11, 2001, and passage of the USA Patriot Act, the United States faced new challenges to civil liberties.As a means of fighting terrorism, government agencies began to target people openly critical of the government. The arrests of individuals suspected of knowing people considered terrorists by the government was in tension with, if not violation of, the First Amendment’s freedom of association. These detainees were held without benefit of counsel and other constitutional
rights. The George W. Bush administration and the courts continue to battle over the issues of warrantless wiretaps, military tribunals, and suspension of various rights guaranteed by the Constitution and the Geneva Conventions, which stipulate acceptable conditions for holding prisoners of war. Certain forms of speech are protected from censure by governments. For instance, the First Amendment protects pure speech, defined as that which is merely expressive, descriptive, or assertive.The Court has held that the government may not suppress speech simply because it thinks it is offensive. Even presidents are not immune from being criticized and ridiculed. Less clearly defined are those forms of speech referred to as speech plus, that is, speech that carries an additional connotation.This includes symbolic speech, in which meanings are conveyed without words. In Tinker v. Des Moines Independent Community School District (1969), the Court upheld the right of middle and high school students to wear black armbands to school to protest U.S. involvement in Vietnam. One of the most controversial examples of symbolic speech has produced a series of flag desecration cases, including Spence v.Washington (1974), Texas v. Johnson (1989), and United States v. Eichman (1990). Despite repeated attempts by Congress to make it illegal to burn or deface the flag, the Court has held that such actions are protected. Writing for the 5-4 majority in Texas v. Johnson, Justice William J. Brennan Jr. stated,“We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” When speech turns into other forms of action, constitutional protections are less certain. In R.A.V. v. St. Paul (1992), the Court overturned a local hate crime statute that had been used to convict a group of boys who had burned a cross on the lawn of a black family living in a predominately white neighborhood.The Court qualified this opinion in Virginia v. Black (2003), holding that the First Amendment did not protect such acts when their purpose was intimidation. See also Abrams v. United States (1919); Bad Tendency Test; Chaplinsky v. New Hampshire (1942); Clear and Present Danger Test; Compelling State Interest; Estes v.Texas (1965); Fighting Words; Gitlow v. New York (1925); Holmes, Oliver Wendell, Jr.; Hustler Magazine v. Falwell (1988); Jones v. City of Opelika (1942) (1943); Libel and Slander; McCarran Act of 1950; Miller v. California (1973); Nebraska Press Association v. Stuart (1976); New York Times Co. v. Sullivan (1964); New York Times Co. v. United States (1971); Obscenity and Pornography; Preferred Position Doctrine; R.A.V. v. St.
Central Hudson Gas and Electric Corp. v. Public Service Commission (1980) Paul (1992); Roth v. United States (1957); Schenck v. United States (1919); Sedition Act of 1798; Sheppard v. Maxwell (1966); Smith Act of 1940; Spence v.Washington (1974);Texas v. Johnson (1989); Tinker v. Des Moines Independent Community School District (1969); United States v. Eichman (1990); USA Patriot Act of 2001; Virginia v. Black (2003);Whitney v. California (1927).
Elizabeth R. Purdy
furthe r reading Bracken, Harry M. Freedom of Speech: Words Are Not Deeds. Westport, Conn.: Praeger, 1994. Hemmer, Joseph J., Jr. Communication Law: The Supreme Court and the First Amendment. Lanham, Md.: Austin and Winfield, 2000. Hentoff, Nat. Free Speech for Me—But Not for Thee. New York: HarperCollins, 1992. Irons, Peter H. Brennan vs. Rehnquist:The Battle for the Constitution. New York: Alfred A. Knopf, 1994. Kennedy, Sheila Seuss. Free Expression in America:A Documentary History. Westport, Conn.: Greenwood, 1999. Kersch, Ken I. Freedom of Speech, Rights, and Liberties under the Law. Santa Barbara, Calif.: ABC-CLIO, 2003. Levy, Leonard. Freedom of Speech in American History: Legacy of Suppression. New York: Harper and Row, 1963. Rudanko, Juhani. The Forging of Freedom of Speech: Essays on Congressional Debates on the Bill of Rights and on the Sedition Act. Lanham, Md.: University Press of America, 2003. Sadurski, Wojciech. Freedom of Speech and Its Limits. Norwell, Mass.: Kluwer, 1999. Sherman, Daniel J., and Terry Nardin, eds. Terror, Culture, Politics: Rethinking 9/11. Bloomington: Indiana University Press, 2006. Tedford, Thomas L. Freedom of Speech in the United States. New York: Random House, 1995.
Central Hudson Gas and Electric Corp. v. Public Service Commission (1980) The Supreme Court decision in Central Hudson Gas and Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), established a four-part test for determining when commercial speech can be regulated without violating the Constitution.Although the test has been subsequently modified slightly and is often criticized, it remains the standard applied in virtually all commercial speech cases. In 1942 the Supreme Court had flatly denied First Amendment protections to commercial speech in Valentine v. Chrestensen. In 1976, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., it noted the value of commercial communications to a free enterprise system, but nevertheless still considered commercial expression to be low-value speech.With Central Hudson Gas and Electric Corp. v. Public Service Commission, Justice Lewis F. Powell Jr. com-
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manded the support of five of eight justices in the majority in overturning lower court decisions and announcing a new four-part test for determining when commercial speech is protected by the Constitution. In an effort to conserve energy and discourage consumption during the 1973 energy crisis, the Public Service Commission of New York had ordered all electric utilities in the state to cease advertising. Central Hudson Gas and Electric Corp. challenged the order in court as a restraint on free speech. Lower courts ruled that the government’s interest in discouraging consumption outweighed the value of the speech.The Supreme Court reversed, declaring the regulation too broad. Part one of the Central Hudson test flatly denies constitutional protection to “communication more likely to deceive the public than to inform it” and to “commercial speech relating to illegal activity.” This constitutes a threshold for identifying types of commercial speech that merit First Amendment protection. The burden of proof resides with the communicator to demonstrate that speech does not fall into one of these categories. Any commercial speech that satisfies the threshold requirement is presumed to be protected, and the burden of proof shifts to the state to justify regulation by satisfying parts two through four. Part two provides that “the State must assert a substantial interest to be achieved by restrictions on commercial speech.” Part three specifies that “the [State’s] restriction must directly advance the state interest involved.” Part four ensures that “if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.” To settle a decade-long controversy regarding the evidentiary requirements in commercial speech cases, the Court held in Rubin v. Coors Brewing Co. (1995) that the regulating agency “must demonstrate that the harms [from speech] . . . are real and that its restriction will in fact alleviate them to a material degree.” The Court made a major modification in the Central Hudson test by altering the level of proof required of the government to meet part four of the test.The original requirement entailed that the government prove that the means of regulation be the “least restrictive means” available, but from more recent cases evolved the demand that the government “demonstrate narrow tailoring of the challenged regulation to the asserted interest—‘a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served’ ” (Greater New Orleans
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Broadcasting Association v. United States [1999], citing Board of Trustees of State University of New York v. Fox [1989]). Critics contend that the reasonableness standard is inherently subjective because what is reasonable varies from case to case. Nevertheless, since reasonableness was first proposed in In re R.M.J. (1982), the Supreme Court has more often used the standard to overturn than to uphold governmental restrictions on commercial speech. See also Board of Trustees of State University of New York v. Fox (1989); Commercial Speech; Greater New Orleans Broadcasting Association v. United States (1999); In re R.M.J. (1982); Powell, Lewis F., Jr.;Valentine v. Chrestensen (1942);Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976).
Richard Parker
furthe r reading Hemmer, Joseph J., Jr. “Central Hudson Gas & Electric v. Public Service Commission.” In Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions, ed. Richard A. Parker, 234–249.Tuscaloosa: University of Alabama Press, 2003. Kozinski, Alex, and Stuart Banner. “Who’s Afraid of Commercial Speech?” Virginia Law Review 76 (May 1990): 627–653. Shiner, Roger A. Freedom of Commercial Expression. Oxford: Oxford University Press, 2003. Vladeck, David C.“Lessons from a Story Untold: Nike v. Kasky Reconsidered.” Case Western Reserve Law Review 54 (2004): 1049–1089. Waters, Brian J. “A Doctrine in Disarray: Why the First Amendment Demands the Abandonment of the Central Hudson Test for Commercial Speech.” Seton Hall Law Review 27 (1997): 1626–1657.
Central Hudson Test See Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)
Chafee, Zechariah, Jr. Zechariah Chafee Jr. (1885–1957), a Harvard Law School professor, achieved prominence during World War I and its aftermath, when he argued forcefully for broader protection of free speech rights. Following the U.S. entry into World War I, these rights came under attack from several different directions. The national anxiety generated by the war and the Bolshevik Revolution in Russia inspired the first red scare, which led to a crackdown on political dissidents. In general, this period saw the beginning of a concerted use of federal power to monitor and control suspected radicals to an extent unheard of since the Sedition Act of 1798. As the government used the Espionage Act of 1917 and the Sedition Act of 1918 to silence critics of its war policies, few
defenders of free speech came forward. Zechariah Chafee Jr. was an exception. In the immediate prewar period, Chafee, who earned his law degree at Harvard, began to explore the law of free speech as a Harvard Law School professor and found it almost nonexistent. The Supreme Court had never applied nor interpreted the First Amendment, nor had it considered the constitutionality of federal legislation in relation to the right of free speech. Indeed, from the ratification of the Constitution to the early twentieth century, the nation had had little experience with applying and defining free speech. This void of First Amendment precedent left free speech with undeveloped defenses in the face of strong wartime public demands for restrictions. Free speech was consequently sacrificed for the sake of a somewhat vague and undefined sense of national security. Chafee criticized the wartime excesses of the Woodrow Wilson administration in the area of civil liberties as well as the judicial disregard of the First Amendment. He advocated a more sensitive approach toward freedom of speech and tried to steer the courts toward a more pro–civil libertarian approach when ruling on convictions brought under the espionage and sedition acts. In so doing, Chafee became the first major American scholar of the First Amendment. Chafee argued that speech should be free, even in wartime, unless it clearly threatened to cause a dangerous interference with the conduct of the war. He strongly opposed the Supreme Court’s decisions upholding convictions of political dissenters under the espionage and sedition acts. Believing free speech vital to the survival of democratic society, Chafee asserted that the social interest in the attainment of truth required a system of free expression.Thus, he warned that the government’s restrictive behavior was corrupting a primary value—freedom of speech—underlying democratic processes. Chafee was widely criticized for his views and was unable to convince the wartime courts to adopt his views. In the first defense of the First Amendment by a Supreme Court justice, however, Justice Oliver Wendell Holmes Jr. incorporated Chafee’s free speech theory in his eloquent dissent in Abrams v. United States (1919), articulating the need for free speech. Eventually, in the early 1930s, the Supreme Court embraced Chafee’s views regarding free speech in several of its First-Amendment decisions. See also Abrams v. United States (1919); Espionage Act of 1917; Holmes, Oliver Wendell, Jr.; Red Scare; Sedition Act of 1918;World War I.
Patrick Garry
Chandler v. Florida (1981) furthe r reading Chafee, Zachariah Jr. Free Speech in the United States. New York: Harcourt, Brace and Howe, 1920. Smith, Donald L. Zechariah Chafee, Jr., Defender of Liberty and Law. Cambridge, Mass.: Harvard University Press, 1986.
Chamberlin v. Public Instruction Board (1964) Chamberlin v. Public Instruction Board, 377 U.S. 402 (1964), a brief per curiam Supreme Court opinion, reversed a Florida Supreme Court decision that had upheld devotional Bible readings and prayers in the public schools.The Court decided that the lower court had not appropriately raised issues relative to baccalaureate services, a religious census of pupils, and a religious test for teachers. The Court pointed to the precedent in Abington School District v. Schempp (1963) striking down devotional exercises and to Asbury Hospital v. Cass County (1945) dismissing the other issues. Justice William O. Douglas, in a partial concurrence joined by Justice Hugo L. Black, argued that the issue of a religious test for teachers—which the lower court had justified as a way of promoting the morality of teachers— should be argued and might be covered by the Court’s decision in Torcaso v.Watkins (1961). See also Abington School District v. Schempp (1963); Douglas, William O.; Prayer at Public School Events; Religious Tests;Torcaso v. Watkins (1961).
John R.Vile
furthe r reading Newsom, Michael deHaven. “Common School Religion: Judicial Narratives in a Protestant Empire.” Southern California Interdisciplinary Law Journal 11 (2002): 219–337.
Chandler v. Florida (1981) In Chandler v. Florida, 449 U.S. 560 (1981), the Supreme Court ruled that the Constitution does not prevent states from allowing broadcast coverage of criminal trials. The Court’s decision affirmed a Florida Supreme Court ruling that upheld the convictions of two men who claimed that the presence of cameras deprived them of their right to a fair trial. The First and Sixth Amendment values in conflict in Chandler have been debated since the early days of the broadcast era. The sensational 1935 trial of Bruno Hauptmann, who kidnapped the son of aviator Charles
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Lindbergh, marked a turning point. The circus-like atmosphere of the trial, caused in part by the radio coverage of the proceedings, led the American Bar Association to adopt rules against broadcast coverage. Most states followed suit, banning radio and then television from courtroom proceedings. Several states, however, including Texas, continued to allow broadcast of trials, leading to the Supreme Court’s first ruling on the issue. A majority of the Court found in Estes v.Texas (1965) that the coverage of the trial of financier Billie Sol Estes was so pervasive that it violated his right to due process. The Estes decision represented a setback for broadcast coverage, but did not hamper improvements in the technology that would change the terms of the debate. Cameras became smaller, and they no longer needed intrusive bright lights or cables. Broadcasters began to press for a resumption of broadcast coverage, and the Florida Supreme Court agreed in 1977. One of the Florida trials in which cameras were allowed was that of Noel Chandler and Robert Granger, Miami Beach police officers accused of robbing a local restaurant. Both defendants objected to the presence of cameras, but the trial judge permitted them. Both officers were convicted, and they appealed, claiming that the presence of cameras affected the ability of jurors to decide the case fairly. Florida courts upheld the convictions. Chief Justice Warren E. Burger, writing for an 8-0 majority (Justice John Paul Stevens did not participate), said that the danger that jurors might be affected by the presence of cameras in a given case was not enough to justify an outright ban on broadcast coverage and that states were free to experiment in this area. The Court did not overrule Estes, but instead interpreted it narrowly. Chandler opened courtroom doors to widespread broadcast access in almost every state. The 1995 murder trial of former football player O. J. Simpson marked another milestone. Intense media interest in the trial was widely believed to have tainted the trial process. The federal courts, which had been experimenting with cameras at the time, decided against expanding use of them, though coverage of appeals courts was allowed at the discretion of individual circuit courts.Although the Chandler decision launched widespread experimentation at the state level, the justices continued to resist televised coverage of Supreme Court proceedings. See also Burger, Warren E.; Cameras in the Courtroom; Estes v. Texas (1965); Sheppard v. Maxwell (1966).
Tony Mauro
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Chandler v. McMinnville School District (9th Cir. 1992)
furthe r reading Goldfarb, Ronald L. TV or Not TV: Television, Justice and the Courts. New York: New York University Press, 1998. Lee, Douglas. “Cameras in the Courtroom.” 2006. www.first amendmentcenter.org/press/topic.aspx?topic=cameras_ courtroom. Radio-Television News Directors Association. “Freedom of Information: Cameras in the Courtroom. A State-by-State Guide.” 2006. www.rtndf.org/foi/scc.shtml.
Chandler v. McMinnville School District (9th Cir. 1992) Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992), an oft-cited federal appeals court decision, highlights the contours of the Supreme Court’s major trilogy of student free expression cases: Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), and Hazelwood School District v. Kuhlmeier (1988). The case began in February 1990, when public school teachers in McMinnville, Oregon, began a lawful strike. McMinnville High School students David Chandler and Ethan Depweg, whose fathers were striking teachers, wore various “scab” buttons, criticizing the use of replacement teachers and expressing support for the strikers. For example, some of the buttons read “I’m not listening scab.” When school officials prevented the two students from wearing the buttons, the students filed a federal lawsuit, claiming a violation of their First Amendment rights. School officials asserted a legal right to force the students to remove the buttons because they were offensive and disruptive within the meaning of the Supreme Court’s decision in Fraser establishing the principle that public school officials can punish students for vulgar and lewd speech (in the case of Fraser, at a school assembly). A federal district court agreed with the school officials and dismissed the lawsuit. On appeal, the Ninth Circuit Court of Appeals reversed and reinstated the students’ lawsuit. The Ninth Circuit divided student expression cases into three categories based on the trilogy of Supreme Court decisions: “(1) vulgar, lewd, obscene, and plainly offensive speech, (2) school-sponsored speech, and (3) speech that falls into neither of these categories. We conclude . . . that the standard for reviewing the suppression of vulgar, lewd, obscene, and plainly offensive speech is governed by Fraser, school-sponsored speech by Hazelwood, and all other speech by Tinker.”The court reasoned that Hazelwood did not gov-
ern Chandler’s case because the buttons were not schoolsponsored speech. Fraser did not govern the case because the “scab” buttons and the word scab were not vulgar, lewd, or plainly offensive within the meaning of Fraser. The Ninth Circuit then concluded that the district court should have evaluated the students’ case under Tinker—which involved the political expression of anti-war black armbands—and determined whether the buttons were substantially disruptive of school activities. Many other lower courts have cited Chandler for its explanation of Supreme Court student speech jurisprudence. The Ninth Circuit relied on its Chandler precedent to rule in Frederick v. Morse (2006) that the Tinker standard controlled the analysis in whether a student could be punished for displaying a “Bong Hits 4 Jesus” banner across from his school. Although the Supreme Court overruled that decision in Morse v. Frederick (2007), Chandler remains an important lower court, student speech precedent. See also Bethel School District No. 403 v. Fraser (1986); Hazelwood School District v. Kuhlmeier (1988); Morse v. Frederick (2007); Students, Rights of; Tinker v. Des Moines Independent Community School District (1969).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. The Silencing of Student Voices: Preserving Free Speech in America’s Schools. Nashville, Tenn.: First Amendment Center, 2003.
Chaplains Chaplaincy programs established and funded by the government appear on their face to be a clear violation of the establishment clause of the First Amendment. State and federal courts have recognized, however, that the chaplaincy is one area in which the free exercise rights of affected prisoners and military personnel outweigh any potential establishment clause violation.As Justice William J. Brennan Jr. noted in his concurrence in Abington School District v. Schempp (1963), “Since government has deprived such persons of the opportunity to practice their faith at places of their choice, . . . government may, in order to avoid infringing the free exercise guarantees, provide substitutes where it requires such persons to be.” Not to provide such substitutes, he observed, would signal hostility toward religion rather than neutrality. Access to chaplains does not entitle soldiers and inmates to a spiritual adviser of their choice. The Supreme Court has
Chaplains held that prisoners must only be provided a “reasonable opportunity” to exercise their religious freedom. Although federal and state bureaus of prisons and the Department of Defense attempt to provide chaplains from particular denominations in proportion to the religions represented in their ranks, they do not have a duty to provide chaplains for every denomination or faith; less “mainstream” religions will likely not be represented. Most chaplains are trained to provide programs and services for the majority of faiths, however, and they are strictly prohibited from proselytizing the communities they serve. Although the Supreme Court has never addressed the constitutionality of military or prison chaplains, the Second Circuit Court of Appeals explicitly held in Katcoff v. Marsh (2d Cir. 1985) that the military chaplaincy does not violate the establishment clause. In that case, two federal taxpayers challenged the constitutionality of the U.S.Army’s chaplaincy on the grounds that it was funded by government, as opposed to private, sources.The court held that if viewed in isolation, the chaplaincy would fail under the Lemon test.The court also noted, however, that the establishment clause must be interpreted in light of other constitutional provisions, namely the free exercise clause and the war powers clause. Rejecting the application of the Lemon test in this case, the court stated that in light of the courts’ traditional deference to the military, the standard to evaluate the chaplaincy should be “whether, after considering practical alternatives, the chaplaincy program is relevant to and reasonably necessary for the Army’s conduct of our national defense.” The court held that the chaplaincy program meets this standard because there are no practical alternatives to a governmentfunded chaplaincy, and the plaintiffs failed to show that a privately funded chaplaincy or a civilian chaplaincy were feasible options. In Theriault v. Silber (1977), the Fifth Circuit Court of Appeals similarly held that the prison chaplaincy passes constitutional muster, although it provided hardly any explanation. The Supreme Court has directly addressed the chaplaincy only within the context of the legislature. In Marsh v. Chambers (1983), the Court held that a Nebraska legislative chaplaincy program did not violate the establishment clause. The Court did not apply the Lemon test, but instead based its decision exclusively on the history and tradition of the legislative chaplaincy. It noted that the First Congress authorized the appointment of paid chaplains, which had continued uninterrupted for more than 200 years.The Court reasoned that the First Congress, which is typically afforded
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great weight in interpreting the Constitution, demonstrated by its hiring of legislative chaplains that such a practice does not violate the establishment clause. Because the Court made no effort to reconcile Marsh with existing establishment clause cases applying the Lemon test, it appears—as Justice Brennan pointed out in his dissent—that the majority was “carving out an exception to the Establishment Clause.” The Eighth Circuit Court of Appeals in Carter of Broadlawns Medical Center (1988) seems to support Justice Brennan’s contention that the holding in Marsh is limited to its specific facts. In Carter, taxpayers challenged a county hospital’s decision to hire a paid chaplain on establishment clause grounds. The court rejected the hospital’s argument that Marsh supported the program, noting that “evidence of Iowa state practices sheds no light on the legislative intent of the First Amendment’s framers, as the evidence did in Marsh.” Instead, the court analyzed the hospital’s chaplaincy program under the Lemon test and held that it passed constitutional muster since the chaplain provided general counseling services and did not proselytize. See also Abington School District v. Schempp (1963); Lemon v. Kurtzman (1971); Marsh v. Chambers (1983); Military Personnel, Rights of; Prisons.
Emilie S. Kraft
furthe r reading Aden, Steven H.The Navy’s Perfect Storm: Has a Military Chaplaincy Forfeited Its Constitutional Legitimacy by Establishing Denominational Preferences? Western State University Law Review 31 (2004): 185–237. Branham, Lynn S. “ ‘Go and Sin No More”:The Constitutionality of Governmentally Funded Faith-Based Prison Units.” University of Michigan Journal of Law Reform 37 (2004): 291–352. Hourihan, William J., ed. A Brief History of the United States Chaplain Corps: Pro Deo Et Patria. 2004. www.usachcs.army.mil/HISTORY/ Brief/TitlePage.htm. Kraft, Emilie. “Entangled Choices: Selecting Chaplains for the United States Armed Forces.” Alabama Law Review 56 (2004): 247–283. Odom, Jonathan G.“Beyond Arm Bands and Arms Banned: Chaplains, Armed Conflict, and the Law.” Naval Law Review 49 (2002): 1–70. Seymour, Stephen. “The Silence of Prayer: An Examination of the Federal Bureau of Prisons’ Moratorium on the Hiring of Muslim Chaplains.” Columbia Human Rights Law Review 37 (2006): 523–558. Wildhack, William A., III. “Navy Chaplains at the Crossroads: Navigating the Intersection of Free Speech, Free Exercise, Establishment, and Equal Protection.” Naval Law Review 51 (2005): 217–251.
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Chaplinksy v. New Hampshire (1942)
Chaplinksy v. New Hampshire (1942) The Supreme Court decision in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), established the doctrine of fighting words, a type of speech or communication not protected by the First Amendment. Walter Chaplinsky, a Jehovah’s Witness, was distributing religious pamphlets and speaking one afternoon in Rochester, New Hampshire, when a crowd gathered around him. As Chaplinsky railed against organized religion, the crowd became restless. A city marshal approached Chaplinsky but reminded the crowd that Chaplinsky was within the law. After leaving the scene, the city marshal received word of a riot ensuing where Chaplinsky was speaking. As he headed back to the scene, the marshal came upon Chaplinsky being escorted to a police station by another police officer. Upon seeing the marshal, Chaplinsky uttered the phrases “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Chaplinsky was arrested for violating a New Hampshire law prohibiting the use of “offensive, derisive or annoying” words toward others or preventing them from going about their lawful business. Upon his conviction, Chaplinsky appealed, arguing that the state law limited his First and Fourteenth Amendment speech freedoms. Justice Francis W. Murphy, writing for a unanimous court, held that certain written or spoken words are exempt from First Amendment protection when they instigate violent reactions by listeners. Although most speech falls under the protection of the First Amendment freedom of speech, expressions that are “lewd and obscene, . . . profane, . . . libelous, and . . . insulting or ‘fighting’ words” can not claim constitutional protection. Murphy argued that fighting words “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” He added that whenever such speech fails to “contribute to the expression of ideas [or] possessed any ‘social value’ for the truth,” the right to utter that speech can be limited by government when it seeks to promote the “social interest in order and morality.” Subsequent cases have narrowed the fighting words doctrine as elaborated in Chaplinsky. In Cohen v. California (1971), the Court rejected a fighting words application to a young man who wore a leather jacket with the words “fuck the draft” on it in a public courthouse. In R.A.V. v. St. Paul
(1992), the justices ruled as unconstitutional a St. Paul ordinance classifying as hate speech words “that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ” Although the Court has never formally overruled Chaplinsky, its later decisions have limited it. Some lower courts, however, still cite Chaplinsky and apply the fighting words doctrine to prohibit speech highly critical of law enforcement officers, particularly when the speech is accompanied by unlawful or threatening conduct. See also Cohen v. California (1971); Hate Speech; Jehovah’s Witnesses; Murphy, Francis W.; R.A.V. v. St. Paul (1992).
J. Michael Bitzer
furthe r reading ”The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment.” Harvard Law Review 93 (March 1993): 1129–1146.
Charitable Solicitation Almost all of the states now regulate the solicitation of contributions from the public by charitable organizations. Many state legislatures began enacting regulatory regimes in the 1970s and 1980s amid media accounts of well-known charities spending most of their funds for administrative costs rather than for actual charitable programs. A number of the first such laws sought to impose direct limits on how much a charity could spend on administrative and fundraising costs. The Supreme Court, however, issued three rulings invalidating such limits under the First Amendment. In Schaumberg v. Citizens for a Better Environment (1980), the Court held unconstitutional a state law banning in-person solicitations by charitable organizations spending more than 25 percent of their receipts for fundraising and administration. The Court ruled that the First Amendment protected charitable appeals in that soliciting contributions for organizations is a necessary part of being able to function, and solicitations themselves often contain and advance the group’s views; that any regulation must therefore be narrowly tailored to serve a legitimate state interest; and that the state law was not narrowly tailored to prevent fraud. A few years later, in Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984), the Court invalidated a state law imposing a similar 25 percent limitation but with the possibility of obtaining a waiver by showing that the charity could not effectively raise contributions without spending more than 25 percent on overhead and fundraising costs.Again, in Riley
Chemerinsky, Erwin v. National Federation of the Blind (1988), the Court invalidated a law prohibiting professional fundraisers from retaining an “excessive” fee, with the Court finding that “using percentages to decide the legality of the fundraiser’s fee is not narrowly tailored to the State’s interest in preventing fraud.” While these three decisions established that states cannot impose direct limits on charities’ fundraising costs, more recent decisions have allowed states to require charities to disclose truthfully how much of their funds are used for their charitable programs. In Illinois ex rel. Madigan v.Telemarketing Associates, Inc. (2003), a unanimous Court upheld a state’s ability to sue fundraising firms for fraud for misrepresenting to donors how much of their contributions to a veterans’ group would go toward actually helping veterans: “So long as the emphasis is on what the fundraisers misleadingly convey, and not on percentage limitations on solicitors’ fees per se, such actions need not impermissibly chill protected speech.” Structured within this framework, most state laws today require charitable organizations and their professional fundraisers to register with the state and disclose certain information on the public record, including officers and directors of the organization, the terms of professional fundraisers’ contracts with the charity, the percentage of funds raised to be retained by the charitable organization, and other financial information. Charitable organizations that employ such methods as door-to-door or telephone solicitation or direct mail must comply with these laws in all the states in which they operate. Less clear is whether registration is required of firms soliciting only via the Internet. The burden of complying with forty or forty-five state registration laws and the ease of Internet solicitation are bound to combine to raise interesting legal questions and challenges in the future. See also Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003); Schaumberg v. Citizens for a Better Environment (1980); Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984).
Joe Sandler
furthe r reading Hopkins, Bruce. The Law of Fund Raising. 2d ed. New York: John Wiley and Sons, 1996. Nave, Charles. “Exempt Organization Law: Charitable State Registration and the Dormant Commerce Clause.” William Mitchell Law Review 31 (2004). Sandberg, Haim. “Where Do Your Pennies Go? Disclosing Commissions for Charitable Fundraising.” April 25, 2006. http://ssrn.com/abstract=898916.
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Chemerinsky, Erwin Law professor Erwin Chemerinsky (1953– ) is one of the foremost constitutional law scholars and Supreme Court litigators. He writes on myriad First Amendment issues and argues First Amendment cases before the high court. Born in Chicago, Chemerinsky obtained his undergraduate degree from Northwestern University in 1975 and his law degree from Harvard Law School in 1978. Upon graduation he worked for a year in the Attorney General’s Honor Program and then a year at a Washington, D.C.–based law firm. In 1980 Chemerinsky began his academic career at DePaul University College of Law, where he taught for several years. In 1983 he joined the faculty of the University of Southern California Law School, where he would teach for more than twenty years. In 2004 he took a position on the faculty of Duke Law School, where he served as Alston and Bird Professor of Law and Political Science. In July 2008, he became founding dean of the law school at the University of California, Irvine, in what turned into a controversial appointment. The university temporarily withdrew its offer to Chemerinsky in September 2007 but then reversed course, sticking with its original decision to hire him after widespread expressions of concern that the university had reneged on its original offer because of Chemerinsky’s liberal political views. Chemerinsky has authored leading textbooks on constitutional law and federal jurisdiction and more than 100 law review articles. His writing examines the gamut of First Amendment jurisprudence, including commercial speech, the establishment clause, student speech rights, judicial campaign speech, content neutrality, and attorney speech. In recent years, he has appeared regularly before the Supreme Court, including arguing the First Amendment cases of Van Orden v. Perry (2005), Tory v. Cochran (2005), and the First Amendment–related case of Scheidler v. National Organization for Women (2006). See also Scheidler v. National Organization for Women (2006);Tory v. Cochran (2005);Van Orden v. Perry (2005).
David L. Hudson Jr.
furthe r reading Blythe, Anne. “Duke Law Prof Has Pick of High-Profile Cases.” News and Observer (Raleigh, N.C.), July 23, 2006, B1. Chemerinsky, Edwin. www.law.uci.edu/dean_bio.php.
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Chicago Seven Trial
Chicago Seven Trial Of all the trials that emerged from the turbulent period of protest surrounding the Vietnam War, probably none received more attention than the 1969 trial of the Chicago Seven by federal district court judge Julius Hoffman. The trial flowed from a series of demonstrations that had taken place in Chicago in conjunction with the Democratic National Convention held there in 1968. Mayor Richard Daley had hoped to use the convention to showcase his city, but anti-war protestors had a different idea. On several successive nights, they defied a curfew in city parks, sparking confrontations with local police, who many observers believed were just as responsible for the rioting as the demonstrators. The confrontations distracted attention from events at the convention itself. A grand jury initially indicted Rennie Davis, David Dellinger, John Froines,Tom Hayden, Abbie Hoffman, Jerry Rubin, Bobby Seale, and Lee Weiner. Most of them were affiliated with the National Mobilization to End the War in Vietnam (MOBE) or with the Youth International Party, whose members were known as the Yippies. Bobby Seale, who was bound and gagged by the judge for his courtroom antics, was later separated from the case and jailed for contempt, thus leaving only seven defendants. Although the seven might better have been tried under municipal breach of the peace statutes, the Nixon administration decided instead to use the Anti-Riot Act, a provision tacked on to the Civil Rights Act of 1968. (It had been adopted in part in response to the riots that followed the assassination of Dr. Martin Luther King Jr.) The riot act criminalized interstate travel to commit a number of “overt acts,” including “(A) to incite a riot; or (B) to organize, promote, encourage, participate in, or carry on a riot; or (C) to commit any act of violence in furtherance of a riot; or (D) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot.” A number of prominent Americans—including Noam Chomsky, Harvey Cox, Nat Hentoff, Christopher Lasch, Norman Mailer, and Benjamin Spock, dubbing themselves The Committee to Defend the Conspiracy—placed an advertisement in the New York Review of Books, arguing that the law threatened the First Amendment by “equating organized political protest with organized violence.” The committee observed that prosecutors made little attempt to distinguish the defendants who had advocated violence from those who had favored peaceful protests.
In court, the defendants, represented by civil liberties attorneys William Kunstler and Leonard Weinglass, continued the political theater in which they had engaged during the convention, provoking Judge Hoffman, already openly biased, to react with open animosity against them.The jury ultimately dismissed conspiracy charges but convicted five of the defendants with the intent to incite a riot. Of even more controversy, Hoffman sentenced the defendants’ attorneys and the defendants for contempt of court as well. The Seventh Circuit Court of Appeals voided the incitement convictions on the basis that the judge had improperly limited the voir dire of the jurors, had expressed open bias against the defendants, and had bugged the phones of the defendants’ counsel. It voided the contempt citations on the ground that they required jury trials. See also Conspiracy Laws; Kunstler,William;Vietnam War.
John R.Vile
furthe r reading Babcox, Peter, et al.“The Committee to Defend the Conspiracy.” New York Review of Books, June 19, 1969. www.nybooks.com/articles/ 11276. Lahav, Pnina. “Law and Character: The Chicago Conspiracy Trial. Character and Judicial Discretion.” University of Colorado Law Review 71 (2000): 1327–1364. Linder, Douglas O. “The Chicago Seven Conspiracy Trial.” www.law .umkc.edu/faculty/projects/ftrials/Chicago7/Account.html.
Chicago Teachers Union v. Hudson (1986) In Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), a unanimous Supreme Court ruled as insufficient a set of union procedures created to assure nonmembers that their money was not being used for improper purposes. The Chicago Teachers Union had established a threepronged procedure for objecting to the collection of dues: the union’s executive committee would consider the objection and make a decision within thirty days; the dissenter could then appeal within thirty days and the executive board would reconsider; and if the objector continued to protest, the union president would select an arbitrator from a list maintained by the Illinois Board of Education. The Court, relying on its earlier decision in Abood v. Detroit Board of Education (1977), held that the procedural safeguards were necessary for two reasons. First, the First Amendment freedom of association requires that the non-
Child Benefit Theory member employees’ rights be protected and that the procedure be carefully tailored to minimize the infringement of their rights. Second, the nonunion employee must have a fair opportunity to identify the impact of the governmental action on his or her interests and to assert a First Amendment claim. The Court held that the original union procedure was inadequate because it failed to minimize the risk that nonunion employees’ contributions might be used for impermissible purposes, failed to provide adequate justification for the advance reduction of dues, and failed to offer a prompt decision by an impartial decision maker. In order to meet the requirements of the First Amendment, the union’s collection of fees had to include an adequate explanation of the basis for the fee charged, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow account for the amounts reasonably in dispute while such challenges are pending. Justice White filed a concurring opinion, which Chief Justice Warren E. Burger joined, reasoning that if the union provides for arbitration and complies with the requirements of the First Amendment, it should be allowed to insist that the dissenter exhaust the arbitration procedure before going to court. See also Abood v. Detroit Board of Education (1977); White, Byron R.
Alan Tauber
furthe r reading Brock, Ralph H. “Giving Texas Lawyers Their Dues: The State Bar’s Liability under Hudson and Keller for Political and Ideological Activities.” St. Mary’s Law Journal 28 (1996): 47–108. Hartman, Kenneth W. “Must Agency Shop Fee Challengers Exhaust Union-Provided Arbitration Procedures before Bringing a Claim in Federal Court? The United States Supreme Court Clarifies Hudson in Air Lines Pilot Ass’n v. Miller.” Creighton Law Review 32 (1999): 1845–1921.
Child Benefit Theory Child benefit theory refers to certain types of indirect state welfare benefits disbursed to students attending church-run educational institutions. “Child benefits” generally have taken the form of health care services, transportation services, and the provision of nonreligious textbooks directly to students. Direct government aid to religious schools is generally held to violate the establishment clause of the First Amendment.
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In practice, child benefit theory has proven to be problematic. Both the student and the religious institution gain from the provision of government welfare benefits. Therefore, the distinction the theory proposes is arguably fallacious. Opponents on this issue hold equally problematic positions, such as denying that obstacles exist to state support of religious schools or maintaining that any state assistance to religious schools is unconstitutional, despite valid and perfectly secular reasons to provide state aid to all schools, including religious ones. The child benefit theory was introduced in the Supreme Court’s decision in Cochran v. Board of Education (1930). Chief Justice Charles Evans Hughes wrote the majority opinion upholding the right of the state of Louisiana to use public funds to supply textbooks to children attending religious schools, thereby formulating the distinction between the institution and the student. After that decision, state and federal funds were expended for child benefit purposes, including the provision of food and milk to children regardless of whether their schools were public or private religious institutions. Child benefit theory next reached the Supreme Court in Everson v. Board of Education (1947), a constitutional challenge to an arrangement whereby a New Jersey board of education compensated parents for transportation expenses for both parochial and public schools. Justice Hugo L. Black wrote the majority opinion upholding the transportation reimbursement while providing the still-classic formulation of the establishment clause: “The ‘establishment of religion’ clause of the First Amendment means . . . neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another . . . no tax in any amount, large or small, can be levied to support any religious activities or institutions. . . . In the words of Jefferson, the clause against establishment of religion by law was intended to erect a ‘wall of separation between church and state.’ ” A number of states tried to provide direct aid to religious schools after Everson, mostly in the form of funds to pay lay teachers in religious schools. The Supreme Court, however, ruled these efforts unconstitutional in Lemon v. Kurtzman (1971), which introduced a three-part test for evaluating establishment clause cases. In order to pass muster, school aid must have a secular purpose, have a primary effect that is neutral regarding religion, and not result in excessive entanglement from government oversight of religious institutions. In the case of Lemon, the government required that lay teachers
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Child Custody
not promote religious doctrine. As the schools in question were religious were under the control of church officials, and their main reason for being was religious instruction, overly entangling state oversight would be necessary to verify whether the First Amendment was being violated. See also Black, Hugo L.; Cochran v. Board of Education (1930); Establishment Clause; Everson v. Board of Education (1947); Hughes, Charles Evans; Lemon v. Kurtzman (1971); Neutrality, Religion; Religious Right.
Maurice Leach
furthe r reading Findlaw. “Establishment of Religion.” caselaw.lp.findlaw.com/data/ constitution/amendment01/02.html. Hoffman, Earl. “Development of the Child Benefit Theory.” School Management 16 (December 1972). La Noue, George R.“The Child Benefit Theory.” Theory into Practice 4 (February 1965): 18–22.
Child Custody When parents separate, a family court usually decides parental custody and visitation rights by asking what is in the “best interests of the child.” Judges making such decisions consider parents’ speech and even their religion as being relevant to the child’s best interests. Some courts have concluded that learning certain ideologies is not in a child’s best interest and have limited or denied custody or visitation rights based partly on a parent’s racist speech; communist or pro-polygamist teaching; defense of homosexuality; and religious fundamentalism, acceptance of “nonmainstream” religions, religious intolerance, or failure to inculcate religion. Other courts have concluded the same regarding nonideological speech, ordering parents to reveal their homosexuality to their children, to conceal their homosexuality, to abstain from swearing in front of their children, or to install Internet filters on their children’s computers. Judges have barred one parent from saying bad things about the other parent, whether the bad things are simple badmouthing or ideological teachings; one parent, for example, was ordered to “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic,” because the other parent was homosexual. Some courts have barred one parent from teaching religious views that contradict those taught by the other. These orders implicate the free speech clause of the First Amendment.This is clearest when the order is an injunction
forbidding or compelling certain statements. It is also the case when a court order reduces or eliminates a parent’s custody or visitation rights because of a parent’s likely speech. Just as civil liability or a tax based on the content of a person’s speech presumptively violates the First Amendment, the same must be true for the loss of parental rights based on the content of one’s speech. Speech restrictions based on the often subjective “best interests of the child” standard may also implicate the First Amendment void-for-vagueness doctrine.The orders also presumptively violate the free exercise clause when they single out religious speech for restriction. They also presumptively violate the establishment clause when they favor one parent because that parent is more religious or more likely to teach the child religion. The Supreme Court has not heard any cases involving the First Amendment and child custody. State appellate courts, however, have had such cases—usually under the religion clauses rather than the free speech clause—and have reached different results. Some courts have ruled that parents’ speech or religious practice may not be restricted unless it is likely to cause imminent physical or psychological harm to children. Others have declined to impose such a harm requirement and have allowed trial courts to make decisions simply based on what they see as the child’s best interests. Child custody cases are not categorically immune from constitutional scrutiny. In Palmore v. Sidoti (1984), the Supreme Court expressly held that a custody decision based on one divorced parent’s having entered into an interracial marriage violates the equal protection clause of the Fourteenth Amendment even when the lower court finds that being raised in an interracial household could lead to a child being socially ostracized. Likewise, a custody decision based on a parent’s speech or religious practice would at least presumptively violate the First Amendment.What is not clear is whether this presumption would be rebutted in light of a compelling interest in shielding children from speech that is against their best interests; parents forfeit some of their First Amendment rights by divorcing, and a court has an obligation to make the best child protective decision it can, even if it means considering factors that would be constitutionally immune from penalty outside the child custody context. It is also possible that the best interests standard may generally be constitutionally inadequate where a parent’s speech (religious or otherwise) is involved, but may be adequate where the restrictions are aimed solely at protecting the other parent’s rights (for instance, when a court orders a parent not to engage in nonideological badmouthing of the other parent).
Child Online Protection Act of 1998 It is possible that the First Amendment requires at least a heightened showing of harm before a parent’s speech is restricted or compelled or before a parent’s speech is considered in deciding the parent’s rights. For instance, even if a parent’s speech may be restrained to prevent imminent harm to a child, a court might not be allowed to favor the more religious parent simply on the theory that in general a religious upbringing is more in a child’s best interests than a nonreligious one. See also Compelled Speech; Content Based; Vagueness; Viewpoint Discrimination.
Eugene Volokh
furthe r reading Beschle, Donald. “God Bless the Child? The Use of Religion as a Factor in Child Custody and Adoption Proceedings.” Fordham Law Review 58 (1989): 383–426. Schneider, Carl. “Religion and Child Custody.” University of Michigan Journal of Law Reform 25 (1992): 879–906. Volokh, Eugene. “Parent-Child Speech and Child Custody Speech Restrictions.” New York University Law Review 81 (2006): 631–733.
Child Online Protection Act of 1998 Congress passed the Child Online Protection Act of 1998 (COPA) with the intent of preventing minors from accessing obscene material on commercial Web sites. COPA was enacted as Title XIV of the Omnibus Appropriations Act for FY 1999 after the courts in Reno v. American Civil Liberties Union (1997) struck down the Communications Decency Act (CDA) of 1996, which banned online child pornography. President Bill Clinton signed COPA into law in October 1998. Narrower than the CDA, COPA targeted the Internet transmission of material harmful to minors distributed for commercial purposes. The courts have long accepted that the First Amendment rights of minors are more restricted than those of adults, as happened in Bethel School District No. 403 v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988), and Morse v. Frederick (2007).The courts have also acknowledged, however, that First Amendment rights of adults cannot be used as a rationale for endangering children. In New York v. Ferber (1982), a unanimous Court held that the First Amendment does not protect child pornography. Members of Congress had hoped to bypass challenges to COPA by banning only material deemed harmful to indi-
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viduals under seventeen years of age.“Harmful” was defined as pictures, images, graphic image files, articles, recordings, writings, or other communications that violate accepted standards for determining obscenity as established by the Supreme Court in Miller v. California (1973). Lawmakers used the three-tier Miller test in COPA to classify material as obscene if taken as a whole an average person would find it appealing to “prurient” or perverted interests; it offensively portrays “actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast”; and taken as a whole it lacked “serious literary, artistic, political, or scientific value for minors.” Congress applied the ban only to communications involved in commercial transactions on publicly accessible Web sites. COPA defined commercial dealings as those actions that make online material available for access through the process of requiring credit cards, debit accounts, adult access codes, adult personal identification numbers, or by accepting digital certification of age or other technological means of ascertaining whether clients are over the age of seventeen. Monetary penalties were to be levied for each separate violation in which a minor accessed obscene material. COPA was scheduled to take effect in November 1998, but a coalition of civil liberties groups successfully delayed implementation by challenging its constitutionality. The coalition argued that COPA violated the First Amendment rights of adults by limiting their ability to receive and send information via the Internet. Assuming that COPA would ultimately be overturned, a Philadelphia federal district court granted an injunction, which the Third Circuit Court of Appeals upheld in June 2000. The appeals court applied strict scrutiny in determining constitutionality because of COPA’s alleged limitations on First Amendment rights. Although the appeals court accepted the responsibility of Congress to protect minors, it found COPA too broad for its intended task. The court also observed that COPA was inefficient—minors with credit or debit cards could easily bypass restrictions—and that minors would still be able to access obscene material on noncommercial or international sites. In addition, the court held that “community standards” could not be applied to Internet sites, which by definition observed no geographic boundaries. In November 2001, the Supreme Court agreed to address the issue of “community standards” as applied in COPA. In Ashcroft v. American Civil Liberties Union (2002), a
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plurality of the Court rejected the lower court ruling. In five separate opinions, the justices held that using community standards to determine obscenity did not automatically invalidate COPA. Justices Sandra Day O’Connor and Stephen G. Breyer suggested that a national standard would be needed for determining obscenity on the Internet. Without lifting the injunction, the Court remanded the case to the Third Circuit. Employing the standard of overbreadth, the appeals court again found COPA unconstitutional, determining that it limited First Amendment rights of adults in the process of protecting minors.The Supreme Court reaffirmed this ruling in Ashcroft v. American Civil Liberties Union (2004). On remand, a federal district court granted a permanent injunction against enforcement of COPA in March 2007 in American Civil Liberties Union v. Gonzalez (E.D. Pa. 2007). See also Ashcroft v.American Civil Liberties Union (2002) (2004); Bethel School District No. 403 v. Fraser (1986); Child Pornography; Children’s Internet Protection Act of 2000; Communications Decency Act of 1996; Dot Kids Implementation and Efficiency Act of 2002; Hazelwood School District v. Kuhlmeier (1988); Morse v. Frederick (2007); New York v. Ferber (1982).
Elizabeth R. Purdy
furthe r reading Clark, Matthew D. Obscenity, Child Pornography, and Indecency. New York: Novinka Books, 2002. Cohen, Henry. Obscenity and Indecency: Constitutional Principles and Federal Statutes. New York: Novinka Books, 2003. Saunders, Kevin. Saving Our Children from the First Amendment. New York: New York University Press, 2003.
Child Pornography Child pornography, a form of sexual expression often involving the depiction of children engaged in sexually explicit conduct, is not entitled to First Amendment protection. It is similar to obscenity in that it represents a category of sexual expression lacking First Amendment protection, but it covers material that does not meet the legal definition of obscenity. The federal and state governments have passed numerous statutes outlawing child pornography and protecting children from obscenity, but they have only been somewhat successful. Courts have applied the generally speech-protective strict scrutiny standard, which requires that the government demonstrate a compelling interest and ensure that a law is narrowly tailored to achieve that interest by using the least
restrictive means. Courts have routinely voided laws that are overbroad and therefore reach protected speech. Child pornography generally encompasses two different but related issues: criminal prohibitions on the production, distribution, and possession of depictions of children engaging in sexual activity and the ability of children to view pornography (particularly via the Internet). The overriding concern of legislators in criminalizing child pornography is its link to the actual sexual abuse of children, a justification generally sustained by courts despite First Amendment free speech objections. Two Supreme Court precedents govern child pornography law. One concerns obscenity generally, while the other is specific to child pornography. In Miller v. California (1973), the Court articulated a three-part test to determine obscenity. Under Miller, material is obscene if the average person in the community would find the work’s predominant theme “prurient”; it depicts sexual conduct in a patently offensive way; and when taken as a whole it “lacks serious literary, artistic, political, or scientific value.” In the second key precedent, New York v. Ferber (1982), the Court upheld prohibitions on the production and distribution of child pornography because of their direct link to the sexual abuse of minors. Congress first passed legislation against child pornography with the Protection of Children against Sexual Exploitation Act of 1977, which made it a crime knowingly to use a minor under sixteen years of age in obscene depictions of sexually explicit conduct. Congress subsequently toughened the statute with the Child Protection Act of 1984 by omitting the obscenity requirement, raising the minor’s age from sixteen to eighteen, and including not-forprofit distribution. It next revised the law with the Child Sexual Abuse and Pornography Act of 1986, which proscribed advertising for child pornography and created a civil liability for personal injuries to minors from the production of child pornography. All of this legislation passed prior to the widespread use of the Internet. As child pornography flourished online, Congress strengthened the existing statutes. The first statute passed to address the technological developments expanding child pornography was the Child Protection and Obscenity Enforcement Act of 1988, which criminalized transporting, distributing, or receiving child pornography via computer. State laws were also passed to address this issue.The Supreme Court sustained one of these in Osborne v. Ohio (1990) in upholding a prohibition on the
Child Pornography Prevention Act of 1996 private possession and viewing of child pornography in one’s own home.This decision cleared the way for a similarly strict ban at the national level, leading Congress to pass the Child Protection Restoration and Penalties Enhancement Act of 1990, which criminalized the knowing possession of child pornography. In passing the Child Pornography Prevention Act of 1996 (CPPA), Congress shifted from primarily approaching child pornography through its link to the actual sexual abuse of children to raising the issue of morality, banning even “virtual” child pornography, in which no actual children are used in producing the material. In Ashcroft v. Free Speech Coalition (2002), the Supreme Court stuck down key sections of the legislation as overly broad because it banned a “significant universe of speech that is neither obscene under Miller nor child pornography under Ferber.” As examples of the kind of material that could be prohibited under the CPPA, the Court listed a picture in a psychology manual and well-known, award-winning theatrical films that portray minors having sex, such as Romeo and Juliet,American Beauty, and Traffic. The Court explained that “in contrast to Ferber, CPPA prohibits speech that records no crime and creates no victims by its production.” Indeed, the Court pointed out that the majority in Ferber reasoned that young-looking adults could be used if necessary for scientific and artistic purposes. One of the reasons given by legislators for passing statutes protecting children from viewing pornography is that adults use such material to lure children into engaging in sexual activity. Of course, general moral concerns are also part of the equation. Congress’s first action in this area was its passage of the Communications Decency Act of 1996 (CDA), which attempted to incorporate the Miller obscenity test and sought to limit the exposure of children to sexually explicit material on the Internet. In Reno v. American Civil Liberties Union (1997), the Supreme Court struck down key provisions of the CDA because they failed to specifically define the terms indecent and patently offensive and were likely to “chill,” or silence, constitutionally protected speech, that is nonobscene speech targeted at adults. Congress responded to the Court’s decision with the Child Online Protection Act of 1998 (COPA), which was more specific than the CDA because it prohibited obscene material harmful to minors based on contemporary community standards. In Ashcroft v. American Civil Liberties Union (2002), the Court said that the community standards lan-
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guage did not in itself invalidate the law, but that it still might be unconstitutional for other reasons. The Court remanded the case to the court of appeals, where COPA was struck down.The case returned to the Supreme Court in Ashcroft v. American Civil Liberties Union (2004), and the 6-3 majority agreed with the lower court’s ruling that COPA was not narrowly tailored and that less restrictive means, such as filtering software, existed for protecting children from otherwise constitutionally protected speech. Since COPA, Congress has continued to legislate in this area. Federal law now prohibits misleading Internet domain names, like the infamous “whitehouse.com” site, which has since been taken down. In addition, a new “Dot Kids” second-level Internet domain was created specifically for content fit for minors under the age of thirteen. See also Ashcroft v.American Civil Liberties Union (2002) (2004); Ashcroft v. Free Speech Coalition (2002); Child Online Protection Act of 1998; Child Protection Restoration and Penalties Enhancement Act of 1990; Miller v. California (1973); New York v. Ferber (1982); Obscenity and Pornography; Osborne v. Ohio (1990); Reno v. American Civil Liberties Union (1997).
Artemus Ward
furthe r reading Jenkins, Philip. Beyond Tolerance: Child Pornography on the Internet. New York: New York University Press, 2003. Levine, Judith. Harmful to Minors: The Perils of Protecting Children from Sex. Minneapolis: University of Minnesota Press, 2002. Taylor, Max, and Ethel Quayle. Child Pornography: An Internet Crime. New York: Brunner-Routledge, 2003.
Child Pornography Prevention Act of 1996 The Child Pornography Prevention Act of 1996 (CPPA) expanded on earlier such laws as the Child Protection and Obscenity Enforcement Act of 1988 by making it a federal crime not only to send images of real children engaged in explicit sexual activity but also to use “morphed,” that is, computer-generated images of the same. Although the Supreme Court had upheld laws involving the image transmission of actual children involved in pornographic activities, it decided in Ashcroft v. Free Speech Coalition (2002) that the CPPA was overly broad and unconstitutional, invalidating two provisions of the law that criminalized depictions that “appear to be” and “convey the impression” of a minor engaged in sexual conduct, even if the depiction does not involve an actual minor.The Court also questioned
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the supposed link between computer-generated pornography and the abuse of actual children. See also Ashcroft v. Free Speech Coalition (2002); Child Online Protection Act of 1998; Child Pornography; Child Protection and Obscenity Enforcement Act of 1988; Obscenity and Pornography; Overbreadth.
John R.Vile
furthe r reading Hudson, David L., Jr. “Reflecting on the Virtual Child Porn Decision.” John Marshall Law Review 36 (2002): 211–221. Mota, Sue Ann. “The U.S. Supreme Court Addresses the Child Pornography Prevention Act and Child Online Protection Act in Ashcroft v. Free Speech Coalition and Ashcroft v.American Civil Liberties Union.” Federal Communications Law Journal 55 (December 2002): 85–98.
Child Protection and Obscenity Enforcement Act of 1988 Congress has been enacting laws concerning child pornography since the Protection of Children against Sexual Exploitation Act of 1977. The purpose of the Child Protection and Obscenity Enforcement Act of 1988 was to criminalize the transmission of depictions of child pornography via computers.The law also required individuals who produced sexually explicit materials to maintain records establishing proof that the individuals portrayed are eighteen years of age or older; this provision was used to fine the producers of Girls Gone Wild, a series of videos featuring young females, often in party settings where alcohol is freely available, exposing body parts and sometimes engaging in sexual activity. Congress further legislated on the subject of child pornography in the Child Pornography Prevention Act of 1996 (CPPA) and the Child Online Protection Act (COPA) of 1998. See also Child Online Protection Act of 1998; Child Pornography; Child Pornography Prevention Act of 1996; Obscenity and Pornography; Protection of Children against Sexual Exploitation Act of 1977.
John R.Vile
furthe r reading A Bill to Amend title 18, United States Code, with Respect to Child Protection and Obscenity Enforcement, and for Other Purposes. http://thomas.loc.gov/cgi-bin/bdquery/z?d100:SN02033:@@@ L&summ2=m&.
Child Protection Restoration and Penalties Enhancement Act of 1990 Congress passed the Child Protection Restoration and Penalties Enhancement Act of 1990 (CPRPEA) to make it a crime knowingly to possess child pornography. Courts have upheld the statute and even broadened its reach to include sexually suggestive depictions of minors when clothed. Congress first passed legislation prohibiting child pornography when it adopted the Protection of Children against Sexual Exploitation Act of 1977. The Supreme Court upheld a state ban in New York v. Ferber (1982), reasoning that child pornography was directly linked to the actual sexual abuse of children. Congress subsequently strengthened the federal ban in a series of bills throughout the 1980s prior to the widespread use of the Internet. As child pornography flourished online, the national legislature passed more specific laws.The first statute enacted to address these technological developments was the Child Protection and Obscenity Enforcement Act of 1988, which criminalized transporting, distributing, or receiving child pornography via computer. State legislatures also passed laws to address child pornography. The Supreme Court sustained one of these laws in Osborne v. Ohio (1990), in which it upheld an Ohio prohibition on the private possession and viewing of child pornography in one’s own home.This decision cleared the way for a similarly strict ban at the national level, so Congress responded with CPRPEA. It was the most sweeping ban to date, expanding the federal criminal prohibitions to the knowing possession of child pornography. CPRPEA prohibits producing, transporting, distributing, or receiving visual depictions of children engaging in sexually explicit conduct. Lower courts interpreted the statute broadly, as in United States v. Knox (3d Cir. 1994), where the court of appeals held that the provocative portrayal of children or lascivious exhibition of the genitals or pubic area even when the child is clothed constitutes child pornography and is thus subject to CPRPEA. In the years following CPRPEA, Congress continued to strengthen child pornography bans through additional legislation, including the Child Pornography Prevention Act of 1996 (CPPA), which prohibits “virtual” child pornography. The Supreme Court, however, struck down key sections of CPPA in Ashcroft v. Free Speech Coalition (2002).
Chilling Effect See also Ashcroft v. Free Speech Coalition (2002); Child Online Protection Act of 1998; Child Pornography; New York v. Ferber (1982); Obscenity and Pornography.
Artemus Ward
furthe r reading Jenkins, Philip. Beyond Tolerance: Child Pornography on the Internet. New York: New York University Press, 2003. Levine, Judith. Harmful to Minors: The Perils of Protecting Children from Sex. Minneapolis: University of Minnesota Press, 2002. Taylor, Max, and Ethel Quayle. Child Pornography: An Internet Crime. New York: Brunner-Routledge, 2003.
Children’s Internet Protection Act of 2000 Congress adopted the Children’s Internet Protection Act of 2000 to require schools and libraries for which it funded technology under its “E-rate” program—designed to expand technological access for eligible institutions—to block children’s access to obscene material, child pornography, and material deemed harmful to minors. One provision of the law held that these institutions provide access to such materials for adults who needed it for bona fide research purposes. Whereas the Supreme Court’s decisions in Reno v. American Civil Liberties Union (1997) and Ashcroft v. American Civil Liberties Union (2004) had struck down the Communications Decency Act of 1996 and the Child Online Protection Act of 1998 as overly broad, it upheld the Children’s Internet Protection Act by a 6-3 vote in United States v. American Library Association (2003). Led by Chief Justice William H. Rehnquist, four justices argued that Congress was free to add such conditions to its appropriations. Justices Anthony M. Kennedy and Stephen G. Breyer joined this plurality by focusing chiefly on the fact that the law provided adults access to materials prohibited to children. See also American Library Association; Ashcroft v. American Civil Liberties Union (2002) (2004); Child Online Protection Act of 1998; Communications Decency Act of 1996; Reno v.American Civil Liberties Union (1997); United States v.American Library Association (2003).
John R.Vile
furthe r reading Browne, Maureen E. “Comment: Play It Again Uncle Sam: Another Attempt by Congress to Regulate Internet Content. How Will They Fare This Time?” CommLaw Conspectus 12 (2004): 79–99. Federal Communications Commission.“Children’s Internet Protection Act: FCC Consumer Facts.” www.fcc.gov/cgb/consumerfacts/ cipa.html.
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Chilling Effect Chilling effect is a concept referring to deterrence in the exercise of the speech and association rights protected by the First Amendment as a result of government laws or actions that appear to target expression. It is closely related to the overbreadth doctrine, which prohibits the government from casting too wide a net when regulating activities related to speech and expression. The Supreme Court developed and explained the chilling effect doctrine in several opinions issued during the McCarthy era involving legislation and regulations aimed at suspected communists and so-called subversives. In Baggett v. Bullitt (1964), the Court struck down loyalty oaths requiring Washington state employees to affirm that they were not members of alleged subversive organizations and requiring teachers to swear to promote “undivided allegiance to the government of the United States.” In ruling that these provisions violated the First Amendment rights of employees, who would be unable to determine what they were swearing to, the Court asserted that “the threat of sanctions may deter . . . almost as potently as the actual application of sanctions.” In Lamont v. Postmaster General (1965), the Court struck down a postal regulation requiring individuals who wished to receive communist literature to sign up at the post office. Although the program included no sanctions against recipients, the Court said it would chill individuals who wanted the material but were afraid to make their wishes known to the government. The chilling effect of such governmental requirements was exacerbated by widespread knowledge that under the guidance of Director J. Edgar Hoover the FBI had gathered dossiers recording the political beliefs and associations of millions of Americans suspected of “unAmerican” views and activities. The chilling effect doctrine reached its zenith in Dombrowski v. Pfister (1965), a case involving the Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law, which the state was using to require civil rights groups to register as communistfront organizations. In a groundbreaking opinion written by Justice William J. Brennan Jr., the Court ruled that not only was the Louisiana law unconstitutional, but that the federal courts could enjoin the state of Louisiana from bringing prosecutions under it. The Court rejected the notion that injunctions were unavailable in situations involving criminal prosecution because defendants always had the right of appeal if convicted under unconstitutional statutes.Although
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an appeal might provide adequate protection for the rights of the criminal defendants, Brennan wrote that such an appeal would not protect the First Amendment rights of third parties who might be deterred from speaking out in the interim. Chilling effect as an independent reason for challenging government action suffered a devastating setback in Laird v. Tatum (1972), in which a new Supreme Court majority dismissed a case brought by civil rights and anti-war activists seeking an injunction against the army’s Domestic Intelligence Program, which had compiled dossiers on political protesters, including the plaintiffs. The Court ruled 5-4 that the plaintiffs could not base a challenge to government policy on the chilling effect it would have on third parties and that the plaintiffs themselves were obviously not chilled since they had been willing to identify themselves publicly by filing suit.
1998. Specific challenges were raised concerning sexual content, offensive language, and violence. Censors have repeatedly tried to remove The Chocolate War from library shelves and the curriculum, but have been stymied by First Amendment–based rights of intellectual freedom and the right to read.
See also Baggett v. Bullitt (1964); Dombrowski v. Pfister (1965); Hoover, J. Edgar; Laird v. Tatum (1972); Lamont v. Postmaster General (1965); McCarthyism; Overbreadth.
Although the Declaration of Independence refers to God on a number of occasions, the only such reference in the Constitution concerns its ratification in “the Year of our Lord one thousand seven hundred and seventh seven,” which in some reprints accompanies Article 7. Article 6 of the Constitution specifically prohibits religious tests for public office. The First Amendment, while restricting the establishment of a state religion and providing for the free exercise of religion, omits direct references to the Deity. Although some Americans viewed omissions of references to God as a distinct improvement over theories of the divine right of kings, others—including members of churches associated with the Scottish Covenant tradition—refused for a time to participate in a government without such recognition, as witnessed in the South Carolina case of State v. Willson (S.C. App. 1823), in which individuals of the covenant refused to serve on grand juries. The Confederate constitution included an acknowledgment of God in its preamble. John Alexander, a Presbyterian layman, introduced an amendment at an interdenominational religious convention that met in February 1863 in Zenia, Ohio, to acknowledge “the rulership of Jesus Christ and the supremacy of the divine law” in the U.S. Constitution (Borden 1979: 159).The National Association to Secure the Religious Amendment of the Constitution, which Alexander headed, subsequently pushed vigorously for such an amendment, presenting more than 35,000 signatures to the House of Representatives in 1876. Robert Ingersoll, a popular speaker and agnostic, was among those who feared
Frank Askin
furthe r reading Askin, Frank.“Police Dossiers and Emerging Principles of First Amendment Adjudication.” Stanford Law Review 22 (1970): 196–200. ———.“Surveillance: The Social Science Perspective.” In Surveillance, Dataveillance, and Personal Freedoms: Use and Abuse of Information Technology. A Symposium Edited by the Staff of the “Columbia Human Rights Law Review.” Fair Lawn, New Jersey: R. E. Burdick, 1973. Also available in Columbia Human Rights Law Review 4 (Winter 1972). Fisher, Linda E. “Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups.” Arizona Law Review 46 (2004): 621–675.
The Chocolate War The Chocolate War, first published by Robert Cormier in 1974, remains a perennial favorite of censors and book banners. The book tells the story of a secret society, the Vigils, whose members manipulate and intimidate most students into following the gang’s dictates. A student who tries to stand up to the gang finds that the struggle against conformity has unfortunate consequences. Recognition and awards for The Chocolate War include being named an ALA Best Book for Young Adults, a New York Times Outstanding Book for Young Adults, and a School Library Journal Best of the Best. Although masterfully structured and rich in theme, The Chocolate War was the most challenged book of fiction in
See also Book Banning; Censorship; Students, Rights of.
Sharon L. Morrison
furthe r reading American Library Association. “Censorship and Challenges.” www.ala.org/ala/oif/ifissues/censorshipchallenges.htm. Campbell, Patricia J. Presenting Robert Cormier. Boston:Twayne, 1985. Foerstel, Herbert N. Banned in the U.S.A. Westport, Conn.: Greenwood Press, 1994.
Christian Amendment
Christian Scientists that adoption of such an amendment would undermine the First Amendment and require Congress to penalize agnostics or atheists. In time, the movement faded. From time to time, other groups have sought to have God or Jesus recognized in the Constitution. Coming from a very different perspective, the Ninth Circuit Court of Appeals in Newdow v. United States Congress (2002) struck down the words “under God” in the Pledge of Allegiance—a decision that the Supreme Court dismissed for want of proper standing in 2003; an amendment reversing this decision would likely include a reference to the Deity. See also Blaine Amendments; Constitutional Amending Process; Declaration of Independence; Ingersoll, Robert; Pledge of Allegiance; Religious Tests; State v.Willson (S.C. App. 1893).
John R.Vile
furthe r reading Borden, Morton. “The Christian Amendment.” Civil War History 25 (June 1979): 156–167. “Christian Amendment.” In Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002, 2d ed., ed. John R.Vile, 64–66. Santa Barbara, Calif.: ABC-CLIO, 2003. Jacoby, Steward O. “The Religious Amendment Movement: God, People and Nation in the Gilded Age.” 2 vols. Ph.D. diss., University of Michigan, 1984.
Christian Legal Society The Christian Legal Society is a grassroots organization of Christian lawyers and law students established in 1961 in Chicago. It is committed to “proclaiming, loving and serving Jesus Christ . . . in the practice of law, and advocating biblical conflict reconciliation, legal assistance for the poor and the needy, religious freedom and the sanctity of human life.” Its core purpose is to transform the legal profession into faithful service to Jesus Christ through “the diligent study and ethical practice of law by ministering to the poor, reconciling people in conflict, defending life and protecting the religious liberties of all people.” CLS is a sophisticated and organized interest group, like many other New Christian Right organizations. It is active at the local and national levels in a number of different areas and in various formats. CLS is highly evangelical. It encourages relationships with other like-minded organizations and helps many of them legally. It was a founding member of the Evangelical Council for Financial Accountability (ECFA), which attempts to ensure fiscal accountability among Christian nonprofit organizations.
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CLS organizes bible studies, produces journals and other publications, and maintains the Center for Law and Religious Freedom in Washington, D.C.The center engages in amicus briefs filings, legislative advocacy, and public education. It also represents clients in religious liberty lawsuits and provides legal aid. It has filed more than seventy-five amicus briefs since 1977, many of them in First Amendment cases. The center has been involved in federal legislation regarding faith-based initiatives, the Workplace Religious Freedom Act and the Marriage Protection Acts, both proposed in 2005. Many CLS chapters at law schools face criticism or are unrecognized because of membership rules that have been ruled unconstitutional. For example, in San Francisco in April 2006, a judge upheld a decision by the University of California Hastings School of Law not to recognize CLS because of the society’s requirement that members refrain from practicing homosexuality. See also Faith-based Organizations and Government Aid; Workplace Religious Freedom Act.
Kathryn Oates
furthe r reading Christian Legal Society. www.clsnet.org. Heinz, John P., Anthony Paik, and Ann Southworth. “Lawyers for Conservative Causes: Clients, Ideology, and Social Distance.” Law and Society Review 37 (2003): 5–50. Ivers, Greg. “Religious Organizations as Constitutional Litigants.” Polity 25 (Winter 1992): 243–266. McConnell, Michael, Robert Cochran, and Angela Carmella. Christian Perspectives on Legal Thought. New Haven: Yale University Press, 2001.
Christian Scientists Christian Scientists—members of the Church of Christ, Scientist—are a denomination that teaches healing through prayer, rather than traditional medicine and medical therapies.This belief has resulted in a number of legal cases against parents of sick children for failing to secure proper medical treatment for them. (Similar cases have reached the courts involving Jehovah’s Witnesses who refuse blood transfusions for their children.) An exact accounting of the number of practitioners is unknown because the Boston-based church is prohibited from publishing membership figures by the Manual of the Mother Church, rules for internal governance written by Mary Baker Eddy, who founded the church in 1879.
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The concept of healing through prayer is derived from Eddy’s insistence that a person’s body is not real. Therefore sickness cannot truly exist. Rather, illness is a symptom of false thoughts. Prayer is the vehicle by which the mind rejects such thoughts and, when aligned properly with the Divine Mind, will allow full healing to occur. To learn to heal through prayer, a believer must go through a churchapproved training course in metaphysical prayer healing. Precedents have generally established the right of adults to make their own medical decisions, but courts are less reluctant to endorse such choice when it might result in harm to children. Due in large part to the 1967 conviction of Dorothy Sheridan of Cape Cod on charges of involuntary manslaughter for not seeking medical attention for her fiveyear-old daughter, the church lobbied to obtain an exemption from state medical neglect laws in Massachusetts. An exemption was granted in 1971 and currently remains on the books. In 1974 the Department of Health, Education, and Welfare issued a ruling requiring states either to pass exemptions to child medical treatment laws based on religious exemption or lose federal funds. As a result, forty-four states eventually passed laws allowing parents to refuse medical treatment based on their membership in churches eschewing medical treatment. In 1983 the Department of Health, acting on directions from Congress, moved to make passage of such measures voluntary. In the absence of a federal ruling, the extent to which members can be held accountable for failure to seek medical attention has devolved to the states, whose courts have issued controversial and contradictory rulings. The issue publicly resurfaced in 1984 with the death of Robyn Twitchell in Massachusetts. After the two-year-old died of an obstructed bowel, her parents were charged, and eventually convicted, of involuntary manslaughter through neglect. Rather than risk the judgment being upheld on appeal and becoming legal precedent, the church chose not to appeal, which would have been based on its contention that the parents were technically exempt from such prosecution because of their religious teachings. William and Christine Hermanson of Florida were charged and convicted of felony child abuse and third degree murder for refusing to administer insulin to their daughter, a diagnosed diabetic, who died in 1986.The state supreme court quashed their convictions, however, on the grounds that legal authorizations for religious exemptions contradicted each other to the extent that a “common per-
son” could not adequately determine his or her responsibility under the law. In contrast, California’s high court exhibited a different proclivity in ruling on the consolidated cases of Laurie Walker, Elliot and Lisa Glaser, and Mark and Susan Rippberger, all charged and convicted separately in the deaths of their respective children. In reviewing Walker v. State of California in 1988, the state supreme court ruled that practitioners of prayer healing bore the burden of determining when they were no longer protected under their religious exemption. Thus far, the U.S. Supreme Court’s only action in this arena has not been favorable to the Christian Scientists. In 1993 Minnesota courts awarded Douglas Lundman $1.5 million in compensatory damages for the death of his son while in the care of his former wife, a Christian Scientist; the church appealed the decision. In rejecting the case, the Court wrote,“Although one is free to believe what one will, religious freedom ends when one’s conduct offends the law by, for example, endangering a child’s life.” See also Accommodationism and Religion; Blood Transfusions and Medical Care against Religious Beliefs; Jehovah’s Witnesses.
Thurman Hart
furthe r reading Asser, Seth M., and Rita Swan. “Child Fatalities from ReligionMotivated Medical Neglect.” Pediatrics 101 (April 1998). Damore, Leo. The “Crime” of Dorothy Sheridan. New York: Arbor House, 1978. Eddy, Mary Baker. Science and Health with the Key to Scriptures. Boston: Christian Science Board of Directors, 2002. Massachusetts Citizens for Children.“Death by Religious Exemption: An Advocacy Report on the Need to Repeal Religious Exemptions to Necessary Medical Care for Children.” Boston, 1992. www.masskids.org/dbre/dbre_6.html.
Church of Jesus Christ of Latter-day Saints The Church of Jesus Christ of Latter-day Saints, whose followers are known as Mormons, has helped to shape the relationship between government and religion through the interpretation of the First Amendment’s establishment and free exercise clauses. The Church of Jesus Christ of Latter-day Saints, LDS Church or LDS, has always been committed to the principle of religious freedom. This commitment is found in one of their books of scripture called Doctrine and Covenants:“We
Church of Jesus Christ of Latter-day Saints believe that religion is instituted of God; and that men are amenable to him, and him only, for the exercise of it, unless their religious opinions prompt them to infringe on the rights of others . . . that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul” (section 134, verse 4).The eleventh Article of Faith states, “We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.” The LDS Church recognizes the necessity of government for holding people accountable for their actions and promoting the good and safety of society. The twelfth Article of Faith affirms the duty of citizens to obey the rule of law. Indeed, Mormons believe that God had a hand in the development of the U.S. Constitution. Although the Mormons believe in religious freedom and the divine origin of the Constitution, they fared poorly early on in their relations with the government and fellow citizens. LDS beliefs were often at odds with the established religions of the day. First in New York, then Ohio, and finally Missouri, citizens and local governments violently persecuted Mormons, primarily for their religious beliefs, but also because of perceptions that the church was directed in a dictatorial fashion and that some of its tenets (especially polygamy) were illegal. In 1838 the governor of Missouri issued an order for them to be driven from the state or exterminated.They then settled in Nauvoo, Illinois, but within a few years once again faced violent persecution, which led to the death of Joseph Smith at the hands of a mob who stormed a prison where he was being held. By 1847 the Mormons had left for Utah, where they were isolated from the rest of the country and able to develop their own form of government for several years. In 1852 the Latter-day Saints made public their practice of polygamy, or plural marriage. Joseph Smith had claimed that God commanded him to initiate the practice, which at its height involved no more than 25 percent of adult Mormons. By the 1860s, public disapproval of it had grown quite strong. In 1862 Congress passed the Morrill AntiBigamy Act, which authorized the federal government to “punish and prevent the practice of polygamy in the Territories.” The Mormons felt that the law abridged their constitutional right to religious freedom. Congressional pressure continued in ensuing years in the form of additional anti-polygamy laws. In 1882 the Edmunds Act imposed fines and prison sentences for practicing polygamists. In
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1887 the Edmunds-Tucker Act voided the church’s incorporation, and the federal government seized its assets. These statutes provided the Supreme Court with its first opportunity to interpret the First Amendment’s free exercise clause. In Reynolds v. United States (1879), the Court distinguished between religious beliefs and religious conduct. Although the free exercise clause protects religious belief, it extends less protection to religious conduct. Davis v. Beason (1890) and Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890) further limited the practice of polygamy and confirmed the disincorporation of the Cchurch. After LDS president Wilford Woodruff announced that he had received a revelation in 1890 and that the church would thereafter obey the law, the crisis over polygamy and legal confrontation with the government subsided. By the early twentieth century, polygamy had further passed into history when a “second manifesto” excommunicated anyone practicing polygamy. When Utah gained statehood in 1896, its constitution provided for freedom of religion and protection against church domination of state and local government. Since then, relations between the government and the LDS Church have been more peaceful, with only occasional legal challenges over personal injury, property issues, and business concerns. One such recent challenge, Utah Gospel Mission v. Salt Lake City Corporation (10th Cir. 2005), concerned the church’s effort to buy a section of main street next to the Temple square in Salt Lake City and convert it into a plaza with easements for public access. The church was given the right to restrict behavior and speech in the plaza, which raised free speech concerns and charges of improper establishment of religion. Many government officials were members of the church.The case was resolved when the city and the church agreed that the city would relinquish the public easement in the plaza and in return the church would give the city other land that it wanted, as well as some financial consideration. Another establishment clause case, Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987), involved church termination of several employees in alleged violation of the Civil Rights Act of 1964.The Supreme Court ruled that a religious exemption, section 702, in the act did not violate the establishment clause and that the religious anti-discrimination exemption was constitutional. Other cases involving the church have centered on the free exercise and establishment clauses and land zoning
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restrictions. In Boyajian v. Gatzunis (1st Cir. 2000), a group of citizens in Belmont, Massachusetts, objected to the LDS Church building a temple in their residential neighborhood. The citizens argued that a state law, the Dover amendment, was unconstitutional in disallowing zoning ordinances that prohibit, regulate, or restrict the use of land for religious purposes. The court ruled that the amendment did not violate the establishment clause and therefore the temple could be built. Other cases involving the LDS Church, freedom of religion, and land use include a 1990 case from Alabama, Church of Jesus Christ v. Jefferson County, and one from 2005 from Oregon, Corporation of Presiding Bishop v. City of West Linn. In the political arena, while seeking the Republican nomination for the presidency, former Massachusetts governor Mitt Romney became concerned that his Mormon identity might be hurting him in the polls. In an attempt to assuage the public’s misgivings, in December 2007 he gave a speech that some commentators compared to one John F. Kennedy delivered in 1960 to address concerns about his Roman Catholicism. While acknowledging his faith, Romney argued that if elected, his oath to the U.S. Constitution, rather than his faith, would outline his paramount duty. See also Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v.Amos (1987); Davis v. Beason (1890); Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890); Polygamy; Reynolds v. United States (1878); Smith, Joseph.
Dennis Miles
furthe r reading The Articles of Faith of the Church of Jesus Christ of Latter-day Saints. 2000. http://scriptures.lds.org/a_of_f/1. Barrus, Roger M. “Politics: Political History.” In Encyclopedia of Mormonism, ed. Daniel H. Ludlow. New York: Macmillan Publishing Co., 1992. Berrett, William E. The Restored Church: A Brief History of the Growth and Doctrines of the Church of Jesus Christ of Latter-Day Saints. 14th ed. Salt Lake City: Deseret Book Company, 1969. Biggs, Robert E. “Legal and Judicial History of the Church.” In Encyclopedia of Mormonism, ed. Daniel H. Ludlow. New York: Macmillan Publishing Co., 1992. Davis, Ray Jay. “Antipolygamy Legislation.” In Encyclopedia of Mormonism, ed. Daniel H. Ludlow. New York: Macmillan Publishing Co., 1992. Gedicks, Frederick Mark.“ ‘No Man’s Land’:The Place of Latter-Day Saints in the Culture War.” Bloomington: The Poynter Center, Indiana University, 1999. http://poynter.indiana.edu/publications/ m-gedicks.pdf. Hancock, Ralph C.“Constitution of the United States of America.” In Encyclopedia of Mormonism, ed. Daniel H. Ludlow. New York: Macmillan Publishing Co., 1992.
Lee, Francis Graham. Church-State Relations. Westport: Conn.: Greenwood Press, 2002. Lee, Rex E. “Constitutional Law.” In Encyclopedia of Mormonism, ed. Daniel H. Ludlow. New York: Macmillan Publishing Co., 1992.
Church of Jesus Christ of Latter-day Saints v. United States See Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890)
Church of the Holy Trinity v. United States (1892) Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), involving the application of a federal law forbidding the importation of foreign contract laborers, is notable for Justice David J. Brewer declaring that the United States is a “Christian nation.” When the Church of the Holy Trinity hired a clergyman from England to serve as its pastor, it was charged with violating the law in question. A lower court ruled against the church, but the Supreme Court reversed, agreeing that the action of the church technically violated the statute. Brewer used legislative intent to conclude that the church’s action was unrelated to Congress’s purpose in passing the law— stopping the flow of cheap unskilled foreign labor. Brewer added that a legislature representing a religious people would certainly not take action against religion. He provided an overview of references to God in official documents from U.S. history, beginning with the commission to Christopher Columbus and continuing through colonial charters, state constitutions, and oaths of office. Turning to the Constitution, he offered the First Amendment and the “Sundays excepted” provision in Article 1 as evidence of the importance of religion in the United States. He also found throughout American life—from its laws to its businesses, customs, and multitudes of churches, charitable organizations, and missionary associations—further evidence that “this is a Christian nation.” Brewer was not the first to make this assertion. Some state courts in the nineteenth century had also referred to the United States as a Christian nation or suggested that Christianity should receive special favoritism. In 1864 a Protestant organization asked Congress to amend the preamble to the Constitution to define the national govern-
Church of the Lukumi Babalu Aye v. City of Hialeah (1993) ment as a Christian one. Justice Brewer did not make clear whether by “Christian nation” he meant “government” in a legal sense or whether he was observing that most Americans claimed to practice Christian morality or listed Christianity as their religion. Of interest, in L’Hote v. City of New Orleans (1900), Brewer, who wrote the Court’s opinion in favor of New Orleans, did not refer to or echo his Holy Trinity dicta at all, although the topic of this case—legalized prostitution—and one of the plaintiffs—the Methodist Church—would have made this the ideal occasion to employ his “Christian nation” standard. In 1905 Brewer published a series of lectures under the title The United States:A Christian Nation, further explaining his thoughts on this topic. The book is replete with examples from history and from state courts and constitutions of official references to Christianity, but Brewer also observed that the United States cannot be called a Christian nation “in the sense that Christianity is the established religion or that the people are in any manner compelled to support it” (Brewer 1905: 12). Brewer’s “Christian nation” phrase has almost never been quoted in subsequent Court opinions. Nonetheless, the phrase lives on in the writings and speeches of critics of the wall of separation metaphor that has shaped the Court’s thinking since incorporation of the establishment clause in Everson v. Board of Education (1947). It is also the source of assertions by the Christian Right that the Supreme Court once declared the United States to be a “Christian nation.” For example, the evangelist Pat Robertson, in a fund-raising letter for his American Center for Law and Justice, wrote, “One hundred years ago, a landmark Supreme Court ruling reaffirmed America’s identity as a Christian nation” (Boston 1993: 10).
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Church of the Lukumi Babalu Aye v. City of Hialeah (1993) In Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court affirmed the principle that laws targeting specific religions violate the free exercise clause of the First Amendment. The Church of the Lukumi Babalu Aye practices Santeria, a fusion of traditional African religions and Roman Catholicism.After the church announced plans to establish a house of worship in Hialeah, Florida, the city council enacted four ordinances prohibiting the ritual sacrifice of animals, a ceremony Sant3rians perform to express devotion to their spirits.The church filed suit, and a federal district court ruled for the city.The Eleventh Circuit Court of Appeals affirmed. The Supreme Court unanimously reversed the Eleventh Circuit, holding that the city had targeted and sought to sup-
See also Constitutional Amending Process; Everson v. Board of Education (1947); Religious Right; Separation of Church and State.
Jane G. Rainey
furthe r reading Boston, Rob. “The ‘Christian Nation’ Debate.” Church and State 46 (January 1993): 7–10. Brewer, David J. The United States: A Christian Nation. Philadelphia: John C.Winston Company, 1905. Green, Steven K. “Justice David Brewer and the ‘Christian Nation’ Maxim.” Albany Law Review 63 (1999): 427–475.
Artist Xavier Cortada painted this representation of the Supreme Court decision in Church of the Lukumi Babalu Aye v. City of Hialeah (1993) as part of an exhibit for the Florida Supreme Court. In the ruling, the U.S. Supreme Court invalidated a city ordinance that banned ritual animal sacrifice.
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press a religious practice in violation of the free exercise clause. In the opinion for the Court, Justice Anthony M. Kennedy cited the two-part test articulated in Employment Division, Department of Human Resources of Oregon v. Smith (1990): The government may burden religious practice if a law is neutral and generally applicable.Applying the first element of the Smith test, Kennedy declared that Hialeah’s ordinances were not neutral; rather, the record revealed that the city council had sought to suppress the Santerians’ ritual sacrifice of animals. The city claimed that the ordinances promoted public health and prevented cruelty to animals, but applying the second prong of the Smith test, Kennedy held that the ordinances were not generally applicable.The ordinances granted exceptions for slaughterhouses, and they did not require the inspection of fish or game caught by hunters, the control of food disposed of by restaurants, or prohibit the killing of animals for nonreligious reasons, including the catching of fish and the extermination of mice and rats. A law that fails the Smith test must be justified by a compelling governmental interest and be narrowly tailored to achieve that interest. Kennedy held that the Hialeah ordinances were not compelling, because they were underinclusive with respect to animal and public health interests.They also were not narrowly tailored to serve those interests, because they were either overbroad or underinclusive. In a concurrence, Justice David H. Souter expressed his disagreement with the use of the Smith test. He argued that the Court should reexamine Smith, because it was atypical of the Court’s free exercise jurisprudence and because Smith, having left prior cases undisturbed, also left unresolved the issue of which constitutional rule to follow in deciding free exercise cases. Justice Harry A. Blackmun concurred with Souter that Smith was wrongly decided and that the Hialeah ordinances violated the free exercise clause, because laws that target religion are not tailored to serve a compelling governmental interest. See also Animal Sacrifice; Blackmun, Harry A.; Compelling State Interest; Employment Division, Department of Human Resources of Oregon v. Smith (1990); Kennedy, Anthony M.; Narrowly Tailored Laws; Overbreadth; Souter, David H.
William Crawford Green
O’Brien, David M. Animal Sacrifice and Religious Freedom: Church of the Lukumi Babalu Aye v. City of Hialeah. Lawrence: University Press of Kansas, 2004.
Churchill, Ward Ward LeRoy Churchill, a professor of ethnic studies at the University of Colorado, Boulder, became the center of national controversy after writing an essay arguing that U.S. foreign policies had incited al-Qaida’s attack of September 11, 2001. In “Some People Push Back: On the Justice of Roosting Chickens,” Churchill asserted that when U.S. foreign policy causes death and destruction abroad, retaliation will follow. He also argued that like the Pentagon, the World Trade Center was a military target and that the 2,997 people killed there were not innocent victims, but “little Eichmanns”—a reference to one of Hitler’s high-ranking subordinates—who formed a technocratic corps at the center of the U.S. global financial empire. Many people were appalled by some of Churchill’s comments in the essay. Colorado governor Bill Owens and a number of other influential individuals demanded his resignation from the university, noting that although Churchill could freely express his ideas, his First Amendment rights did not guarantee financial support from public funds for himself or his ideas. Numerous scholars expressed support for Churchill’s First Amendment rights. The University of Colorado Faculty Assembly regarded Churchill’s words as controversial and offensive but defended his academic and intellectual freedom of expression.After widespread criticism in the mass media, Churchill resigned as chair of his department in January 2005 but retained his status as a tenured professor. In June 2006, a university committee investigated allegations that Churchill had committed breaches of academic misconduct and recommended his firing. Critics of the university’s actions alleged that the charges, which included plagiarism, would never have been brought had Churchill not become a controversial figure.Two weeks later, the university announced Churchill’s dismissal. See also Academic Freedom; American Association of University Professors.
furthe r reading Brown, Steve. “Blood and Precedent: Church of the Lukumi Babalu Aye v. City of Hialeah.” In Creating Constitutional Change, ed. Gregg Ivers and Kevin McGuire, 181–93. Charlottesville: University of Virginia Press, 2004.
Alvin K. Benson
furthe r reading Churchill, Ward. On the Justice of Roosting Chickens: Consequences of American Conquest and Carnage. Oakland, Calif.: AK Press, 2003.
Citizen Publishing Co. v. United States (1969)
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national security concerns trumped the rights of freedom of communication.
The CIA and the Cult of Intelligence, the 1974 book by former Central Intelligence Agency employee Victor Marchetti and former State Department employee John D. Marks, was the first publication to be censored by the U.S. government prior to publication. Legal issues pitted the government’s interest in protecting national security against the right of former government employees and publishers to communicate classified or otherwise sensitive information. After Marchetti resigned from the CIA in 1969, he began publishing information acquired as a consequence of his work. Marchetti’s actions violated contractual secrecy agreements that he had signed as a condition of employment. In 1972 the U.S. government sought and secured an injunction against his publishing “secret information touching upon the national defense and the conduct of foreign affairs.” For nearly a year, legal proceedings and injunctions delayed publication of The CIA and the Cult of Intelligence, a critique of the agency’s activities, alleging a preoccupation with covert operations at the expense of intelligence gathering.The government originally ordered 339 deletions of what it termed classified information. After negotiation with Marchetti’s lawyers, the CIA reduced its request to 168 deletions. In United States v. Marchetti (4th Cir. 1972) and Alfred A. Knopf v. Colby (4th Cir. 1975), the government argued that the primary issue centered on a contractual obligation, asserting that Marchetti had agreed to submit his work for prepublication review as a condition of employment. Marchetti claimed a First Amendment right to publish and a “need to know” for the public regarding CIA activities. He contended that enforcement of the secrecy agreement he had signed violated his First Amendment rights and constituted a prior restraint on expression. He also challenged the government’s classification system on the ground that government censors possessed virtually unlimited powers to classify documents and, therefore, to withhold from the public information vital to self-governance. The courts sided with the government. The issues raised in these proceedings resurfaced in subsequent disputes concerning prepublication agreements in connection with classified information in particular and government secrecy in general in Snepp v. United States (1980), Haig v.Agee (1981), and United States v. Morison (4th Cir. 1988). In all of these cases, the courts ruled that
See also Haig v. Agee (1981); Public Employees; Snepp v. United States (1980); United States v. Morison (4th Cir. 1988).
Richard Parker
furthe r reading Camp, Alida D. “Enforceability of CIA Secrecy Agreements: A Constitutional Analysis.” Columbia Journal of Law and Social Problems 15 (1980): 455–505. Marchetti,Victor, and John Marks. The CIA and the Cult of Intelligence. New York: Alfred A. Knopf, 1974.
Cigarette Advertising See Tobacco Advertising
Citizen Publishing Co. v. United States (1969) In Citizen Publishing Co. v. United States, 394 U.S. 131 (1969), the Supreme Court upheld a lower court ruling affirming that an agreement between two Tucson newspapers violated federal antitrust laws and that the Justice Department was correct in requiring that the two papers act independently of each other. In so doing, it made it clear that the First Amendment did not exempt news organizations from antitrust laws. In the early twentieth century, Tucson, Arizona, had two newspapers: the Tucson Citizen, an evening paper, and the Arizona Daily Star, which appeared daily and on Sundays. The Star generally sold 50 percent more advertising space than its competitor, and accordingly enjoyed profits while the Citizen sustained losses.This continued until 1940, when the two newspapers entered into a fifteen-year joint operating agreement, which in 1953 was extended until 1990.The agreement allowed for the formation of Tucson Newspapers, Inc. (TNI), a company owned equally by the Star and the Citizen that eliminated all competition between them through price fixing, profit pooling, and market control. With the cessation of their rivalry, the papers’ combined profits rose significantly. In 1965 the U.S. government filed a complaint in district court charging violations of the Sherman Antitrust Act and the Clayton Act, which also dealt with antitrust issues.The court agreed with the government. In the Supreme Court’s majority opinion, Justice William O. Douglas wrote that the newspapers were, indeed, guilty of
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the violations as charged. He cited insufficient evidence to support a “failing company” defense—that in the course of liquidating the Citizen, the Star was the only available purchaser. He also noted that the First Amendment does not support the trade restraints imposed by the joint operating agreement; that is, the First Amendment does not exempt papers from laws aimed at preserving competition. Justice John Marshall Harlan II concurred, but believed that the critical issue rested not upon the original agreement of 1940, but upon the decision to extend the agreement beyond its original termination date in 1953, after which neither paper would be a failing enterprise under terms of the applicable laws. Justice Potter Stewart dissented, arguing that the defendants were not given proper opportunity to establish the Citizen as a failing company. Justice Abe Fortas did not participate in the case. The ruling restricted neither newsgathering nor news dissemination as it relates to the First Amendment. Rather, its purpose was to ensure an unrestricted flow of information by reestablishing competition and free press within the Tucson newspaper industry. Although the First Amendment was not the primary concern of the Justice Department, the Court, or the newspapers involved in Citizen Publishing, the ruling opened the door for Congress to regulate the media under certain circumstances to preserve freedom of the press, such as eliminating monopolies that might stifle the publication of competing newspapers. In response to the Court’s decision, Congress passed the Newspaper Preservation Act of 1970 to allow news organizations to enter into joint operating agreements. Legislators argued that the role of government in preserving an “editorially and reportorially independent and competitive” press by allowing certain business agreements would guarantee the freedoms outlined in the First Amendment. See also Douglas,William O.; Media Concentration.
Meredith Bowman with Walter Huber
furthe r reading Fisher, Lewis. American Constitutional Law. 2d ed. New York: McGrawHill, Inc., 1995. Ingelhart, Louis Edward. Press and Speech Freedoms in America, 1619–1995: A Chronology. Westport, Conn.: Greenwood Press, 1997.
Citizens Against Rent Control v. Berkeley (1981) In Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981), the Supreme Court rejected a Berkeley, California, statute limiting individuals’ contributions to groups opposing or supporting ballot initiatives to no more than $250 on the ground that it violated the right of expression and association. Contemporaneous with 1994 amendments to the Federal Election Campaign Act of 1974 (FECA), the people of Berkeley passed the Election Reform Act of 1974. The FECA and the Berkeley act both contained limitations on contributions to candidates and limitations on expenditures made by candidates and political committees. Berkeley’s act also limited the amount that could be spent in elections to support or oppose ballot measures. The Supreme Court resolved challenges to the FECA in Buckley v. Valeo (1976), which clarified that contributions could be limited in furtherance of a governmental interest in combating corruption or the appearance of corruption of candidates in the political process, but that expenditure limitations violated the First Amendment. Buckley did not address the constitutionality of contributions or expenditure limits relating to ballot measures. Section 602 of the Berkeley act limited groups formed to support or oppose a ballot measure to collecting contributions from individuals in amounts less than or equal to $250. In seeking to oppose a local rent control measure, Citizens Against Rent Control (CARC), an unincorporated political association, solicited and accepted nine contributions in amounts exceeding $250 and was therefore fined by Berkeley’s Fair Campaign Practices Commission. The case made its way through the California court system and was then appealed to the Supreme Court. The justices asserted that the practice of collective action is fundamental and embedded in American political life. It took particular issue with the differential treatment of wealthy individuals and groups of citizens observing,“Under the Berkeley ordinance an affluent person can, acting alone, spend without limit to advocate individual views on a ballot measure. It is only when contributions are made in concert with one or more others in the exercise of the right of association that they are restricted by § 602.” Focusing on restraint on political association, the justices applied strict scrutiny in assessing the case.
City Council of Los Angeles v.Taxpayers for Vincent (1984) The Berkeley ordinance failed to stand up to strict scrutiny because the city’s interest in ensuring that the public knows who is supporting or opposing ballot measures is satisfied by disclosure requirements; there was no evidence to support (as articulated by the California Supreme Court) a state interest in maintaining voter confidence in the ballot measure process. The Court noted that absent concerns about corruption or appearance of corruption of a candidate, a statute or ordinance restricting First Amendment expressive or associational rights could not satisfy the strict scrutiny required by Buckley and its progeny. Citizens Against Rent Control is often cited for the proposition that in contrast to candidates, a ballot measure cannot be corrupted, and no other compelling interest exists for restricting the exercise of speech and associational rights in the context of ballot measure election activity. See also Buckley v.Valeo (1976); Federal Election Campaign Act of 1971.
Mary-Beth Moylan
furthe r reading Eastman, John C. “Strictly Scrutinizing Campaign Finance Restrictions (and the Courts That Judge Them).” Catholic University Law Review 50 (2000): 13–46.
Citizens for Decent Literature Citizens for Decent Literature (CDL) was one of the earliest anti-pornography groups in the United States. Charles H. Keating Jr., an attorney and later financier, founded the group in 1956 in Cincinnati, Ohio, in the wake of his daughter’s sexual assault. Keating believed pornography to be the cause of a good deal of sexually motivated criminal behavior. Through CDL, he sought to inhibit the sale and purchase of obscene materials and to pressure at times indifferent prosecutors, judges, and police officers into enforcing anti-obscenity statutes. By the end of the 1960s, the group had 300 nationwide chapters and counted four senators and seventy representatives on its honorary committee. CDL provided legal advice to municipalities seeking to prosecute retailers selling sexually explicit films and publications. Its lawyers prepared and distributed extensive reviews of changes in obscenity legislation to prosecutors around the country and assisted local police and prosecuting attorneys prepare for litigation and appeals in obscenity cases. It also formulated key legislative initiatives and provided expert witness accounts for legislative committees.The group filed
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amicus curiae briefs for twenty-seven anti-pornography cases examined by the Supreme Court between 1963 and 1971; nearly two-thirds of the rulings in those cases were unfavorable to the group. During the 1980s CDL, renamed Citizens for Decency Through Law, targeted the Ramada Inn for offering adult pay cable services, challenged Pacific Bell over phone-sex chat lines, and fought Larry Flynt for publishing Hustler. Another failed campaign involved an adult theater in Orange County, California, that the group argued was a magnet for various criminal elements, among which it included voyeurs and homosexuals. During the administrations of Ronald Reagan and George H. W. Bush, lawyers for Citizens for Decency Through Law participated in a long-running prosecution of merchants proffering pornographic material. Its representatives threatened retailers with criminal indictments in various localities unless they agreed to stop distributing the material. An array of federal judges and civil liberties groups criticized the tactic because it included material protected by the First Amendment as well as that outside its protection. In 1987 Keating’s problems with a federal investigation of Lincoln Savings and Loan, a company owned by the American Continental Corporation, which Keating directed, drew him away from his anti-pornography crusade. In 1989, after the bank went bankrupt, Citizens for Decency Through Law re-formed as the Children’s Legal Foundation, with no association to Keating.This new group expanded its obscenity focus to include rock music and devil worship. See also Censorship; Flynt, Larry; Obscenity and Pornography; Protection of Children Against Sexual Exploitation Act of 1977.
Maurice Leach
furthe r reading ”Citizens for Decency Through Law.” In West’s Encyclopedia of American Law, ed. Jeffrey Lehman and Shirelle Phelps. 12 vols. Farmington Hills, Mich.:Thomson Gale, 2004. Corn, David. “Dirty Bookkeeping.” New Republic, April 2, 1990. Rogers, Charles H. “Police Control of Obscene Literature.” Journal of Criminal Law, Criminology, and Police Science 57 (December 1966): 430–482.
City Council of Los Angeles v. Taxpayers for Vincent (1984) In City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), the Supreme Court upheld a city ordinance
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City of Boerne v. Flores (1997)
prohibiting the posting of signs, including for political candidates, on utility poles, cross wires, and other structures on public property. The ruling reaffirmed a district court decision, based largely on the city’s right to respond to aesthetic and safety concerns, that the Ninth Circuit Court of Appeals had reversed. In the opinion for the Court, Justice John Paul Stevens defended the ordinance against claims that it violated freedom of speech because it was unconstitutionally applied or overly broad. Stevens argued that overbreadth did not apply because the ordinance would not affect other third parties any differently than the petitioners, the supporters of a candidate running for election to the Los Angeles City Council who sought to prevent the city from removing signs that they had posted during a campaign. Stevens asserted that the ordinance, which applied to all signs, was not intended to regulate speech on the basis of its content. Given this, the case was covered by the decisions in Kovacs v. Cooper (1949), regulating sound trucks; Lehman v. City of Shaker Heights (1974), regulating political advertising on buses; and Metromedia, Inc. v. City of San Diego (1981), involving billboards. Stevens considered the law an appropriate restriction as to “the time, place, or manner of expression.”The law left candidates with alternate means of communication. Moreover, Stevens noted that the law was more narrowly tailored than attempts to control litter by banning the distribution of pamphlets. Denying that utility poles were the equivalent to public streets and parks, the Court also rejected the idea that the public property at issue constituted a “public forum” for First Amendment purposes.Although the city might have chosen to make exceptions for some forms of political speech, it was not constitutionally obligated to do so, and such exceptions might even have resulted in unconstitutional content discrimination. Justices Thurgood Marshall and Harry Blackmun joined Justice William J. Brennan Jr. in his dissent focusing on the communication value of posting signs and “the unavoidable subjectivity of aesthetic judgments.” Under the circumstances, he would permit a total ban on such displays only if the city could show that “the ban (1) furthers a substantial government objective, and (2) constitutes the least speechrestrictive means of achieving that objective.” He feared that the Court would be unable to distinguish attempts to beautify a city from attempts to suppress speech. He would have required the city to show that its law relative to speech was part of a broader set of laws designed to pursue the city’s goal “of eliminating visual clutter in a serious and compre-
hensive manner” and “through programs other than its ban on signs.” See also Brennan,William J., Jr.; Content Based; Kovacs v. Cooper (1949); Lehman v. City of Shaker Heights (1974); Metromedia, Inc. v. City of San Diego (1981); Overbreadth; Public Forum Doctrine; Stevens, John Paul;Time, Place, and Manner Restrictions.
John R.Vile
furthe r reading Cude, Randall J. “Note and Comment: Beauty and the Well-Drawn Ordinance. Avoiding Vagueness and Overbreadth Challenges to Municipal Aesthetic Regulations.” Journal of Law and Policy 6 (1998): 353–913.
City of Boerne v. Flores (1997) In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court ruled that Congress did not have unlimited power to enact legislation to expand First Amendment free exercise rights through its enforcement powers in section 5 of the Fourteenth Amendment, the amendment through which the First Amendment is applied to the states. The archbishop of San Antonio, Texas, had applied for a building permit to expand a Catholic church in Boerne, Texas, but the city denied the request because of an ordinance barring the alteration of historical landmarks. The archbishop then filed suit against the local zoning authorities, claiming that by refusing to allow the church to enlarge its building, the city violated the Religious Freedom Restoration Act of 1993 (RFRA). Congress had enacted RFRA to reverse the Supreme Court’s ruling in Employment Division, Department of Human Resources of Oregon v. Smith (1990). In Smith, two Native American church members had been dismissed from their jobs as employment counselors for using peyote; they sued, arguing that the free exercise clause of the First Amendment protected their right to smoke peyote as part of their religion.The Supreme Court upheld the Oregon law and ruled that such neutral laws of general applicability are not unconstitutional even if they affect religious practices. In ruling for the state, the Court refused to apply its prior standard requiring the state to offer a compelling justification for the law. Passed with overwhelming congressional approval, RFRA reinstated the compelling state interest test in free exercise cases. RFRA provided that the government may not “substantially burden” a person’s exercise of religion unless it can
City of Chicago v. Morales (1999) show that it has a “compelling governmental interest” and the law is “the least restrictive means” to achieve its goal. In passing the law, Congress relied on its authority under section 5 of the Fourteenth Amendment to enforce section 1 of the amendment “by appropriate legislation.” In Boerne, the district court held that RFRA was unconstitutional and ruled in favor of the city; the Fifth Circuit Court of Appeals reversed and upheld the law. In a divided 6-3 ruling, the Supreme Court reversed the Fifth Circuit. The majority based its decisions on the principles inherent in the separation of powers among the three branches of government and chided Congress for exceeding its constitutional authority under section 5 of the Fourteenth Amendment.The Court acknowledged that section 5 grants Congress the power to enforce rights guaranteed in section 1, but cautioned that its power to do so is limited by the Supreme Court’s superior position in constitutional interpretation. Echoing the words of former chief justice John Marshall, the Court reminded Congress that the final authority in determining the boundaries of legislative power under the Constitution resides in the judiciary. Congress had argued that RFRA was “appropriate legislation” because it prevented states from infringing on the right of free exercise guaranteed in the First Amendment and applied to the states by the Fourteenth. The Court explained that although section 5 allows Congress to enforce existing laws, it does not permit Congress to alter the meaning of a constitutional provision, such as, in this case, section 1 of the Fourteenth Amendment. Conceding that it is often difficult to determine whether the legislature is enforcing existing rights or creating substantive rights, the Court established a test to determine the constitutionality of section 5 legislation: “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” To meet this standard, Congress must first find that the state had committed constitutional abuses. After making such a finding, however, the legislature may not impose a remedy that is more stringent than the one that existed previously. The Court held that RFRA failed this test. By requiring states to justify laws affecting religious practices with a compelling state interest, contrary to the Court’s ruling in Smith, RFRA had altered the substantive meaning of the Fourteenth Amendment, thus exceeding Congress’s enforcement power under section 5. The decision invalidated RFRA as it applied to state and local governments, but not necessarily to the federal government. Congress responded to the Boerne decision by drafting
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a narrower religious liberty law, called the Religious Land Use and Institutionalized Persons Act of 2000. See also Employment Division, Department of Human Resources of Oregon v. Smith (1990); Kennedy, Anthony M.; Religious Freedom Restoration Act of 1993; Religious Land Use and Institutionalized Persons Act of 2000.
Susan Gluck Mezey
furthe r reading Cole, David. “The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights.” Supreme Court Review 1997: 31–77. Colker, Ruth. “The Section Five Quagmire.” University of California at Los Angeles Law Review 47 (2000): 653–702. Hamilton, Marci, and David Schoenbrod. “The Reaffirmation of Proportionality Analysis under Section 5 of the Fourteenth Amendment.” Cardozo Law Review 21 (1999): 469–492. Mallamud, Jonathan. “Religion, Federalism and Congressional Power: A Comment on City of Boerne v. Flores.” Capital University Law Review 26 (1997): 45–63. Mezey, Susan Gluck. “The U.S. Supreme Court’s Federalism Jurisprudence: Alden v. Maine and the Enhancement of State Sovereignty.” Publius:The Journal of Federalism 30 (2000): 21–38. Noonan, John T., Jr. Narrowing the Nation‘s Power. Berkeley: University of California Press, 2000.
City of Chicago v. Morales (1999) In City of Chicago v. Morales, 527 U.S. 41 (1999), the Supreme Court held that a Chicago “gang loitering” ordinance— which prohibited individuals whom police reasonably believed to be members of a “criminal street gang” from loitering in public with one or more persons—was unconstitutionally vague.The 6-3 decision, with four of the six justices in the majority writing separately, did not completely prohibit state and local governments from establishing such programs, but it imposed standards by which courts could scrutinize such schemes for violations of due process and, arguably, the right to freedom of association. Like many other municipal governments in the 1990s, Chicago had established a policy prohibiting “criminal street gang members” from loitering in public places. Under an ordinance, if police officers observed a person whom they “reasonably believed” to be a gang member loitering— defined as “remaining in any one place with no apparent purpose”—with one or more persons, they could order them to disperse and arrest them if they did not. Police policy under the ordinance confined arrest authority only to certain officers, provided specific criteria defining gangs and gang membership, and defined (without publicly disclosing) certain enforcement areas.
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City of Cincinnati v. Discovery Network (1993)
The Illinois appellate court held that the ordinance violated the First Amendment freedoms of association, assembly, and expression established in prior cases, including Roberts v. United States Jaycees (1984).The state supreme court found a due process violation because the ordinance was impermissibly vague on its face, but expressly declined to reach the First Amendment issue. Without disagreeing with the city’s argument that gang activity had become a public nuisance harming the peace and quiet of a community, the Court majority, citing Kolender v. Lawson (1983), held that the ordinance violated due process because it did not provide adequate notice of what conduct was illegal and gave essentially unfettered discretion to law enforcement officers. Justices David H. Souter and Ruth Bader Ginsburg explicitly agreed with Justice John Paul Stevens’s argument that “the freedom to loiter for innocent purposes is part of the liberty protected by the due process clause of the Fourteenth Amendment.” Nevertheless, citing City of Dallas v. Stanglin (1989), even these three justices agreed that there is no generalized right of “social association” separate from protected intimate association and expressive association.Waxing poetic, Justice Antonin Scalia’s dissent lifted a scene from the 1959 musical West Side Story to argue that refusing a police order to disperse, not loitering per se, can and should result in an arrest. The Morales decision did not spell the end of the nuisance-based gang suppression approach. As implied by language in Justice Stevens’s opinion and a concurring opinion by Justices Sandra Day O’Connor and Stephen G. Breyer, courts have generally approved an injunction-based policy under which police seek a court-issued restraining order identifying specific individuals as gang members and enjoining them from engaging in specified activities. See also City of Dallas v. Stanglin (1989); Roberts v. United States Jaycees (1984); Stevens, John Paul.
Ronald Steiner
furthe r reading Bjerregaard, Beth. “Antigang Legislation and Its Potential Impact:The Promises and the Pitfalls.” Criminal Justice Policy Review 14 (2003): 171–192. Cole, David. “Hanging with the Wrong Crowd: Of Gangs, Terrorists, and the Right of Association.” Supreme Court Review (1999): 203–252. Geis, Gilbert. “Ganging Up on Gangs: Anti-Loitering and Public Nuisance Laws.” In Gangs in America. 3d ed., edited by C. Ronald Huff, 257–270. London: Sage, 2002.
Packebusch, J. Elizabeth. “Gang Loitering Ordinances Post-Morales: Has Vagueness Been Remedied? Somerville, Massachusetts Says Yes.” New England Journal on Criminal and Civil Confinement 32 (2006): 161–184.
City of Cincinnati v. Discovery Network (1993) In City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993), the Supreme Court held that Cincinnati’s restrictions on the distribution of commercial flyers in news racks violated the First Amendment. Despite the undisputed fact that flyers were commercial advertisements, the Court refused to diminish their free speech protections. The case arose when Cincinnati decided to revoke permits allowing the Discovery Network to distribute advertisements from thirty-eight news racks on city property because of an ordinance prohibiting the distribution of commercial handbills on public property. The enforcement of the ordinance removed only sixty-two of the approximately fifteen hundred news racks in the city, but Cincinnati claimed that it served the significant public interests of safety and aesthetics.The far more numerous newspaper racks were not affected. Discovery Networks and Harmon Publishing challenged the legality of the ordinance under the First Amendment. The district court and the Sixth Circuit Court of Appeals ruled against Cincinnati. The Supreme Court voted 6-3 in affirming the lower courts’ decisions. Courts have historically applied a lower standard to commercial speech, as in Ohralik v. Ohio State Bar Association (1978), limiting direct lawyer solicitations of clients. The Court has justified this by asserting that commercial speech is more durable or that it is less central to the First Amendment than political speech. How much lower has often been far less clear. The Court had established a test for protections granted commercial speech in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980). It determined that in order for lawful commercial speech to be restricted, the government must have a substantial interest advanced by the restriction, and it must not be a more extensive restriction than necessary to meet that interest. In Board of Trustees of State University of New York v. Fox (1989), the Court also asserted that there must be a reasonable fit between the desired ends and the means chosen. Applying these tests in Discovery Network, the Court rejected the Cincinnati ordinance, noting that the removal of a small number of news
City of Edmond v. Robinson (1996) racks did little to advance the city’s interests in safety and aesthetics. In short, it was not a reasonable fit. In dissent, Chief Justice William H. Rehnquist concluded that even an incremental improvement of safety and aesthetics from the removal of news racks at issue should be sufficient to meet these tests. Commercial speech remains a lower category of protected speech, but this decision indicates that governments cannot ban or restrict it without a reasonable justification. See also Board of Trustees of State University of New York v. Fox (1989); Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Ohralik v. Ohio State Bar Association (1978); Rehnquist,William H.; Stevens, John Paul.
Kevin M.Wagner
furthe r reading DeVore, P. Cameron. Advertising and Commercial Speech: A First Amendment Guide. New York: PLI Press, 1999. Petty, Ross D. The Impact of Advertising Law on Business and Public Policy. London: Quorum Books, 1992. Wright, R. George. Selling Words: Free Speech in a Commercial Culture. New York: New York University Press, 1997.
City of Dallas v. Stanglin (1989) In City of Dallas v. Stanglin, 490 U.S. 19 (1989), the Supreme Court determined that social dancing is not a form of association or expression protected by the First Amendment. The case arose after the city of Dallas passed an ordinance that created teens-only dance halls. The ordinance limited these dance halls to teens between fourteen and eighteen years of age as well as their hours of operation. The owner of a skating rink and a dance hall challenged the ordinance’s establishment of hours of operation and age restrictions in state court, alleging violations of the First Amendment and of the equal protection and due process clauses of the Fourteenth Amendment. A Texas trial court dismissed the lawsuit, finding both restrictions reasonable ways to protect the safety of minors. A Texas appeals court affirmed on the hours of operation but reversed the age limitation.The state appeals court reasoned that the law infringed on minors’ fundamental right of social association protected by the First Amendment. The Supreme Court unanimously reversed. In an opinion by Chief Justice William H. Rehnquist, the Court recognized that its decision in Roberts v. United States Jaycees (1984) established that the First Amendment protected intimate association—certain “intimate, human” relationships—and
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expressive association—the ability of individuals to congregate for expressive purposes. The justices determined that the Dallas ordinance did not infringe on minors’ intimate associational rights, as the dance halls were populated by as many as 1,000 people on any given evening. It also reasoned that social dancing was not “the sort of expressive association that the First Amendment has been held to protect.” In oft-cited language, Rehnquist wrote, “It is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.” He concluded that “coming together to engage in recreational dancing is not protected by the First Amendment.” See also Rehnquist, William H.; Roberts v. United States Jaycees (1984).
David L. Hudson Jr.
furthe r reading Gray, Madison. “Social Dancing.” First Amendment Center Online. www.firstamendmentcenter.org/Speech/personal/topic.aspx?topic =social_dancing.
City of Edmond v. Robinson (1996) By a 6-3 vote, the Supreme Court denied certiorari in City of Edmond v. Robinson, 517 U.S. 1201 (1996), upholding a circuit court ruling in Robinson v. City of Edmond (10th Cir. 1995) that the city seal of Edmond, Oklahoma, violated the establishment clause of the First Amendment because one quadrant of it contained a Latin, or Christian, cross. Chief Justice William H. Rehnquist, in a dissent joined by Justices Antonin Scalia and Clarence Thomas, noted that the federal appeals courts had split on the issue in question. In Harris v. City of Zion (7th Cir. 1991), the court had found that a city seal with religious symbols violated the establishment clause but in Murray v. City of Austin (5th Cir. 1991), a different circuit court found that another seal did not. Rehnquist therefore argued that Edmond might be appropriate for clarifying the Court’s position on standing, which he thought had been left ambiguous in Valley Forge Christian College v. Americans United for Separation of Church and State (1982). In particular, he wanted the parties to address the issue of whether individuals could claim injury, and thereby standing,
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City of Erie v. Pap’s A.M. (2000)
merely on the basis of exposure to a city symbol that offended their religious beliefs. See also Civil Religion; Rehnquist, William H.; Valley Forge Christian College v. Americans United for Separation of Church and State (1982).
John R.Vile
furthe r reading Freeman, Kyle D. “Note: Robinson v. City of Edmond. Establishment Clause Jurisprudence and a Case for Governmental Acknowledgement of the Historical Role of Religion.” Tulsa Law Journal 32 (1997): 605–632.
City of Erie v. Pap’s A.M. (2000) In City of Erie v. Pap’s A.M, 529 U.S. 277 (2000), the Supreme Court ruled that Erie, Pennsylvania, did not violate the First Amendment free speech rights of nude dancers when the city council enacted an ordinance banning public nudity.The decision followed the Court’s earlier decision in Barnes v. Glen Theatre, Inc. (1991) allowing government officials to prohibit totally nude dancing. Pap’s A.M. operated Kandyland, a nude dancing establishment. Kandyland had filed a complaint arguing that to comply with the 1994 Erie ordinance its previously nude dancers would now be required to wear pasties and G-strings in violation of the nude dancers’ First Amendment right to engage in expressive conduct, or free speech. The Court of Common Pleas of Erie County and the Pennsylvania Supreme Court found in favor of Kandyland. Erie appealed to the Supreme Court. Relying on United States v. O’Brien (1968) and Glen Theatre, the Court upheld the ordinance by a 6-3 vote. Announcing the judgment of the Court and writing for a plurality, Justice Sandra Day O’Connor determined that Erie’s ban was permissible because it was not related to the suppression of nude dancing per se but rather public nudity in general. The plurality held Glen Theatre, in which a fractured Court found that Indiana’s public nudity ban did not violate the First Amendment, to be controlling. Agreeing that being nude is expressive conduct, the plurality noted that it “falls only within the outer ambit of the First Amendment’s protection.” As in O’Brien and Glen Theatre, however, Erie’s intent was not to suppress a particular message but rather an attempt to regulate the negative secondary effects of the speech. Just as the O’Brien Court found the ban on burning draft cards was related to main-
taining the integrity of the selective service system and not restraining anti-war speech, the plurality determined that Erie’s intent was to negate the negative impact of nude dancing on public health and safety. Justice Antonin Scalia’s concurrence, which Clarence Thomas joined, maintained that the secondary negative effects analysis was unwarranted because Erie could have banned public nudity simply to advance good morals. The secondary effects test employed by the plurality particularly concerned the three dissenters. Justice John Paul Stevens, joined by Ruth Bader Ginsburg, noted that the secondary effects test had traditionally been employed in relation to the location of erotic speech, not to substantiate an outright ban on protected First Amendment speech.The consequences of this decision would be severe, Justice Stevens warned, since for the first time the Court declared that unwanted or unpopular speech could be prohibited simply due to effects that “happen to be associated” with that speech. Though agreeing with the secondary effects test, Justice David H. Souter dissented on the application of the test, reasoning that because no evidentiary record demonstrating real negative harms flowing from nude dancing existed, the Court should remand the case to allow Erie to establish the empirical connection between public nudity and negative secondary effects. In Glen Theatre, Souter had relied, ironically, on the secondary effects doctrine to uphold Indiana’s public indecency law. See also Barnes v. Glen Theatre, Inc. (1991); Dancing, Nude; O’Connor, Sandra Day; Secondary Effects Doctrine; United States v. O’Brien (1968).
Kyle L. Kreider
furthe r reading Adler, Amy. “Girls! Girls! Girls! The Supreme Court Confronts the G String.” New York University Law Review 80 (2005): 1108–1155. Fisher, Christy A. “Annual Review of Gender and Sexuality Law: Constitutional Law Chapter. Nude Dancing.” Georgetown Journal of Gender and the Law 6 (2005): 335–346. Hudson, David L., Jr.“Justice Stevens, Justice Souter and the Secondary Effects Doctrine.” University of West Los Angeles Law Review 35 (2003): 48–61.
City of Houston v. Hill (1987) In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.
City of Ladue v. Gilleo (1994) Houston police had arrested Raymond Wayne Hill for yelling “Why don’t you pick on somebody your own size?” when a police officer arrested a friend of his.The police then arrested Hill for violating an ordinance determining that “It shall be unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.”After his acquittal in municipal court, Hill filed a federal lawsuit seeking a declaratory judgment of the Houston law as unconstitutional. A federal district court rejected his claim, but a federal appeals court reversed, finding the ordinance to be unconstitutionally overbroad and criminalizing a substantial range of protected speech and conduct. On appeal, the Supreme Court invalidated the ordinance by an 8-1 vote. Justice William J. Brennan Jr., who authored the Court’s opinion, wrote that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” He added that the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” He reasoned that the ordinance could not be read only to prohibit disorderly conduct or fighting words. Justice Lewis F. Powell Jr. concurred in finding the ordinance unconstitutional, but he questioned the breadth of Brennan’s analysis. “In many situations, speech of this type directed at police officers will be functionally indistinguishable from conduct that the First Amendment clearly does not protect,” Powell wrote. Chief Justice William H. Rehnquist dissented, finding that the Court should not invalidate the ordinance before the Texas Supreme Court had had a chance to interpret the law. See also Brennan, William J., Jr.; Fighting Words; Overbreadth; Rehnquist,William H.
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Fighting Words: An Overview,” First Amendment Center Online. www.firstamendmentcenter.org/ Speech/personal/topic.aspx?topic=fighting_words.
City of Ladue v. Gilleo (1994) In City of Ladue v. Gilleo, 512 U.S. 43 (1994), the Supreme Court ruled that city officials could not flatly prohibit homeowners from displaying political signs on their own property.
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In December 1990, Margaret Gilleo hammered a twofoot-by-three-foot sign into her lawn in Ladue, an upperclass suburb of St. Louis. The sign read “Say No to War in the Persian Gulf. Call Congress Now.” When Gilleo learned that the sign violated a city ordinance, she approached the city council for an exemption and was denied. Gilleo then sued the city, claiming that the ordinance violated her First Amendment right of free speech.As the case moved through the legal system, Gilleo removed the sign from her lawn and placed one in a bedroom window that read “For Peace in the Gulf.” The sign in the window also violated the city ordinance. Writing for a unanimous Court, Justice John Paul Stevens explained that Ladue’s anti-sign law was unconstitutional because it closed off a traditional form of expression. The ordinance, he wrote, has “almost completely foreclosed a venerable means of communication that is both unique and important. It has totally foreclosed that medium to political, religious, or personal messages.” The Court’s decision upheld a ruling by the Eighth Circuit Court of Appeals, but used different analyses. Noting that the ordinance forbade most signs but allowed others, such as “For Sale” signs, the circuit court ruled the law unconstitutional because it failed to be content neutral; it favored commercial speech over noncommercial speech. The Supreme Court bypassed the question of content neutrality, choosing instead to accept the council’s contention that it did not intend for the law to discriminate based on signs’ messages. The Supreme Court relied on previous decisions taking issue with banning entire avenues of expression.These decisions included Lovell v. City of Griffin (1938), dealing with the distribution of pamphlets, and Jamison v. State of Texas (1943), concerning handbills on public streets.The Court found that the Ladue ordinance eliminated a “cheap and convenient form of communication.” “Even for the affluent,” Stevens wrote, “the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a hand-held sign may make the difference between participating and not participating in some public debate.” Despite the ruling, Stevens noted that sign regulation is within a municipality’s police powers:“The decision reached here does not leave Ladue powerless to address the ills that may be associated with residential signs. In addition, residents’ self-interest in maintaining their own property values and preventing ‘visual clutter’ in their yards and neighborhoods diminishes the danger of an ‘unlimited’ proliferation of signs.”
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City of Lakewood v. Plain Dealer Publishing Co. (1988)
See also Jamison v. State of Texas (1943); Lovell v. City of Griffin (1938); Stevens, John Paul.
Neil Ralston
furthe r reading Peck, Robert S., and L. Anita Richardson. “Sign Ordinance.” ABA Journal 80 (March 1994). Shields, Jennifer A. “Community Aesthetics and Speech Regulation; City of Ladue v. Gilleo, 114 S.Ct. 2038 (1994).” Harvard Journal of Law and Public Policy 18 (Spring 1995): 612–622.
City of Lakewood v. Plain Dealer Publishing Co. (1988) In City of Lakewood v. Plain Dealer Publishing, Co., 486 U.S. 750 (1988), the Supreme Court ruled that a licensing ordinance violated the First Amendment in giving city officials total discretion over the placement of news racks on public property. The Plain Dealer Publishing Co. filed a facial challenge to an ordinance for newspaper vending machine licensing enacted by Lakewood, Ohio. The ordinance required a license from the city to place news racks on public property and gave the mayor the authority to approve or reject the applications. If an application was denied, the ordinance required the mayor only to provide an explanation; if it was approved, the mayor was authorized to list “terms and conditions deemed necessary and reasonable by the Mayor” to continue the licensing agreement. Although Plain Dealer never applied for a license, it challenged the ordinance in district court, claiming that it was unconstitutional on its face due to the “unbridled discretion” it gave to the mayor. The district court upheld the constitutionality of the ordinance but was overturned by the court of appeals, which agreed with the Plain Dealer’s objection to the discretion granted by the ordinance. The Supreme Court, in a 4-3 decision—Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy did not participate—agreed with the court of appeals, finding the ordinance unconstitutional on its face. Writing for the Court, Justice William J. Brennan Jr. first declared the Plain Dealer’s facial challenge justified based on “the time tested knowledge that in the area of free expression, a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes prior restraint and may result in censorship.” The absence of evidence of governmental censorship in this case was not germane: “Selfcensorship is immune to an ‘as applied’ challenge, for it
derives from the individual’s own actions, not an abuse of government power.” The danger in Lakewood’s licensing scheme was the fear, well founded or unfounded, that a newspaper would be denied rights to news racks if it published stories critical of the city and thus would lead to selfcensorship, constituting, in fact, a form of prior restraint. That the ordinance was not directed at the publication of newspapers, but concerned the placement of news racks, is not relevant to the constitutional question. Rather, the key question in licensing regulations affecting freedom of speech or freedom of the press is whether the conduct being regulated is “conduct commonly associated with expression,” and the circulation of newspapers, through the use of news racks or other means, is an activity associated with freedom of the press and, therefore, “constitutionally protected.” The Court noted that licensing procedures impinging on such protected conduct can pass constitutional muster, but only with the inclusion of “neutral criteria to insure that the licensing decision is not based on the content or viewpoint of the speech being considered.” Justice Byron R. White, joined by Justices John Paul Stevens and Sandra Day O’Connor, wrote a dissent focusing on the validity, or scope, of “the peculiar doctrine that governs facial challenges to local laws in the First Amendment.” They asserted that regulatory or licensing procedures can be challenged on their face, but only if the regulations or licenses deal with “specific conduct” protected by the First Amendment. In cases involving “conduct commonly associated” with First Amendment rights, the distribution of newspapers via news racks, should be dealt with by asapplied challenges because “placement of news racks on city property is not” specifically protected by the First Amendment. An ordinance may allow for discretion by a decision maker, but a constitutional challenge should not be permitted unless the actions of that decision maker result in an actual prior restraint of the press. In effect, Plain Dealer had no standing in this case, unless it applied for licensing and suffered censorship as a result. In White’s opinion, the standard announced by the Court was too broad. See also As-applied Challenges; Censorship; Chilling Effect; Facial Challenges; Licensing Laws;Time, Place, and Manner Restrictions.
Alex Aichinger
furthe r reading Dorf, Michael. “Facial Challenges to State and Federal Statutes.” Stanford Law Review 46 (January 1994): 235–304.
City of Los Angeles v. Alameda Books (2002) Jeffries, John Calvin, Jr.“Rethinking Prior Restraint.” Yale Law Journal 92 (January 1983): 409–437.
City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004) In City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004), the Supreme Court upheld a Littleton, Colorado, adult business licensing ordinance against an adult bookstore that had launched a facial challenge to the law rather than applying for a license that would have permitted such a store in a location not zoned for such adult businesses.The decision lowered a city’s burden with respect to providing “prompt judicial review,” as articulated in Freedman v. Maryland (1965), in adult business licensing decisions. Littleton had claimed that it was sufficient to guarantee “prompt access” to judicial review of a license denial rather than a “ ‘prompt judicial determination’ of the applicant’s legal claim.” Justice Stephen G. Breyer, writing for the Court, rejected this notion, but accepted the city’s claim that its law satisfied “any ‘prompt judicial determination’ requirement.” In rejecting the city’s first claim, Breyer refused to accept the distinction that the city had tried to make between the decisions in Freedman v. Maryland (1965) and FW/PBS, Inc. v. City of Dallas (1990), respectively, striking down prior restraint of movies and a scheme for licensing sexually oriented businesses. Breyer saw no evidence, however, that the courts would not provide prompt decisions. He observed first that “ordinary court procedural rules and practices, in Colorado as elsewhere, provide reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm.” Breyer saw no reason “to doubt the willingness of Colorado’s judges to exercise these powers wisely so as to avoid serious threats of delay-induced First Amendment harm.” He also observed that the licensing scheme at issue involved “reasonably objective, nondiscretionary criteria unrelated to the content of the expressive materials that an adult business may sell or display” and that the city was not required specifically “to place judicial review safeguards all in the city ordinance that sets forth a licensing scheme.” In a concurring opinion, Justice Antonin Scalia suggested that “the notion that media corporations have constitutional entitlement to accelerated judicial review of the denial of zoning variances is absurd.” He further linked the business at issue to pandering, which on the authority of Ginzburg v. United States (1966) he did not believe had constitutional
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protection. Justice John Paul Stevens wrote a separate concurring opinion adding that the First Amendment was relevant to this licensing scheme and that the law needed to ensure more than the more “possibility of a prompt decision.” Justice David H. Souter, joined by Anthony M. Kennedy, wrote another concurring opinion, asserting that because the law did not involve “full-blown censorship,” it “does not need a strict timetable of the kind required by Freedman v. Maryland . . . to survive a facial challenge.” See also Breyer, Stephen G.; Freedman v. Maryland (1965); FW/PBS, Inc. v. City of Dallas (1990); Ginzburg v. United States (1966); Licensing Laws; Obscenity and Pornography; Scalia,Antonin.
John R.Vile
furthe r reading Cynn, Karen.“Casenotes: City of Littleton v. Z.J. Gifts D-4, L.L.C.: Are We Losing the First Amendment, or Just Adult Businesses?” Villanova Sports and Entertainment Law Journal 12 (2005): 227–260.
City of Los Angeles v. Alameda Books (2002) In City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002), the Supreme Court ruled that Los Angeles could rely on a six-year-old study on the negative impact of adult businesses to justify an ordinance prohibiting more than one adult business from operating under the same roof. A narrow majority of the Court reasoned that the ordinance banning multiple-use adult businesses furthered the city’s interest in combating the harmful secondary effects of such businesses. In 1977 Los Angeles conducted a study concluding that concentrations of adult businesses increased crime, including prostitution, robbery, and assaults. Six years later, the city passed a law prohibiting an adult business from operating more than one such establishment in the same location. Alameda Books and Highland Park Books challenged the new law; they also rented sexually explicit videos and provided booths for would-be patrons to view them.According to city inspectors, both businesses were operating as adult bookstores as well as adult arcades, and according to the city law, such operations constituted impermissible multiple-use adult businesses. Alameda and Highland Park filed a federal lawsuit, seeking a declaratory judgment that the new law violated the First Amendment. A federal district court in California ruled in favor of the bookstores. On appeal, the Ninth Circuit Court of Appeals affirmed, reasoning that the city could not reasonably rely on
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City of Los Angeles v. Preferred Communications (1986)
a six-year-old study to justify its ordinance based on the rationale that multiple-use businesses caused the same harmful, secondary effects as a collection of different adult businesses in the same area. The Supreme Court reversed the Ninth Circuit’s ruling.Writing for a plurality, Justice Sandra Day O’Connor reasoned that “it is rational for the city to infer that reducing the concentration of adult businesses in a neighborhood, whether within separate establishments or in one large establishment, will reduce crimes.” Justice Antonin Scalia, in his concurring opinion, emphasized that “the Constitution does not prevent those communities that wish to do so from regulating, or indeed entirely suppressing, the business of pandering sex.” In a separate concurrence, Justice Anthony M. Kennedy wrote that preventing “two adult businesses under one roof is reasonably likely to cause a substantial reduction in secondary effects while reducing speech very little.” Kennedy would, however, require cities to meet a higher burden of proof than would O’Connor. Justice David H. Souter dissented in an opinion joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer. Souter wrote that the law at issue should be considered “content correlated”—a category between content-neutral and content-based laws. He noted that Los Angeles failed to “proffer any evidence to support even the simple proposition that an otherwise lawfully located adult bookstore combined with video booths will produce any criminal effects.” See also City of Renton v. Playtime Theatres, Inc. (1986); O’Connor, Sandra Day; Secondary Effects Doctrine; Zoning Laws.
David L. Hudson Jr.
furthe r reading Hudson, David L. Jr. “Adult Bookstores.” First Amendment Center. www.firstamendmentcenter.org//speech/adultent/topic.aspx ?topic=adult_bookstores. Shwayri, Rebecca.“Sex Meets the City: Lowering a City’s Evidentiary Burden on Zoning Ordinances: City of Los Angeles v.Alameda Books, Inc.” Florida Law Review 55 (2003): 927–935.
City of Los Angeles v. Preferred Communications (1986) In City of Los Angeles v. Preferred Communications, 476 U.S. 488 (1986), the Supreme Court dismissed as improper Los Angeles’s refusal to consider a First Amendment claim that the city was obligated to grant Preferred Communications a
cable franchise and access to poles and lines used by the Department of Water and Power.The Court’s ruling demonstrated that new media, such as cable television, are protected by the First Amendment The city responded in part based on the company having not participated in a cable auction, which Preferred claimed was discriminatory—a violation of the Fifth Amendment— and violated antitrust laws. A federal district court dismissed antitrust and First Amendment arguments, but the Ninth Circuit Court of Appeals, although rejecting antitrust claims, agreed that the company had raised a legitimate First Amendment issue. Chief Justice William H. Rehnquist’s opinion for the Supreme Court focused similarly on the First Amendment issue, that is, that the city was obligated to allow the company to use its physical capacity to further speech. Acknowledging that “the activities in which respondent allegedly seeks to engage plainly implicate First Amendment interests,” Rehnquist observed that cable television “partakes of some of the aspects of speech and the communication of ideas” as more traditional enterprises. Although protected speech might not be “equally permissible in all places and all times,” the city had to furnish greater justification for denying privileges to the cable company than it had done in this case. The Court could not simply rely on its assertions in place of a fuller legislative record. Presenting the view that First Amendment freedoms hold a preferred position— which distinguished such claims from Fifth Amendment equal protection challenges to city regulations that the Court had dismissed—Rehnquist observed that “the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling force.” Justice Harry A. Blackmun’s concurring opinion, joined by Justices Thurgood Marshall and Sandra Day O’Connor, stressed that the decision “leaves open the question of the proper standard for judging First Amendment challenges to a municipality’s restriction of access to cable facilities.” See also Preferred Position Doctrine; Rehnquist,William H.
John R.Vile
furthe r reading Brenner, Daniel. “Cable Television and the Freedom of Expression.” Duke Law Journal (April–June 1988): 329–387.
City of Newport v. Iacobucci (1986)
City of Madison v. Wisconsin Employment Relations Commission (1976) In City of Madison v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976), the Supreme Court invalidated a ruling by the Wisconsin Supreme Court that had upheld an order forbidding nonunion teachers from speaking at a school board meeting. The Wisconsin Employment Relations Commission had issued the order after the union alleged that a teacher’s short presentation to the board—concerning a clause in a proposed labor agreement providing that nonunion members pay dues to defray the costs of bargaining—had violated a provision in a collective-bargaining agreement restricting negotiations to authorized union representatives. Wisconsin had argued that permitting such a presentation by a nonunion member presented a clear and present danger to labor-management relations. In the opinion for the Court, Chief Justice Warren E. Burger asserted that the presentation at a public meeting was not part of the formal labor negotiation and that considering it to be such would unduly burden the rights of freedom of speech and petition. Moreover, likening board meetings to a public forum, Burger observed,“Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings.” He argued that “when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech.” He further noted,“Teachers not only constitute the overwhelming bulk of employees of the school system, but they are the very core of that system; restraining teachers’ expressions to the board on matters involving the operation of the schools would seriously impair the board’s ability to govern the district.” In a concurring opinion, Justice William J. Brennan Jr., joined by Thurgood Marshall, cited the opinion of Justice Oliver Wendell Holmes Jr. in Bi-Metallic Investment Co. v. State Board of Equalization (1915) to emphasize that the Constitution does not require the government to do all business in public, but that when it creates such a public forum, it may not selectively exclude individuals. The state could no more prevent a speaker at such a forum “than it
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could prevent him from publishing the same views in a newspaper or proclaiming them from a soapbox.” In a separate concurring opinion, Justice Potter Stewart agreed that the teacher’s speech had not posed any threat to the union’s exclusive representation of other teachers while also affirming Brennan’s argument that the board had not been required to open its meetings to the public. In Minnesota Board for Community Colleges v. Knight (1984), the Supreme Court distinguished this case by limiting it to occasions in which the state had created a public forum. See also Burger, Warren E.; Clear and Present Danger Test; Minnesota Board for Community Colleges v. Knight (1984); Public Forum Doctrine;Teachers, Rights of.
John R.Vile
furthe r reading Corrada, Roberto L. “Religious Accommodation and the National Labor Relations Act.” Berkeley Journal of Employment and Labor Law 17 (1996): 185–281.
City of Newport v. Iacobucci (1986) The Supreme Court in City of Newport v. Iacobucci, 479 U.S. 92 (1986), affirmed the power of local government to ban nudity in establishments serving alcohol. Pursuant to a Kentucky law, Newport’s city commission passed an ordinance prohibiting nude or nearly nude dancing in establishments licensed to sell liquor. Nicholas Iacobucci, owner of Talk of the Town, challenged the law on First Amendment grounds. A district court upheld Newport’s ban, relying on New York State Liquor Authority v. Bellanca (1981), in which the Supreme Court decided that a similar New York regulation was constitutional because of the states’ broad powers to regulate alcohol under the Twenty-first Amendment. The Sixth Circuit Court of Appeals struck down the Kentucky ordinance because it had been enacted by a city, not a state. It remanded the case to determine whether the ban was a valid exercise of the city’s police powers. As in Bellanca, the Supreme Court held no oral argument and upheld the state law in a 5-4 per curiam opinion. The Court determined the case to, indeed, be controlled by Bellanca. Under the Twenty-first Amendment, the states “may delegate this power [to regulate alcohol] as they see fit.”With this additional authority added to traditional police powers, the Court wrote, “it is plain that, as in Bellanca, the
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interest in maintaining order outweighs the interest in free expression by dancing nude.” Also as in Bellanca, Justice John Paul Stevens delivered the main dissent. Joined by Justice William J. Brennan Jr., Stevens argued that the Court had “completely distorted the Twenty-First Amendment,” rendering it “toothless except when freedom of speech is involved.” Stevens raised the possibility of states regulating other protected expressions in establishments with liquor licenses, including banning a production of Rent if champagne is served at intermission or arresting Paul Robert Cohen—the litigant in Cohen v. California (1971)—for wearing a jacket bearing an expletive at Yankee Stadium. Stevens concluded,“I continue to believe that the Court is quite wrong in proceeding as if the Twenty-first Amendment repealed not only the Eighteenth Amendment, but some undefined portion of the First Amendment as well.” Justice Antonin Scalia would have granted the petition for certiorari and set the case for oral argument. Justice Thurgood Marshall also dissented from the summary judgment. See also Barnes v. Glen Theatre, Inc. (1991); California v. LaRue (1972); City of Erie v. Pap’s A.M. (2000); Cohen v. California (1971); Dancing, Nude; 44 Liquormart, Inc. v. Rhode Island (1996); New York State Liquor Authority v. Bellanca (1981); Schad v. Mount Ephraim (1981).
Frank Colucci
furthe r reading Chen, Jim. “The Potable Constitution.” Constitutional Commentary 15 (Spring 1998): 1–9. Faust, John. “Of Saloons and Social Control: Assessing the Impact of State Liquor Control on Individual Expression.” Virginia Law Review 80 (April 1994): 745–785.
City of Renton v. Playtime Theatres, Inc. (1986) In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), the Supreme Court held that a zoning ordinance aimed at controlling the undesirable “secondary effects” of adult or sexually orientated establishments could be considered a content-neutral, reasonable time, place, and manner restriction of expression.This 7-2 decision created a constitutional precedent for testing adult-use zoning laws. Prostitution, loss of privacy, noise, traffic congestion, security concerns, and potential harm to children are considered to be among the relevant secondary effects.
Investors in two separate adult theater interests had purchased locations in downtown Renton, Washington, with the intent of opening adult movie theaters, knowing that a year-old city ordinance prohibited such facilities within 1,000 feet of “any residential zone, single- or multiple-family dwelling, church, park, or school.”The restrictions made 95 percent of the city off-limits for adult theaters, including the locations secured by the investors; there were no commercially available or viable locations in the remaining 5 percent. Playtime filed suit and opened for business after winning a temporary injunction from the federal district court. On the parties’ later joint motion for summary judgment, the district court ruled in favor of the city, finding that “the purposes of the ordinance were unrelated to the suppression of speech, and that the restrictions on speech imposed by the ordinance were no greater than necessary to further the governmental interests involved.” The district court relied in large part on the plurality opinion in Young v. American Mini Theatres (1976), which upheld a Detroit zoning ordinance requiring that adult theaters and similarly regulated establishments be distant from one another and at least 500 feet from residential zones, based on a city council finding that “a concentration of adult movie theaters causes the area to deteriorate and become a focus of crime.” Playtime won a reversal before the Ninth Circuit Court of Appeals, which ruled that the Renton ordinance constituted a substantial restriction of First Amendment expression and that the city had failed to show a substantial governmental interest; rather, it had merely relied on the experiences of other cities’ use of restrictions rather than evidence of the effect of such restrictions in its own case. Furthermore, the circuit court found that Renton’s asserted interests were not unrelated to the suppression of expression. On review, the Supreme Court held that the zoning ordinance did not violate the freedom of expression.Though the ordinance expressly applied only to theaters showing movies with adult content, the Court majority reasoned that the law was aimed at “the secondary effects of such theaters on the surrounding community.” As such, the ordinance could be considered a form of time, place, and manner restriction rather than an actual ban on adult theaters; thus the ordinance was subject only to the intermediate scrutiny applicable to content-neutral regulations, rather than the strict scrutiny applicable to content-based regulations. Deferring to the trial court’s factual findings and those included in an amendment to the ordinance adopted by the city after liti-
City of San Diego v. Roe (2005) gation was filed, the majority held that the ordinance served a substantial governmental interest in preserving the quality of life and allowed for “reasonable alternative avenues of communication.” Justice William J. Brennan Jr., joined in dissent by Justice Thurgood Marshall, worried that the Court’s opinion did not take seriously enough the prospect of governments “us[ing] their zoning powers as a pretext for suppressing constitutionally protected expression.” He echoed complaints of critics who pointed out that Renton officials had made no studies or generated any evidence that adult businesses caused any harm in the city or that the ordinance was a remedy for any supposed harm. The Court majority reasoned, however, that “[t]he First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be related to the problem that the city addresses.” Brennan further noted that the city’s post-litigation identification of harms included several that were speculative and content based, such as concerns that prominently located adult entertainment “will cause a degradation of the community standard of morality” and “a degrading effect upon the relationship between spouses.” The Court majority, however, was more deferential, satisfied that the “predominate” intent behind the ordinance was legitimate. Brennan’s dissent shared with many free-speech advocates a concern that the secondary effects approach approved in Renton represents a license for governments to drive adult material from the public sphere because of objection to its content. First Amendment advocate John Weston, who argued Young, believes that city governments turned to zoning regulations as a way of attacking adult businesses when they found themselves unable to obtain obscenity convictions against theater owners. Although the scope of the Renton decision remains controversial, its practical impact has been attenuated by the decline of adult theaters in the face of easy access to adult materials through the Internet and pay-per-view television. See also Barnes v. Glen Theatre, Inc. (1991); Brennan,William J., Jr.; City of Los Angeles v. Alameda Books (2001); Obscenity and Pornography; Rehnquist, William H.; Secondary Effects Doctrine; Zoning Laws.
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furthe r reading Chemerinsky, Erwin. “Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court’s Application.” Southern California Law Review 74 (2000): 49–64. Hudson, David L., Jr. “The Secondary Effects Doctrine: The Evisceration of First Amendment Freedoms.” Washburn Law Journal 37 (1997): 55–78. Linz, Daniel, Bryant Paul, Kenneth C. Land, Jay R. Williams, and Michael E. Ezell. “An Examination of the Assumption That Adult Businesses Are Associated with Crime in Surrounding Areas: A Secondary Effects Study in Charlotte, North Carolina.” Law and Society Review 38 (2004): 1–69.
City of San Diego v. Roe (2005) In City of San Diego v. Roe, 543 U.S. 77 (2005), the Supreme Court illumed the “public concern” test for free expression jurisprudence involving public employees when it determined that a police department had not violated a policeman’s First Amendment rights in firing him for selling videos of himself committing sexual acts while in police uniform. San Diego police officer John Roe, a pseudonym, contended that the city had violated his First Amendment rights by disciplining him for off-duty conduct that did not affect his job performance.The city countered that Roe’s activities were detrimental to the image and functioning of the police department. It also argued that Roe’s sexual activities did not touch on a matter of public importance or public concern— for example, institutional corruption or racial discrimination—which public employees must first establish to make a First Amendment claim. A federal district court agreed with the city and granted summary judgment. The Ninth Circuit Court of Appeals reversed, noting that Roe’s expression was off-duty and unrelated to his employment. On appeal, the Supreme Court unanimously reversed the Ninth Circuit in a per curiam opinion. The justices determined that the proper approach should be the traditional balancing test, weighing employee expression against employer concerns, as established in Pickering v. Board of Education (1968) and Connick v. Myers (1983). The Court determined that Roe’s expression did not touch on a matter of public concern, defined as “something that is a subject of legitimate news interest.” The Court concluded that Roe’s sexual expression did not meet the public concern test: “Roe’s activities did nothing to inform the public about any aspect of the SDPD’s functioning or operation.”
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See also Connick v. Myers (1983); Pickering v. Board of Education (1968); Public Employees.
David L. Hudson Jr.
furthe r reading Mauro, Tony. “Cop-Video Ruling May Hurt Future Speech Cases.” First Amendment Center. www.firstamendmentcenter.org// analysis.aspx?id=14506.
Civil Religion Although the First Amendment prohibits an established church, Americans are relatively religious, and many continue to identify the nation not only as the source of their religious freedoms, but also as the embodiment of their deepest religious aspirations. Scholars often classify this identify between ideas of nationalism and religion under the concept of civil religion. The term religion derives from two Latin verbs: religáre, meaning “to bind,” and religere, which, like the Greek verb alégein, means “to care for, to be concerned about.” By extension, religion can be defined as the “careful observance of a binding divine rule.” Civil religion is the bond that unites a people under the same laws and rules and provides a sense of inclusion, belonging, identity, unity and structure, worth, confidence, transcendence, and purpose. It is the ethos of a given society that sometimes enables citizens to sacrifice their lives for the common good. The nature of civil religions can be best understood by considering the distinction between Gesellschaft and Gemeinschaft, which roughly translate as “society” and “community.” Gesellschaft is the “artificial,” heterogeneous, and competitive social milieu of modern urban society in which ties between individuals are loose, and personal interest, instrumental rationality, and the social contract are the glue that holds a society together. Gemeinschaft is the “natural,” organic model of society prevailing in rural areas, which are typified by cultural homogeneity, cohesion, enforced harmony, common objectives, and emotional bonds. As anticipated by Jean-Jacques Rousseau in The Social Contract (1762), civil religions—with their quasi-religious rituals, liturgies, collective narratives, holidays, myths, heroes, symbols, and sacred places, as well as their empowering and galvanizing images, slogans, and principles—have become the cement of modern societies. They function to preserve “community” alongside “society.” They effectively mobilize people around key issues and common concerns and goals, while conferring a religious significance, and thus conferring
legitimacy on the dominant cultural practices, rules, value orientations, and institutions. Civic religions are alternative ways in which people can express their religiosity, and they generate that “collective effervescence” whereby a society venerates itself (Durkheim 1954). The cult of secular institutions, which grows stronger when there is low demand for the available forms of religion and a rise of material welfare, sometimes varies from the orthodoxy of metaphysical religions; at other times it becomes exceedingly difficult to draw a boundary between civil religions and politicized faiths. In the United States, “the Nation with the Soul of a Church” (Chesterton 1990), civil religion thrives on a comparatively high level of religiousness and takes various forms. It is a shaping ideology, future-oriented as well as past-oriented, which helps transform and integrate most of the immigrants who enter the United States.The distinctive features of the American civil religion include presidential monuments and libraries, war memorials, the display and veneration of “sacred scriptures”—among them the Constitution, Declaration of Independence, Mayflower Compact, Abraham Lincoln’s Gettysburg Address and his definition of the United States as “the last best hope of mankind”—Memorial Day, the Fourth of July, Thanksgiving Day, the White House, Ground Zero, the Pledge of Allegiance, the rhetorical invention of the “City upon the Hill” and of “Manifest Destiny,” and the motto “In God We Trust.”
Coercive Potential and Limits People may be more or less aware of the existence of a civil religion, but under some circumstances, for example, on September 11, 2001, its presence is overwhelming, and such principles as gratuity, generosity, solidarity, and reciprocity intensify a drift toward a sort of ecstatic communal worship, calling for virtue and moral excellence and offering in return spiritual reassurance and fulfillment. In extreme cases, civil religions may lead to the glorification and sacralization of nations and their political leaderships and the repudiation of the distinction between the public and the private spheres. During the Depression and World War II, in Europe as well as in Japan, fascist and crypto-fascist governments held full powers, and states became moral entities.With the convergence of religious and political authority, the cult of sacralized collectivities supplanted the liberal democratic emphasis on individual rights. The fascist civil religion blended pedagogic moralism, collective responsibility, social utility and regimentation, and
Civil Rights Movement technocratic and scientistic standards. It conferred an almost numinous quality and eschatological dimension—indeed, a vicarious sacredness—to the policy-making process and reinscribed emotional attachment, spiritual yearning, and an idealistic sense of citizenship in a society in which individuals were expected to put their own interests after the interests of society at large. This radical version of civil religion promised an alternative, re-moralized modernity that would lead to a collective, mundane salvation and to the redemption of the national community from an alleged fallen state. Fascists shared an invidious condescension for real people and their shortcomings and were prepared to employ all possible means to shape and discipline them, including the abolition of pluralism and fundamental rights and the obliteration of all those forces and obstacles that they labeled a threat to the moral fiber of society. National Socialists were particularly successful in injecting “magic,” “sublime,” and “epic” into a society awaiting its regeneration. Hitler observed that “those who see in National Socialism nothing more than a political movement know scarcely anything of it. It is even more than a religion: it is the will to create mankind anew” (Rauschning 1939: 242). Although the achievement of social cohesion and social justice may ultimately benefit greatly from a vibrant civil religion, citizens should remain vigilant to the risk that in times of dislocation and crisis, civil religion itself might justify the belief that individuals exist for the state and the community, and not vice versa. Civil religion often portrays history as a perpetual battle between good and evil, urges believers to prove their faith and commitment, and underplays the question of the inherent worth of individuals. Although the free exercise, free speech, and free press provisions of the First Amendment give individuals broad freedoms of religious expression, the establishment clause of that same amendment stands as a firm obstacle in the path of an officially established national religion and against some governmental displays of religious symbols. Supreme Court decisions have thus prevented schools from forcing children to salute the American flag when this conflicts with their religious beliefs. In a similar vein, it has struck down postings of the Ten Commandments in public schools.The Court has generally been more tolerant of religious symbols displayed, as in the case of holidays, in conjunction with secular ones. See also Atheism; Holidays, Religious; In God We Trust; Mayflower Compact; McCarthyism; Pledge of Allegiance; Red Scare; Ten Commandments; USA Patriot Act of 2001;Winthrop, John.
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furthe r reading Bellah, Robert N. “Civil Religion in America.” Daedalus 96 (1967): 1–21. ———. The Broken Covenant: American Civil Religion in Time of Trial. Chicago: University of Chicago Press, 1992. Chesterton, Gilbert K., What I Saw in America;The Resurrection of Rome: Sidelights. San Francisco: Ignatius Press, 1990. Durkheim, Emile. The Elementary Forms of Religious Life. New York: Free Press, 1954. Gentile, Emilio. Politics as Religion. Princeton: Princeton University Press, 2006. Griffin, Roger, ed. Fascism,Totalitarianism and Political Religion. London: Routledge, 2005. Hufbauer, Benjamin. Presidential Temples: How Memorials and Libraries Shape Public Memory. Lawrence: University Press of Kansas, 2005. Jones, Donald G., and Russell E. Richey. American Civil Religion. New York: Harper and Row, 1974. Rauschning, Hermann, Hitler Speaks, London: Thorton Butterworth, 1939. Tönnies, Ferdinand. Community and Civil Society. Cambridge: Cambridge University Press, 2001.
Civil Rights Movement The First Amendment proved to be a crucial tool for the civil rights movement of the 1950s and 1960s, as ministers preached, protesters marched, organizations litigated, advocates petitioned, and the press reported on racial discrimination. Calls by African Americans and others for broad societal change culminated in historic pieces of federal legislation that paved the way for greater equality in American society, including the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. The expressive actions of protesters and activists also led to the considerable growth of First Amendment precedent. The movement witnessed such an expansion of free expression principles through First Amendment cases that scholar Harry Kalven Jr. wrote, “We may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us” (1965: 6). The Supreme Court ruled in NAACP v. Alabama (1958) that Alabama could not force the National Association for the Advancement of Colored People to disclose its membership list.The Court established the First Amendment right of freedom of association, noting that “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” The Court accepted similar limitations on a Florida state legislative investigation of the NAACP in Gibson v. Florida Legislative Investigation Committee (1963).
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On August 28, 1963, civil rights marchers gather around the Reflecting Pool in Washington, D.C., to hear speakers, including Dr. Martin Luther King Jr.
In NAACP v. Button (1963), the Court further established the right of an organization to litigate, signaling the birth of the public interest law firm. The Court ruled that the NAACP had the right to refer individuals who wanted to sue in public school desegregation cases to lawyers and to pay their litigation expenses. A Virginia law had forbidden any organization from compensating an attorney in a case in which it had no direct monetary interest. Virginia officials charged the NAACP with violating these rules by encouraging people to become plaintiffs in desegregation cases, referring them to private attorneys, and then paying their litigation expenses. The Court wrote, however, that the NAACP’s actions were “modes of expression and association protected by the First Amendment.” The Court’s landmark decision nationalizing libel law in New York Times Co. v. Sullivan (1964) is arguably the most important First Amendment precedent arising during the civil rights movement. In that ruling, the Court held that
state libel laws must comport with overarching First Amendment principles to ensure that “debate on public issues should be robust, uninhibited and wide-open.” The justices held that public officials could not recover damages for libel unless they could show actual malice—defined as knowing falsity or reckless disregard for the truth—by clear and convincing evidence.This high standard freed the press to report on various civil rights abuses. For this reason, Anthony Lewis (1991) argues that the Court’s decision in Sullivan not only changed libel law, but also saved the civil rights movement. The Court established another important First Amendment precedent in Edwards v. South Carolina (1963), in which it struck down the breach-of-the-peace convictions of 187 African American students who had marched to the South Carolina statehouse, protesting segregation and carrying signs with such messages as “Down with Segregation.” The Court reasoned that the arrests violated the students’ freedom of assembly and petition rights, noting that the students’ expressive actions “reflect an exercise of these basic constitutional rights in their most pristine and classic form.” The Court added that the government could not criminalize “the peaceful expression of unpopular views.” It also allowed protesters to publicly oppose segregation by striking down licensing laws allowing city officials to deny permits for demonstrations on a selective and discriminatory manner. For example, in Shuttlesworth v. Birmingham (1969), the Court reiterated that licensing laws violate the First Amendment if they grant unbridled discretion to city officials and provide no guiding standards. In Garner v. Louisiana (1961), the Court overturned the disturbing-the-peace convictions of five African Americans who had engaged in sit-ins at an all-white restaurant counter in Baton Rouge. In a concurring opinion, Justice John Marshall Harlan II wrote that a sit-in “is as much a part of the free trade of ideas as is verbal expression.” In Brown v. Louisiana (1966), the Court relied similarly on the First and Fourteenth Amendment rights of freedom of speech, assembly, and petition to invalidate the convictions of several protesters who had engaged in a sit-in at a public library. See also Brown v. Louisiana (1966); Edwards v. South Carolina (1963); Garner v. Louisiana (1961); Gibson v. Florida Legislative Investigation Committee (1963); Libel and Slander; Licensing Laws; NAACP v. Alabama (1958); NAACP v. Button (1963); New York Times Co. v. Sullivan (1964); Shuttlesworth v. Birmingham (1969).
David L. Hudson Jr.
Civil War, U.S. furthe r reading Hudson, David L. Jr., “First Amendment Freedoms Crucial to Success of Civil Rights Movement.” First Amendment Center Online. www.firstamendmentcenter.org/news.aspx?id=8537. ———. “Assembly: Civil Rights and First Amendment.” First Amendment Center Online. www.firstamendmentcenter.org/ assembly/topic.aspx?topic=civil_rights. Kalven, Harry. The Negro and the First Amendment. Columbus: Ohio State University Press, 1965. Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991.
Civil War, U.S. The federal government restricted constitutional liberties during the Civil War (1861–1865), including freedom of speech and freedom of the press. Union generals took measures to prevent newspapers from publishing battle plans and to keep Confederate sympathizers from aiding the enemy by disseminating military information or discouraging enlistments. At the time, President Abraham Lincoln’s political opponents argued that these measures went beyond those necessary to execute the war. Although historians have absolved Lincoln of charges that he restricted civil liberties for political gain, scholars continue to debate the constitutionality of Lincoln’s actions.
Restrictions on Freedom of the Press Throughout the war, newspaper reporters and editors were arrested without due process for opposing the draft, discouraging enlistments in the Union army, or even criticizing the income tax. Handling dissent in the North presented an unprecedented difficulty for the Lincoln administration. From the start of Lincoln’s presidency, the Northern press gave voice to many of his critics. Newspapers argued that secession was the inevitable consequence of his policy toward the South. As the war dragged on, the opposition press grew louder, demanding compromise with the Confederacy to halt the bloodshed. Fervent Union loyalists argued that dissent in the press amounted to treason. Citizens in the North wrecked “disloyal” newspapers in an effort to stymie pro-Southern sentiment. In New York and New Jersey, two grand juries drew up presentments against newspapers that had been critical of the Union effort, which one paper called the “unholy war.” One grand jury presented a list of newspapers that encouraged the rebels, explaining, “The Grand Jury are aware that free governments allow liberty of speech and of the press to their utmost limits, there is, nevertheless, a limit. If a person
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in a fortress or an army were to preach to the soldiers submission to the enemy, he would be treated as an offender. Would he be more culpable than the citizen who, in the midst of the most formidable conspiracy and rebellion, tells the conspirators and rebels that they are right, encourages them to persevere in resistance and condemns the effort of loyal citizens to overcome and punish them as an ‘unholy war’?” Seizing on the grand jury’s actions, federal officials in the Post Office Department in Washington ordered the postmaster of New York to cease mailing the publications on the grand jury’s list. Following the postmaster’s lead, U.S. marshals in Philadelphia seized copies of the listed newspapers as they arrived by train. In the vast majority of instances, the government restrained the free press without any legal process.The military routinely arrested newspaper editors and closed their presses; military tribunals banished some of them to the Confederacy for encouraging resistance. In Canton, Ohio, a mob destroyed the offices of the Stark County Democrat after its editor, Archibald McGregor, published allegedly treasonous statements. When McGregor persisted, one year later, the army arrested him on unspecified charges. The city’s Republican postmaster accompanied the soldiers making the arrest, lending credibility to charges that the assault and arrest had been politically motivated. Lincoln’s cabinet members, and sometimes Lincoln himself, ordered arrests. Secretary of State William Seward ordered the arrest of an editor from the Freeman’s Journal for allegedly treasonous statements made in his newspaper. The government held the editor for eleven weeks before eventually releasing him without a trial. Secretary of War Edwin Stanton authorized a military governor to destroy the office of the Sunday Chronicle in Washington. In May 1864, Lincoln directly ordered Gen. John A. Dix to arrest the editors of the New York World and seize the paper’s offices after two reporters ran a bogus proclamation, purportedly signed by the president, for a national day of fasting and a massive increase in the number of draftees. Lincoln rescinded the order once it became clear that the two reporters had forged the proclamation to influence the price of gold rather than to assist the enemy. Advancements in technology led to new types of censorship. The development of telegraph lines in the 1850s allowed reporters on the battlefield to provide near-contemporaneous accounts of strategies and troop movements. As the Civil War began in April 1861, the Lincoln administration censored telegraph dispatches to and from Washington.
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Gen. George McClellan had initially gathered a group of Washington correspondents and reached an agreement on censorship of telegraph dispatches. The House Judiciary Committee investigated the matter in December 1861 and issued a report stating that the government should not interfere with the transmission of telegraph communications “except when it may become necessary for the government, under the authority of Congress, to assume exclusive control of the telegraph for its own legitimate purpose.” Lincoln sought to limit restrictions to those that served the military’s needs. His sensitivity was, at least in part, based on a desire to keep border states on the Union’s side, but also to rebut claims of exceeding his authority for political gain. In 1863 Lincoln revoked Gen.Ambrose Burnside’s order suspending the Democratic Chicago Times, stating that he was “embarrassed” by his general’s failure to balance what was due to the Union on one hand and “the Liberty of the Press on the other.” In other instances, Lincoln chastised Gen. John Schofield for arresting the editors of the Missouri Democrat and warned another general to refrain from suppressing newspapers unless he could ascertain “palpable injury to the Military in your charge.” Even as Lincoln believed that he would lose re-election in 1864, he refrained from measures that might unnecessarily restrict political dissent. The Lincoln administration had good reason to be concerned about the press. Despite general prohibitions, soldiers regularly sought out and exchanged newspapers across enemy lines. Confederate general Robert E. Lee kept apprised of movements by Gen. McClellan’s Army of the Potomac by reading Northern newspapers. In one instance, the pro-Union Philadelphia Inquirer published the position of McClellan’s maneuvers, unwittingly leading Lee to withdraw his troops from the defense of Richmond and put them on the line. Later in the war, Gen.William T. Sherman had completely baffled Confederate general William Hardee with a series of feint troop movements around the Carolinas.When Gen. Hardee received a copy of the New York Tribune, he learned that Sherman’s supply ships were gathering at Morehead City, North Carolina. Sherman’s tactics were foiled, and the Union army suffered heavy losses in battle. This event supported Sherman’s view of war correspondents as spies for the enemy.
Restrictions on Individual Speech The Lincoln administration restricted the ability of active Peace Democrats to speak out against the war. Prison records
show numerous arrests for various offenses, including “treasonable language,” “disloyalty,” “threatening Unionists,” and “inducing desertion.” Union officers enforced general bans against items displaying Confederate mottoes or images. In 1862 Lincoln issued a proclamation authorizing military trials for persons discouraging enlistments in the Union army. Throughout the North, government authorities and the military arrested agitators without legal process for discouraging enlistment or making statements sympathetic to the South. Some of those arrested included prominent critics of the administration, among them a former member of the U.S. House of Representatives imprisoned in Ohio. While jailed, the former representative was nominated and elected to the Ohio legislature. Republicans quickly realized that imprisoning critics of the war could work to embolden the detainees’ message.After the Republicans lost seats in the congressional elections of 1862, Secretary Stanton issued an order releasing all persons who had been arrested for discouraging enlistments. The most famous limitation on individual speech resulted from Burnside’s General Order No. 38, announcing that treason, “express or implied,” would not be tolerated. The order proclaimed that “the habit of declaring sympathies for the enemy will not be allowed in this department” and that anyone violating the order would be imprisoned or “sent beyond our lines into the lines of their friends.” On May 1, 1863, former congressman Clement Vallandigham gave a speech at a Democrat Party rally in which he openly disobeyed Burnside’s order. In fact, as he explained during the speech, he “despised it, spit upon it, and trampled it under his feet.” Vallandigham—a nationally known Peace Democrat—proceeded to call for the removal of “King Lincoln” and denounced the administration for not seeking an immediate and peaceful resolution to the war. When Burnside learned of Vallandigham’s speech, he ordered his detention. On May 5, 1863, a company of soldiers arrested Vallandigham at his home. Burnside charged Vallandigham with “Publicly expressing, in violation of General Order No. 38 . . . sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion.” Vallandigham appeared before a military tribunal, which found him guilty and sentenced him to prison for the remainder of the war. A federal circuit judge upheld Vallandigham’s arrest and military trial as a valid exercise of the president’s war pow-
Clark v. Community for Creative Non-Violence (1984) ers. The Supreme Court denied review of the case in Ex parte Vallandigham (1863). Concerned that General Burnside’s rash actions would turn Vallandigham into a martyr, Lincoln commuted the sentence from imprisonment to banishment to the Confederacy. Lincoln defended this restriction by arguing, “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? I think that in such a case to silence the agitator and save the boy is not only constitutional, but withal, a great mercy” (Wilson 2006: 173–174). Scholars have labored to evaluate the Civil War administration’s actions in hindsight. The Constitution’s text does not provide a clear basis to condemn Lincoln’s actions. The First Amendment specifically prohibits Congress from making laws abridging freedom of speech” but Lincoln justified his actions restricting speech and the press based on the president’s war powers under the Constitution. The Supreme Court would not address application of the First Amendment until nearly half a century after the Civil War ended, so restrictions defined in the Court’s modern jurisprudence were at that time nonexistent. Many scholars today look at Lincoln’s restrictions as a kind of necessary evil. They will typically explain that Lincoln probably violated the Constitution during the war, but forgive his infractions in light of the context and the result. Other scholars argue that Lincoln’s defense of his actions reveals a constitutionally justifiable view of executive powers during wartime. Lincoln himself thought that the exigencies of war might justify actions that would otherwise be unconstitutional if necessary to preserve the nation. Thus, with respect to civil liberties, Lincoln presented a choice in a speech of July 1861:“Must a government of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” (Wilson 2006: 78). Under this choice, survival of the nation—as the foremost constitutional principle—took precedence over protections found in the First Amendment and other provisions in the Constitution. See also Ex parte Vallandigham (1863); Lincoln, Abraham.
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furthe r reading Farber, Daniel. Lincoln’s Constitution. Chicago: University of Chicago Press, 2003. Finkelman, Paul. “Civil Liberties and Civil War: The Great Emancipator as Civil Libertarian.” Michigan Law Review 91 (1993): 1353–1381.
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Harper, Robert S. Lincoln and the Press. New York: McGraw-Hill, 1951. Neely, Mark E., Jr. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, 1991. Paulsen, Michael Stokes. “The Civil War as Constitutional Interpretation.” University of Chicago Law Review 71 (Spring 2004): 691–727. Randall, James G. Constitutional Problems under Lincoln. Rev. ed. Urbana: University of Illinois Press, 1951. Wilson, Douglas L. Lincoln’s Sword:The Presidency and the Power of Words. New York:Vingage Books, 2006.
Clark v. Community for Creative Non-Violence (1984) In Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), the Supreme Court ruled 7-2 that a National Park Service regulation prohibiting camping in national parks in places other than designated campgrounds did not violate the First Amendment even when camping was a form of symbolic speech. The case began when the Community for Creative NonViolence (CCNV) sought an injunction against the park service’s regulation prohibiting camping so it could hold a demonstration in Lafayette Park, across from the White House, and on the National Mall to highlight the plight of the homeless.The demonstrators planned to sleep in tents to demonstrate how the homeless live.The district court found in favor of the park service, but the federal appeals court overturned the ruling, finding that the regulation infringed the demonstrator’s free expression. The Supreme Court reversed. Agreeing that sleeping in tents to show support for the plight of the homeless was a form of symbolic speech, Justice Byron R.White, writing for the Court, also found that it fell within the definition of camping forbidden by park service regulations. He noted that symbolic expression is subject to reasonable time, place, and manner restrictions. For guidance in determining whether these regulations were acceptable, the Court turned to United States v. O’Brien (1968). In applying the O’Brien test, the regulation first had to be within the power of the government.The Court found that the government had an adequate foundation of power to enact the regulation. In this particular case, the regulation against camping had not been made for the purpose of limiting the expression of any form of ideas. Rather, the regulation had been narrowly crafted to further the substantial governmental interest of protecting national parks so that they can be enjoyed by millions of people.The need to protect the national parks extended to Lafayette Park and the
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National Mall, which would be substantially changed if camping were allowed there.White also found that the regulation left ample opportunities for demonstrators to express their views, specifically pointing out that the park service had granted a permit in response to a CCNV request to set up twenty tents in Lafayette Park and forty tents on the National Mall. Justice Thurgood Marshall, joined by William J. Brennan Jr., dissented, believing the demonstrators’ sleeping to be a form of protected symbolic speech. See also Time, Place, and Manner Restrictions; United States v. O’Brien (1968);White, Byron R.
Tom McInnis
furthe r reading Putney, James B. “Clark v. Community for Creative Non-Violence: First Amendment Safeguards—Their Sum Is Less Than Their Parts.” University of Miami Law Review 39 (1985): 997–1015. Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech: A Treatise on the First Amendment. New York: Mathew Bender, 1994.
Clark, Tom C. Appointed to the bench by President Harry S.Truman,Tom C. Clark served as an associate justice of the Supreme Court from 1949 to 1967. He resigned after Lyndon B. Johnson appointed his son, Ramsey Clark, as a U.S. attorney general. Born in Texas, Tom Clark finished an undergraduate degree and attended law school at the University of Texas at Austin, earning an A.B. in 1921 and an LL.B. in 1922. He joined his father’s firm and subsequently served as a Dallas district attorney before joining the administration of Franklin D. Roosevelt in 1937, serving as a special assistant in the Justice Department and as head of the antitrust and criminal divisions. In 1945 Truman appointed Clark attorney general. In that position, Clark developed a reputation for supporting Truman’s programs requiring public employees to declare their loyalty to the government. The Senate confirmed Clark for the bench by a 73-8 vote to replace Francis P. Murphy, who had died. Initially fairly supportive of Truman, Clark showed increasing independence, such as voting against Truman’s seizure of the steel mills in Youngstown Sheet and Tube Co. v. Sawyer (1952). His most important written decision may well be Mapp v. Ohio (1961), in which he applied the exclusionary rule to the states to enforce the search and seizure provision of the Fourth Amendment. Clark is probably best known in First Amendment jurisprudence for his measured opinion in the companion
cases Abington School District v. Schempp and Murray v. Curlett (1963). In these suits, the Court extended the majority decision (which Clark had joined) in Engel v.Vitale (1962) to ban public prayer in public schools. In the 1963 cases, the justices extended the ban to include devotional Bible readings and the Lord’s Prayer. Clark explained that his opinion did not forbid states from teaching religion in a nondevotional context. He also authored the decision in United States v. Seeger (1965), expanding conscientious objector status to those for whom opposition to war held an equivalent place to religious belief. Clark wrote the decision in Burstyn v. Wilson (1952), striking down a New York law against sacrilege as applied to the film entitled The Miracle. Despite his support of loyalty oaths while attorney general, Clark authored the decision in Wieman v. Updegraff (1952) striking down an Oklahoma loyalty oath on the basis that it applied to individuals who joined the Communist Party regardless of whether they had knowledge of its mission. After retiring from the Court, Clark helped found and direct the Federal Judicial Center. See also Abington School District v. Schempp (1963); Burstyn v. Wilson (1952); Engel v. Vitale (1962); Loyalty Oaths; Murphy, Francis P.; United States v. Seeger (1965); Wieman v. Updegraff (1952).
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furthe r reading Abraham, Henry J. Justices, Presidents, and Senators. Lanham, Md.: Rowman and Littlefield, 1999. Paddock, Lisa. Facts About the Supreme Court of the United States. New York: H. W.Wilson and Company, 1996.
Classified Documents The government of the United States, like others, protects against the dissemination of what it considers to be sensitive information. Under current law, it labels classified documents “confidential,”“secret,” and “top secret,” depending on their level of sensitivity. Attempting to protect government documents from public view is as old as the Republic. During George Washington’s administration, the House of Representatives sought to review documents generated during negotiation of the Jay Treaty with Great Britain. Washington responded that such negotiations required secrecy and that public dissemination “might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers.”
Classified Documents The issue of how the First Amendment protects the dissemination of government documents first came to the Supreme Court in New York Times Co. v. United States (1971), also known as the Pentagon Papers case.The Court issued a terse per curiam opinion affirming the judgment of two federal district courts that had refused to enjoin the publication of the documents in the New York Times and the Washington Post. The federal government had sought to prevent those newspapers from publishing excerpts, because they revealed the hitherto secret history of U.S. engagement in the Vietnam War. A former government official, Daniel Ellsberg, had provided the newspapers with the documents. The legality of Ellsberg’s actions was not the issue in the case. In affirming the refusal to grant an injunction, the Court restated its position in Bantam Books v. Sullivan (1963)— “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity”—and determined that the government had failed to meet that burden. The brief per curiam decision was accompanied by six concurring opinions and three dissenting opinions. Justice Hugo L. Black’s scathing concurrence castigated the government’s position. He also disputed the assertion of a majority of his fellow justices that the government could enjoin publication of classified documents in certain circumstances. Quoting James Madison, Black argued that it is precisely in the circumstances before the bar, concerning information on why the country had gone to war, that Madison and the framers intended the First Amendment to apply. Justice William O. Douglas joined Black’s opinion and wrote separately to argue that existing statutes did not give the government the power to exercise prior restraint of publication and that the executive branch had no inherent authority to do so. Justice William J. Brennan Jr. wrote that the First Amendment was an “absolute bar” to an injunction in such a case. He acknowledged, however, that the case law allowed for some narrow exceptions to the bar on prior restraint of publication. He cited Near v. Minnesota (1931) to argue that “only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.” Brennan cited as another example an effort to avert a “nuclear holocaust.” Therefore, only if the publication would imperil a specific deployment already in harms way would an injunction be constitutional.
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In more tempered words, Justice Potter Stewart asserted that in some cases the executive could meet a standard for an injunction, but that it had not done so in this case. Justice Byron R. White similarly concurred in the judgment, but stated that he did so only because of the exceedingly high burden against prior restraint. He hinted that if Congress had given explicit authorization for a procedure to obtain an injunction, then he might vote otherwise. He also stated that the government could prosecute the offending publisher after the classified documents are published, thus affirming the prohibition of prior restraint, but allowing for other incentives to lessen the likelihood of publication. Justice Thurgood Marshall argued that the basic issue in the case was the courts’ power to make law in the face of Congress’s refusal to enact that law. No law existed authorizing federal courts to enjoin publication of classified documents, and because Congress makes the law, the courts did not have the power to authorize a prior restraint of publication. Chief Justice Warren E. Burger and Justices John Marshall Harlan II and Harry A. Blackmun dissented. Burger did not reach the merits but criticized the haste in which the decision was made. Harlan and Blackmun each argued that the government could meet its burden in the case and that each district court proceeding should therefore move forward with the protective stay intact. In Snepp v. United States (1980), the Court commented further on the question of prior restraint and classified documents, holding that the First Amendment does not override an employee-employer agreement requiring that a former CIA officer wanting to publish information concerning his activities clear the material with the agency before publication to avoid divulging classified information. Snepp claimed that none of his proposed book’s contents contained classified information, so he did not need to ask the CIA to approve its contents. The CIA sued for breach of contract and sought to enjoin further publication, to which the Supreme Court agreed. Despite the case of the Pentagon Papers, unauthorized publication of classified documents still receives little constitutional protection outside the context of prior restraint.The government can prosecute people for publishing or otherwise disseminating classified information, and classified documents are exempt from the requirements of the Freedom of Information Act.The issue of classified documents resurfaced with the George W. Bush administration’s ”war on terror” following the al-Qaida attacks of September 11, 2001.
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Using the protection that classified documents enjoy, the number of government documents labeled “classified” grew by 60 percent from 2001 to 2003. See also Freedom of Information Act of 1966; Near v. Minnesota (1931); New York Times Co. v. United States (1971); Pentagon Papers; Prior Restraint; Snepp v. United States (1980); United States v.The Progressive (W.D.Wisc. 1979);Vietnam War.
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U.S. law should accommodate those, like Clay, who might find participation in “holy wars” acceptable but have religious convictions against all others. In another concurrence, Justice John Marshall Harlan II stressed that the appeals board may have acted on the improper idea that Clay had not asserted his conscientious objector status in a timely fashion. See also Conscientious Objection to Military Service; Gillette v. United States (1971); United States v. Seeger (1965).
furthe r reading Associated Press.“AP Review: Federal Government Sealing Off Data.” First Amendment Center, March 14, 2005. www.firstamendment center.org/news.aspx?id=14967. Wells, Christina E.“ ‘National Security’ Information and the Freedom of Information Act.” Administrative Law Review 56 (Fall 2004): 1195–1221.
Clay v. United States (1971) In Clay v. United States, 403 U.S. 698 (1971), six Supreme Court justices issued a per curiam rejection of a Kentucky appeals board’s denial of conscientious objector status to Cassius Clay, the world champion boxer who changed his name to Muhammad Ali.The ruling reiterated and clarified standards to be used in similar cases. Citing Gillette v. United States (1971), United States v. Seeger (1965), and Witmer v. United States (1955), the majority reiterated that individuals seeking to be classified as conscientious objectors need to pass three tests: show that their opposition applies “to war in any form,” stems from “religious training and belief,” and is sincere. Although a Justice Department hearing officer, relying on an FBI investigation, had found in Clay’s favor, the Justice Department nonetheless had recommended that Clay’s plea be denied for failure to satisfy the three basic criteria for conscientious objectors. The appeals board in turn denied Clay’s request for conscientious objector status without offering a statement of its reason. The government subsequently conceded that Clay met the second and third criteria. Because the board had offered no reasons for its decision, there was no way for the Court to determine whether its rejection had been based on one of the criteria that the government now recognized him as having met. The Court thereby overturned the decision. In a concurring opinion, Justice William O. Douglas focused more so than the other six justices on the “right to conscience protected by the First Amendment which Congress has no power to qualify or dilute.” He argued that
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furthe r reading Sciarrino,Alfred J., and Kenneth L. Deutsch.“Conscientious Objection to War: Heroes to Human Shields.” Brigham Young University Journal of Public Law 18 (2003): 59–106.
Clear and Present Danger Test Early in the twentieth century, the Supreme Court established the clear and present danger test as the predominate standard for determining when speech is protected by the First Amendment. The Court crafted it—and the bad tendency test, with which it is often conflated or contrasted— in cases involving seditious libels, that is, criticisms of the government, its officials, or its policies. It would be superseded by the imminent lawless action test in the late 1960s. Justice Oliver Wendell Holmes Jr. delivered the classic statement of the clear and present danger test in Schenck v. United States (1919):“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.” In Schenck, Justice Holmes clearly distinguished the clear and present danger test from the bad tendency test—which was predominate in English common law and would be articulated in Gitlow v. New York (1925)—when he stated that “in time of peace,” the pamphleteer and co-defendants “would have been within their constitutional rights.” The bad tendency test provides that when the facts of a case indicate that the communicator intended a result that the state has prohibited, the court may reasonably assume that the communication has a tendency to produce that result.
Clear and Present Danger Test Furthermore, on the basis of that tendency, the court may punish the communicator for violation of the law. For example, if a pamphleteer urges conscripts to resist military conscription, and if a law criminalizes noncompliance, judges may rightfully conclude that the pamphlet has a tendency to encourage violations of the law and therefore convict the pamphleteer. In contrast to the clear and present danger test, the bad tendency test proposes no distinction based upon circumstances. The Supreme Court observed in Gitlow, “Freedom of speech and press . . . does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties” (italics added).The bad tendency test protects only innocuous speech; it criminalizes all seditious libels. Justice Holmes ultimately found the clear and present danger test as articulated in Schenck insufficient to protect basic constitutional rights.Thus, in his dissent later in the year in Abrams v. United States (1919) he wrote that “we should be eternally vigilant against attempts to check the expression of opinions . . . unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.” Thus, he elevated the danger requirement from “clear” to “imminent” interference with legal action. Justice Louis D. Brandeis further elaborated upon the test in his concurring opinion (which Holmes joined) in Whitney v. California (1927), when he argued that the “evil apprehended” as a result of expression should be “so substantial as to justify the stringent restriction apprehended by the legislature.” The clear and present danger test was not accepted by a majority of the Supreme Court until Herndon v. Lowry (1937), when Justice Owen J. Roberts invoked it while rejecting the bad tendency test as an appropriate standard for identifying the protections of the First Amendment. From 1940 to 1951, the Court employed the clear and present danger test to decide twelve cases. In American Communications Association v. Douds (1950), however, the Court had begun to switch gears when it assessed the constitutionality of a statute aimed not at political expression but at political strikes in the communications industry. For the majority, Chief Justice Frederick M.Vinson wrote, “When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity.”Vinson then reconstructed
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the clear and present danger test:“[N]ot the relative certainty that evil conduct will result from speech in the immediate future, but the extent and gravity of the substantive evil must be measured by the test laid down in the Schenck case.” Judge Learned Hand of the Second Circuit Court of Appeals adapted the Vinson revision in United States v. Dennis (1950): “Clear and present danger depends upon whether the mischief of the repression is greater than the gravity of the evil, discounted by its improbability.” Vinson embraced this rephrasing when Dennis was appealed to the Supreme Court in Dennis v. United States (1951). Professor Samuel Krislov wrote that the clear and present danger standard had been transformed into a balancing test, “so completely blurred” that it served only to provide “apologetic acceptance of all legislative action” (p. 88). Justices Hugo L. Black and William O. Douglas agreed. When Brandenburg v. Ohio (1969), reached the Court, Black demanded that Justice Abe Fortas remove all references to the test from his draft opinion for a unanimous Court. Fortas refused, but resigned from the Court before the announcement of the decision in Brandenburg. Justice William J. Brennan Jr. redrafted the per curiam opinion, substituting for clear and present danger a new standard (Schwartz 1995: 27): “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The imminent lawless action test has largely supplanted the clear and present danger test. The clear and present danger remains, however, the standard for assessing constitutional protection for speech in the military courts. See also Abrams v. United States (1919); American Communications Association v. Douds (1950); Bad Tendency Test; Black, Hugo L.; Brandeis, Louis D.; Brandenburg v. Ohio (1969); Dennis v. United States (1951); Douglas, William O.; Gitlow v. New York (1925); Hand, Learned; Herndon v. Lowry (1937); Holmes, Oliver Wendell, Jr.; Schenck v. United States (1919); Seditious Libel; Whitney v. California (1927).
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furthe r reading Dow, David R., and R. Scott Shieldes. “Rethinking the Clear and Present Danger Test.” Indiana Law Journal 73 (1998): 1217–1246. Greenawalt, Kent.“‘Clear and Present Danger’ and Criminal Speech.” In Eternally Vigilant: Free Speech in the Modern Era, ed. Lee C. Bollinger and Geoffrey R. Stone, 96–119. Chicago: University of Chicago Press, 2002.
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Krislov, Samuel. The Supreme Court and Political Freedom. New York: Free Press, 1968. Linde, Hans A. “‘Clear and Present Danger’ Reexamined: Dissonance in the Brandenburg Concerto.” Stanford Law Review 22 (1970): 1163–1186. Schwartz, Bernard.“Justice Brennan and the Brandenburg Decision:A Lawgiver in Action.” Judicature 78 (1995): 24–29. Smith, Stephen A.“Schenck v. United States and Abrams v. United States.” In Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions, ed. Richard A. Parker, 20–35. Tuscaloosa: University of Alabama Press, 2003. White, G. Edward. “The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America.” Michigan Law Review 95 (1996): 299–392. Wirenius, John F. “The Road to Brandenburg: A Look at the Evolving Understanding of the First Amendment.” Drake Law Review 43 (1994): 1–49.
Clergy, Bans on Holding Office by In the late eighteenth and early nineteenth centuries, thirteen states adopted constitutional provisions prohibiting members of the clergy from holding public elected or appointed office. Most states dropped these statutes from their constitutions prior to 1880.The Supreme Court found Tennessee’s prohibition unconstitutional in McDaniel v. Paty (1978). It had been the last such ban in effect. The NewYork state constitution of 1777 included a provision prohibiting clergy from serving in public office because they “are, by their profession, dedicated to the service of God and the cure of souls, and ought not to be diverted from the great duties of their function.” New York retained the provision when it revised its constitution in 1821, but dropped it in the constitution of 1846. Delaware, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, South Carolina,Tennessee, Texas, and Virginia also had constitutional prohibitions on clergy serving in public office in the 1700s and 1800s. The Texas constitution of 1845 stipulated that because ministers and priests should devote themselves to souls, none “shall be eligible to the Legislature.” Some state constitutions identified clergy among a list of other persons ineligible to hold political office. For example, the Missouri constitution of 1820 excluded people convicted of bribery, perjury, or “other infamous crimes,” as well as members of the clergy, from public office. Only Maryland and Tennessee carried the provision into the twentieth century. Maryland added it to its 1867 constitution. In 1978 voters approved a constitu-
tional amendment removing it, after having rejected changing the provision in 1968. The Tennessee constitution of 1870 included a provision prohibiting clergy members from serving in the state legislature using the same justification as the provision included in the New York constitution of 1777. In 1977 Paul McDaniel, a Baptist minister, attempted to run for a position as a delegate to the state’s constitutional convention. A challenger, Selma Cash Paty, sued to keep McDaniel off the ballot. In a unanimous decision, the Supreme Court struck down the state constitution’s provision; the justices did not, however, agree on why it was unconstitutional. Barring members of the clergy from serving in public office carried over from English practice. Parliament had justified excluding clergy from the House of Commons to ensure that a priest or deacon remained devoted to his “sacred calling” rather than to “such mundane activities as were appropriate to a member of the House of Commons.” Commons also sought to maintain its independence from the monarchy and wanted to keep ministers appointed by the throne from working to expand its influence in Parliament. There is little evidence to explain why clerical bans appeared in state constitutions after the American Revolution. A similar ban was not included in the U.S. Constitution.Thomas Jefferson advocated the prohibition in his 1783 draft of a constitution for Virginia. James Madison disagreed, arguing that excluding ministers of the Gospels from serving in public office violated a fundamental principle of liberty by punishing a religious profession with the removal of a right held by all other persons. John Witherspoon, Madison’s mentor and a president of the College of New Jersey (today’s Princeton), had ridiculed state constitutional bans on clergy. See also Jefferson, Thomas; Madison, James; McDaniel v. Paty (1978); State Constitutional Provisions on Religion; Witherspoon, John.
John David Rausch Jr.
furthe r reading Noonan, John Thomas. The Believer and the Powers That Are: Cases, History and Other Data Bearing on the Relation of Religion and Government. New York: Macmillan, 1987. Silverman,William.“The Exclusion of Clergy from Political Office in American States: An Oddity in Church-State Relations.” Sociology of Religion 61 (Summer 2000): 223–230.
Clingman v. Beaver (2005)
Cleveland v. United States (1946) The Supreme Court in Cleveland v. United States, 329 U.S. 14 (1946), upheld application of the Mann Act of 1910 to a fundamentalist group of polygamous Mormons, including Cleveland, who had transported their multiple wives across state lines for the purpose of cohabitation. In upholding the conviction, the justices decided that the case fell under the precedent established in Caminetti v. United States (1917), which held that the act applied not simply to “white slavery,” or commercialized prostitution,” but also to other forms of sexual behavior considered to be immoral. In the opinion for the Court, Justice William O. Douglas cited Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890) and similar cases to establish that the nation regarded polygamy as “a return to barbarism” and as “contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world.” Indeed, Douglas wrote that “the establishment or maintenance of polygamous households is a notorious example of promiscuity.” Responding to the argument that the Mormons had been “motivated by a religious belief ” and not criminal intent, Douglas observed that “it has long been held that the fact that polygamy is supported by a religious creed affords no defense in a prosecution for bigamy.” He further observed, “Whether an act is immoral within the meaning of the statute is not to be determined by the accused’s concepts of morality.” Justice Wiley B. Rutledge wrote a concurring opinion arguing that the case was controlled by Caminetti and observing that Congress had not attempted to reverse the Court’s construction of the Mann Act in that case. Justices Hugo L. Black and Robert H. Jackson disagreed with Caminetti as precedent and would have reversed the conviction of the polygamists rather than apply the Mann Act to noncommercial vice. Justice Francis W. Murphy dissented, largely based on anthropological analysis, arguing that polygamy differed from promiscuity, and suggested that Cleveland could thus be distinguished from those that had allowed Congress to regulate prostitution and promiscuous behavior. See also Church of Jesus Christ of Latter-day Saints; Douglas, William O.; Late Corporation of the Church of Jesus Christ of Latterday Saints v. United States (1890); Polygamy.
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furthe r reading Conant, Michael. “Federalism, the Mann Act, and the Imperative to Decriminalize Prostitution.” Cornell Journal of Law and Public Policy 5 (Winter 1996): 99–117.
Clingman v. Beaver (2005) In Clingman v. Beaver, 544 U.S. 581 (2005), the Supreme Court held 6-3 that Oklahoma’s interest in preserving the integrity of state parties as a viable interest group superseded the parties’ interest in opening their primary elections to members of an opposing party. The Libertarian Party of Oklahoma (LPO) had challenged the state’s semi-closed primary law, arguing that as a private organization, it could invite whomever it wanted to participate in its elections; the law therefore violated its First Amendment right to association. Justice Clarence Thomas, in the opinion for the Court, asserted that if the LPO allowed anyone to vote in its primary, it could make itself vulnerable to fielding candidates “hostile to the political preferences of the majority of the LPO’s members.” He also argued that the state had an interest in preventing “party raiding” and “sore losers” candidacies.The Court reasoned that if one of the major parties had an uncontested primary election, large blocks of voters from that party might switch to the LPO to vote for the candidate most likely to siphon votes from their opponent in the general election. The Clingman decision departed from an earlier line of cases that had consistently sided with political parties’ right of association. In Tashjian v. Republican Party of Connecticut (1986), the Court ruled that the state could not prevent political parties from inviting independents to vote in their primaries. In California Democratic Party v. Jones (2000), the Court overturned a law requiring political parties to allow members of other parties to vote in their primaries. Until 2005, the Court had almost always sided with a political parties’ right to control its membership and election procedures. The Court’s stance in Clingman left it in the untenable position of arguing that the state cannot prevent political parties from inviting independent voters to participate in primaries, but can prohibit parties from inviting members of other political parties to take part. Justice John Paul Stevens highlighted this tension in his dissenting opinion, arguing that if political parties can invite independents into their process, they surely should be able to invite members of other parties as well. He also noted that if the state cannot force parties to allow certain people to participate, the state
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should not be able to prevent parties from inviting them in either. See also California Democratic Party v. Jones (2000); Tashjian v. Republican Party of Connecticut (1986);Thomas, Clarence.
went too far in invaliding the ordinance on its face. “Any man of average comprehension should know that some kinds of conduct, such as assault or blocking passage on the street, will annoy others and are clearly covered by the ‘annoying conduct’ standard of the ordinance,” he wrote.
Matthew Manweller
furthe r reading Clark, Jennie A., and Miranda Burris. “Annual Survey of Caselaw: Constitutional Law.” University of Arkansas Little Rock Law Review 28 (Summer 2006): 635–649. Gutmann,Amy. Freedom of Association. Princeton: Princeton University Press, 1998.
Coates v. City of Cincinnati (1971) In Coates v. City of Cincinnati, 402 U.S. 611 (1971), the Supreme Court invalidated a city law against loitering that negatively affected freedom of assembly. Cincinnati officials charged several individuals, including Coates, a college student, with violating an ordinance making it a crime for three or more persons to gather on a public street and engage in annoying conduct.A state court convicted the individuals, and the state supreme court affirmed, noting that “the word ‘annoying’ is a widely used and well understood word.” Coates contended that the law violated due process and the First Amendment because it was too vague and infringed on the freedoms of assembly and association.The Supreme Court struck down the ordinance in a 6-3 vote. Justice Potter Stewart, who authored the majority opinion, agreed that the law violated due process, noting that “this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and [is] unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.” According to Stewart, “conduct that annoys some people does not annoy others.” He also reasoned that the ordinance violated the First Amendment rights to freedom of assembly and association, warning that city officials could silence First Amendment expressive activities by classifying them as annoying. Justice Hugo L. Black filed a separate opinion, arguing that the Court should vacate the convictions but send the case back to the state court to supplement the record to establish what type of conduct was allegedly annoying. Justice Byron R. White dissented, finding that the Court
See also Black, Hugo L.; Stewart, Potter;Vagueness;White, Byron R.
David L. Hudson Jr.
furthe r reading Boychuk, Katherine M. “Are Stalking Laws Unconstitutionally Vague or Overbroad?” Northwestern Law Review 88 (1994): 769–802. Perez, Silvia. “Alternatives in Fighting Street Gangs: Criminal AntiGang Ordinances v. Public Nuisance Laws.” St.Thomas Law Review 13 (2001): 619–637.
Cochran v. Board of Education (1930) In Cochran v. Board of Education, 281 U.S. 370 (1930), the Supreme Court adopted child benefit theory to unanimously uphold a Louisiana law allowing the state to purchase and lend secular textbooks to students in public as well as parochial schools. Opponents had attacked the law—the brainchild of U.S. senator and former Louisiana populist governor Huey P. Long—as an unconstitutional taking of private property for private purposes and for violating the guaranty clause in Article 4, section 4, of the Constitution. In the Court’s opinion, Chief Justice Charles Evans Hughes dismissed both arguments made by opponents of the law. In focusing on the first, he quoted the Louisiana Supreme Court’s decision in the case to the effect that the purpose of the law was not to aid private sectarian schools, but to aid children of the state wherever they attended school. This effectively marked the birth of the child benefit theory, which differentiates between aid going directly to students in parochial schools and that sent directly to the schools. After the Court used the Fourteenth Amendment to apply the establishment clause of the First Amendment to the states in Everson v. Board of Education (1947), this clause— not the takings and guaranty clauses that opponents pointed to in Cochran—has governed such controversies.The Court would decades later uphold a similar textbook program in New York in Board of Education v. Allen (1968). See also Aid to Parochial Schools; Board of Education v. Allen (1968); Child Benefit Theory; Everson v. Board of Education (1947).
John R.Vile
Coercion Test furthe r reading Cortner, Richard C. The Kingfish and the Constitution: Huey Long, the First Amendment and the Emergence of Modern Press Freedom in America. Westport, Conn.: Greenwood Press, 1996. Williams,T. Harry. Huey Long. New York: Alfred A. Knopf, 1970.
Coercion Test The coercion test is one of a number of tests that the Supreme Court has established for ascertaining whether governmental practices violate the establishment clause of the First Amendment. It is most often used in public school cases.The coercion test is not yet as well known or as widely used as the three-pronged Lemon test, articulated in Lemon v. Kurtzman (1971) to determine whether a law has a secular legislative purpose, whether its primary effect is to advance or inhibit religion, or whether it leads to excessive entanglement between church and state. It also differs from, but could arguably supplement, the endorsement test laid out by Justice Sandra Day O’Connor in Lynch v. Donnelly (1984), and other cases, to determine whether a governmental action appears to endorse a particular faith and thus make nonadherents feel like outsiders. The coercion test is usually associated with Justice Anthony M. Kennedy’s opinion in Lee v. Weisman (1992), invalidating the practice of public schools of inviting members of the clergy to deliver invocations and benedictions. Kennedy observed, “Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma.” Pointing out that most students consider graduation to be a key transition in their lives, Kennedy felt that those who attended would be psychologically coerced into approving of a religious practice to which they might object: The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any over compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a
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prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real.There can be do doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi’s prayer. Observing the situation in this case to be different from one involving adults that might permit legislative prayers, such as those that the Court accepted in Marsh v. Chambers (1983), Kennedy observed,“Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.” Justice Antonin Scalia authored a dissent taking aim at the psychological component of Kennedy’s approach. Scalia wrote, “A few citations of ‘research in psychology’ that have no particular bearing upon the precise issue here . . . cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing.The Court’s argument that state officials have ‘coerced’ students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.” Scalia argued, “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” He saw no evidence of either in this case. Justice Clarence Thomas reiterated his support for Scalia’s focus on legal coercion set out in Elk Grove Unified School District v. Newdow (2004). Like Scalia, Thomas believed that the coercion prohibited by the First Amendment must result from force of law or threat of penalty. He suggested that the amendment might be interpreted to prevent government from establishing religion “by imbuing it with governmental authority” or by favoring one faith over another. Scholars debate whether the coercion test has supplanted or will supplant others, but it adds yet another approach that the Court can apply in this complicated area. See also Elk Grove Unified School District v. Newdow (2004); Endorsement Test; Kennedy, Anthony M.; Lee v. Weisman (1992); Lemon v. Kurtzman (1971); Marsh v. Chambers (1983); O’Connor, Sandra Day; Scalia, Antonin;Thomas, Clarence.
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furthe r reading Campbell, James A. “Note: Newdow Calls for a New Day in Establishment Clause Jurisprudence. Justice Thomas’s ‘Actual Legal Coercion’ Standard Provides the Necessary Renovation.” Akron Law Review 39 (2006): 541–592. Kahn, Ronald C. “Symposium: Religion and the Public Schools after Lee v.Weisman: God Save Us from the Coercion Test. Constitutive Decisionmaking, Polity Principles, and Religious Freedom.” Case Western Reserve Law Review 43 (1993): 983–1020. Ward, Cynthia V. “Coercion and Choice under the Establishment Clause.” University of California Davis Law Review 39 (2006): 1621–1668.
Cohen v. California (1971) In Cohen v. California, 403 U.S. 15 (1971), the Supreme Court established that the government generally cannot criminalize the display of profane words in public places. The controversy in this case began in April 1968, when Paul Robert Cohen wore a jacket bearing the words “Fuck the Draft” into a Los Angeles courthouse. He was arrested and charged with violating a state breach-of-the-peace law prohibiting disturbing of the peace by “offensive conduct.”A Los Angeles court convicted Cohen and sentenced him to thirty days in jail. A California court of appeals affirmed his conviction, finding that it was “certainly reasonably foreseeable” that his conduct in wearing his jacket could cause a violent reaction.The Supreme Court of California declined to review the case by a 4-3 vote. Cohen appealed to the U.S. Supreme Court, which reversed his conviction in a 5-4 vote. In the opinion for the Court, Justice John Marshall Harlan II began by observing that the “case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.” He reasoned that Cohen’s display of profanity could not be classified as obscenity, because it was not “erotic.” He also determined that the language could not be considered fighting words—another unprotected form of expression— because it was not directed at a particular recipient. “No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult,” he wrote. Rejecting the state’s argument that the conviction was justified as a way to protect the privacy interests of unwilling viewers, including women and children, Harlan responded that they and others upset by Cohen’s jacket “could effectively avoid further bombardment of their sensibilities by averting their eyes.” Harlan also rejected the idea that the state could prohibit the display of Cohen’s jacket as the
guardian of public morality. In oft-cited language, he noted, “[O]ne man’s vulgarity is another’s lyric” and “because government officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” He also warned that the “government might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” Writing for the four dissenters, Justice Harry A. Blackmun called “Cohen’s absurd and immature antic . . . mainly conduct and little speech.” He reasoned that the language on the jacket fell within the fighting words exception. See also Fighting Words; Harlan, John Marshall, II; Obscenity and Pornography; Profanity.
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Fighting Words.” First Amendment Center Online. www.firstamendmentcenter.org/Speech/personal/topic .aspx?topic=fighting_words. O’Neil, Robert M.“Rights in Conflict:The First Amendment’s Third Century.” Law and Contemporary Problems 65 (2002).
Cohen v. Cowles Media Co. (1991) The Supreme Court in Cohen v. Cowles Media Co., 501 U.S. 663 (1991), applied the neutrality doctrine to rule that media could be sued for breach of contract for divulging the identity of a confidential source. During the 1982 Minnesota gubernatorial campaign, Dan Cohen, who was associated with one party’s campaign, provided to reporters from two St. Paul and Minneapolis newspapers documents regarding criminal charges against the other party’s candidate for lieutenant governor. Cohen furnished the records on the condition that he not be disclosed as the source of the information. After receiving the documents, however, the newspapers decided to publish his name.The editors considered the identity of the source to be suggestive of a smear campaign and therefore newsworthy. Cohen’s employer fired him for his actions, and he sued the publishers of the newspapers in a breach of contract action. The media in Cohen were in a difficult position. For years, the press had argued for constitutional protection of confidential sources. Yet in Cohen, they argued that the media should be free to ignore a promise of confidentiality whenever editors felt it necessary to do so.This position somewhat
Cohn, Roy contradicted the argument used (unsuccessfully) by the media in Branzburg v. Hayes (1972) that only a constitutionally protected confidence could ensure that sources wishing to remain anonymous would come forward with important information. In Cohen, the Court rejected the special privilege argument of the media, as it had in Branzburg, and found the defendants liable for publishing the identity of an informant who had been promised anonymity. Justice Byron R.White’s opinion for the 5-4 Court relied on the neutrality doctrine, under which the press receives no special constitutional immunity from generally applicable laws. According to this doctrine, such laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. The majority in Cohen declared that the publisher of a newspaper has no special immunity from the application of general laws and has no special privilege to violate the rights of others. In dissent, Justice Harry A. Blackmun characterized the majority as seeing the case as a battle of rights between editors, reporters, and informants. By weighing the interests of these three distinct groups and holding in favor of the reporters and informants, the Court essentially sanctioned the withholding of certain important information from the public, for example, evidence of a smear campaign. Blackmun criticized this interest group approach and favored one “premised not on the identity of the speaker, but on the speech itself.” See also Blackmun, Harry A.; Branzburg v. Hayes (1972);White, Byron R.
Patrick M. Garry
furthe r reading Garfield, Alan E. “The Mischief of Cohen v. Cowles Media Co.” Georgia Law Review 35 (2001): 1087–1128. Garry, Patrick M. “The Trouble with Confidential Sources: A Criticism of the Supreme Court’s Interest-Group View of the First Amendment in Cohen v. Cowles Media Co.” Hastings Communications and Entertainment Law Journal 14 (1992): 403–420. Kaufman, Joseph H. “Beyond Cohen v. Cowles Media Co.: Confidentiality Agreements and Efficiency within the Marketplace of Ideas.” University of Chicago Legal Forum (1993): 255–273.
Cohen v. San Bernardino Valley College (9th Cir. 1996) In Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), the Ninth Circuit Court of Appeals determined
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a California college’s sexual harassment policy to be unconstitutionally vague and a First Amendment violation as applied to a teacher who had used provocative teaching methods for a number of years. A female student at San Bernardino Valley College complained that one of her professors, Dean Cohen, had created a sexually hostile environment in her remedial English class. Cohen spoke about controversial topics, such as bestiality and obscenity, read articles he had written for pornographic magazines, and used profanity in the classroom. After the college concluded that Cohen had violated the school’s sexual harassment policy, he sued in federal court, contending that his rights to freedom of speech, academic freedom, and due process had been violated. A federal district court ruled against Cohen, so he appealed to the Ninth Circuit, which reversed in his favor on the First Amendment claim. The court’s three-judge panel determined that the policy was unconstitutionally vague as applied to Cohen, particularly given that he had been using such controversial teaching methods for many years.“Cohen’s speech did not fall within the core region of sexual harassment as defined by the Policy,” the Ninth Circuit ruled.“Instead, officials of the College, on an entirely ad hoc basis, applied the Policy’s nebulous outer reaches to punish teaching methods that Cohen had used for many years.” The appeals court described the officials’ actions toward Cohen as a “legalistic ambush.” Given the lack of certainty in this area of the law, however, the appeals court granted the college officials qualified immunity. The decision has been cited by numerous other courts that have examined the relationship between sexual harassment, freedom of speech, and academic freedom, particularly in the college classroom environment. See also Academic Freedom; Sexual Harassment Laws.
David L. Hudson Jr.
furthe r reading O’Neil, Robert M.“Free Speech and Community: Free Speech in the College Community.” Arizona State Law Journal 29 (1997): 537–548.
Cohn, Roy Roy Marcus Cohn (1927–1986) is best known for his work as the chief counsel to Sen. Joseph McCarthy, the Wisconsin Republican whose interrogations of alleged communists during the cold war “red scare” contributed to a chilling
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effect on freedom of speech and freedom of association in the 1950s. Cohn, the only child of a New York judge, earned his law degree from Columbia University at the age of twenty. In his first job, working for the U.S. attorney’s office in Manhattan, he quickly made a name for himself prosecuting cases of people with alleged ties to the Communist Party. Impressed with Cohn’s performance at the trial of Julius and Ethel Rosenberg for spying, FBI director J. Edgar Hoover recommended that he be hired as chief counsel to the Senate Permanent Subcommittee on Investigations. McCarthy, who chaired the panel, hired the twenty-four-year-old Cohn in January 1953. Characteristic of Cohn’s aggressive style was his grilling of Annie Lee Moss, an African American code clerk in the Pentagon, in March 1954. An FBI informant, while admitting that she had never met Moss personally, had claimed that Moss’s name appeared on the membership rolls of the Communist Party of the United States, an allegation Moss denied. Cohn, using the informant’s testimony, also asserted that Moss had associated with a Robert Hall, a white man identified by Cohn as “one of the leading Communists in the District of Columbia.” Moss testified that the Robert Hall she knew was black. As it turned out, more than one Annie Lee Moss lived in the Washington, D.C., area, but Cohn never established to the subcommittee’s satisfaction that he and his informant had summoned the one they sought. Furthermore, although Moss was suspected of reading and altering encoded messages and passing them to the Soviets, when Democratic senator Stuart Symington of Missouri asked her to read the official statement suspending her from her job, her illiteracy became evident. When Symington asked Moss if she had ever heard of Karl Marx, she replied, “Who’s that?” Cohn’s credibility was forever damaged. Having resigned his government post after the McCarthy-era hearings, Cohn went into private practice and became a bon vivant on the New York social scene. His celebrity clients included Donald Trump and Steve Rubell and Ian Schrager, the co-owners of Studio 54, a popular New York discotheque. Cohn remained a magnet for controversy, however, suffering disbarment in New York state for improper conduct the month before he died of complications from AIDS at the age of fifty-nine. See also Congress; Hoover, J. Edgar; McCarthyism; Murrow, Edward R.; Red Scare.
Gina Logue
furthe r reading The Edward R. Murrow Television Collection: The McCarthy Years. CBS News documentary. Sam Roberts and Ken Ross, executive producers. Bernard Birnbaum, producer. Russ Bensley and Sam Roberts, writers. 1991. von Hoffman, Nicholas. Citizen Cohn. New York: Doubleday, 1988.
Cole v. Oroville Union High School District (9th Cir. 2000) In Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000), the Ninth Circuit Court of Appeals determined that concern over possible establishment clause violations trumped students’ asserted free speech interests in a dispute over presentations planned for a graduation ceremony. Two students at a public high school were denied permission to present a co-valedictory speech and a prayer at graduation, after the principal, following established procedures, judged each to be sectarian in nature and the students refused to change them.The Ninth Circuit judged as moot the petitions that the students brought for declaratory and injunctive relief, but decided that their claims for damages were not.The judges found that the decision to prevent the prayer and the sectarian speech “was necessary to avoid violating the Establishment Clause under the principles applied in Santa Fe Independent School District v. Doe (2000)” and Lee v. Weisman (1992), cases involving prayer at public school events. The court found that the prayer would have been perceived as school sponsored because the school had authorized the prayer; it was being delivered on school property; the student presenting it had been selected by a vote of fellow students; and the prayer would have been amplified by a public address system. Regarding the speech, the judges observed that “an objective observer familiar with the District’s policy and its implementation would have likely perceived that the speech carried the District’s seal of approval.” The judges further believed that including the speech would “have constituted District coercion of attendance and participation in a religious practice because proselytizing, no less than prayer, is a religious practice.” Noting that the students were “free to pray and to proselytize outside of school or in contexts where the District would not have been an actual or perceived party to their religious activities,” the court ruled that officials [had] “acted reasonably to avoid violating the Establishment Clause.”
Collins, Ron See also Coercion Test; Lee v. Weisman (1992); Prayer at Public School Events; Sante Fe Independent School District v. Doe (2000).
John R.Vile
furthe r reading Alexander, Kern, and M. David Alexander. American Public School Law. 5th ed. New York:Wadsworth Publishing, 2004. Vile, John R.” Religious Expressions in High School Valedictory Addresses: Guidry v. Calcasieu Parish School Board.” Education Law Reporter, August 3, 1989, 1951–1965.
Cole v. Richardson (1972) In Cole v. Richardson, 405 U.S. 676 (1972), the Supreme Court upheld a Massachusetts loyalty oath for public employees against a First Amendment free speech challenge. In 1970 the justices had remanded the case to a federal district court to see if it was moot. The Massachusetts oath required state employees, in this case a sociologist at Boston State Hospital, to affirm to “uphold and defend” the U.S. and state constitutions and to “oppose” their overthrow “by force, violence or by any illegal or unconstitutional means.” In the opinion for the Court, Chief Justice Warren E. Burger noted that the first part of the oath was similar to other oaths that the Court had affirmed; he disagreed with the lower court ruling that the second part of the oath was void for vagueness. He judged that this opinion had rested on “too literal an approach to the second clause” and explained that this part of the oath did “not require specific action in some hypothetical or actual situation,” but “simply makes clear the application of the first clause to the particular issue.” In a brief concurring opinion, Justices Potter Stewart and Byron R.White observed that the oath avoided treading on rights to conscience by permitting individuals either to affirm or swear. In a dissenting opinion, Justice William O. Douglas asserted that the second part of the oath violated the Court’s decision in Brandenburg v. Ohio (1969) limiting restrictions of speech to cases likely to threaten imminent lawless action. Douglas opined, “Test oaths are notorious tools of tyranny.” He further believed that if one part of the oath could not withstand scrutiny, the other part must fall as well. In dissent, Justice Thurgood Marshall, joined by William J. Brennan Jr., would have upheld the first part of the oath but voided the second part as being unduly vague. He also considered the second part to be “an overbroad infringement of protected expression and conduct.” Like Douglas, Marshall felt that despite their prevalence, “[l]oyal-
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ty oaths do not have a very pleasant history in this country.” He quoted Justice Hugo L. Black’s opinion in Speiser v. Randall (1958) to note that such oaths, like other contemporary national security measures, “tend to stifle all forms of unorthodox or unpopular thinking or expression . . . which has played such a vital and beneficial role in the history of this Nation.” See also Burger, Warren E.; Douglas, William O.; Loyalty Oaths; Marshall, Thurgood; Overbreadth; Public Employees; Speiser v. Randall (1958);Vagueness.
John R.Vile
furthe r reading Singer, Craig D. “Conduct and Belief: Public Employee’s First Amendment Rights to Free Expression and Political Affiliation.” University of Chicago Law Review 59 (1992): 897–923.
Collins, Ron Ronald K. L. Collins (1949– ) is an advocate of free expression values who writes and lectures on a variety of First Amendment topics ranging from obscenity to Supreme Court history to commercial speech. Born in 1949 in Santa Monica, California, Collins obtained his undergraduate degree from the University of California, Santa Barbara, in 1971, and his law degree from Loyola Law School, Los Angeles, in 1975. Upon graduation, he clerked for Oregon Supreme Court justice Hans Linde. He served as a teaching fellow at Stanford Law School during 1980–1981 and worked as a judicial fellow for 1981–1982 under Warren E. Burger, chief justice of the United States. Collins then returned to academia, teaching at Temple Law School, Seattle University School of Law, and George Washington University Law School. He is currently a scholar at the First Amendment Center, where he created and continues to expand the First Amendment Library, a compilation of First Amendment Supreme Court cases and related materials. Collins has written or edited numerous articles and books devoted to First Amendment issues. His articles have appeared in the Harvard Law Review, Stanford Law Review, and the Supreme Court Review, among other publications. His books include The Trials of Lenny Bruce:The Fall and Rise of an American Icon (2002) and The Death of Discourse (2d ed., 2006), both co-written with David Skover, a law professor. The book on the obscenity trials of Bruce earned the 2004 Hugh Hefner First Amendment Award for Book Publishing.
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Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996)
With Skover and First Amendment attorney Robert CornRevere, Collins successfully petitioned the governor of New York to issue Bruce a posthumous pardon in 2004. See also Bruce, Lenny; Corn-Revere, Robert; First Amendment Center; McMasters, Paul K.
David L. Hudson Jr.
furthe r reading First Amendment Center. “Biography: Ronald K. L. Collins.” www.firstamendmentcenter.org/biography.aspx?name=Collins.
Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996) In Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996), also known as Colorado Republican I, a Supreme Court plurality declared as unconstitutional provisions of the Federal Election Campaign Act of 1971 (FECA) limiting the amount of independent, uncoordinated expenditures (made by a political party without coordination with its candidate) on behalf of a specific candidate. In April 1986, the Republican Party of Colorado purchased radio airtime to run commercials attacking Timothy Wirth, the likely Democratic challenger in the 1986 U.S. Senate race. The Republicans did so before having selected their own nominee. The Democratic Party lodged a complaint with the Federal Election Commission (FEC) arguing that the expenditure violated FECA spending limitations on the amount of money that parties could spend on such advertisements. Pursuant to the complaint, the FEC brought action against Colorado Republican officials. Following a district court decision favoring the Republican Party on the narrow grounds that its expenditures in this instance were not covered by the law, the case reached the Tenth Circuit Court of Appeals, which took a broad view of the provision and thus largely sustained its constitutionality.The Supreme Court reviewed the matter, to consider whether the provision facially, or as applied, violated the First Amendment, and found it unconstitutional. Authoring the plurality opinion, Justice Stephen G. Breyer began by noting the previously recognized distinction between independent expenditures on behalf of candidates and direct contributions to them. In specific, he noted, “the Court has concluded that limitations on independent
expenditures are less directly related [than are direct contributions] to preventing corruption. . . . ” Breyer wrote that the government offered no evidence or legislative findings suggesting a link between corruption and independent expenditures by political parties. Instead, the Court felt that the provision was created for the purpose of reducing perceived wasteful campaign spending. Although the FEC sought to maintain differential treatment for political parties, the Court plurality argued that it is illogical to grant “individual candidates and ordinary political committees the right to make unlimited independent expenditures” and then “deny the same right to political parties.” The plurality also rejected the Colorado Republican Party’s claim that a party exception should be crafted in First Amendment jurisprudence forbidding the regulation of coordinated as well as independent expenditures. Separate opinions filed by Justices Anthony M. Kennedy and Clarence Thomas, and joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia, challenged the views of the plurality. Kennedy argued that FECA runs afoul of the First Amendment when it restricts a political party’s spending in consultation with its candidates. Thomas went further, arguing that the provision of FECA at issue not only was unconstitutional in this case but also facially violated the First Amendment. The justices remanded the case, which returned to the Court for a second time as Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001), or Colorado Republican II. See also Buckley v. Valeo (1976); Campaign Regulation; Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001); McConnell v. Federal Election Commission (2003).
Daniel M. Katz
furthe r reading Weinstein, James. “Campaign Finance Reform and the First Amendment: An Introduction.” Arizona State Law Journal 34 (Winter 2002): 1057–1094.
Columbia Broadcasting System v. Democratic National Committee (1973) The Supreme Court decision in Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94 (1973), held that a radio station did not violate the fairness doctrine or the
Commercial Speech First Amendment’s guarantee of a free press by selectively refusing to accept paid advertising on public policy issues. WTOP, a Washington, D.C., affiliate of the Columbia Broadcasting System, had refused to sell advertising time to Business Executives’ Move for Vietnam Peace, which intended to express opposition to the Vietnam War. In response, the executives filed a complaint with the Federal Communications Commission (FCC), which held responsibility for enforcing the fairness doctrine, claiming that the regulation required broadcasters to air all paid public announcements. In a separate filing, the Democratic National Committee (DNC) requested a declaratory ruling from the FCC affirming that according to the principles of the fairness doctrine and the First Amendment “a broadcaster may not, as a general principle, refuse to sell time to responsible entities . . . for the solicitation of funds and for comment on public issues.” The FCC found that the fairness doctrine does not require radio stations to sell time to any and all groups able to purchase airtime. Regarding the DNC request for a ruling, the FCC recognized a statutory, not a constitutional, right of political parties to buy time on the airwaves to solicit funds. The U.S. Court of Appeals for the District of Columbia, however, disagreed with the FCC’s position, holding that the First Amendment included a right to broadcast paid editorial advertisements. The DNC appealed the decision to the Supreme Court, which ruled 7-2 in favor of the FCC policy. Conceding the necessity for governmental control of the broadcast media, Chief Justice Warren E. Burger focused on the problem of balancing public regulation with private ownership to ensure that the “public interest” be served. Congress had rejected the “common carrier” approach, requiring “right of access for all persons wishing to speak out on public issues” in favor of the fairness doctrine.The doctrine “imposes two affirmative responsibilities on the broadcaster: coverage of issues of public importance must be adequate and must fairly reflect differing viewpoints.” In fulfilling these responsibilities, “the right to exercise editorial judgment was granted to the broadcaster.”The central issue is not that all voices are heard, but that every viewpoint is heard, a standard that also applies to the broadcaster’s policy for accepting or rejecting paid editorial advertisements. Regarding the First Amendment argument that broadcasters must accept all paid editorial advertisements, Burger noted that this required a balancing of the “public interest” with universal access. Congress left this duty to the FCC, which
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decided that “the undesirable effects” of such a policy are outweighed by “the asserted benefits.” Justice William O. Douglas concurred with the Court’s decision on the basis that the First Amendment prohibition on abridging the freedom of the press was absolute. Therefore, broadcasters should have the final decision regarding the issues and spokespersons it airs. See also Burger,Warren E.; Equal Access Act of 1984; Equal Time Rule; Fairness Doctrine;Telecommunications Act of 1996.
Alex Aichinger
furthe r reading Leweke, Robert. “Rules without a Home: FCC Enforcement of the Personal Attack and Political Editorial Rules.” Communication Law and Policy 6 (Autumn 2001): 557–576. Simmons, Steven J. The Fairness Doctrine and the Media. Berkeley: University of California Press, 1978. Varona, Anthony. “Out of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting.” University of Michigan Journal of Law Reform 39 (Winter 2006): 150–198.
Columbine Shootings See School Violence
Commercial Speech Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of noncommercial speech, such as political speech. Commercial speech, as the Supreme Court iterated in Valentine v. Chrestensen (1942), had historically not been viewed as protected under the First Amendment. This category of expression, which includes commercial advertising, promises, and solicitations, had been subject to significant regulation to protect consumers and prevent fraud. Beginning in the 1970s, however, the Supreme Court gradually recognized this type of speech as deserving some First Amendment protection. In Bigelow v. Virginia (1975), the Supreme Court ruled that an individual had the right to advertise in Virginia the availability of abortion services in New York although the procedures were at the time illegal in Virginia. Justice Harry A. Blackmun observed,“The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.” Shortly thereafter in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Supreme Court
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extended First Amendment free speech protection to commercial speech. Writing for the Court in striking down a state law making it illegal for pharmacies to advertise the price of drugs, Justice Blackmun asserted that the First Amendment not only includes the right of the speaker to speak but also right of the listener to receive information. In this case, consumers had a right to receive lawful information about drug prices. Moreover, the Court also noted that speech does not lose its protection simply because money is transacted through it. To support that claim, the Court cited political communications involving political contributions and expenditures. Thus, Blackmun concluded that commercial speech, even a communication such as advertising, which merely suggests a business transaction, is protected by the First Amendment. Blackmun also noted, however, that simply because this type of speech is protected speech does not mean that it is immune from government regulation. This type of speech is entitled to less protection than political speech and can be regulated if false or misleading. Unlike with political speech, the truth of which may be difficult to ascertain, the Court thought commercial advertising to be more objective and thus subject to determination of its truth content. In Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), the Court sought to determine how far the regulation of commercial speech can go before it runs afoul of the First Amendment. In this case, the justices proposed a test in which a court must first decide whether the expression is fraudulent or illegal. If the speech is fraudulent or illegal, the government can freely regulate it without First Amendment constraints. If it is not, then the court must ask whether the asserted governmental interest is substantial. If both questions are answered yes, the court must determine whether the regulation directly advances the governmental interest asserted and whether it is more extensive than is necessary to serve that interest. If the regulation is narrowly tailored to secure the interest, then the regulation of the commercial speech will be upheld. Using the four-pronged Central Hudson test, the Court in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986) upheld a law in Puerto Rico that barred casinos from advertising to its residents. The Court found that the interest of Puerto Rico in preventing its residents from receiving these advertisements furthered the narrowly drawn governmental interest of preventing gambling and to protect their health, safety, and welfare. In 44 Liquormart, Inc. v. Rhode
Island (1996), the Supreme Court used the same fourpronged test to strike down a state law prohibiting the advertising alcohol prices.As in Virginia State Board of Pharmacy, the Court ruled that the right of consumers to receive truthful product information about prices was protected speech and that the state interest in promoting temperance was not narrowly drawn enough to prevent consumers from receiving lawful and truthful information about prices. Through the Central Hudson test, courts across the country have invalidated numerous laws regulating commercial speech. As a result, doctors and lawyers may now advertise, and many companies and businesses, such as pharmaceutical manufacturers, are able to communicate information to consumers about their products so long as the information is truthful and legal. See also Blackmun, Harry A.; Bigelow v.Virginia; Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); 44 Liquormart, Inc. v. Rhode Island (1996); Posadas de Puerto Rico Associates v.Tourism Company of Puerto Rico (1986);Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)
David Schultz
furthe r reading Brody, Stephen G., and Bruce Johnson. Advertising and Commercial Speech: A First Amendment Guide. 2d ed. New York: Practising Law Institute, 2004. Skilken, Melissa A. “This Ban’s for You: 44 Liquormart, Inc. v. Rhode Island.” University of Cincinnati Law Review 65 (1997): 1387–1422.
Commission on Obscenity and Pornography The Commission on Obscenity and Pornography, established in 1968, recommended that Congress concentrate its efforts on restricting access to pornographic materials to juveniles and to adults wanting to avoid exposure to them rather than targeting consenting adults. The commission’s report, issued in 1970, also recommended increased sex education and further research into the effects of pornography. The commission is perhaps best known for having its findings repudiated by the president during whose term it was released. The commission, headed by Minnesota Law School dean William B. Lockhart, consisted of eighteen original members appointed by President Lyndon B. Johnson. President Richard M. Nixon later appointed Charles H. Keating Jr. after one of the original members resigned.
Committee for Public Education and Religious Liberty v. Nyquist (1973) The commission‘s report, which contained extensive social scientific findings, led one reviewer to observe, “The Report’s strong focus on data gathering is both a strength and a major weakness.” According to him, “the reader feels overwhelmed by the statistics . . . and they must be interpreted” (Maddock 1972: 231). Keating, who had founded Citizens for Decent Literature (later Citizens for Decency Through Law) and who had sought an injunction that delayed publication of the original report, filed a dissenting report accusing the majority of being “dedicated to a position of complete moral anarchy.” He claimed to interpose common sense against the commission’s conclusions. In a similar vein, Nixon said that he rejected the report’s “morally bankrupt conclusions and major recommendations.”Asserted Nixon,“The Commission contends that the proliferation of filthy books and plays has no lasting harmful effect on a man’s character. If that were true, it must also be true that great books, great paintings, and great plays have no ennobling effect on a man’s conduct. Centuries of civilization and 10 minutes of common sense tell us otherwise.” President Ronald Reagan would later appoint the Attorney General’s Commission on Pornography, which issued a much more negative report on the effects of pornography in 1986. See also Attorney General’s Commission on Pornography; Citizens for Decent Literature; Nixon, Richard M.; Obscenity and Pornography; Stanley v. Georgia (1969).
John R.Vile
furthe r reading Edwards, David M. “Politics and Pornography: A Comparison of the Findings of the President’s Commission and the Meese Commission and the Resulting Response.” 1992. http://home .earthlink.net/~durangodave/html/writing/Censorship.htm. Funston, Richard. “Pornography and Politics: The Court, the Constitution, and the Commission.” Western Political Quarterly 24 (1971): 635–652. Maddock, James W. “Review [of The Report of the Commission on Obscenity and Pornography].” Family Coordinator 21 (1972): 230–231. Nixon, Richard.“Statement about the Report of the Commission on Obscenity and Pornography,” October 24, 1970. www.presidency .ucsb.edu/ws/index.php?pid=2759. The Report of the Commission on Obscenity and Pornography. New York: Bantam Books, 1970.
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Committee for Public Education and Religious Liberty v. Nyquist (1973) In Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), the Supreme Court invalidated an attempt by New York state to provide money grants to parochial schools for maintenance and repair of school facilities and also invalidated two other programs that provided tuition reimbursements and tax deductions to parents of children attending such schools. A federal district court had struck down two of the three programs—upholding only the tax deduction program—but the Supreme Court ruled that all three programs violated the establishment clause by impermissibly advancing religion. In the opinion of the Court, Justice Lewis F. Powell Jr. focused on interpretation of the establishment clause. He chiefly applied the three-part test set out in Lemon v. Kurtzman (1971). Powell objected to the maintenance and repair provisions on the basis that they made no attempt to restrict payments to the upkeep of buildings devoted to secular purposes and thus had a primary effect of advancing religion. He therefore considered the aid different from that which the Court had previously upheld in Everson v. Board of Education (1947), Board of Education v.Allen (1968), and Tilton v. Richardson (1971). He believed the tuition reimbursement and tax deduction programs were defective because they too had the primary effect of advancing religion. Powell saw little difference between tuition reimbursements and tax deductions. He attempted to distinguish these benefits from those that the Court had recognized in Walz v. Tax Commission (1970), arguing that the exemptions in Walz had more historical warrant and applied to all nonprofit organizations; although the tax deductions in Nyquist applied to secular schools, they constituted such a small percentage of private schools that it was uncertain whether the legislature would have passed such exemptions with only them in mind. Powell did not examine the excessive entanglement prong of the Lemon test, but he did warn against the continuing possibility that such aid programs would further “continuing political strife over aid to religion.” Chief Justice Warren E. Burger authored a partial dissent, agreeing that the maintenance and repair provisions were unconstitutional but disagreeing that the tuition grants and tax relief provisions were. He argued that they were “indistinguishable in principle, purpose, and effect from the
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Committee for Public Education and Religious Liberty v. Regan (1980)
statutes in Everson and Allen” and that “the ‘primary effect’ branch of our three-pronged test was never . . . intended to vary with the number of churches benefited by a statute under which state aid is distributed to private citizens.” Justice William H. Rehnquist wrote a separate dissent, arguing that the aid programs at issue could not be distinguished from those in Allen, Everson, and Walz. Justice Byron R. White also authored a dissent, which also applied to the companion cases of Sloan v. Lemon and Crouter v. Lemon. He asserted that prior decisions had entitled parents to send their children to parochial schools and that the laws at issue were a means of preserving this option. Acknowledging that he was “unreconciled to the Court’s decision in Lemon v. Kurtzman,” White nonetheless did not think that its acceptance would require voiding the tuition and tax provisions. He noted that “the test is one of ‘primary’ effect not any effect.” Subsequent decisions in Mueller v. Allen (1983) and Zelman v. Simmon Harris (2002) have upheld some forms of tax relief and voucher programs that include aid for parents who send their children to parochial schools. See also Aid to Parochial Schools; Board of Education v. Allen (1968); Burger, Warren E.; Everson v. Board of Education (1947); Lemon v. Kurtzman (1971); Mueller v. Allen (1983); Powell, Lewis F., Jr.; School Vouchers; Sloan v. Lemon (1973);Tilton v. Richardson (1971);Walz v.Tax Commission (1970);White, Byron R.; Zelman v. Simmons-Harris (2002).
John R.Vile
furthe r reading Gibney, Mark P. “State Aid to Religious-Affiliated Schools: A Political Analysis.” William and Mary Law Review 28 (1986): 119–153.
Committee for Public Education and Religious Liberty v. Regan (1980) In Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646 (1980), the Supreme Court ruled that a New York statute allocating funds to reimburse religious as well as secular private schools for testing and other services mandated by state law did not violate the establishment clause of the First Amendment. In a 5-4 vote, the court found the measure to have a secular legislative purpose and maintained that consistent with its decisions in Lemon v. Kurtzman (1971), Earley v. DiCenso and Robinson v. DiCenso (1971), and Wolman v. Walter (1977), the primary purpose of the legislation nei-
ther advanced nor prohibited religion and did not promote excessive entanglement between government and religion. The case has since been used as precedent. In the opinion for the Court, Justice Byron R. White argued that the law had the clear secular purpose of preparing students for the “challenges of American life.” He also pointed out that the state of New York had audits in place to make sure that the funding went only toward its intended purpose, distinguishing Regan from a New York statute struck down in Levitt v. Committee for Public Education and Religious Liberty (1973). Providing assistance to a religious institution to execute a nonreligious undertaking is not prohibited simply because assistance to one aspect of the institution permits it to spend other resources on religious ends. In a dissenting opinion, Justice Harry A. Blackmun wrote that the facts of the case did not satisfy all elements of the three-part Lemon test and disagreed with the majority’s assessment that the statute did not promote excessive entanglement. In a dissent joined by Justice William J. Brennan and Justice Thurgood Marshall, Justice John Paul Stevens stated that the majority’s findings were yet another ad hoc decision in how the court handled what can and cannot be paid for by the state. Regan demonstrates the Court’s approach in evaluating each case individually in relation to the establishment clause, rather than relying on a one-sizefits-all litmus test. See also Aid to Parochial Schools; Blackmun, Harry A.; Lemon v. Kurtzman (1971); Levitt v. Committee for Public Education and Religious Liberty (1973); Stevens, John Paul; White, Byron R.; Wolman v.Walter (1977).
Kathryn Oates
furthe r reading Miller, Robert, and Ronald Flowers. Toward Benevolent Neutrality: Church, State, and the Supreme Court. 5th ed. Vol. 1. Waco, Texas: Baylor University Press, 1996.
Committee on Public Information The Committee on Public Information (CPI), also known as the Creel Committee after its chairman, George Creel, served as the first large-scale propaganda agency of the U.S. government. President Woodrow Wilson established the committee in April 1917 through Executive Order 2594 in response to the U.S. entry into World War I in an attempt to mobilize public opinion behind the war effort with every
Commonwealth v. Blanding (Mass. 1825) available form of mass communication. One section of CPI coordinated work abroad, and another section oversaw work on the home front. The domestic section consisted of bureaus targeting a wide variety of groups, including laborers, women, industrialists, farmers, and immigrants. In delivering its message to such groups, the CPI sought to make every American a participant in the war effort. Creel, a former journalist, particularly targeted newspapers. He later estimated that the news division placed material in 20,000 newspaper columns each week during the war. A separate newspaper division monitored the hundreds of foreign-language publications in the United States. Beginning in May 1917 and running through March 1919, the CPI published Official Bulletin, a newspaper distributed free to public officials, newspapers, post offices, and other agencies. It carried statements from the government and had a circulation of about 115,000. In the effort to build an intellectual justification for U.S. involvement in the war, Creel appointed University of Minnesota history professor Guy Stanton Ford to head the division of civic and educational publications. Ford’s section published more than 100 titles that defined American ideals, indicted German militarism, promoted the expansion of the president’s power in foreign relations, told Americans what they could do to speed victory, and endorsed censorship. Visual images further helped to mobilize support for the war.The division of pictorial publicity joined with the division of advertising to create some of the war’s most vivid images in posters designed to demonize the German military. Some of the more infamous posters portrayed a German gorilla with a club labeled kultur and a green-eyed, blue-skinned German soldier with bloody fingers. Not every American made the distinction between Germans overseas and German-born Americans in the United States. In addition, the government linked any opposition to the war effort, whether by pacifists or communists, to treason. It trampled First Amendment rights, largely because of the success of the CPI in instilling fear through war propaganda. The CPI often blurred Wilson’s political goals with the national interest. Following the end of the war in 1918, the reputation of the CPI began to decline. Many Americans concluded that the committee had oversold the conflict and had created a climate that suppressed legitimate dissent. When President Franklin D. Roosevelt created the Office of War Information (OWI) to promote World War II, the agency viewed the CPI as an example of mistakes to be avoided.
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The OWI turned down Creel’s request to join the new propaganda war. See also World War I;World War II.
Caryn E. Neumann
furthe r reading Creel, George. How We Advertised America:The First Telling of the American Story of the Committee on Public Information That Carried the Gospel of Americanism to Every Corner of the Globe. New York: Harper, 1920. Vaughn, Stephen. Holding Fast the Inner Lines: Democracy, Nationalism, and the Committee on Public Information. Chapel Hill: University of North Carolina Press, 1980.
Commonwealth v. Blanding (Mass. 1825) In Commonwealth v. Blanding, 20 Mass. 304 (1825), the Massachusetts Supreme Judicial Court upheld a libel conviction against an individual who had published a newspaper article alleging that an innkeeper had provided alcohol that resulted in a patron’s death.The case epitomized contemporary concepts about common law understandings of libel. English law, which some state judiciaries applied, often operated under the principle that “the greater the truth the greater the libel,” although some U.S. states allowed juries to judge the truthfulness of statements or whether they were maliciously made. Chief Justice Isaac Parker ruled that publication of the charge indicated malicious intent. He observed that with respect to libel “as a public offense,” it was irrelevant whether the libel proved to be true or false because the harm stemmed from allowing those without authority to so arraign others before the court of public opinion. Such “private intermeddlers” were likely to lead to “duels and assassinations” and represented “the licentiousness of the press” rather than “the liberty of the press.” Parker further ruled that consistent with English common law precedents, freedom of the press was designed to prevent prior restraint, rather than subsequent punishments, except for limited exceptions, such as “proceedings in legislative assemblies,” in “courts of justice,” and the like. Parker refused to apply the principle, which some other state courts applied, that truth could be a defense in libel cases that did not involve “public elective officials or acknowledged candidates for office.” He also refused to follow the laws of some states that allowed juries to decide on the legitimacy of such claims; to do so would be to bring “a man’s whole domestic relations” before the public. Although
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private citizens might in extreme cases bring accusations in the newspapers, there was no cause to do so in the case at hand. Blanding’s publication of the charge was libelous per se without any need for jury intervention. The decision in New York Times Co. v. Sullivan (1964) nationalized and constitutionalized libel law, making a distinction similar to, but not identical to, that made in Commonwealth v. Blanding between public and private individuals. See also Libel and Slander; New York Times Co. v. Sullivan (1964); Prior Restraint; Seditious Libel.
John R Vile
furthe r reading Kelly, Alfred H. “Constitutional Liberty and the Law of Libel: A Historian’s View.” American Historical Review 74 (1968): 429–452.
Commonwealth v. Clapp (Mass. 1808) The decision in Commonwealth v. Clapp, 4 Mass. 163 (1808), upheld a lower court’s denial of an accused’s request to show the truth of an alleged libel.The decision helps illumine state law prior to the application of the First Amendment to the states through the Fourteenth Amendment. Clapp had been convicted of criminal libel for posting a flyer accusing an auctioneer of being “a liar, a scoundrel, a cheat, and a swindler.” Clapp insisted on his right to address the truth of the allegations at trial. In upholding the lower court’s denial of this privilege and affirming Clapp’s conviction, Judge Theophilus Parsons examined what publications should be considered libelous and why such libel was a criminal offense. Parsons decided that a libel was “a malicious publication . . . tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule.” Parsons believed such libel to be a criminal offense because it tended to breach the peace by provoking acts of revenge. The “essence of the offence consists in the malice of the publication, or the intent to defame the reputation of another.” Under such circumstances, and contrary to the decision in the John Peter Zenger case in New York, “the defendant cannot justify himself for publishing a libel, merely by proving the truth of the publication.” Although Parsons refused to allow defendants to allege the truth in cases of criminal libel, he agreed that “the defen-
dant may repel the charge, by proving that the publication was for a justifiable purpose, and not malicious, nor with the intent to defame any man.”An individual could thus request the legislature to remove an unworthy officeholder, and publications about candidates for public office “with the honest intention of informing the people, are not a libel.” Just as criticism of public officials held importance, “the publication of falsehood and calumny against public officers, or candidates for public offices, is an offence most dangerous to the people, and deserves punishment, because the people may be deceived, and reject the best citizens, to their great injury, and it may be to the loss of their liberties.” Still “the publication of a libel maliciously and with the intent to defame, whether it be true or not, is clearly an offence against law, on sound principles, which must be adhered to, so long as the restraint of all tendencies to the breach of the public peace, and to private animosity and revenge, is salutary to the commonwealth.” The Supreme Court cited the Clapp decision in White v. Nicholls (1845). Libel is no longer considered a criminal offence, and private libels of public officials are now governed largely by the standard established in New York Times Co. v. Sullivan (1964) whereby such official must establish “actual malice,” that is, that allegedly libelous statements about them were made knowing that they were untruthful or with reckless disregard for the truth. See also Libel and Slander; New York Times Co. v. Sullivan (1964); White v. Nicholls (1845); Zenger, John Peter.
John R.Vile
furthe r reading Schnapper, Eric.“ ‘Libelous’ Petitions for Redress of Grievances—Bad Historiography Makes Worse Law.” Iowa Law Review 74 (1989): 303–349.
Commonwealth v. Cooke (Mass. 1859) In Commonwealth v. Cooke, 7 Am. L. Reg. 417 (Police Court of Boston, Mass., 1859), a Massachusetts court ruled against the state’s prosecution of a teacher for corporal punishment of a student who had refused to read from the Bible at his public school. McLaurin F. Cooke, a teacher at the Eliot School in Boston, had used a long, thick rattan stick to hit eleven-yearold Thomas J.Wall on his palms for thirty minutes, until Wall agreed to repeat the Lord’s Prayer and the Ten Command-
Commonwealth v. Kneeland (Mass. 1838) ments from a King James Bible. Wall had been encouraged to resist this practice by his Roman Catholic priest, who thought the children should be taught the Catholic Douay Version instead. The court had to decide whether Cooke had the right to punish Wall and whether the punishment was excessive. Judge Maine relied on the state constitution, which while prohibiting the distribution of public monies “to any religious sect, for the maintenance, exclusively, of its own schools,” also provided that public schools should instruct children in “the principles of piety, justice, and a sacred regard to truth, love to their country, humanity” and other virtues. Boston had supplemented state statutes to provide for daily Bible reading with instructions that the Lord’s Prayer and Ten Commandments be used. Wall believed that these provisions conflicted with his constitutional rights, which in Massachusetts provided that “no subject shall be hurt, molested, or restrained in his person, liberty, or estate, for worshipping God in the manner and seasons most agreeably to the dictates of his own conscience, or for his religious professions or sentiments, provided he doth not disturb the public peace, or obstruct others in their religious worship.” The Fourteenth Amendment did not yet exist to apply the provisions of the Bill of Rights to the states. Maine wrote,“Our schools are the granite foundation on which our republican form of government rests” and observed that if Roman Catholic children were permitted to plead consciences, others would be able to do so as well. Maine argued that the “Bible has long been in our common schools. It was placed there by our fathers, not for the purpose of teaching sectarian religion, but a knowledge of God and of his will.” He feared that a plea of conscience against use of the Bible would be equally valid against any other such book. Maine further reasoned that the school teacher had acted under “the implied authority and consent of the parent.” Admitting that “the apparent magnitude of the offence depends somewhat upon the stand-point from which it is viewed,” using the analogy of a suspension bridge across the Niagara, Judge Maine argued that one thread of accommodation could lead to another “until cables, which human minds cannot sever, shall have found Church and State together forever.” Cooke had beaten Wall over an extended period, but Wall himself could have ended his punishment by complying. He had been properly “punished for insubordination, and a determination to stand out against the lawful commands of the school. Every blow given was for a con-
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tinued resistance and a new offence. The offence and the punishment went hand in hand together. The punishment ceased when the offence ceased.” Maine accordingly discharged the defendant. Clearly a relic of the nineteenth century, this decision, notes Thomas F. Curry (2001),“represented the sentiment of the dominant culture, which could not conceive of its accepted customs and beliefs as sectarian in any way” (p. 56). See also Catholics, Roman; Prayer at Public School Events; Students, Rights of.
John R.Vile
furthe r reading Curry,Thomas J. Farewell to Christendom:The Future of Church and State in America. New York: Oxford University Press, 2001. Howe, Mark DeWolfe. Cases on Church and State in the United States. Cambridge, Mass.: Harvard University Press, 1952.
Commonwealth v. Kneeland (Mass. 1838) In Commonwealth v. Kneeland, 37 Mass. 206 (1838), the Massachusetts Supreme Judicial Court upheld convictions for blasphemy resulting from the publication of several articles. It was the last case in the United States in which a court sustained a conviction for blasphemy. Abner Kneeland was a popular lecturer and editor of the Jacksonian Investigator. He had been charged and convicted of three counts of blasphemy, the first two involving articles written by others about the Immaculate Conception and prayer and a third in which he had indicated that he did not believe in God, Christ, miracles, the resurrection, or immortality. Kneeland had argued that his words were not blasphemous or libelous and that even if they were, the laws on the subject were unconstitutional. One statute prohibited persons from willfully blaspheming “the holy name of God, by denying, cursing, or contumeliously reproaching God, his creation, government, or final judging of the world.” In the majority opinion for the court, Chief Justice Lemuel Shaw, a distinguished jurist, asserted that the lower court judgment proved that Kneeland had violated the law. As for the statute’s constitutionality, Shaw observed that neighboring jurisdictions in Maine, New Hampshire, New York, and Vermont had similar laws and that the New York law had been affirmed in People v. Ruggles (1811). Kneeland had also argued that the blasphemy law violated both the articles of the state constitution guaranteeing
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Commonwealth v. Lesher (Pa. 1828)
“the liberty of the press” and the right to “worship.” Shaw characterized Kneeland’s arguments on press freedom as overly broad and interpreted the right as chiefly prohibiting licensing laws and other “prior restraint,” rather than subsequent prosecution.Although acknowledging that guarantees of religious liberty were designed to promote “the fullest inquiry, and the freest discussion, for all honest and fair purposes,” Shaw did not think the guarantee was designed to prohibit the enforcement of long-standing laws which had been “thought essential to preserve the sanction of oaths,” and which were designed to punish “acts which have a tendency to disturb the public peace.” Judge Marcus Morton dissented. Acknowledging that freedom of the press referred chiefly to the prohibition against prior restraint, he was unwilling “to limit the operation of the article to this object alone.” Morton agreed that freedom of the press did not prevent laws against libel, but did not think these to be at issue in this case. Morton gave “a liberal construction” to religious liberty that would include atheists as well as believers. Atheists, like believers, could be punished if they uttered words with “a criminal intent” or with “malice” as in cases where their object was “to calumniate, or wantonly or maliciously . . . cause pain or injury to others, by wounding their feelings or corrupting their principles.” If the Court was correct in believing that the statute prohibited mere denials of God’s existence, then it was unconstitutional. Morton opined, “What one man may assert, another may deny. No one may advocate an opinion which another may not controvert.”The Court sentenced Kneeland to sixty days in jail. Many leading intellectuals of the day signed petitions opposing the sentence, although conservative members of the clergy supported it. In Burstyn v. Wilson (1952), the Supreme Court ruled that a film could not be banned on the basis of being sacrilegious. See also Blasphemy; Burstyn v. Wilson (1952); People v. Ruggles (N.Y. 1811); Prior Restraint.
John R.Vile
furthe r reading Commanger, Henry Steele.“The Blasphemy of Abner Kneeland.” New England Quarterly 8 (1935): 29–41. Levy, Leonard W. “Satan’s Last Apostle in Massachusetts.” American Quarterly 5 (1953): 16–30.
Commonwealth v. Lesher (Pa. 1828) In Commonwealth v. Lesher, 17 Serg. and Rawle 155 (1828), the Pennsylvania Supreme Court upheld a conviction being challenged because of the dismissal of a juror who said that he could not vote for the death penalty because of his religion.This case offers an early interpretation of a state provision providing that “no human authority can, in any case, control or interfere with the right of conscience.” After being called as a juror, Isaac W. Morris was successfully challenged for cause in a capital case in which he declared that he could not convict Lesher on first degree murder because he held religious beliefs opposing capital punishment. Lesher, after being convicted of manslaughter, appealed on the basis that the judge had acted improperly in allowing Morris’s exclusion from the jury. Justice John Tod, who wrote the court’s majority opinion, asserted that the judge had acted properly to prevent possible jury bias. He questioned how the court could have compelled a juror “to oblige him to take the affirmation, which in his own heart he was determined to disregard.” By contrast, Justice John Bannister Gibson rested his dissent on a narrow view of the right of conscience. He believed this right amounted simply to “a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or hold any opinion whatever on the subject of religion; and to do, or forbear to do, any act for conscience sake, the doing or for bearing of which, is not prejudicial to the public weal.” Citing the maxim that the will of the people is the supreme law, Gibson wrote that “where liberty of conscience would impinge on the paramount right of the public, it ought to be restrained.” Gibson argued that the right to conscience would not exempt a witness with the same scruples from testifying or a sheriff with the same scruples from carrying out punishments. As in his opinion in Phillips et al. (Simon’s Executors) v. Gratz (1831), Gibson appears to have based much of his decision on the lack of precedents for the court’s action, and as an opponent of judicial review, he had what he called in Lesher “a horror of judicial legislation.” See also Phillips et al. (Simon’s Executors) v. Gratz (Pa. 1831).
John R.Vile
furthe r reading McConnell, Michael W. “The Origins and Historical Understanding of Free Exercise of Religion.” Harvard Law Review 103 (1990): 1409–1517.
Communications Act of 1934
Commonwealth v. Sharpless (Pa. 1815) According to the Attorney General’s Commission on Pornography (1986), Commonwealth v. Sharpless, 2 Serg. and Rawle 91 (1815), led to the first obscenity prosecution in the United States. A Philadelphia jury had indicted Jesse Sharpless and others for corrupting youth by showing them a picture of a man and a woman in what was described as “an obscene, imprudent, and indecent posture.” Sharpless had argued that obscenity was not indictable, first, because the crime was not a common law offense—his lawyer argued that in England such prosecutions would have taken place in ecclesiastical courts that had no counterparts in the United States—and had not been done in public, and, second, because the charge had not been sufficiently precise in describing the offensive material in question.The Pennsylvania Supreme Court sustained the conviction. Chief Justice William Tilghman’s opinion cites English precedents relative to “corruption of morals” and notes that the “mischief ” was equally bad whether done privately or publicly. He further believed the indictment’s description of the material to be adequate.The description paid “respect to the chastity of our records.” In a concurring opinion, Justice Yeates (possibly Jaspar Yates) agreed, stating,“The corruption of the public mind in general, and debauching the manners of youth in particular by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences, and in such instances Courts of Justice are, or ought to be, the schools of morals.” He too thought the offense punishable under the common law and agreed that further description of the picture in question would lead to further “wounding our eyes or ears.” The U.S. Supreme Court would cite Sharpless in upholding a conviction for sending obscenity through the mail in Rosen v. United States (1896). Similar to Sharpless, in Commonwealth v. Holmes (1821) the Massachusetts Supreme Court upheld the conviction of an individual who had shown a print from Fanny Hill to others. (Fanny Hill would later become the subject of the 1966 Supreme Court decision in Memoirs v. Massachusetts.) Chief Justice Isaac Parker observed, as had the court in Sharpless, that requiring courts to print the offensive representation at issue would “require that the public itself should give permanency and notoriety to indecency, in order to punish it.” By contrast, a Massachusetts court in Commonwealth v. Tarbox
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(1848) dismissed the conviction of a physician who had been indicted for printing a description of birth control devices. Accepting that “whenever a publication of this character is so obscene, as to render it improper that it should appear on the record; and, then, the statement of the contents may be omitted altogether, and a description thereof substitute,” the court found conviction inadequate without an “exact transcript” of the material. See also Fanny Hill; Memoirs v. Massachusetts (1966); Obscenity and Pornography; Rosen v. United States (1896).
John R.Vile
furthe r reading Coglianese, Richard N.“Sex, Bytes, and Community Entrapment: The Need for a New Obscenity Standard for the Twenty-first Century.” Capital University Law Review 24 (1995): 385–422.
Communications Act of 1934 The Communications Act of 1934 set out the basic legal framework for governing communications in the United States, joining the regulation of common carriers and radio broadcasting, which previously had been treated separately. It established the Federal Communications Commission (FCC) as an independent government agency to regulate nonfederal government use of the radio spectrum (including television) and interstate telecommunications (via wire and later satellite and cable). Rather than establishing new regulations, the 1934 communications act largely incorporated existing legislation. In addressing the issue of common carriers, it drew upon regulations first applied to transportation services, such as railroads in 1889, and in particular the Mann Elkins Act of 1910, which had extended the authority of the Interstate Commerce Commission over communications. Common carriers, classified as public utilities, are available to everyone at a reasonable price and are not originators of messages or content. The communications act thus treated telephone services as a utility providing a network of access to people independent of content. The statute recognized in large measure a de facto, regulated monopoly that American Telephone and Telegraph (AT&T) had established as early as 1913, when it gained government approval to offer the majority of national telephone services. Congress viewed this particular monopoly as providing the necessary efficiency for the establishment of national and universal phone service. Concerning radio, the
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1934 law largely incorporated the regulations from the Radio Act of 1927, which primarily involved the regulation of frequencies. The new law granted licensees sole control over their frequencies, thus providing for the orderly development of the radio spectrum. Radio communication itself was viewed as a content provider and thus exempted as a common carrier. Private corporations had responsibility for the communications’ content.The 1934 law made no provision for a public broadcasting service, and lawmakers rejected a proposal allocating 25 percent of the broadcast spectrum for the use of nonprofit and educational stations. In lieu of separate educational stations, the law required broadcasters to develop public interest programming and to provide a platform for discussion of controversial issues. Although radio broadcasting is a commercial enterprise, certain of its aspects lend it a public character. Congress therefore recognized the airways as public property, not to be owned, noting their “public interest necessity and convenience.” The fairness doctrine evolved from the act as a public service by requiring broadcasters to air programming on controversial topics and to provide equal time to candidates for political office.Although the act did not permit the FCC to regulate broadcast content itself, it did allow the commission to ban obscene or indecent programming. In 1941 the FCC asserted the power, affirmed by the Supreme Court in National Broadcasting Co. v. United States (1943), to regulate relations between networks and affiliates. Based on the need to maintain competition, and in the process promote a broader diversity of viewpoints, the FCC forced NBC to sell its noncommercial Blue Network and also limited broadcast hours. The 1934 act designated broadcasters as speakers—thus granting them First Amendment rights—but the broadcast media were also treated as possessing a somewhat lesser claim to First Amendment protections than the print media. The Supreme Court’s decision in Red Lion Broadcasting Co. v. Federal Communications Commission (1969) upheld the principle that the scarcity of frequencies put broadcasters under public obligations to present multiple viewpoints, which therefore served as limits on their First Amendment rights. Some critics of electronic media, including Newton Minow, who served as FCC chairman from 1961 to 1963, have argued that the broadcast media have failed to carry out their public service obligations especially in education. In 1952 the FCC allocated 12 percent of frequencies to noncommercial educational television, but the frequencies were
underused. The Educational Broadcasting Act of 1962 increased funding for educational television, but a major impetus was provided by the Carnegie Commission on Educational Television. Consistent with the report, President Lyndon B. Johnson supported legislation establishing the Corporation for Public Broadcasting, which was created in 1967.The rise of public broadcasting as a competitor to the networks has led to periodic allegations of a liberal bias, which served to limit its funding and development. Tension continues between broadcasting as a for-profit enterprise driven by economic concerns and its public interest obligations of a noncommercial value. During the New Deal, this tension was addressed through the creation of large corporate entities regulated and balanced by public obligations. By the mid-1970s, this tension had given rise to an anti-regulatory movement, which during the Reagan era emerged as an unusual coalition of technological radicals and free market neo-liberals. Free marketers argued for viewing broadcasters not as community trustees, but solely as marketplace participants.The broadcasters’ First Amendment rights, through the lens of the market model, should be primary. The neo-liberals and the technological radicals mistrusted bureaucratic control because it threatened to block the emergence of new technologies. From the radicals’ perspective, deregulation would lead to the democratization of technology and communications. The Reagan administration moved to deregulate the telephone and broadcast industries. Rapid technological innovations continue in both. See also Fairness Doctrine; Federal Communications Commission; National Broadcasting Co. v. United States (1943); Public Radio; Public Television; Radio Act of 1927; Red Lion Broadcasting Co. v. Federal Communications Commission (1969).
Brian Caterina
furthe r reading Aufderheide, Patricia. Communications Policy and the Public Interest. New York: Guilford, 1999 Paglin, Max D., ed. A Legislative History of the Communications Act of 1934. New York: Oxford University Press, 1989 Paglin, Max D., Joel Rosenbloom, and James R. Hobson, eds. The Communications Act: A Legislative History of the Major Amendments, 1934–1996. Silver Spring, Md.: Pike and Fischer, 1999.
Communications Decency Act of 1996 Congress enacted the Communications Decency Act (CDA) as Title V of the Telecommunications Act of 1996 in an
Communist Control Act of 1954 attempt to prevent minors from gaining access to sexually explicit materials on the Internet. Title V was not included in the initial drafts of the telecommunications act—whose purpose was to encourage new technologies and reduce regulation of the relevant industries in order to promote competition among service providers—but was instead offered as an amendment in the Senate after congressional hearings. The CDA prohibited any individual from knowingly transmitting “obscene or indecent” messages to a recipient under the age of eighteen. It also outlawed the “knowing” display of “patently offensive” materials in a manner “available” to those under eighteen; this provision potentially included any individual providing content without a mechanism for verifying the age of the viewer, potentially requiring commercial and noncommercial content providers to institute costly screening procedures in order to avoid criminal prosecution. The penalties for violating both provisions included fines, imprisonment, or both. Congress took measures to inoculate the CDA against constitutional challenge under the First Amendment by identifying material subject to prohibition under the act. It mimicked intentionally the language in Miller v. California (1973) defining obscene speech, which does not enjoy First Amendment protection. The Miller test makes specific reference to materials “patently offensive” according to “contemporary community standards.”The CDA borrowed this language in prohibiting the use of computer services to display to minors “any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” The CDA also included a severability clause, directing any court holding portions of the statute unconstitutional to preserve the constitutionality of other portions of the statute. Immediately after President Bill Clinton signed the statute into law, the American Civil Liberties Union and numerous other organizations challenged its constitutionality. The American Library Association filed a separate suit attacking the CDA. Both lawsuits targeted the provisions criminalizing “indecent” and “patently offensive” online communications, but not the provision criminalizing obscene online expression. A district court judge issued a temporary injunction against enforcement on the grounds that the term indecent was too vague to form the basis for criminal prosecution and might, as a result, well violate the Fifth Amendment. A three-judge district court panel held
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that the CDA violated the First and Fifth Amendments, but permitted enforcement of the provisions specifically related to investigation and prosecution of obscenity and child pornography. The government appealed. In Reno v.American Civil Liberties Union (1997), the Court ruled the CDA to be unconstitutionally overbroad because it suppressed a significant amount of protected adult speech in the effort to protect minors from potentially harmful speech. The opinion for the Court written by Justice John Paul Stevens acknowledged the legitimacy of the government’s interest in protecting children from harm while also noting that the level of suppression was unacceptable. The use of indecent and patently offensive, far from narrowing the scope of the act, broadened its provisions to include any materials concerning sexual or excretory functions, regardless of whether such materials conformed to the other prongs of the Miller test, that is, appealing to a prurient interest and lacking other value. The Court worried that health care materials, explicit discussions of techniques to prevent the transmission of AIDS, and other useful protected speech could be affected. The decision affirmed the district court’s ruling, with all portions of the CDA, save those referring only to obscene speech, being declared unconstitutional.The obscenity provisions were deemed valid, as they simply prohibited speech that was not subject to First Amendment protection and were not challenged by the plaintiffs.After the Court’s decision, Congress drafted another online pornography law called the Child Online Protection Act (COPA) of 1998, which has also fared poorly before the Supreme Court. See also Miller v. California (1973); Obscenity and Pornography; Stevens, John Paul.
Sara L. Zeigler
furthe r reading Merlis, Steven E. “Preserving Internet Expression while Protecting Our Children: Solutions following Ashcroft v. ACLU.” Northwestern Journal of Technology and Intellectual Property 4 (2005): 117–132. Ward, Haven G. “Indecency, Pornography, and the Protection of Children.” Georgetown Journal of Gender and Law 6 (2005): 315–334.
Communist Control Act of 1954 Congress passed the Communist Control Act of 1954 (CCA) as an amendment to the Subversive Activities Control Act of 1950 (SACA) “to outlaw the Communist
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Party, to prohibit members of Communist organizations from serving in certain representative capacities, and for other purposes.” Whereas the SACA mandated that communist organizations register with the attorney general of the United States, the CCA banned outright the Communist Party of the United States to prevent communists from holding office in labor organizations. The CCA was the brainchild of Rep. Hubert Humphrey, D-Minn., who reportedly had tired of being labeled “soft toward communism” (Ybarra 2004: 743). Following an investigation by the Subversive Activities Control Board (SACB) into the methods and goals of communist leadership in American labor organizations, Congress through the CCA designated a class of “Communist-infiltrated organizations.” Labor organizations determined to be communist infiltrated by the SACB could reorganize and retain contractual rights gained through bargaining if 20 percent of the rank-and-file membership petitioned the National Labor Relations Board. In this regard, the CCA served as a means to protect rankand-file union members from “Communist dictators who [were] using the unions and union funds to serve the ends of the Communist powers” (Tompkins 1955: 1397). Although historically viewed as the moment liberal Democrats acquiesced to red scare politics, the CCA circumvented a proposed amendment to the Internal Security Act of 1950 that sought to declare unions “communist dominated” and strip them of all legal rights. Instead of declaring labor unions illegal, which would have deprived American laborers of their contractual protections, the CCA declared the Communist Party illegal. The means by which the CCA sought to provide protection to American laborers impinged upon a number of constitutional rights. In outlawing the Communist Party, the CCA denied the party the right to have bank accounts, enter into leases, obtain judicial enforcement of contracts, sue or be sued in courts, appeal adverse court rulings, conduct business activity, or appear on any ballot (Haerle 1955). Congress repealed most provisions of the act, which has rarely been enforced. See also Communist Party of the United States; McCarran Act of 1950; Subversive Activities Control Act of 1950.
Kane Madison Click
furthe r reading Haerle, P. R.“Constitutional Law: Federal Anti-Subversive Legislation. The Communist Control Act of 1954.” Michigan Law Review 53 (1955): 1153–1165.
Tompkins,W. F.“The Communist Control Act: The Communists and Organized Labor.” Vital Speeches of the Day 21 (1955): 1396–1398. Ybarra, M. J. Washington Gone Crazy: Senator Pat McCarren and the Great American Communist Hunt. Hanover, N.H.: Steerforth Press, 2004.
Communist Party of Indiana v. Whitcomb (1974) In Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974), a unaminous Supreme Court invalidated a state loyalty oath requirement on First Amendment grounds because it prohibited protected political advocacy. Indiana had passed an election law prohibiting a political party from placing its candidates on the ballot unless the party’s officers took an oath not to “advocate the overthrow of local, state or national government by force or violence.” State officials then denied the Communist Party of Indiana access to the ballot in 1972 because of the oath requirement. In ruling aginst Indiana, the Supreme Court cited a long list of loyalty oath cases striking down similar laws in other contexts, including Keyishian v. Board of Regents (1967), Elfbrandt v. Russell (1966), and Cramp v. Board of Public Instruction of Orange County (1961).The Court noted that the Indiana law prohibited mere abstract advocacy that did not meet the speech-protective standard set forth in Brandenburg v. Ohio (1969). The state had argued that these loyalty oath precedents should not apply in the ballot access context, an area in which states traditionally had had great control.Writing for the Court, Justice William J. Brennan Jr. agreed that state officials had such control, but also noted that “at stake are appellants’ First and Fourteenth Amendment rights to associate with others for the common advancement of political beliefs and ideas.” He reasoned that burdening access to the ballot infringed on interests “as substantial as those in public employment, tax exemption, or the practice of law.” Justice Lewis F. Powell Jr. wrote for three justices in a plurality opinion that concurred only in the result. Powell reasoned that the case should have been decided on equal protection grounds because Indiana had certified the Democratic and Republican Parties even though their officials had never submitted to the oath requirement. See also Brandenburg v. Ohio (1969); Brennan, William J., Jr.; Cramp v. Board of Public Instruction of Orange County (1961); Elfbrandt v. Russell (1966); Keyishian v. Board of Regents (1967); Loyalty Oaths.
David L. Hudson Jr.
Communist Party of the United States
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furthe r reading Wolenberg, Greg.“Candidate Endorsement Forms as a Prerequisite to Political Event Entry: Disloyal to the People’s Right to Freedom of Speech.” University of Toledo Law Review 37 (2006): 841–876.
Communist Party of the United States The Supreme Court developed several First Amendment doctrines in cases growing out of conflict between various members of the Communist Party and federal and state officials. In 1919 the left wing of the Socialist Party in the United States split into the Communist Labor Party and the Communist Party of the United States. These two groups later merged into the Communist Party of the United States (CPUS) in 1921. Congress adopted several statutes aimed at or applicable to communists, including the Alien Registration Act, or Smith Act, of 1940; the Internal Security Act, or McCarran Act, of 1950; the Subversive Activities Control Act of 1950; and the Communist Control Act of 1954. States also adopted criminal anarchy or criminal syndicalism laws aimed at communists, particularly during and after World War I—when communists gained control of Russia in 1917, and after which they often maintained ties to the American Communist Party—and in the 1940s and 1950s during the red scare. Such statutes included loyalty oaths and registration requirements, which led to several First Amendment challenges before the Supreme Court. The Espionage Acts of 1917 and 1918 and corresponding state laws resulted in a number of free speech cases stemming from communist and socialist opposition to World War I. These include Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. formulated the clear and present danger test; Abrams v. United States (1919), involving the prosecution of Russian anarchists and Holmes in dissent applying a reinvigorated version of the “clear and present danger” test; and Gitlow v. New York (1925), in which the Court first applied the free speech guarantee of the First Amendment to the states via the Fourteenth Amendment. In addition, in Whitney v. California (1927), the Court upheld a conviction under a California criminal syndicalism statute, primarily for attendance at the 1919 Communist Labor Party Convention. Joseph McCarthy of Wisconsin and other U.S. senators led vigorous congressional investigations into communist activities during the cold war that often subjected communists, or alleged communists, to public ridicule and inclusion
Chairman of the Communist Party of the United States William Z. Foster was the party’s first presidential candidate in 1924. In the 1932 election, he won more than 100,000 votes.
on blacklists. Federal statutes relating to so-called subversive activities resulted in challenges that reached the Supreme Court. In Dennis v. United States (1951), the Court upheld the section of the Smith Act of 1940 that made it unlawful to advocate or teach the overthrow of government by force or violence or to organize or help to organize a group of persons teaching or advocating such overthrow. The Court stated, “Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech.” In Yates v. United States (1957), the Court interpreted the language of the Smith Act as making it criminal to incite to action for the forcible overthrow of government, but not to teach the abstract doctrine of such forcible overthrow. In doing so, it stated that the “essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather
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Communist Party of the United States
than merely to believe in something.” Scales v. United States (1961), involved a challenge to the membership clause of the Smith Act, which made it a felony to acquire or hold knowing membership in any organization advocating the overthrow of the government by force or violence. The Court upheld the membership clause but interpreted it as requiring that active membership and specific intent were required and also noted that a “blanket prohibition of association with a group having both legal and illegal aims” would pose “a real danger that legitimate political expression or association would be impaired.” Congress passed the Subversive Activities Control Act of 1950 over the veto of President Harry S. Truman. In Communist Party of the United States v. Subversive Activities Control Board (1961), the Supreme Court upheld an order that required the Communist Party of the United States to register as a “Communist-action organization” under the act. In United States v. Robel (1967), the Court held as unconstitutional the provision of the law prohibiting employment in any defense facility by a member of a communist organization under a final order to register.The justices found that it abridged the First Amendment’s right of association, noting that the law “sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership.” It is important to note, however, that the justices also stated that we “have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict,” thus leaving open the possibility for a more narrow restriction of First Amendment rights. Communists have also challenged state statutes limiting First Amendment rights. In De Jonge v. Oregon (1937), the Court struck down a statute because it punished participation in a meeting for lawful discussion of public issues solely because the meeting was “held under the auspices of the Communist Party, an organization advocating criminal syndicalism.”The Court observed that the “greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion” In Elfbrandt v. Russell (1966), the Court struck down a state statute requiring state employees to take an oath not to join the Communist Party with knowledge of its purpose on threat of discharge and perjury. According to
the Court, “Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees.”The justices concluded, “A law which applies to membership without the ‘specific intent’ to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by association’ which has no place here.” In Keyishian v. Board of Regents (1967), the Court noted that academic freedom is a special concern of the First Amendment and ruled unconstitutional a state plan requiring faculty members to sign a certificate denying being a communist, or if a communist, having informed the head of the state university of the membership or be subject to dismissal. With this ruling, the Court questioned its previous ruling in Adler v. Board of Education (1952), which had upheld a law making membership in an organization advocating forceful overthrow of government grounds for disqualification from state civil service. Commenting on Adler, the Court observed that “constitutional doctrine which has emerged since that decision has rejected its major premise” which “was that public employment, including academic employment, may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action.” Many portions of the statutes discussed here have been repealed in whole or in part. The development of First Amendment rights in the United States owes much to the ideological battle against Communism. See also Abrams v. United States (1919); Blacklists; Communist Control Act of 1954; Communist Party of the United States v. Subversive Activities Control Board (1961); Criminal Syndicalism Laws; De Jonge v. Oregon (1937); Dennis v. United States (1951); Elfbrandt v. Russell (1966); Espionage Act of 1917; Gitlow v. New York (1925); Keyishian v. Board of Regents (1967); McCarran Act of 1950; McCarthyism; Red Scare; Scales v. United States (1961); Schenck v. New York (1919); Sedition Act of 1918; Smith Act of 1940; Subversive Activities Control Act of 1950; Whitney v. California (1927);World War I.
Marcie K. Cowley
furthe r reading Urofsky, Melvin I., and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. Vol. 2: From 1877 to the Present. New York: Oxford University Press, 2002. Wiecek, William M. “The Legal Foundations of Domestic Anticommunism: The Background of Dennis v. United States.” Supreme Court Review, 2001 (2002).
Community Standards
Communist Party of the United States v. Subversive Activities Control Board (1961) In Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1 (1961), a divided Supreme Court upheld the legality of a law forcing the Communist Party to register with the federal government. In 1950 Congress passed the Internal Security Act, also known as the McCarran Act, which defined a “Communistaction organization” as an instrument for overthrowing governments and required the Communist Party of the United States to register with the attorney general. Registration required that the party provide a list of all its current members.The act also denied the freedom of CPUS members to travel outside the Americas or to Cuba.The party’s refusal to register launched eleven years of legal proceedings. The right to freedom of association is defended as necessary for individuals to join together and profess ideas.When the right conflicts with national security or some larger public concern, it may be revoked. Justice Oliver Wendell Holmes Jr., in Schenck v. United States (1919), promulgated the clear and present danger test for making such a determination. Under this test, speech is not protected if it threatens substantial harm, there exists a probability that such harm will occur, and the harm is impending. In the majority opinion for the Court, Justice Felix Frankfurter stated that the Communist Party was in fact an action-group and declared as constitutional the requirement that it register on the basis of national security. Justice Hugo Black was the only one of four dissenters to base his opinion on the argument that the registration provision violated the First Amendment. The other dissenters argued that the registration requirement violated the Fifth Amendment right against self-incrimination.The case had a narrow application as evinced in Aptheker v. Secretary of State (1964), in which the Court voided the denial of a passport to a Communist Party member. See also Black, Hugo L.; Clear and Present Danger Test; Frankfurter, Felix; Membership Lists; NAACP v. Alabama (1958); Smith Act of 1940; Uphaus v.Wyman (1959) (1960).
Maurice Leach
furthe r reading Rothenberg, Lawrence J. “The Registration of Communist Front Organizations: The Statutory Framework and the Constitutional
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Issue.” University of Pennsylvania Law Review 113, no. 8 (June 1965): 1270–1294. “Status of Anti-Communist Legislation.” Duke Law Journal, no. 2 (1965): 369–385.
Community Standards After decades of debate, the Supreme Court in Miller v. California (1973) established a definition of obscenity for criminal prosecution and other purposes. In a 5-4 opinion by Chief Justice Warren E. Burger, the Court ruled that a trier of fact—usually a jury—must determine whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and lacks serious literary, artistic, political or scientific value.The appeal to community standards in determining the first two prongs of the obscenity test, and the assessment of “the average person” considering the work “taken as a whole,” cemented the Court’s rejection of the Hicklin test, set out in the English case of Regina v. Hicklin (1868), which regulated expression by assessing the impact it might have on children or extremely sensitive adults. Miller came at a time when internal migration, increased travel, and emerging technologies in telecommunications and media distribution had led to the establishment of a truly national media market. Media conglomerates, always based in major metropolitan areas, had the capacity to reach nearly every community in the United States with television, books, magazines, and films. Chief Justice Burger saw his opinion as a compromise that allowed a significant degree of latitude for the publication of erotic expression but also acknowledged regional differences in public tastes and sensitivities. He sided with those who thought communities ought to be able to resist the encroachment of materials inconsistent with local values. He said that the First Amendment did not require “the people of Maine or Mississippi [to] accept public depiction of conduct found tolerable in Las Vegas, or New York City.” Justice William J. Brennan Jr. and the other Miller dissenters thought the national media market required national standards, particularly because it was difficult to see how obscenity could be defined precisely enough to avoid unconstitutional vagueness under the due process clause. Such vagueness also had First Amendment implications, because any attempt to define and criminalize obscene expression necessarily would affect nonobscene and protected expression.
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Compelled Speech
The focus on community standards, under which local standards determine the lawfulness of distributed works no matter where they are produced, was the essential feature of the Miller test and a ready target of critics. The fact that a work might be found obscene in one community but acceptable in another is not a “bug” in the Miller test, but its basic feature. Critics cite three related concerns resulting from the community standards approach. First, while the Court explained that the concept of community standards does not refer to any national standards, it essentially left trial courts and juries free to decide based on whatever definition their community thought appropriate. Courts have permitted consideration of a community as ranging from statewide—including nation-state-sized states, such as California, Texas, and Illinois—to a division of the federal district court or a three-county metropolitan region. Second, to the extent that producers of adult material can determine local sensitivities, they must either avoid the community with the most restrictive standards or self-censor their national distribution to the tastes of those communities. Indeed, the U.S. Department of Justice routinely seeks out conservative jurisdictions to bring prosecutions against adult entertainment businesses, as in United States v. Extreme Associates (3rd Cir. 2006), where federal agents made online purchases of adult films in Pittsburgh so the department could file a criminal prosecution in the Western District of Pennsylvania against a Los Angeles–based producer and distributor of adult films. Third, the fact-based finding of local community standards makes it difficult, if not impossible, to know in advance whether a work will be found to be obscene in any particular locality. First Amendment advocates Lawrence Walters and Clyde DeWitt (2005) complain that “there have been instances where the same motion picture has been found obscene by one jury and not obscene by another—in the same city, same courthouse and before the same judge, with the two trials occurring within weeks of each other.” All these concerns are magnified by the Internet, where everything is simultaneously available everywhere. Indeed, the Third Circuit Court of Appeals upheld an injunction against enforcement of the Child Online Protection Act of 1998 (COPA) on the ground that a community standards test “would essentially require every Web communication to abide by the most restrictive community’s standards.” In Ashcroft v. American Civil Liberties Union (2002), the Supreme Court reversed that decision, finding that COPA allowed national standards to be taken into account, and remanded
the case for lower court consideration of the effectiveness of filtering and other proposed alternative (and arguably less restrictive) forms of limiting access of minors. Justice Stephen G. Breyer and several other justices shared the Third Circuit’s concerns, cautioning that the community standards of “the most puritan of communities” would produce “a heckler’s Internet veto affecting the rest of the nation.” At the same time, the Web and other technologies, such as cable and pay-per-view television, have made adult materials more readily available to more people than ever.When the Miller test was devised, many observers assumed that it would result in hard-core material being banned as obscene while allowing soft-core material to be distributed to adults so long as minors could not easily access it. Changing cultural patterns and new technologies quickly unsettled these expectations; under the Miller standard today, prosecutors might not get obscenity convictions in certain urban areas even when material includes detailed portrayals of genitalia or explicit sexual activity. In 2003 a video store owner in supposedly conservative Provo, Utah, beat an obscenity prosecution by convincing a jury that the adult materials he distributed were consistent with community values as demonstrated through local usage statistics for pay-per-view adult films on the local cable channel and in local hotels. See also Ashcroft v.American Civil Liberties Union (2002) (2004); Burger,Warren E.; Child Online Protection Act of 1998; Communications Decency Act of 1996; Hicklin Test; Indecency and the Electronic Media; Miller v. California (1973) Obscenity and Pornography; Paris Adult Theatre I v. Slaton (1973); Reno v. American Civil Liberties Union (1997).
Ronald Steiner
furthe r reading Cenite, Mark. “Federalizing or Eliminating Online Obscenity Law as an Alternative to Contemporary Community Standards.” Communication Law and Policy 9 (2004): 25–71. Cohen, Henry. Obscenity and Indecency: Constitutional Principles and Federal Statutes. New York: Novinka Books, 2003. De Grazia, Edward. Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius. New York: Random House, 1992. Walters, Lawrence G., and Clyde DeWitt. “Obscenity in the Digital Age: The Re-Evaluation of Community Standards.” Nexus 10 (2005): 59–74.
Compelled Speech The compelled speech doctrine sets out the principle that the government cannot force an individual or group to support certain expression.Thus, the First Amendment not only
Compelled Speech limits the government from punishing a person for his speech, it also prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages. The Supreme Court’s decision in West Virginia State Board of Education v. Barnette (1943) is the classic example of the compelled speech doctrine at work. In this case, it ruled that a state cannot force children to stand, salute the flag, and recite the Pledge of Allegiance.The justices held that schoolchildren who are Jehovah’s Witnesses, for religious reasons, had a First Amendment right not to recite the Pledge of Allegiance or salute the U.S. flag. In oft-cited language, Justice Robert H. Jackson asserted, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” More recently, in Rumsfeld v. Forum for Academic and Institutional Rights (2006), Chief Justice John G. Roberts Jr. reiterated the essence of the compelled speech principle: “Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.” The Court also employed the compelled speech doctrine in Wooley v. Maynard (1977) to rule that state officials could not punish a man for covering the state’s motto—“Live Free or Die”—on his license plate. Chief Justice Warren E. Burger declared, “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’ ” In more recent years, the Court recognized the reach of the compelled speech principle in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), in which it ruled that government officials could not force parade organizers to accept a gay and lesbian group and its messages as part of its event. To do so would infringe on the private group’s autonomy and right to disseminate its own messages. The compelled speech principle also is at issue when the government attempts to force individuals or groups to financially support certain messages or programs. The Court refers to these as compelled-subsidy cases. In Abood v. Detroit Board of Education (1977), the Court ruled that a teachers’ union had no authority, consistent with the First Amendment, to force dissenting nonmembers to fund activities not germane to the union’s central purpose of collective bargaining. In a similar vein, in Keller v. State Bar of California (1990), the Court ruled that California’s state bar
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could not force attorneys to contribute to certain political and ideological causes that it supported. “Compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative,” Chief Justice William H. Rehnquist wrote for the Court. He added,“At the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the Bar or proposing ethical codes for the profession.” Difficulty arises in applying the compelled speech principle when it confronts other principles of First Amendment law, such as the government speech doctrine, which allows the government to advance its own ideas and messages, sometimes even through private entities. For example, in Johanns v. Livestock Marketing Association (2005), the Court ruled that the government could force beef producers to fund certain generic beef advertisements. The ad said “Funded by America’s Beef Producers,” but the Court reasoned that the overarching message was the government’s, not the individual producers’. “Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech,” Justice Antonin Scalia wrote for the Court. In 2006 in Rumsfeld v. Forum for Academic and Institutional Rights, the Court ruled that there was no compelled speech problem with a federal law requiring law schools to provide military recruiters the same level of access as other recruiters. Many law schools had argued that the statute forced the law schools to support the military’s controversial “don’t ask, don’t tell” policy toward gays and lesbians in the armed services.“There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse,” Chief Justice Roberts wrote in contrasting this case from a pure compelled speech decision like Barnette or Wooley. See also Abood v. Detroit Board of Education (1977); Burger, Warren E.; Government Speech Doctrine; Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995); Johanns v. Livestock Marketing Association. (2005); Keller v. State Bar of California (1990); Rehnquist, William H.; Roberts, John J., Jr.; Rumsfeld v. Forum for Academic and Institutional Rights (2006); Scalia, Antonin; West Virginia State Board of Education v. Barnette (1943);Wooley v. Maynard (1977).
David L. Hudson Jr.
furthe r reading Alexander, Larry. “Compelled Speech.” Constitutional Commentary 23 (2006): 147–161.
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Wasserman, Howard M. “Compelled Expression and the Public Forum Doctrine.” Tulane Law Review 77 (2002): 163–245.
Compelling State Interest A compelling state (or governmental) interest is an element of the strict scrutiny test by which courts exercise judicial review of legislative and executive branch enactments that affect constitutional rights, such as those found in the First Amendment. An interest is compelling when it is essential or necessary rather than a matter of choice, preference, or discretion. The levels of scrutiny determine how courts prioritize competing interests of individual and governmental claimants. Prior to the mid-twentieth century, courts gave great deference to acts passed or issued by the legislative and executive branches. In time, the patent unworkability of this pretense led justices, including Harlan Fiske Stone, to articulate an overt double (and later triple) standard for constitutional reviews: Most governmental regulation, including most economic regulation, would be presumed constitutional, but—as Stone explained in his famous footnote four in United States v. Carolene Products Company (1944)—regulation aimed at fundamental rights, the operation of the political process, and disadvantaged minorities must be viewed with more scrutiny and subjected to stricter review. Under rational basis review, the most common and lowest level of scrutiny, a court asks only whether a governmental regulation might serve some “legitimate” governmental interest. Under intermediate scrutiny, applied to such issues as content- neutral regulation of speech—the court requires that the government show that the regulation serves an “important” interest. Strict scrutiny, however, requires the government to demonstrate that it is using the most narrowly tailored, or least restrictive, means to achieve an interest that is compelling. Although not explicitly defined, “compelling” is obviously intended to be a higher interest than “legitimate” or “important”; some have described it as “necessary” or “crucial,” meaning more than an exercise of discretion or preference. Regulation vital to the protection of public health and safety, including the regulation of violent crime, the requirements of national security and military necessity, and respect for fundamental rights are examples of compelling governmental interests. In Widmar v.Vincent (1981) and Locke v. Davey (2004), the Court held that a compelling interest exists in complying with constitutional obligations, such as not violating the establishment clause. So, for example, any attempt to regulate
expression based on its content will require a showing of a compelling governmental interest, particularly where the speech occurs in a public forum or on public property traditionally available for expressive and associative activities. In the context of the free exercise of religion, the Court ruled in Sherbert v. Verner (1963) that legitimate concerns about administrative difficulties, such as uncovering fraudulent unemployment claims, are insufficient to limit free exercise rights. In Wisconsin v. Yoder (1972), the Court allowed Amish parents to withdraw their children from school at age fourteen, despite a state law requiring attendance until sixteen, because the additional two years of education was not a compelling enough interest to burden the practice of religion. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), however, the Court held that a law of general effect—that is, one that does not reflect discriminatory intent against a particular religion—is not subject to strict scrutiny, even if it burdens a religious practice. In response to Smith, Congress by statute demanded strict scrutiny and a showing of a compelling interest for infringements of free exercise. The Religious Freedom Restoration Act of 1993 (RFRA) reestablished a compelling interest requirement for bona fide free exercise claims against federal regulation, but the Court ruled in City of Boerne v. Flores (1997) that this attempt to reapply the compelling state interest test to states violated the Fourteenth Amendment. Many states have enacted their own RFRA requirements as a matter of state law. In Buckley v.Valeo (1976) and McConnell v. Federal Election Commission (2003), the Court ruled that there is a compelling interest in reducing the appearance of political corruption sufficient to sustain extensive regulation of finance and expression in campaigns and elections, as long as content is not targeted and avenues for exercising political speech are not excessively restricted. See also Buckley v.Valeo (1976); Campaign Regulation; Carolene Products Footnote Four; City of Boerne v. Flores (1997); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Locke v. Davey (2004); McConnell v. Federal Election Commission (2003); Preferred Position Doctrine; Religious Freedom Restoration Act of 1993; Sherbert v. Verner (1963); Stone, Harlan Fiske;Widmar v.Vincent (1981);Wisconsin v.Yoder (1972).
Ronald Steiner
furthe r reading Gillman, Howard.“Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence.” Political Research Quarterly 47 (1994): 623–653.
Comstock, Anthony Shaman, Jeffrey M. Constitutional Interpretation: Illusion and Reality. Westport, Conn.: Greenwood Press, 2001. White, G. Edward. “Historicizing Judicial Scrutiny.” South Carolina Law Review 57 (2005): 1–82.
Comstock Act of 1873 The Comstock Act of 1873 made it illegal to send “obscene, lewd or lascivious,” “immoral,” or “indecent” publications through the mail. The law also made it a misdemeanor for anyone to sell, give away, or possess an obscene book, pamphlet, picture, drawing, or advertisement.The breadth of the legislation included writings or instruments pertaining to contraception and abortion, even if written by a physician. Although officially titled An Act for the Suppression of Trade In, and Circulation of, Obscene Literature and Articles of Immoral Use, the statute did not provide a definition of obscenity. Congress adopted the Comstock Act in response to the proliferation of obscene materials in the 1870s. Anthony Comstock, head of the New York Society for the Suppression of Vice, had shown members of Congress illustrations that he considered obscene and urged legislators to pass the measure to prevent crime and corruption of children. After Congress passed the bill, it designated Comstock as a special agent in the United States Post Office charged with enforcing the law. With the help of his New York Society for the Suppression of Vice, Comstock was able to arrest individuals under the new act. In the 1870s, Ezra Heywood, a feminist who studied women’s role in society, wrote Cupid’s Yokes, in which he asserted that women should have the right to control their own bodies. Comstock considered this obscene and arrested Heywood. He also arrested De Robigne Mortimer Bennett, a libertarian, after he received a copy of Cupid’s Yokes from him through the mail. During Bennett’s federal trial, the judge denied the defense’s motion to show the jury the entire work, insisting that only the isolated passages charged as obscene were pertinent.The judge applied the Hicklin test from the British decision in Regina v. Hicklin (1868):“I think the test is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to immoral influences, and into whose hands a publication of this sort may fall.”The federal courts followed this standard until 1933, when Judge John M. Woolsey focused on the literary value of the entire work of James Joyce’s Ulysses, rather than a few passages, in United States v. One Book Entitled Ulysses (S.D.N.Y. 1933).
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In 1878 the National Liberal League and the National Defense Association presented Congress with a petition signed by more than 50,000 people requesting repeal of the Comstock Act.The petitioners argued that its anti-obscenity provisions had been “enforced to destroy the liberty of conscience in matters of religion, against the freedom of the press and to the great hurt of the learned professions.” The House Committee on the Revision of Laws denied the appeal because the post office had not been established to mail obscene writings, indecent pictures, or lewd books. Comstock vigorously enforced the sections in the act that dealt with birth control. Numerous doctors suffered arrest and conviction for supplying written materials explaining pregnancy and how to prevent it. This concerned social reformers because it prevented women from controlling the size of their families, a particular hardship for those with small incomes. Activist Margaret Sanger lobbied for overturning the act’s birth control provisions, which the courts did in United States v. One Package (2d Cir. 1936).This decision made it possible for doctors legally to mail birth control devices and information throughout the country. See also Birth Control; Censorship; Comstock, Anthony; Hicklin Test; Mail; Obscenity and Pornography.
Brandon R. Burnette
furthe r reading Beisel, Nicola. Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America. Princeton, N.J.: Princeton University Press, 1997. Magee, James. Freedom of Expression. Westport, Conn.: Greenwood Press, 2002. PBS. “American Experience: The Pill. People and Events—Anthony Comstock’s ‘Chastity’ Law.” www.pbs.org/wgbh/amex/pill/ peopleevents/e_comstock.html. Senat, Joey. “An Overview of How Courts Have Defined Obscenity.” 1997. www.cas.okstate.edu/jb/faculty/senat/jb3163/obscenity .html.
Comstock, Anthony Anthony Comstock (1844–1915), a dogged reformer, imposed his Victorian values on a rapidly urbanizing United States sometimes in disregard for the protections afforded by the First Amendment. Born in New Canaan, Connecticut, Comstock was raised in a strict religious family. He fought for the Union Army in the Civil War and later settled in New York City, where he found employment as a commission house porter.
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Consumed by but also appalled by urban life, he took as his mission the refortification of American morality. In 1873 Comstock organized an independent New York branch of the London Society for the Suppression of Vice. The society crusaded against pornography and convinced Congress to pass federal legislation, known as the Comstock Act, making illegal the transportation and delivery of “obscene, lewd, or lascivious” materials. Using his position as a postal agent, Comstock then set out to ensure that the law was enforced. Culling the mail for improper materials, Comstock and his colleagues later claimed that they had destroyed 160 tons of obscenity. Little troubled by the impact of his efforts on freedom of expression and freedom of the press, Comstock even tried to halt the circulation of certain anatomy textbooks. He turned as well against adventure books and romance novels, on the theory that they corrupted American youth. In 1905 he tried to suppress Mrs. Warren’s Profession, a play by George Bernard Shaw allegedly sympathetic to prostitution. Bemused as well as offended by Comstock’s narrow-mindedness, Shaw coined the term comstockery to refer to prudish censorship activities. Comstock disliked gambling and chance taking and was instrumental in ending the Louisiana lottery, the only legal lottery in the country at the time. He also opposed the use of birth control medications and devices and played a role in the late nineteenth-century criminalization of abortion by various state legislatures. In the early twentieth century, Comstock wrote newspaper articles and lectured college students on what he considered to be their waywardness. Late in his life, Comstock influenced a law student named J. Edgar Hoover with his determination and methods. See also Birth Control; Comstock Act of 1873; Hoover, J. Edgar; Mail; Obscenity and Pornography.
David Ray Papke
furthe r reading Beisel, Nicola. Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian American. Princeton, N.J.: Princeton University Press, 1997. Boyer, Paul S. Purity in Print: The Vice Society Movement and Book Censorship in America. New York: Scribner, 1968.
Confederate Flag The Confederate flag continues to generate controversy and impassioned debates with implications for the First
Amendment. The flag most commonly displayed as representing the Confederacy is the Beauregard battle flag, also known as the Southern Cross.This flag was widely used by Southern troops during the Civil War, but it was never officially adopted by the Confederacy.The appropriation of the Confederate flag by white supremacist organizations, such as the Ku Klux Klan, makes the debate over it particularly emotional. Some people view the flag as a symbol celebrating racism and regard the use of Confederate symbols in state flags or their display on state property as offensive; to other individuals it represents Southern heritage, and they assert their right to display the flag of the Confederate South wherever they like. The use of the battle flag in state flag designs reached the Eleventh Circuit Court of Appeals in 1997 in Coleman v. Miller, in which James Andrew Colman sued to enjoin Georgia from flying the state flag over state office buildings. Coleman, an African American, alleged that the use of the Confederate battle flag emblem in the state flag violated his right to equal protection under the Fourteenth Amendment and his right of free expression under the First Amendment. The Fourteenth Amendment argument focused on the exclusionary message that Coleman asserted the flag sent to him as an African American; he held that it represented the state’s segregationist history and slavery. The First Amendment argument focused on the flag as symbolic speech; Coleman proffered that, as a citizen, he was being forced to represent a position that he found morally repugnant. The court focused most of its attention on the equal protection argument ultimately dismissing it. It also rejected the First Amendment argument, on the ground that the display of the flag did not compel the individual affirmatively to acknowledge the message represented by the flag. Had the state, however, required Coleman to display the flag on his license plate, it would have run afoul of the First Amendment. After the courts upheld the constitutionality of the Georgia flag’s display, activists turned to other tactics to remove similar displays from public property. The National Association for the Advancement of Colored People (NAACP) launched a campaign to remove the battle flag from the South Carolina state capitol, where it had flown since 1962. The campaign included an economic and tourism boycott coupled with an extensive public relations campaign that resulted in significant losses in revenue for the state. The campaign ended in a compromise that removed the flag from the statehouse dome to a less prominent place
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A Confederate flag flies over the grounds of the state capitol in Columbia, South Carolina, in January 2008.
on the grounds, where it served as part of a Civil War memorial. Other states have since removed the flag from state property and from state flags in incremental fashion. In 2001 Mississippi voters rejected a revised design of its state flag—which was adopted in 1884 and prominently displays the battle flag—making their state the only one that continues to incorporate the battle flag in its official flag. More recent controversies involving Confederate symbols have involved the right of individuals to display such symbols in workplaces and in educational settings. In 1997 the North Carolina Court of Appeals held in Johnson v. Mayo Yarns that an employer could compel an employee to remove a Confederate flag decal from his toolbox and that the employer’s decision to discharge him for refusing to do so did not violate Johnson’s First Amendment rights. In 2000 in West v. Derby Unified School District, the Tenth Circuit Court of Appeals upheld a Kansas school district’s suspension of a student for drawing a Confederate flag on a piece of paper during math class. Because the school had acted under the auspices of a well-defined policy designed to prohibit racial harassment and to minimize disruption of the educational environment for other students, the court found that the policy did not limit protected speech. Other challenges to school policies have yielded similar rulings. In 2004 school officials in Kentucky ignited a controversy by asking a student to leave the prom when she arrived
wearing a sequined dress patterned after the battle flag; administrators said the design was too controversial.The student filed suit, and the parties later reached an undisclosed settlement. See also Ku Klux Klan; Sports Logos and Mascots; Symbolic Speech.
Sara L. Zeigler
furthe r reading Coski, John M. The Confederate Battle Flag: America’s Most Embattled Emblem. Cambridge, Mass.: Belknap Press, 2005. Prince, K. Michael. Rally Round the Flag, Boys! South Carolina and the Confederate Flag. Columbia: University of South Carolina Press, 2004. Sansing, David.“A Brief History of the Confederate Flags.” Mississippi Historical Society. 2000. http://mshistory.k12.ms.us/index.php ?id=107.
Confidential Sources Confidential sources provide information to journalists or other writers with the agreement that their identities will not be revealed in the reporting of the details that they have provided. Many such sources feel comfortable supplying information based on reporter’s privilege, that is, the right of reporters and journalists to refuse to disclose their sources and information in court. Most states and federal circuits
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recognize such a privilege, but the rules in each jurisdiction vary in their level of protection afforded reporters. More than half the states have adopted so-called shield laws protecting this privilege. In some jurisdictions, courts have upheld the concept of confidentiality of sources as a constitutional right. Reporters are frequently subpoenaed to provide information for legal proceedings. On occasion the courts seek access to a reporter’s notes, unpublished information, or the identity of a confidential source. Journalists are reluctant, however, to reveal confidential information in such situations for fear that it will dissuade sources from providing information in the future.They argue that breaches of confidentiality have a chilling affect and harm journalists’ ability to do their jobs. Therefore, they assert, it is in the public interest to grant reporters the right to refuse to reveal sources and confidential information. Furthermore, having journalists constantly subpoenaed potentially imposes a substantial burden on news organizations because it takes away from valuable reporting and editing time. In addition, many journalists feel an obligation to protect their sources even if they are held in contempt of court and threatened with jail time. Proponents of protecting confidential sources argue that journalists need a well-established legal privilege, similar to the attorney-client privilege or doctor-patient privilege, to protect them from being forced to reveal confidential information in court. Opponents of such a privilege argue that reporters, like everyone else, are obligated to provide relevant information about the commission of a crime. They note that a reporter’s information could be essential to a defendant’s case and that not forcing disclosure could violate the defendant’s Sixth Amendment rights. There is no federally recognized privilege that allows reporters to keep their sources confidential, but the Supreme Court has found that “news gathering is not without First Amendment protections.” In Branzburg v. Hayes (1972), a sharply divided Court could not, however, agree on the extent and structure of this protection, holding that “newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation.” Because the Court has not revisited this issue since Branzburg, the right of reporters to protect their sources has been inconsistently carved out in state and federal circuit courts as well as in state legislatures. Most federal circuit courts and many state courts have cited Branzburg in ruling that journalists have some type of
“qualified” First Amendment privilege to protect their sources, meaning that under certain circumstances reporters can still be forced to reveal their sources. In examining cases involving confidential sources, courts typically look at the relevancy of the information in question, whether there is a compelling interest in obtaining it, whether there is an alternative source for it, and if relevant, whether a reporter promised confidentiality. More than thirty state legislatures have enacted shield laws to provide reporters some type of privilege against the compelled production of confidential information. State shield laws usually are of limited scope and structure and protect only certain journalists or types of information from being revealed. Freelancers and bloggers are often not included in the definition of a journalist and therefore have not been granted the privilege. Many laws include broad exceptions for certain types of information, for example, when it’s applicable to criminal defense cases. In the federal arena in 1970, the Department of Justice provided journalists an additional safeguard against being forced to disclose information in court by requiring the approval of the attorney general for department officials to subpoena reporters. The issue of confidential sources will likely come under increased scrutiny in the future, as more people become involved in news gathering as a result of the ease of distribution via the Internet.The high-profile subpoenas in 2005 of journalists Judith Miller, Matthew Cooper, and others in the case involving the outing of CIA employee Valerie Plame added fuel to the debate about whether Congress should pass a federal shield law, such as the proposed Free Flow of Information Act. See also Branzburg v. Hayes (1972); Free Flow of Information Act; Reporters’ Privilege; Shield Laws.
Audrey Perry
furthe r reading Fargo, Anthony L. “The Year of Leaking Dangerously: Shadowy Sources, Jailed Journalists, and the Uncertain Future of the Federal Journalist’s Privilege.” William and Mary Bill of Rights Journal 14 (2006): 1063–1119. Liptak, Adam. “The Hidden Federal Shield Law: On the Justice Department’s Regulations Governing Subpoenas to the Press.” Annual Survey of American Law (1999): 227–236.
Congress Although Congress crafted and proposed the First Amendment and sometimes adopts legislation to enhance it,
Congress representatives and senators over time have also restricted each of the rights that the amendment protects. The First Amendment specifically references Congress, but with the adoption of the Fourteenth Amendment, the Supreme Court has also applied the First Amendment’s provisions to the states. The Court has further interpreted the establishment clause not only to prohibit government from creating a national religion, but also from showing preference for one religion over another, or promoting religious views over nonreligious ones. Regardless, Congress has toyed throughout much of its history with adopting a so-called Christian amendment to recognize God or Jesus within the Constitution but has yet to do so. During the Civil War, however, it passed legislation to put the words “In God We Trust” on U.S. currency and in 1954 to add the words “Under God” to the Pledge of Allegiance to the Flag. If the Supreme Court were to rule that “Under God” could not be recited in the pledge in public schools, Congress has the authority to propose an amendment—subject to ratification by three-fourths of the states—to reverse the decision, although similar proposals, to permit public prayer or devotional Bible reading in public schools, have consistently failed. In Sherbert v.Verner (1963), the Warren Court established a test requiring a compelling interest by the government before infringing on free exercise rights. Later courts, however, retreated from this standard, allowing more latitude for congressional interference with religion. The Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith (1990) essentially eliminated the Sherbert test, but Congress resurrected much of its substance by passing the Religious Freedom Restoration Act of 1993, which aimed to prevent laws substantially burdening individuals’ free exercise of religion. The Court in turn limited the RFRA’s impact by restricting its application to federal laws only in City of Boerne v. Flores (1997). Congress responded, again, by passing the Religious Land Use and Institutionalized Persons Act of 2000. Regardless of the speech and press clauses of the First Amendment, a Federalist-dominated Congress adopted the short-lived Sedition Act of 1798, which made it a crime to criticize the president of the United States. Schenck v. United States (1919) is the first case in which the Supreme Court was asked to strike down a law violating the free speech clause. The issue arose after Charles Schenck published leaflets challenging the conscription system then in effect. The Court unanimously upheld Schenck’s conviction for violating the Espionage Act of 1917 and in doing so estab-
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lished a test requiring a “clear and present danger” for proscribing speech. It applied the Schenck test in Debs v. United States (1919) but applied the less stringent bad tendency test in Gitlow v. New York (1925). Although the Court generally made the ultimate decision on the constitutionality of congressional legislation, it often deferred to congressional judgments as to which speech constituted a danger. Thus in enacting the Smith Act of 1940, Congress made punishable the advocacy of overthrowing or destroying the U.S. government by force or violence. The constitutionality of the act was challenged in Dennis v. United States (1951), but the Court upheld it by a 6-2 vote, relying on a modified version of the clear and present danger test. The issue of flag desecration demonstrates the limits of congressional actions. In dealing with a case of flag-burning engaged in as a form of political protest, the Supreme Court in Texas v. Johnson (1989) asserted that the fundamental principle underlying the First Amendment is that government cannot prohibit expression of ideas simply because society may find the idea disagreeable or offensive. In response, Congress denounced the Court and passed a federal law banning flag burning that the Court then proceeded to strike down in United States v. Eichman (1990). Congress has subsequently attempted to amend the Constitution to prohibit flag desecration, but since 1995 these attempts have failed to gain sufficient votes.The most recent attempt to have an amendment adopted was in June 2006. The measure easily cleared the House, but failed by one vote in the Senate. The right to petition the government has been interpreted as extending to Congress, the executive, as well as the judiciary. The interpretation of “redress of grievances” has also been interpreted broadly, although Congress has at times directly limited the right to petition. In the early 1830s, Congress received numerous petitions calling for the abolition of slavery in the District of Columbia. In January 1840, the House of Representatives adopted the so-called gag rule barring petitions for Congress to ban slavery in any state or territory. This standing rule was repealed five years later, in 1845, through the efforts of John Quincy Adams.As a result of the repeal, the House now provides for the acceptance of petitions and has a procedure for entering petitions into the House Journal and publication in the House Record by the Clerk. Congress nonetheless has in some instances ignored the right to petition over legislation. For example, during World War I, individuals petitioning for the repeal of sedition and espionage laws were punished with imprisonment, with the
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acquiesce of the Supreme Court. At the time, the Court chose to take no action or judgment to protect individuals’ First Amendment rights under the assumption that it was in the national interest. The right of peaceable assembly protects the right of individuals to join, participate in, or organize groups, activities, or gatherings—including political parties, unions, or interest groups—without restrictions from the government. On occasion, however, Congress has attempted to limit the assembly of groups that it considers to be violent. In United States v. Cruikshank (1876), the Supreme Court held that citizens may “assemble for the purpose of petitioning Congress for a redress of grievances.”The Court in later cases, among them Hague v. Committee for Industrial Revolution (1939), expanded the meaning of the right to assembly to the purpose of communicating views on national questions and for disseminating information. The right to association allows individuals to mutually choose their acquaintances for whatever purpose they see fit. It is closely aligned with the right of assembly.The Supreme Court derived this right from the First Amendment guarantees of speech, assembly, and petition. The Court expanded legal protections for the right of association in a series of cases in the 1950s and 1960s involving some states’ efforts to curb the activities of the National Association for the Advancement of Colored People (NAACP). There have been times, most notably the McCarthy era of the early 1950s, when congressional actions have appeared to call the right into question, such as when its members held televised hearings into the associations of individuals. Over time, the Supreme Court has made it clear that such investigations must be in pursuit of legitimate legislation. See also Christian Amendment; City of Boerne v. Flores (1997); Congressional Investigations; Constitutional Amending Process; Debs v. United States (1919); Dennis v. United States (1951); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Espionage Act of 1917; Flag Desecration; Gag Rule in Congress; Gitlow v. New York (1925); Gonzales v. O Centro Espírita Beneficente União Do Vegetal (2006); Hague v. Committee for Industrial Organization (1939); Religious Freedom Restoration Act of 1993; Schenck v. United States (1919); Sedition Act of 1798; Sherbert v.Verner (1963);Texas v. Johnson (1989); United States v. Cruikshank (1876); United States v. Eichman (1990).
Dale Mineshima-Lowe
furthe r reading Abrams, Floyd. Speaking Freely:Trials of the First Amendment. New York: Viking, Penguin Group, 2005.
Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. Chapel Hill: University of North Carolina Press, 1994. Schauer, Frederick. “Comment: Principles, Institutions, and the First Amendment.” Harvard Law Review 112 (1998): 84–121. Vile, John R. A Companion to the United States Constitution and Its Amendments. 4th ed.Westport, Conn.: Praeger, 2006.
Congressional Investigations The framers of the U.S. Constitution did not explicitly grant the national legislature the power to conduct investigations, but in McGrain v. Daugherty (1927) the Supreme Court recognized this authority as an implied power that “has long been treated as an attribute of the power to legislate.” Congress may also invoke the power in investigating the need to propose constitutional amendments. The investigative power is broad, but the Court has over the years sought to restrain investigations interfering with the rights, including First Amendment rights, of those called before Congress in the course of an investigation. Statements made by members of Congress during investigations are protected from legal action under the speech and debate clause, whereas individuals called before Congress can be cited for contempt and perjury in addition to suffering possible embarrassment as a result of information revealed by an investigation. Wisconsin senator Joseph McCarthy was among those who during the cold war abused their role as committee chairs in claiming to expose communists; those called to testify were sometimes subsequently blacklisted by employers. McCarthy also provides an example of individuals who were exposed during investigations. In the opinion for the Court in Watkins v. United States (1957), involving a charge of contempt of Congress, Chief Justice Earl Warren recognized the right of an individual to refuse to answer questions about past associates that the House Un-American Activities Committee had failed to establish as relevant. The Court appeared to step back from this decision in Barenblatt v. United States (1959), deciding in this case to reject broader First Amendment claims by a college professor about inquiries into his past beliefs and associations. Justice Hugo L. Black authored a dissent objecting to the Court’s “balancing” approach and questioning whether the Court had adequately weighed First Amendment rights. Black cited “the interest of the people as a whole in being able to join organizations, advocate causes and make political ‘mistakes’ without later being subjected to governmental penalties for having dared to think for themselves.” He further likened the embarrassment to which such
Connick v. Myers (1983) investigations could expose individuals to “the pillory, ostracism and subjection to public hatred.” In a separate dissent, Justice William J. Brennan Jr. argued that “no purpose for the investigation of Barenblatt is revealed by the record except exposure purely for the sake of exposure.” In later cases, the Court recognized somewhat expanded First Amendment rights. In Gibson v. Florida Legislative Investigation Committee (1963), the Court held that state legislative investigations were also subject to First Amendment limitations, including protections for the rights of speech and association. It thus ruled that a witness could refuse to disclose the membership lists of the National Association for the Advancement of Colored People. See also Barenblatt v. United States (1959); Black, Hugo L.; Blacklists; Brennan, William J., Jr.; Congress; Gibson v. Florida Legislative Investigation Committee (1963); House Un-American Activities Committee; McCarthyism; Speech and Debate Clause; Warren, Earl;Watkins v. United States (1957).
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dismissed for refusing to swear to the second part, relative to belief respecting the violent overthrow of the government, without the due process that a hearing would have provided. In a concurring opinion joined by Justices William O. Douglas and William J. Brennan Jr., Justice Thurgood Marshall agreed that the provision concerning the support of state and federal constitutions was the type of “forward-looking, promissory oath” that “does not . . . offend” the First Amendment. Even if a hearing were provided, however, he did not believe that the state should be able to fire someone for their beliefs. Justice Potter Stewart’s dissent agreed that the provision calling for support of the state and national governments was constitutional but thought that the Court should remand the case to the district court to give authoritative meaning to the provision relative to beliefs about the violent overthrow of government before striking it down. See also Loyalty Oaths; Public Employees.
John R.Vile
John R.Vile
furthe r reading
furthe r reading
Coker, Francis W. “Academic Freedom and the Congressional Investigations: Free Speech and the Silent Professor.” Journal of Politics 16 (1954): 491–508. Fellman, David. “Congressional Power of Investigation.” In Oxford Companion to the United States Supreme Court of the United States, ed. Kermit L. Hall, 176–177. New York: Oxford University Press, 1992. Hamilton, James. The Power to Probe: A Study of Congressional Investigations. New York: Random House, 1976.
Chin, Gabriel J., and Saira Rao. “Pledging Allegiance to the Constitution:The First Amendment and Loyalty Oaths for Faculty at Private Universities.” University of Pittsburgh Law Review 64 (Spring 2003): 431–481.
Connell v. Higginbotham (1971) In Connell v. Higginbotham 403 U.S. 207 (1971), the Supreme Court struck down as a violation of the First Amendment one of two oaths that Florida employees, in this case a substitute teacher, had been required to affirm. A federal district court had already invalidated a section of the oath requiring individuals to affirm that they were not members of the Communist Party, would not lend it aid or support, and did not belong to any organization that believed in or taught the violent overthrow of the government. The court had upheld a provision providing that employees swear to support the state and federal constitutions and another specifying that they did not believe in the violent overthrow of either government by force or violence. The Supreme Court’s per curiam opinion affirmed that existing cases settled the constitutionality of the first of these two remaining provisions relative to support of state and federal constitutions but asserted that an employee could not be
Connick v. Myers (1983) In Connick v. Myers 461 U.S. 138 (1983), the Supreme Court clarified the level of First Amendment protection for public employees in the workplace by explaining how courts should balance an employee’s right to speak on matters of public importance against an employer’s interests in a disruptive-free workplace. Sheila Myers, an assistant district attorney in New Orleans, had objected to being transferred to another section of her office. After receiving notice of the transfer, she prepared and distributed a questionnaire to the office staff that in part raised the issue of whether their office was poorly run. Harry Connick Sr., the district attorney and Myers’s supervisor, terminated her for refusing the transfer and for undermining his authority with the questionnaire. Myers challenged her dismissal, reasoning that she was fired because she had expressed her opinion of how Connick ran the office and that such termination violated her First Amendment political speech rights. In a 5-4 vote, a divided Supreme Court held Myers’s dismissal to be constitutional. In the majority opinion of the
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Court, Justice Byron R.White stated, per the Court’s ruling in Pickering v. Board of Education (1968), that the Court must balance the First Amendment right of government employees to comment upon matters of public concern versus the interest of government to provide its services efficiently. In applying the Pickering test to the New Orleans case, White found that Myers in general was not speaking about matters of public concern, because in the main, her questionnaire focused on internal office workings. White determined, however, that at least one question—concerning whether Connick forced office staff to perform political campaign work—should be considered of public concern. Applying the balancing prong of the Pickering test,White asserted that Myers’s questionnaire had the potential to hinder the efficient operation of the district attorney’s office by questioning Connick’s authority. In addition, because Myers circulated the survey as a reaction to receiving an unfavorable assignment, White found that Connick had legitimate reasons to fire her. In dissent, Justice William J. Brennan Jr. emphasized two points of disagreement with the majority. First, he felt that Myers adequately satisfied the prong of the Pickering test that an employee’s speech touch on a matter of public concern. As Myers’s questionnaire commented upon how Connick was running a public office, the public would certainly be interested in how staff perceived his management of that office. Second, addressing the other part of the Pickering test, Brennan claimed that no evidence existed that Myers’s speech had affected the efficient operations of the district attorney’s office. According to him, the mere potential that office efficiency might be affected is not sufficient to satisfy this part of Pickering. As a result of this ruling, most public employee free speech cases are now evaluated under the socalled Pickering-Connick test. See also Brennan, William J., Jr.; Pickering v. Board of Education (1968); Public Employees;White, Byron R.
John M. Aughenbaugh
furthe r reading Allred, Stephen. “Note: Connick v. Myers: Narrowing the Free Speech Rights of Public Employees.” Catholic University Law Review 33 (Winter 1984): 429–456. Hudson, David L. Jr. “Connick v. Myers: Reflections on Landmark Public Employee Free-Speech Case.” First Amendment Center Online, April 10, 2001. www.firstamendmentcenter.org/analysis .aspx?id=5211.
Conscientious Objection to Military Service Conscientious objection to military service refers to the position taken by individuals who oppose participation in war on the basis of their religious, moral, or ethical beliefs. Such objection can take many forms, such as refusing to serve in combat, register for the draft, pay taxes tied to war allocations, or make any type of contribution to a war effort. Conscientious objection has a long history and is international in scope.The primary impetus has historically been religious. Before the American Revolution, most conscientious objectors were members of “peace churches”—among them the Mennonites, Quakers, and Church of the Brethren—which practiced pacifism. Other religious groups, like Jehovah’s Witnesses, although not strictly pacifist, also refused to participate. Governing authorities have dealt with conscientious objectors disparately, with some receiving exemptions and others being fined or imprisoned. During the Civil War, Congress enacted the nation’s first federal military conscription legislation, in which it provided exemption for anyone who paid a substantial fee. After riots and debates about the discriminatory nature of the fee exemption, Congress passed legislation allowing alternative service for members of the peace churches. The alternative service option for religious objectors continued during World War I, but those conscientious objectors who based their beliefs on political, moral, or personal grounds were conscripted and punished if they refused to serve. In World War II, the Selective Training and Service Act of 1940 provided for mandatory alternative service for those who refused to take part in combat “by reason of religious training and belief.” Those who failed to meet these qualifications but refused nonetheless to participate were imprisoned. The number of conscientious objectors numbered in the thousands during the Vietnam War, with many objectors, and others, viewing the conflict as an unjust war. The Supreme Court was called on to interpret the exemption for conscientious objection and its relation to the First Amendment in Welsh v. United States (1970) and Gillette v. United States (1971). Section 6(j) of the Military Selective Service Act of 1967 provided, “Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscien-
Consolidated Edison Co. v. Public Service Commission (1980) tiously opposed to participation in war in any form.” In Welsh, the Court somewhat creatively interpreted and thereby broadened the phrase “by reason of religious training and belief.” According to the Court,“What is necessary . . . for a registrant’s conscientious objection to all war to be ‘religious’ within the meaning of 6(j) is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions.” Today’s Selective Service guidelines state, “Beliefs which qualify a registrant for CO status may be religious in nature, but don’t have to be. Beliefs may be moral or ethical; however, a man’s reasons for not wanting to participate in a war must not be based on politics, expediency, or self-interest.” The Court in Gillette declined to provide additional relief to conscientious objectors to the Vietnam War. Gillette had objected to participation in the Vietnam War and had refused induction, but he was not necessarily opposed to all wars. Gillette’s view of his duty was to abstain from any involvement in unjust wars. He alleged that if section 6(j) were construed to cover only objectors to all war, it would violate the religion clauses of the First Amendment.The Court rejected that view and in the process made it clear that objection to a particular war, as opposed to war in any form, was an impermissible basis for asserting a claim of conscientious objection. See also Amish and Mennonites; Gillette v. United States (1971); Jehovah’s Witnesses; Quakers; Vietnam War; Welsh v. United States (1970).
John H. Matheson
furthe r reading Schillissel, Lillian, ed. Conscience in America: A Documentary History of Conscientious Objection in America, 1757–1967. New York: Dutton, 1968. Sciarrino, Alfred J., and Kenneth L. Deutsch. “Conscientious Objection: Heroes to Human Shields.” Brigham Young University Journal of Public Law 18 (2002). Matthew G. Lindenbaum. “Religious Conscientious Objection and the Establishment Clause in the Rehnquist Court: Seeger, Welsh, Gillette, and § 6(j) Revisited.” Columbia Journal of Law and Social Problems 36 (2003): 237–263.
Consolidated Edison Co. v. Public Service Commission (1980) The Supreme Court ruled in Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530 (1980), that the First Amendment protects a government-regulated utility’s
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expression of opinion on issues of public policy through inserts in customer billing statements. It is one of several decisions issued by the Court since the late 1970s that have recognized and expanded the First Amendment free speech rights of corporations. In January 1976, Con Edison (Con Ed) included in its customers’ billing statements a flyer expressing its support for nuclear power. In March, Con Ed refused to allow an opponent of its view to include a rebuttal along with the next billing statements. The opponent requested that the New York Public Service Commission (PSC) require Con Ed to include the rebuttal. The PSC refused the request but ordered Con Ed to cease using such inserts to express its views on controversial issues of public policy because its customers were a captive audience and should not be subjected to such views. Writing for a 7-2 majority, Justice Lewis F. Powell Jr. asserted that the utility had an inherent right to speak on critical public matters despite being a government-regulated monopoly. He observed that the New York Court of Appeals’ concern about the infringement of a customer’s right to privacy could be cured “by transferring the bill insert from the envelope to wastebasket.” In a concurrence, Justice Thurgood Marshall noted that the ruling did not address the question of excluding the cost of the bill inserts from the rate base customers had to pay, while Justice John Paul Stevens’s concurrence focused on the argument that opposition to the company’s point of view was an inadequate ground for censoring it. Justice Harry A. Blackmun, joined by Justice William H. Rehnquist, found that the PSC had a legitimate concern in noting that the costs of the inserts were in fact included in the rate base and thus fully subject to the commission’s regulation. By including the insert, the utility made use of property “for which the public is compelled to pay, for the utility’s sole benefit.” He reasoned that the inserts were a cost that shareholders should absorb. He pointed out that the PSC, as an arm of the state, could likely achieve its goals using a different approach to regulating the issue. See also Powell, Lewis F., Jr.
Cleveland Ferguson III
furthe r reading Blakely, Bruce W. “Public Utility Bill Inserts, Political Speech, and the First Amendment: A Constitutionally Mandated Right to Reply.” California Law Review 70 (September 1982): 1221–1262.
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Conspiracy Laws
Conspiracy Laws The application of conspiracy laws requires a tacit agreement among members of a group to commit a crime. Such laws allow the government to charge a defendant regardless of whether the planned criminal act has been committed or the possibility of the crime being carried out successfully. It is not illegal to think about committing illegal acts— such as in the case of civil disobedience—as any law that would criminalize the mere thought or suggestion of committing an illegal act would be a free speech violation. Conspiracy laws can only be enforced after individuals take an initial step beyond planning and toward execution of an illegal deed. An individual who has agreed to participate in a crime is not required to know everyone involved in the plot in order to be charged with conspiracy. Although the crime of conspiracy is contingent upon an agreement, as Broderick (1985) notes, federal law “provides no rule for determining which of the various conditional objects of a conspiracy should determine the legal status of an agreement” (p. 899). Agreements made through a verbal understanding or without written acknowledgment can both be considered forms of conspiracy.The most common criticism of conspiracy laws is this lack of specificity in what constitutes an agreement and intent. Because of the ambiguities associated with the definition of conspiracy, there exist concerns about conspiracy laws interfering with First Amendment rights by allowing governments and states to crack down on those who disagree with the positions of the state. For example, an agreement made among any number of people that asserts their willingness to subvert a disliked governmental policy or policies could be considered conspiracy.A state may fear opposition to its policies and in response pursue conspiracy-related charges against those speaking out against them. In Dennis v. United States (1951), the Supreme Court upheld convictions of Communist Party members for conspiring to teach or advocate the violent overthrow of the government. According to the Court,“[T]he end being punishable, there is no doubt of the power to punish conspiracy for the purpose.” Broderick (1985) observes that proponents of conspiracy laws justify them to prevent the execution of crimes “whose likelihood of occurrence has grown great” and to allow for the state “to apprehend conspirators who have revealed a clear expectation of committing specific crimes” (p. 905). Although this might be the intent of the laws, the statutes can be and sometimes are misapplied and used against gov-
ernment opponents precisely because of the ambiguities regarding what is considered an agreement and whether it constitutes harm, even when the scheme is not practical and cannot be realistically accomplished. In contrast, others point to such laws as important tools, for example, in the “war on terrorism,” by allowing authorities to charge individuals with conspiracy before the act of terror has occurred. See also Dennis v. United States (1951); Scales v. United States (1961).
Wendy N.Whitman
furthe r reading Abbate, Fred J.“The Conspiracy Doctrine: A Critique.” Philosophy and Public Affairs 3 (1974): 295–311. Broderick, Patrick A. “Conditional Objectives of Conspiracies.” Yale Law Journal 94 (1985): 895–908.
Constitution of the Confederate States of America Although the Constitution of the Confederate States of America (1861) largely follows the outline of the U.S. Constitution, it differs from it in a number of ways. The Confederacy’s approach to the Bill of Rights, and specifically the First Amendment, is noteworthy. The preamble of its constitution begins, “We, the People of the Confederate States, each State acting in its sovereign and independent character . . . ,” and includes a reference, absent in the U.S. Constitution, to “the favor and guidance of Almighty God.” Article 6, however, maintains the U.S. Constitution’s prohibition of religious test oaths. The framers of the Confederate constitution adopted the First Amendment in full.As with other amendments that the new document incorporated, however, the First Amendment is invoked within the main body of the text, rather than separately, as an appendix. The provisions of the first eight amendments of the U.S. Constitution comprise paragraphs 12 through 19 under Article 1, section 9, of the Confederate document.As in the U.S. Constitution, this section specifically limits the authority of Congress. By placing this prohibition within Article 1, section 9, the Confederate constitution effectively reiterated the Supreme Court decision in Barron v. Baltimore (1833), limiting the scope of these prohibitions, which would later be repudiated by the ratification of the Fourteenth Amendment and subsequent Court decisions. The Confederate constitution has the Ninth and Tenth Amendments as its Article 6, which covers miscellaneous
Constitutional Amending Process matters. It modifies the Ninth Amendment to specify that the “enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people of the several States” (emphasis added to highlight the difference). Although the Confederate constitution permits the establishment of a supreme court, the Confederacy never created one.The Confederacy’s failure to do so demonstrates its leaders’ suspicion of any mechanism through which states might be subordinate to federal powers (DeRosa 1991: 77). The absence of such a court makes it difficult to know how interpretations of the elements of the First Amendment might, over time, have varied from those of the U.S. Supreme Court. The Confederate constitution made alterations of individual rights easier than under the U.S. Constitution. Although it provided no formal way for the legislature to propose amendments, only three states (rather than twothirds) were needed to request a constitutional convention to propose such amendments, which would have required ratification by two-thirds (rather than three-fourths) of the states. The Confederate constitution also includes a nonrenewable six-year term for the president and a line-item veto. It explicitly supports slavery and reasserts the principle of state’s rights that had dominated under the Articles of Confederation (1781–1789). The Committee of Twelve had drafted the constitution, and a convention held in Montgomery, Alabama, debated and proposed it in March 1861. The Confederate Congress and the legislatures of the seceding states subsequently approved it. See also Barron v. Baltimore (1833); Civil War, U.S.; Religious Tests.
John R.Vile
furthe r reading Davis, William C. “A Government of Our Own”: The Making of the Confederacy. New York: Free Press, 1994. DeRosa, Marshall L. The Confederate Constitution of 1861: An Inquiry into American Constitutionalism. Columbia: University of Missouri Press, 1991. Lee, Charles Robert. The Confederate Constitutions. Westport, Conn.: Greenwood Press, 1974.
Constitutional Amending Process Article 5 of the U.S. Constitution outlines the amending process by which the First Amendment, along with the other
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twenty-six, was adopted and through which it could someday be expanded or modified. The Articles of Confederation, the country’s governing document when the delegates to the Constitutional Convention of 1787 were meeting, required all the state legislatures to ratify amendments proposed by the national legislature. This process was so difficult that the states never managed to amend the Articles themselves. The Constitutional Convention ultimately overcame this problem by specifying that the new document would take effect among ratifying states when conventions in nine or more approved it. Observing that the new constitution would require altering, Virginia’s George Mason suggested providing for amendment “in an easy, regular and Constitutional way” rather than leaving it to ”chance and violence” (Farrand 1966: 1:203). Delegates originally considered a plan whereby Congress would call a convention to propose amendments when it received petitions from two-thirds of the states.They modified this to allow not only for state-requested conventions—none have convened to date—but also for two-thirds majorities in both houses of Congress to propose amendments. Such amendments become effective when ratified, according to congressional specification, either by three-fourths of the state legislatures or by conventions called within the states, as in the case of the Twenty-first Amendment, which repealed a national prohibition on alcohol. By requiring supermajorities, delegates hoped to establish amendments, like the Constitution itself, as paramount law. The Constitution’s Article 5 contained two entrenchment clauses. One guarded the compromise allowing states to import slaves without penalty for a period of twenty years, and the other affirmed the critical Connecticut compromise by prohibiting states from being deprived of their equal representation in the U.S. Senate without their consent. From time to time, scholars have argued that some rights, such as those embodied in the First Amendment, might be so fundamental that they cannot be altered through the amending process, but no Supreme Court decision has ever been based on this theory. The original Constitution prohibited religious-test oaths for public officials, exempted Sundays from the days that a president had to return a bill, and protected members of Congress for words they uttered within that body, but the delegates rejected a proposal to protect freedom of the press or for a separate bill of rights.The Anti-Federalists cited this as a reason for opposing the Constitution during ratification
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debates. Although leading Federalists initially argued that a bill of rights was unnecessary and could even prove dangerous, in time they eventually supported a bill of rights as a way of heading off the possibility of a second convention that might undo the work of the first. James Madison led the drive in the First Congress that resulted in the adoption of the first ten amendments, the first of which addresses religion, speech, press, and peaceable assembly and petition. Madison had favored an amendment providing that “no State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases,” but it failed to make it through the First Congress (Kurland and Lerner 1987: 5:25). In time, the Supreme Court used the Fourteenth Amendment to apply the guarantees in the First Amendment to the states as well as to Congress, and other changes in constitutional practice and interpretation altered the nation’s understandings of these provisions. Some individuals concerned about the founders’ failure to mention God in the Constitution launched a movement in the early 1800s that has been revived several times since to make such an addition. Some of these proposals, such as one supported in the twentieth century by the National Association of Evangelicals, advocated specifically acknowledging the authority of Jesus Christ. In 1875 House Speaker James G. Blaine of Maine introduced an amendment, named after him, that would have applied the religion clauses of the First Amendment to the states and prohibited public support of parochial schools. Members of Congress have similarly introduced amendments that would reverse the Supreme Court decisions in Engel v.Vitale (1962) and Abington School District v. Schempp (1963), prohibiting public prayer and devotional Bible reading in public schools, but none has been able to overcome the high bar set by Article 5. Reacting largely to the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith (1990), some members of Congress introduced the Religious Equality Amendment to prevent discrimination against religious expression. To date, however, Congress has settled for statutory alternatives, most notably the Religious Freedom Restoration Act of 1993 and the Religious Land Use and Institutionalized Persons Act of 2000. Decisions in Texas v. Johnson (1989) and United States v. Eichman (1990), upholding the right of protesters to burn the U.S. flag as a form of political protest, led to a strong, but so far unsuccessful, movement to adopt an amendment to outlaw such flag desecration. In 2006 a flag protection
amendment easily passed the House but in the Senate failed to garner the necessary sixty-seven votes (two-thirds) by a single vote. The Ninth Circuit Court of Appeals decision in Newdow v. U.S. Congress (2002), striking down recitation of the flag salute (with the words “under God,” which Congress added in 1954), has also generated a flurry of proposed amendments, which largely died when the Supreme Court ruled in Elk Grove Unified School District v. Newdow (2004) that Newdow did not have standing to bring his case. Some proposed amendments, offered in the wake of Buckley v. Valeo (1976) and similar decisions, have specified that the First Amendment does not prohibit limits on contributions to or expenditures by candidates for public office. To date no amendment has restricted the provisions in the First Amendment or the Bill of Rights as a whole. See also Abington School District v. Schempp (1963); AntiFederalists; Bill of Rights; Blaine Amendments; Buckley v. Valeo (1976); Constitutional Convention of 1787; Elk Grove Unified School District v. Newdow (2004); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Engel v. Vitale (1962); Federalists; Flag Desecration; Madison, James; Mason, George; Pledge of Allegiance; Religious Freedom Restoration Act of 1993; Religious Land Use and Institutionalized Persons Act of 2000;Texas v. Johnson (1989); United States v. Eichman (1990).
John R.Vile
furthe r reading Farrand, Max, ed. The Records of the Federal Convention. 4 vols. New Haven, Conn.:Yale University Press, 1966. Green, Steven K. “The Blaine Amendment Reconsidered.” American Journal of Legal History 36 (1992): 38–69. Jacoby, Steward O. “The Religious Amendment Movement: God, People and Nation in the Gilded Age.” 2 vols. Ph.D. diss., University of Michigan, 1984. Kurland, Philip B., and Ralph Lerner, eds. The Founders’ Constitution. 5 vols. Chicago: University of Chicago Press, 1987. Vile, John R.“Proposals to Amend the Bill of Rights:Are Fundamental Rights in Jeopardy?” Judicature 75 (1991): 62–67. ———. Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002. 2d ed. Santa Barbara, Calif.:ABCCLIO, 2003.
Constitutional Convention of 1787 From May to September 1787, delegates to the Constitutional Convention hammered out the U.S. Constitution in Philadelphia. The meeting, over which George Washington presided, rested on the reasoned dialogue and compromise of
Constitutional Convention of 1787 fifty-five representatives from the thirteen original states, except Rhode Island.To encourage delegates to make arguments without fear of recrimination and to discourage mob action in the city, those in attendance kept their deliberations secret during their lifetimes and did not inform the public of the resulting document until September 17, after most of the delegates had signed on to it. At the time of the convention, the Articles of Confederation, under which states wielded primary power, was the nation’s governing document. Article 2 specifically recognized the sovereignty of the states, and the federal government’s powers were mostly limited to foreign affairs and did not include control of interstate commerce. If Congress needed taxes or military forces, it could request but not coerce state compliance. Although this alliance proved adequate for winning the Revolutionary War and providing government for new territories, it made it difficult to promote domestic prosperity and for the United States to assume equal status among other nations. Delegates from five states who met in Annapolis in September 1786 to treat problems of interstate commerce called for a broader convention the following May. Partly prodded by the threat of Shay’s rebellion—an uprising of economically depressed farmers in Massachusetts that winter—the states responded affirmatively. Although many of the delegates arrived in Philadelphia expecting to revise the Articles of Confederation, some had grander ideas.With the help of James Madison, fellow delegates from Virginia offered a new plan that set the stage for a fundamental transformation of the government. It proposed three branches, rather than one, and dividing Congress into two houses, both of which would be represented according to population rather than equally as in the unicameral Congress under the Articles of Confederation. The Virginia Plan encountered opposition in the form of the New Jersey Plan, whose proponents were less devoted to a strong national government and more concerned with maintaining states’ existing equality in Congress. In time, the Connecticut Compromise resolved this issue by allocating representation according to population in the U.S. House of Representation while retaining equal state representation in the Senate. The convention adopted other compromises, including one that essentially left slavery in place where it existed, allowed the slave trade to continue for twenty years, and provided for representation of slaves by designating each one as three-fifths a free person. Delegates also devised the electoral college for selecting the president and adopted a
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much more extensive list of powers for Congress than that body held under the Articles of Confederation. A few provisions of the Constitution addressed issues related to religion and other subjects later covered by the First Amendment. Article 6 outlaws religious tests for federal offices. By exempting Sunday from the ten days counted in the time that a president has to veto a law, the document arguably recognizes in Article 1, section 7, that many Americans worship on that day. Benjamin Franklin proposed adopting the custom established in the First Continental Congress of having a chaplain open each day’s proceedings with prayer, but the delegates chose not to do so. Whereas the Declaration of Independence referred several times to God, the Constitution’s only mention of a supreme being is in the statements often attached to the end of the document indicating that it was adopted “in the Year of our Lord one thousand seven hundred and Eighty seven.” The only explicit protection that the Constitution provides for freedom of speech is found within the provision in Article 1, section 6, guaranteeing that members of Congress cannot be prosecuted for any “Speech or Debate in either House.” On August 20, Charles Pinckney of South Carolina introduced proposals to the Committee of Detail that included a provision for liberty of the press similar to that later found in the First Amendment, but the convention did not positively act on it. Five days before delegates signed the Constitution, Virginia’s George Mason, who had helped author the Virginia Declaration of Rights, proposed to preface the Constitution with similar provisions. This motion failed, as did one two days later by Charles Pinckney and Elbridge Gerry of Massachusetts proposing “that the liberty of the Press should be inviolably observed” (Farrand 1966: 2:617). Later, Connecticut’s Roger Sherman argued that no need existed for such a prohibition because “the power of Congress does not extend to the Press” (Ibid.: 618). The Constitution created a governmental structure designed to protect rights through a separation of powers, checks and balances, federalism, and other mechanisms. Hence, in Federalist no. 84, Alexander Hamilton argues that “the Constitution is itself, in every rational sense, and to every useful purpose a Bill of Rights.” The document also lists a number of restrictions on state and national governments, chiefly in Article 1, sections 8 and 9, where, for example, it prohibits bills of attainder (legislative punishments without benefit of trial) and ex post facto laws (retroactive criminal laws). In the closing days of the convention, however, George Mason cited the omission of a separate bill of
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rights to protect the people against the new national government as one of his reasons for opposing the new document. This quickly became a rallying point for those who opposed ratification. Federalist supporters of the Constitution initially argued against the necessity for a bill of rights because the convention had not delegated powers to the new national government to stem individual liberties. Some further argued that listing specific rights might imply that rights omitted were therefore subject to governmental control.This position was undercut by the fact that the Constitution did list some governmental restrictions within its text and by arguments, supported by Thomas Jefferson, that even if such guarantees were not foolproof, they would be better than nothing. In time, leading Federalists, including Madison, agreed to work toward a bill of rights if the Constitution were adopted, thereby helping to head off the threat of a second convention. Madison led the fight that resulted in the first ten amendments, earning him the moniker “Father of the Bill of Rights.” See also Anti-Federalists; Bill of Rights; Constitutional Amending Process; Federalists; Madison, James; Mason, George; Virginia Declaration of Rights.
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furthe r reading Farrand, Max, ed. The Records of the Federal Convention of 1787. 4 vols. New Haven, Conn.: Yale University Press, 1966. Goldwin, Robert A. From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution. Washington, D.C.: AEI Press, 1997. Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers, edited by Clinton Rossiter. New York: New American Library, 1961. Rossiter, Clinton. 1787: The Grand Convention. New York: W. W. Norton, 1966. Vile, John R. The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America’s Founding. 2 vols. Santa Barbara, Calif.: ABC-CLIO, 2005.
Contemporary Community Standards See Community Standards
Contempt of Court Section 17 of the Judiciary Act of 1789 vested U.S. courts with the power “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any
cause or hearing before the same.” Under English common law, courts had had intended the power to punish individuals who showed contempt for their authority on the theory that such contempts were contempts of the king. In the U.S. system of government, civil contempts are directed at individuals who refuse to do something that a court has ordered done for the benefit of another party; complying with the order usually settles the issue at hand. Criminal contempts, which are more likely to raise First Amendment issues, involve trespassing against the dignity of the court itself. Demonstrating how the criminal contempt power can conflict with the First Amendment freedoms of speech and press, in 1827 James H. Peck, a judge on the U.S. Federal District Court of Missouri, found an individual in contempt for responding through the newspapers to a decision that Peck had published concerning land claims. The House of Representatives subsequently impeached Peck, but the Senate did not convict him.As a result of this incident, however, Congress adopted a law in 1831 limiting the Court’s power to punish contempts to behavior carried out in the direct presence of the courts “or so near thereto as to obstruct the administration of justice.” The Supreme Court upheld this law in Ex parte Robinson (1874) and limited the punishment of contempts to jail time or fines. Despite this new law, many state courts continued to allow contempts for out of court behavior. In Patterson v. Colorado (1907), at a time when the Court had not yet applied the Bill of Rights to the states, Justice Oliver Wendell Holmes Jr. wrote an opinion upholding the conviction of a newspaper editor for articles and a cartoon he had published criticizing a decision in a pending case. In Toledo Newspaper Co. v. United States (1918), Chief Justice Edward D. White wrote an opinion for the Court (over Holmes’s dissent) upholding the contempt conviction of an editor who had published articles and cartoons criticizing a judge over a sixmonth period. In Craig v. Hecht (1923), the Court overturned a habeas corpus petition that Craig, the comptroller of New York, had filed seeking release from the punishment of a contempt issued by a district judge after Craig wrote and published a letter to the public service commissioner because of actions the judge had taken in pending receivership proceedings. By contrast in 1941 Justice Hugo L. Black authored the Court’s opinion in Bridges v. California (1941), in which the justices overturned a contempt citation against a publisher who had criticized a local judge in California. Justice Felix Frankfurter, who had coauthored an article on the contempt
Content Based power, wrote a vigorous dissent. A few years later, in Pennekamp v. Florida (1946), the Court overturned another conviction of a publisher who had used editorials and cartoons to criticize a state court’s handling of criminal cases. Modern cases suggest that courts can only issue contempt citations for criticism directed against their judgments when such citations are necessary to avoid a “clear and present danger” of substantive evils. In-court declarations pose more obvious threats to courtroom decorum than statements made outside court and are more likely to involve conduct than mere speech. At the same time, they must be balanced against the obligations of attorneys to represent their clients vigorously. In Eaton v. City of Tulsa (1974), the Court reversed the contempt conviction of an individual who had referred to his assailant as “chicken shit,” but had not directed similar language to the judge or other court personnel. See also Bridges v. California (1991); Clear and Present Danger Test; Patterson v. Colorado (1907); Pennekamp v. Florida (1946); Toledo Newspaper Company v. United States (1918).
John R.Vile
furthe r reading Raveson, Louis S. “Advocacy and Contempt: Constitutional Limitations on the Judicial Contempt Power: Part One. The Conflict between Advocacy and Contempt.” Washington Law Review 65 (1990): 477–593.
Content Based Content based refers to a law or regulation that discriminates against expression based on the substance of what it communicates. In contrast, a content-neutral law applies to expression without regard to its substance. The Supreme Court is likely to strike down regulations that discriminate on the basis of what is said or expressed. Designation of a law as either content based or content neutral is an important first step in ascertaining whether it violates the First Amendment. Content-based laws are presumptively unconstitutional and subject to strict scrutiny, the highest form of judicial review, whereas content-neutral laws generally must survive only intermediate scrutiny. Examples of laws that the Supreme Court has designated as impermissibly content based include a statute criminalizing indecent phone messages, determined in Sable Communications of California v. Federal Communications Commission (1989); a law imposing financial burdens on literary works by former felons mentioning past crimes, in Simon and Schuster v.
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Members of the New York State Crime Victims Board (1991); and a District of Columbia law prohibiting the display of signs critical of foreign governments within a certain distance outside embassies, in Boos v. Barry (1988). Viewpoint discrimination occurs when a governmental regulation restricts expression based not only on its content, but specifically on the underlying views in the message. Content-based restrictions limit speech based on its subject matter, while viewpoint-based restrictions limit speech based on ideology and perspective. A law banning all political speeches in a public park would be content based; a law banning only political speeches by members of the Socialist Party would be viewpoint based. In the words of Justice Anthony M. Kennedy in Rosenberger v. Rector and Visitors of the University of Virginia (1995),“Viewpoint discrimination is thus an egregious form of content discrimination.” Some language from Court opinions indicates that content-based laws are flatly unconstitutional. In Police Department of Chicago v. Mosley (1972), Justice Thurgood Marshall wrote for the Court that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” In reality, the Court’s case law establishes that contentbased laws can be constitutional if they survive strict scrutiny. For example, the Court in Burson v. Freeman (1992) upheld a law in Tennessee prohibiting the display of campaign materials within 100 feet of a polling place.The Court also employs a categorization analysis providing that certain, narrow categories of expression—such as obscenity, child pornography, true threats, and incitement to imminent lawless action—can be prohibited precisely because of their harmful content.The content-discrimination model remains a vital tool in First Amendment analysis. In the words of Justice Sandra Day O’Connor in City of Ladue v. Gilleo (1994), “no better alternative has yet come to light.” See also Boos v. Barry (1988); Burson v. Freeman (1992); City of Ladue v. Gilleo (1994); Compelling State Interest; Content Neutral; Police Department of Chicago v. Mosley (1972); Sable Communications of California v. Federal Communications Commission (1989); Simon and Schuster v. Members of the New York State Crime Victims Board (1991);Viewpoint Discrimination.
David L. Hudson Jr.
furthe r reading O’Neill, Kevin.“A First Amendment Compass: Navigating the Speech Clause with a Five-Step Analytical Framework.” Southwestern University Law Review 29 (2000): 223–300.
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Stone, Geoffrey R. “Content Regulation and the First Amendment.” William and Mary Law Review 25 (1983): 189–250. Williams, Susan H. “Content Discrimination and the First Amendment.” University of Pennsylvania Law Review 139 (1991): 615–729.
Content Neutral Content neutral refers to laws that apply to all expression without regard to the substance or message of the expression. Such laws generally regulate only the time, place, and manner of speech in contrast to content-based laws, which regulate speech based on content.This distinction is important in First Amendment cases because courts hold contentbased laws to strict scrutiny—the highest form of judicial review—while holding content-neutral laws only to intermediate, or mid-level, scrutiny. Often, the distinction is outcome determinative, as many content-based laws are struck down, but many content-neutral laws survive judicial inquiry. Reviewing courts often label a law as content based or content neutral by determining whether the government passed the law in order to suppress expression.The Supreme Court explained in Ward v. Rock Against Racism (1989) that “the principal inquiry in determining content neutrality, in speech cases generally . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Content-neutral laws must regulate speech without reference to the speech’s substance, be narrowly tailored, and leave open alternative avenues of expression. Examples deemed content neutral by the Supreme Court include a National Park Service regulation prohibiting camping (including as a form of protest) in certain federal parks, determined in Clark v. Community for Creative Non-Violence (1984); a city park permitting scheme requiring advance application for gatherings of more than fifty individuals, in Thomas v. Chicago Park District (2002); and a Minnesota rule prohibiting the sale or distribution of any merchandise, including printed material, in parks, in Heffron v. International Society for Krishna Consciousness (1981). See also Clark v. Community for Creative Non-Violence (1984); Compelling State Interest; Content Based; Heffron v. International Society for Krishna Consciousness (1981); Thomas v. Chicago Park District (2002); Time, Place, and Manner Restrictions; Viewpoint Discrimination;Ward v. Rock against Racism (1989).
David L. Hudson Jr.
furthe r reading Huhn, Wilson R. “Assessing the Constitutionality of Laws That Are Both Content-Based and Content-Neutral.” Indiana Law Journal 81 (2004): 401–461. Stone, Geoffrey R. “Content Regulation and the First Amendment.” William and Mary Law Review 25 (1983): 189–250. Williams, Susan H. “Content Discrimination and the First Amendment.” University of Pennsylvania Law Review 139 (1991): 615–729.
Continental Congress: Declaration and Resolves When Congress proposed the First Amendment, it was not proposing new rights but stating and consolidating rights to which the people were already accustomed. Evidence of this is found in the Declaration and Resolves of the First Continental Congress, issued on October 14, 1774, in response to a series of measures enacted by Britain punishing the colonies for their opposition to taxes and referred to as the so-called Intolerable Acts. In these resolutions, the colonies announced their desire to see that “their religion, laws, and liberties may not be subverted” and traced their rights to three sources—“the immutable laws of nature, the principles of the English constitution, and the several charters or compacts.” Resolution 8—approved unanimously by the states represented (that is, excluding Georgia)—foreshadowed a right that would later be included in the First Amendment in providing that the colonists “have a right peaceably to assembly, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations and commitments for the same, are illegal.” In addition, concerned about an established church, the delegates listed among the acts that they wanted repealed “the act passed . . . for establishing the Roman Catholic religion, in the province of Quebec.” Supreme Court justice Hugo L. Black would later cite Congress’s resolution relative to the right of peaceable assembly and petition in his dissent in Beauharnais v. Illinois (1952), which deals with group libel. See also Beauharnais v. Illinois (1952); Black, Hugo L.; Continental Congress: Letter to the Inhabitants of Quebec; Declaration of Independence.
John R.Vile
furthe r reading Kurland, Philip B., and Ralph Lerner, eds. The Founders’ Constitution. 5 vols. Chicago: University of Chicago Press, 1987.
Cooley,Thomas M.
Continental Congress: Letter to the Inhabitants of the Province of Quebec The seeds for the ideas in the Declaration of Independence had been sown in the First Continental Congress. Delegates from all the colonies (except from Georgia) had met in Philadelphia to assert their rights as citizens of England and to deny parliamentary sovereignty over them. Among colonial grievances was Britain’s recognition of the Roman Catholic religion in neighboring Canada, which the British had acquired from France through victories in the French and Indian War. Despite this concern, the colonists hoped that Canada might join them in resisting what they considered to be British abuses. In October 1776, the Second Continental Congress accordingly drafted a letter to the citizens of Quebec, explaining their disagreements with Britain and urging the Canadians to join the cause. In their letter, the colonists focused on the rights of no taxation without representation, trial by jury, habeas corpus, and freedom of the press.The latter remains one of the clearest statements of this principle prior to the First Amendment. Referring specifically to freedom of the press, delegates observed,“The importance of this consists, besides the advancement of truth, science, morality, and arts in general in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.”The document also highlighted the “Liberty of conscience in your religion,” which it described as Godgiven. In Thornhill v. Alabama (1940), the Supreme Court cited the letter’s reference to freedom of the press when it invalidated the anti-loitering law that Alabama had applied to labor picketers. See also Catholics, Roman; Declaration of Independence; Quebec Act of 1774;Thornhill v. Alabama (1940).
John R.Vile
furthe r reading Kurland, Philip B., and Ralph Lerner, eds. The Founders’ Constitution. Vol. 1: Major Themes. Chicago: University of Chicago Press, 1987.
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Cooley, Thomas M. Thomas McIntyre Cooley (1824–1898) was a prominent jurist and legal writer during the second half of the nineteenth century who strongly defended property rights and First Amendment freedoms. Originally from New York, Cooley settled in Michigan, where he completed his legal studies. At the age of thirtyfive, he became a law professor at the University of Michigan and would play an important role in the institution’s growth and development. As a member of Michigan’s Supreme Court from 1865 to1885, Cooley and Justices Isaac Christiancy, James Campbell, and Benjamin Graves became known as the Big Four.Working within the framework of a new state constitution, passed in 1850, they tackled legal issues arising from Reconstruction and the economic transformation of the Gilded Age. Cooley’s contributions to American jurisprudence in these areas are best represented in A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union (1868). Highly influential and widely read, Cooley’s treatise established the groundwork for a broad interpretation of due process protections for private property interests and liberty of contract arguments. Cooley’s writings, however, are not a blanket endorsement of a laissez-faire vision of U.S. government or regulation. Indeed, while on the Michigan Supreme Court, Cooley sought to draw clear lines between private and public interests. When the Michigan legislature empowered municipalities to levy taxes in support of local railroad construction, Cooley thought the law unconstitutional, stating that railroads “are not, when in private hands, the people’s highways; but they are private property.” Appointed by President Grover Cleveland to chair the Interstate Commerce Commission, Cooley persisted in his efforts to serve as a “friendly umpire” between the public and private interests at stake in the railroad industry. Cooley’s efforts to limit the power of corporations and government led him to adopt an expansive view of individual rights. He favored wide protections for free speech and in Constitutional Limits wrote that even in cases where speech is seen as excessive,“the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion.” While on the Michigan Supreme Court, he sought to limit the use of libel and defamation cases by public figures to curtail the efforts
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Cooper v. Pate (1964)
of journalists. Cooley believed that small errors and problems were an inevitable by-product of discussion, but to institute excessive punishments for such errors would unnecessarily limit free speech. Although his view was not endorsed by a majority of Michigan’s Supreme Court, the U.S. Supreme Court’s decision in New York Times Co. v. Sullivan (1964) embodies many of the principles that Cooley advanced. See also Libel and Slander; New York Times Co. v. Sullivan (1964).
Alexander Thomson
furthe r reading Carrington, Paul. “Deference to Democracy.” In The History of Michigan Law, ed. Paul Finkelman and Martin Hershock, 108–125. Athens: Ohio University Press, 2006. Jones, Alan. “Thomas M. Cooley and the Interstate Commerce Commission: Continuity and Change in the Doctrine of Equal Rights.” Political Science Quarterly 81 (1966): 602–627. ———. “Thomas M. Cooley and ‘Laissez-Faire Constitutionalism’: A Reconsideration.” Journal of American History 53 (1967): 751–771. Paludan, Phillip. “Law and Failure of Reconstruction: The Case of Thomas Cooley.” Journal of the History of Ideas 33 (1972): 597–614.
Cooper v. Pate (1964) The Supreme Court in Cooper v. Pate, 378 U.S. 546 (1964), decided that the Bill of Rights applied inside prisons, and in this particular case, that authorities had erred in denying religious publications and texts to an inmate.The courts previously had considered inmates little more than charges of the state and were reluctant to intervene in the management of prisons, even when egregious constitutional violations were alleged. In Cooper v. Pate, the Court examined the dismissal of the claims of an Illinois inmate, Thomas Cooper, who alleged that he had been denied permission to purchase Black Muslim publications. He also claimed that prison officials had infringed on his First Amendment rights in denying him access to a Quran while allowing other inmates their religious texts. In 1963 the Seventh Circuit Court of Appeals rejected Cooper’s claims, holding that incarceration brings about the loss of many constitutional rights and privileges. Cooper appealed to the Supreme Court, which reinstated his lawsuit in a short per curiam opinion. “Taking as true the allegations of the complaint, as they must be on a motion to dismiss, the complaint stated a cause of action and it was error to dismiss it,” the justices wrote.The Court later cited Cooper v. Pate in
reinstating similar religious discrimination claims by a Buddhist inmate in Cruz v. Beto (1972). See also Cruz v. Beto (1972); Prisons.
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. Prisoner Rights. New York: Chelsea House, 2007.
Copyright Copyright law consists of a bundle of rights designed to protect literary and artistic works from unauthorized use. Copyrighting material is designed to benefit the public by encouraging the creation and dissemination of new works of literature, music, and art for cultural enrichment and entertainment. These rights are often referred to as economic rights because they make it possible for authors of works to earn a living, thereby encouraging them to produce even more. Such rights also induce publishers and producers to invest in new works and to disseminate these works to the public. Copyright law, as enumerated in Title 17 of the U.S. Code, cover the right to reproduce a work in copies or phono records; distribute copies of a work to the public; create derivative works based on a protected work; perform a work publicly; display a work publicly; and perform sound recordings publicly by means of digital audio transmission. The initial owner of these rights is the author, usually the person who creates the work. The term author is applied broadly, regardless of whether the creator is a composer, photographer, sculptor, or creator of a literary or other artistic work. In works made for hire, the author is the employer because the work is created within the scope of employment by an employee. By written agreement, a limited number of commissioned works can also be considered work made for hire. For works created on or after January 1, 1978, copyright protection generally lasts for the life of the author plus seventy years, commencing at the death of the last surviving author. For works made for hire, protection extends to one hundred twenty years from creation or ninety-five years from first publication, whichever ends earlier. For works created but not published or registered for federal copyright protection prior to 1978, protection also lasts for the life of the author plus seventy years (but no work was allowed to expire before 2003). If published prior to 2003, then the
Copyright Act of 1790 protection lasts until 2047. For works under federal copyright protection prior to 1978, through publication with a copyright notice or registration, duration is for a specified term of years. Any work first published in 1922 or before is now in the public domain.Works first published from 1923 to 1978 had a twenty-eight-year original term, and if renewed, an additional term of sixty-seven years—a total of ninety-five years of protection. They will enter the public domain in 2019. Copyrights expire at the end of the calendar year. Many of the framers of the First Amendment helped craft the Constitution’s Article 1, section 8, which empowers Congress “[t]o promote the progress of Science and the Useful Arts by procuring for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The First Congress passed the country’s first copyright law in 1790. The Supreme Court acknowledged the compatibility of copyright and free expression in Harper and Row v. Nation Enterprises (1985), when Justice Sandra Day O’Connor wrote,“The Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Tension does exist, however, between copyright and the First Amendment, as copyright owners often seek to assert their property rights and thereby limit the dissemination of information. Copyright law attempts to reduce this tension in part through fair use, a safety-valve concept codified by the Copyright Act of 1976. It is often said that copyright bestows a “monopoly” on the copyright owner to prohibit others from reproducing, performing, or distributing an original work.The law, however, makes clear that copyright only protects the particular expression or form of the author’s ideas, not the ideas themselves.Thus, others are free to use the same ideas, as long as they express those ideas in their own words. For example, an individual can publish an article that comes to the same conclusion as another writer as long as the author of the article uses different language or attributes direct quotations to the original source.As the Supreme Court remarked in Eldred v. Ashcroft (2003), “Every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” Others may even use limited amounts of the author’s own expression through the exception of fair use. Nonetheless, freedom of expression does not mean one necessarily has a right to use others’ expression for free.
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See also Congress; Copyright Act of 1976; Eldred v. Ashcroft (2003); Fair Use.
Geoffrey P. Hull
furthe r reading Copyright Basics. www.copyright.gov/circs/circ1.html. Ginsburg Jane C. “How Copyright Got a Bad Name for Itself.” Columbia Journal of Law and the Arts 26 (2002): 61–73. Hudson, David L., Jr. “Copyright and the First Amendment.” First Amendment Center, August 5, 2004. www.firstamendmentcenter .org/analysis.aspx?id=13828. Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York University Press, 2001.
Copyright Act of 1790 The Copyright Act of 1790 created a set of limited, but exclusive, rights for authors to copy, print, and sell certain of their expressive works. The first federal copyright statute, passed by the second session of the First Congress, was signed into law by President George Washington on May 31, 1790, predating ratification of the First Amendment and Bill of Rights. By the drafting of the Constitution, all of the original states had passed their own copyright statutes, following the encouragement of the Congress of the Confederation to do so in 1783. Later, the framers of the Constitution specifically authorized Congress, in Article 1, section 8, “To promote the progress of Science and Useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” With this authority, Congress set out to craft a single, federal standard for copyright to supersede all state copyright statutes, which diverged in the scope of rights protected and the procedural requirements for securing copyright. Congress modeled the 1790 act in large part on the 1710 Statute of Anne, the first English copyright law. The stated intent of the 1790 provision was the “encouragement of learning.”The act was brief in comparison to today’s federal copyright law, consisting of seven sections and extending protection only to the authors of maps, charts, books, and manuscripts. Under the act, authors could secure the exclusive right to copy, print, and sell their works by depositing and registering a copy with the clerk of the local federal district court in addition to depositing one copy with the U.S. secretary of state. The 1790 act further provided that authors could bring private suits to recover monetary damages against infringers who copied, imported, or sold their copyrighted works
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without permission. One-half of the damages recovered would go to the federal government. The copyright term lasted for fourteen years, with one renewable fourteen-year term. Of interest, the act explicitly did not prohibit the copying, reprinting, or selling of works by noncitizens, thereby permitting, in effect, piracy of foreign authors’ works. U.S. copyright law has undergone legislative overhauls several times, most significantly with general revisions in 1831, 1870, 1909, and 1976. See also Constitutional Convention of 1787; Copyright.
Kevin R. Davis
furthe r reading
given a nontransferable, nonwaivable right to recapture their copyrights thirty-five years after their transfer. Specific First Amendment protections were built into the act. For example, the fair use provision allowed for uses of copyrighted works in news, commentary, reviews, criticism, or parody. In using the phrase “works of authorship” in Section 102 of the law, Congress specifically meant to protect only the precise way in which authors express their ideas, not the ideas themselves: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such a work.”
Patterson, Lyman Ray. Copyright in Historical Perspective. Nashville, Tenn.: Vanderbilt University Press, 1968.
See also Copyright; Eldred v. Ashcroft (2003); Fair Use.
Copyright Act of 1976
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The Copyright Act of 1976 forms the basis of copyright law in the United States today. It took effect on January 1, 1978, implementing fundamental and sweeping changes in many aspects of copyright law. Copyright protection extends to all “original works of authorship” to take into account new kinds of media. Congress adopted this expansive language to avoid having constantly to amend copyright laws to account for the development of new technologies and means of expression, such as still photography, motion pictures, or recordings.The crafting of the 1976 law followed hearings and revisions from 1964 to 1976 and involved the substantial participation of interest groups, including authors, publishers, and other producers of copyrighted works, educators, libraries, and the public at large. Foremost among the changes introduced in 1976 was the creation of federal copyright protection for every work as soon as it is created—that is, when it is first fixed in a tangible medium of expression.To make U.S. copyright laws conform more with those of the rest of the world, Congress made the duration of copyright based on the life of the creator plus a term of years, rather than a uniform term of years. It substantially reduced reliance on a system of formalities, such as publication bearing a specific notice, for copyright protection. Harmonizing copyright law with free-expression principles, the 1976 statute incorporated the concept of fair use for the first time in such a law. Creators of works were
Geoffrey P. Hull Copyrights Act, House Report No. 94-1476, 94th Cong., 2d sess. (1976). Copyright Basics, www.copyright.gov/circs/circ1.html.
Cornelius v. NAACP Legal Defense and Educational Fund (1985) In Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985), the Supreme Court ruled that a policy excluding advocacy organizations from participating in a program soliciting contributions from federal employees did not violate the First Amendment. President Dwight D. Eisenhower had created the Combined Federal Campaign (CFC) by executive order in 1957. Under the program, federal employees would be allowed to contribute money each year to a general fund for distribution to local organizations or they could donate to specific organizations in the program. Each employee would be provided a short statement describing the participating groups. In 1982 President Ronald Reagan issued an amendment specifying that only organizations that “provide or support direct health and welfare services” would be allowed to participate in the CFC; further, it explicitly declared that groups engaged in “political activity or advocacy, lobbying, or litigation” would be excluded. The National Association for the Advancement of Colored People brought a lawsuit claiming that its exclusion under the amended order violated the First
Corporate Speech Amendment. A district court and court of appeals agreed. The Supreme Court reversed in a 4-3 vote. Justices Thurgood Marshall and Lewis F. Powell Jr. did not participate. In the opinion for the Court, Justice Sandra Day O’Connor first noted that solicitation of funds for charities is protected speech under the First Amendment. Next she considered the identity and type of forum in which the speech in this case took place—the federal workplace at large or specifically the CFC—and whether this forum was a traditional public forum, a public forum by designation, or a nonpublic forum. O’Connor concluded that the CFC was the forum at issue and that it was a nonpublic forum. Speech in a nonpublic forum may constitutionally be regulated so long as the regulations are reasonable and viewpoint neutral. The Court determined that the amended executive order was reasonable as well as viewpoint neutral, so the restriction barring the NAACP from participating in the CFC did not violate the First Amendment. Justice Harry A. Blackmun dissented, arguing that O’Connor’s analysis of public versus nonpublic forums was flawed. He stated that her understanding “transforms the First Amendment into a mere ban on viewpoint censorship.” Blackmun further dissented on the ground that the exclusion of groups such as the NAACP was viewpoint-based discrimination and thus a violation of the First Amendment even if the CFC were a nonpublic forum. Justice John Paul Stevens also dissented, focusing on the fact that the case did not involve the allocation of any of the undesignated charitable gifts, but only designated contributions. He argued that because the only money that would be given to the NAACP was that which employees individually chose to contribute specifically to the NAACP, the reasons for excluding the NAACP identified by Justice O’Connor were not in fact reasonable. See also O’Connor, Sandra Day; Public Forum Doctrine.
Dara Purvis
furthe r reading Dienes, C. Thomas.“Commentary: The Trashing of the Public Forum: Problems in First Amendment Analysis.” George Washington Law Review 55 (November 1986): 109–122.
Corn-Revere, Robert Robert Corn-Revere (1954– ) is a leading First Amendment attorney in the United States.
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Born in 1954 in Mattoon, Illinois, Corn-Revere earned an undergraduate degree from Eastern Illinois University in 1977, a masters degree from the University of Massachusetts at Amherst in 1980, and a law degree from Catholic University’s Columbus School of Law in 1983. A partner at the Washington, D.C.–based firm of Davis Wright Tremaine LLP, Corn-Revere successfully argued the case of United States v. Playboy Entertainment Group (2000), in which the Supreme Court ruled as unconstitutional a section of the Telecommunications Act of 1996 limiting the transmission of sexually explicit programming.As lead counsel to a group of Virginia citizens, he had previously successfully challenged on First Amendment grounds a restrictive Internet policy at a public library in Mainstream Loudoun v. Board of Trustees of Library (E.D. 1998). In 2003 Corn-Revere petitioned New York governor George Pataki for a pardon of comedian Lenny Bruce, who had been convicted of obscenity in the 1960s.The December 2003 pardon was the first posthumous pardon granted in New York. Corn-Revere served as chief counsel to Federal Communications Commission interim chair James Quello. The co-author of Modern Communications Law (1999), he has written extensively on a wide range of First Amendment issues, including regulation of the Internet, broadcast indecency, and flag burning. He also serves as an adjunct scholar at the Cato Institute. See also Bruce, Lenny; Federal Communications Commission; United States v. Playboy Entertainment Group (2000).
David L. Hudson Jr.
furthe r reading Associated Press. “Comedian Lenny Bruce Pardoned.” First Amendment Center Online, December 23, 2003. www.firstamendment center.org/news.aspx?id=12394.
Corporate Speech Corporate speech refers to the rights of corporations to advertise their products and to speak to matters of public concern. Commercial speech as manifested through advertising and political speech in the form of contributions and expenditures on behalf of candidates and political issues must be considered in assessing whether a corporation has the same rights under the First Amendment as people. Regulation of the former must survive intermediate scrutiny to pass constitutional muster, but the latter must survive strict scrutiny.
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Corporate Speech
The Supreme Court initially ruled that commercial speech had no First Amendment protection in a case involving a city prohibition on the distribution of commercial and advertising matter in the streets. In Valentine v. Chrestensen (1942), the plaintiff, Chrestensen, had created a handbill advertising his business on one side and on the other language protesting the city’s law, which he claimed affected his business. Finding that the government had the right to regulate methods of advertising, the Court determined that having “a civic appeal” attached to an advertisement would be a cheap way for corporations to gain immunity from government regulation. The Court found the Constitution placed no limitation on the regulation of commercial speech and denied Chrestensen’s argument that such speech was protected by the First Amendment. After more than three decades of silence on this issue, the Court in Bigelow v. Virginia (1975), and more explicitly in Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976), found that advertising did indeed merit constitutional protection, though it was less deserving of protection than social or political discourse. In Ohralik v. Ohio State Bar Association (1978), the Court upheld limits on some face-to-face solicitations by lawyers of clients. The Supreme Court articulated the four-part, modern test for the protection of commercial speech in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980). Applying intermediate scrutiny, for commercial speech to receive First Amendment protection it must relate to lawful activity and not be misleading, and any regulation of such speech must support a substantial governmental interest; must directly advance that substantial governmental interest; and must not be more extensive than is necessary to serve the governmental interest. Otherwise the regulation will be held unconstitutional. In the realm of corporate political speech, the level of protection varies depending on whether the speech occurs in the context of an impending election. Outside the context of an election, corporations arguably enjoy broad political speech rights. In First National Bank of Boston v. Bellotti (1978), the Supreme Court invalidated a state statute prohibiting a corporation from making contributions to influence voters on ballot issues relating to matters outside the ambit of the business or assets of the corporation. Corporate political speech, however, faces much greater susceptibility to regulation in the wake of an election. In the landmark Buckley v. Valeo (1976), the Court upheld restrictions that limited campaign contributions to $1,000 by any person or
corporation to apply to instances of “express advocacy” that mentioned a clearly identified candidate in an upcoming election. The Court reaffirmed its position in Federal Election Commission v. Massachusetts Citizens for Life (1986) by upholding the amendment to the Federal Election Campaign Act (FECA) prohibiting corporations from using general treasury funds for contributions toward express advocacy in the context of an election but exempting nonprofits from the regulation. The Court reversed itself four years later with respect to nonprofit organizations in Austin v. Michigan Chamber of Commerce (1990). In Federal Election Commission v. Beaumont (2003), the Court rejected a challenge to FECA regulations barring direct corporate campaign contributions to a nonprofit advocacy corporation in federal elections. It held, “Any attack on the federal prohibition of direct corporate political contributions goes against the current century of congressional efforts to curb corporations’ potentially ‘deleterious influences on federal elections,’ which we have canvassed a number of time before.” In the twenty-first century’s bookend to Buckley, the Court in McConnell v. Federal Election Commission (2003) upheld a federal regulation effectively barring a corporation from using treasury funds to produce advertisements that merely mention a candidate’s name within sixty days of an election. The Court stated, “We have repeatedly sustained legislation aimed at ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”Thus although the First Amendment provides significant protection for corporate political speech well before election day, that protection all but evaporates within sixty days of it. In the latter part of the twentieth century, corporations attempted to blur the line between commercial and political speech, arguing that shareholders increasingly wanted them to take positions on social issues. In addition, in defense of charges that corporations were not behaving in socially responsible ways, these entities attempted to use the protection of political speech to shield themselves from liability, though in Nike v. Kasky (2003), the one primary case testing the issue, the Court was unwilling to deal with the merits. See also Austin v. Michigan Chamber of Commerce (1990); Bigelow v. Virginia (1975); Buckley v. Valeo (1976); Campaign Regulation;
Corporation of the Presiding Bishop v. Amos (1987) Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Federal Election Commission v. Beaumont (2003); Federal Election Commission v. Massachusetts Citizens for Life (1986); McConnell v. Federal Election Commission (2003); Ohralik v. Ohio State Bar Association (1978); Valentine v. Chrestensen (1942); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976).
Cleveland Ferguson III
furthe r reading Piety, Tamara R. “Grounding Nike: Exposing Nike’s Quest for a Constitutional Right to Lie.” Temple Law Review 78 (2005): 141–187. Sprague, Robert. “Business Blogs and Commercial Speech: A New Analytical Framework for the 21st Century.” American Business Law Journal 44 (2007): 127–159.
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos (1987) In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v.Amos (1987), the Supreme Court affirmed anti-discrimination provisions of the Civil Rights Act of 1964 exempting from charges of discrimination the nonprofit activities of religious organizations, not just their religious ones.The ruling established that religious organizations have rights, like individuals, and that religious bodies can discriminate based on religion whereas secular organizations and businesses cannot. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of age, race, sex, disability, religion, national origin, and pregnancy. The creators of this act were concerned, however, that it would infringe on the First Amendment rights of religious organizations by forcing them to hire individuals who were not in accord with their beliefs. The measure did not specifically address the religious practices of religious employers or the right of religious institutions to employ people based on religious considerations. Because of these concerns, lawmakers added an exemption, section 702, specifically acknowledging the right to use religious criteria in employment decisions.The Equal Employment Opportunity Act of 1972 altered section 702 to cover all secular as well as religious nonprofit activities of a religious organization. The case as heard by the Supreme Court combined discrimination cases that had been filed in Utah district court by Christine J. Amos and seven other plaintiffs who worked
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at organizations run by the Church of Jesus Christ of Latterday Saints (the Mormons). Arthur Frank Mayson was added as another plaintiff. Mayson had been employed at the Deseret Gymnasium—a nonprofit facility in Salt Lake City open to the public but run by the Church of Jesus Christ of Latter-day Saints—but was discharged in 1981 for failing to qualify for a temple recommend. Mayson and the other plaintiffs claimed that they were wrongfully terminated for their religious beliefs and claimed that the exemption afforded to the church by section 702 violated the establishment clause of the First Amendment. A unanimous Supreme Court disagreed. In the opinion for the Court, Justice Byron R. White examined section 702 by applying the three-part Lemon test and deciding that the exemption had a secular legislative purpose, did not advance or inhibit religion, and helped avoid excessive government entanglement with religion. Some of the main concerns with this case involved the possibility of the government becoming involved in the internal affairs of a religious organization if it had to determine what activities were religious. In a concurring opinion, Justice William J. Brennan Jr. observed that this would constitute an improper government intrusion into religion, which the establishment clause forbids. He further expressed the concern that if religions had to rely on courts to determine what activities are religious, then they would base their activities in accordance to how likely they could be sued, an unacceptable violation of the free exercise clause. The ruling did not resolve whether the exemption in section 702 can be applied to a religious organization’s forprofit activities. Justice Brennan indicated that it is easier to claim that a religious organization’s activities are likely to be religious if they are nonprofit activities. Justice Sandra Day O’Connor, in a concurring opinion, mentioned also that section 702 would more likely be stretched thin in for-profit activities of religious organizations. See also Church of Jesus Christ of Latter-day Saints; Taxation of Religious Entities;White, Byron R.
Dennis Miles
furthe r reading Evans, Bette Novit. Interpreting the Free Exercise of Religion: The Constitution and American Pluralism. Chapel Hill: University of North Carolina Press, 1997. Jennifer Mary Burman. “Corporation of Presiding Bishop v. Amos: The Supreme Court and Religious Discrimination by Religious Educational Institutions.” Notre Dame Journal of Law, Ethics and Public Policy 3 (1987–1988): 629–662.
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Counterspeech Doctrine
Counterspeech Doctrine The counterspeech doctrine posits that the proper response to negative speech is to counter it with positive expression. It derives from the theory that audiences, or recipients of the expression, can weigh for themselves the values of competing ideas and, hopefully, follow the better approach. The counterspeech doctrine is one of the most important free-expression principles in First Amendment jurisprudence. Justice Louis D. Brandeis established it in his classic concurring opinion in Whitney v. California (1927), when he wrote, “If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Some observers argue that the counterspeech principle makes a better ideal than a reality, primarily because some people or groups in society possess far more power than do others. For example, proponents of critical race theory contend that minorities often are denied access to the marketplace of ideas to counter harmful speech. Others argue that some types of speech—for example, pornography and hate speech—are so harmful that counterspeech alone is not an adequate response. First Amendment experts Robert Richards and Clay Calvert (2000) offer that “[a]lthough counterspeech is not always a perfect remedy, individuals and courts should seriously consider it as a solution. When used wisely, counterspeech may prove to be a very effective solution for harmful or threatening expression” (p. 555). The Supreme Court applied Brandeis’s principle in Linmark Associates, Inc. v. Townships of Willingboro (1977) in striking down a city ban on “for sale” signs designed to combat white flight.The Court wrote that a better response for the city would be to continue its “process of education” by “giving widespread publicity to ‘Not for Sale’ signs.” Later, Justice Clarence Thomas cited Brandeis’s counterspeech passage from Whitney in his concurring opinion in Lorillard Tobacco Co. v. Reilly (2001), which invalidated a number of restrictions on tobacco advertising.Thomas wrote that if the state of Massachusetts’ “concern is that tobacco advertising communicates a message with which it disagrees, it could seek to counteract that message with ‘more speech, not enforced silence.’” See also Brandeis, Louis D.; Critical Race Theory; Linmark Associates, Inc. v. Township of Willingboro (1977); Lorillard Tobacco Co. v. Reilly (2001);Thomas, Clarence;Whitney v. California (1927).
David L. Hudson Jr.
furthe r reading Richards, Robert D., and Clay Calvert.“Counterspeech 2000: A New Look at the Old Remedy for ‘Bad’ Speech.” Brigham Young University Law Review (2000): 553–586.
County of Allegheny v. American Civil Liberties Union (1989) In County of Allegheny v. American Civil Liberties Union 492 U.S. 573 (1989), a splintered Supreme Court held that a crèche display inside a county courthouse in Pittsburgh violated the establishment clause, but another display containing a menorah, a Christmas tree, and other decorations outside the City-County Building a block from the courthouse did not. The City of Pittsburgh and Allegheny County erected the holiday displays each year. In an opinion written by Justice Harry A. Blackmun, the Court held that the proper question was whether the challenged governmental practice had the purpose or effect of “endorsing” religion. It looked to whether the government conveyed or attempted to convey that religion in general or a particular religion was favored or preferred. In spelling out this test, the Court said that the establishment clause prevents government from appearing to take a position on questions of religious belief or making adherence to a religion relevant to a person’s standing in the political community.Armed with this test, the Court then examined the two displays at issue. Noting that the crèche scene stood alone, unlike a previous display upheld in Lynch v. Donnelly (1984), the Court ruled that such a singular display, especially in the “seat of government” impermissibly endorsed the Christian religion. The display containing the menorah, on the other hand, situated the religious symbol among secular symbols of the holiday season, thus making it more akin to the display upheld in Lynch. Justice Sandra Day O’Connor concurred, embracing the endorsement test that she had proposed in her concurring opinion in Lynch. She rejected, however, the view presented by Justice Anthony M. Kennedy in a separate opinion that the Court should only look to whether the government used coercive practices to endorse religion. She believed that such a view failed to properly safeguard the First Amendment. She also rejected Justice Blackmun’s view that in order to pass constitutional muster, the government must use the “most secular alternative” to a religious symbol. Because a reasonable observer would not find the display of the menorah alongside a Christmas tree and other
Cox v. Louisiana (1965) symbols to be endorsement of Judaism, she voted to uphold that display. Justice William J. Brennan Jr. wrote separately because he believed that both displays violated the establishment clause, making the display containing the menorah unconstitutional as well. Also writing separately, Justice John Paul Stevens considered the menorah display unconstitutional, because he believed the establishment clause should be read to create a strong presumption against the display of religious symbols on public property. Justice Kennedy wrote separately because he felt the proper test should be whether the government used its coercive powers to aid religion. He found that absent coercion, the risk of infringement on religious liberty by symbolic accommodation was minimal. If people were offended by the displays in this case, they were free to turn their backs. He found the endorsement test to be an unwelcome addition to establishment clause jurisprudence because it would strike down longstanding traditions. Therefore, applying his coercion test, he would have upheld both displays. See also Blackmun, Harry A.; Coercion Test; Endorsement Test; Lynch v. Donnelly (1984); O’Connor, Sandra Day; Symbolic Speech.
Alan Tauber
furthe r reading Drakeman, Donald. Church-State Constitutional Issues: Making Sense of the Establishment Clause. New York: Greenwood Press, 1991. Levy, Leonard. The Establishment Clause: Religion and the First Amendment. Chapel Hill: University of North Carolina Press, 1994.
Covington, Hayden C. Hayden C. Covington (1911–1978) was long the central advocate for fellow Jehovah’s Witnesses, whose beliefs and practices and fervent evangelism often led to conflict with civil authorities. He is one of the most important and least heralded attorneys on First Amendment issues, especially those related to the free exercise of religion. Covington is believed to have brought 111 petitions and appeals before the Supreme Court and to have won 85 percent of the forty-four cases that he argued (Vile 2001: 134). His work demonstrates the important role that representatives of minority religions have often played in advancing religious freedom in the United States. Born in Hopkins County, Texas, Covington earned his law degree from the San Antonio Bar Association’s School of Law, now St. Mary’s University School of Law. He quickly
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moved from work representing an insurance company to defending Jehovah’s Witnesses. When “Judge” J. F. Rutherford, the head of the faith, died in 1942, Covington succeeded him as chief counsel of the organization. Covington’s concerns for religious freedoms were often tied closely to the other First Amendment rights of speech, press, peaceable assembly, and petition. Covington argued for Jehovah’s Witnesses in West Virginia State Board of Education v. Barnette (1943), in which the Supreme Court reversed an earlier decision upholding compulsory flag salutes in public schools although Witnesses considered it a form of idolatry. Covington also successfully intervened in Cantwell v. Connecticut (1940)—the first case applying the free exercise clause to the states—and in Jones v. City of Opelika II (1943), which established the right of Jehovah’s Witnesses to make door-to-door solicitations. Covington became involved on behalf of the boxer Cassius Clay’s effort to obtain the status of conscientious objector, a position supported by Jehovah’s Witnesses. As an advocate, Covington had a reputation for fearlessness, and his arguments were animated but civil. He conflicted with Nathan Knorr, who succeeded Rutherford as president of the Witnesses, and was excommunicated for a time, but was reinstated by the time of his death in 1978. See also Cantwell v. Connecticut (1940); Jehovah’s Witnesses; Jones v. City of Opelika (1942) (1943); West Virginia State Board of Education v. Barnette (1943).
John R.Vile
furthe r reading McAninch,William S.“A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court.” University of Cincinnati Law Review 55 (1987): 997–1077. Vile, John R. “Covington, Hayden C.” In Great American Lawyers: An Encyclopedia, ed. John R. Vile, 1:134–140. Santa Barbara, Calif.: ABC-CLIO, 2001.
Cox v. Louisiana (1965) The Supreme Court in Cox v. Louisiana, 379 U.S. 536 (1965), affirmed that an otherwise constitutionally valid law regulating the time, manner, and place of public demonstrations can be unconstitutional if the statute grants undue discretion to public officials charged with administering and enforcing the statute. In 1964 in Baton Rouge, Louisiana, Elton Cox led a march of approximately 2,000 people to protest the arrests of civil rights advocates.The march ended across the street from the courthouse in a location initially approved by the city’s
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Cox v. New Hampshire (1941)
chief of police. Later, the chief told Cox that he and his group had to leave the area. Cox refused, and the police dispersed the crowd with tear gas. The next day, Cox was arrested for “disturbing the peace,” “obstructing public passages,” and “intent of interfering with . . . the administration of justice.” The Louisiana Supreme Court upheld his conviction. Cox appealed to the U.S. Supreme Court, arguing that the law was unconstitutional on its face and as applied to him, because it violated the freedom of speech guarantee of the First and Fourteenth Amendments.The Court reversed in a 7-2 vote. In the opinion for the Court, Justice Arthur J. Goldberg asserted that the Louisiana law defining breach of the peace as any activity that (among other things) is designed “to interrupt” or “to disquiet” was “unconstitutionally vague in its overly broad scope.”The Court found unconvincing the state’s claim that although the demonstration was not violent, it was “inherently dangerous” and therefore qualified as breach of the peace. Such a definition, Goldberg wrote, “would allow persons to be punished merely for peacefully expressing unpopular views” and thereby defeat the entire rationale of the First Amendment guarantee, which is based on the very notion that “[s]peech is often provocative and challenging” and may have “profound unsettling effects.” Although carefully drawn state regulations on the time, place, and manner of public gatherings, including demonstrations, can be constitutional, the Court observed that the Louisiana law regarding “obstructing public passages” established a blanket prohibition of “all street assemblies and parades,” yet Baton Rouge allowed some gatherings and parades while prohibiting others. Because there were no “uniform, consistent, and nondiscriminatory” standards for granting exceptions to the general law, the application of the law to Cox was unconstitutional. On the charge of Cox interfering with the administration of justice, Goldberg noted that the statute in question prohibited picketing “near” a courthouse with the intention of influencing the judicial system. The Court held that although the Louisiana law reflected a “substantial state interest in protecting the judicial process,” its application to Cox rendered it unconstitutional due to the “degree of onthe-spot administrative interpretation” it gave the police to define the meaning of “near.”That Cox was first told by the police chief that the site of his demonstration would not be considered “near” the courthouse but later was informed of the opposite could be considered a form of police entrapment—“convicting a citizen for exercising a privilege which the State had clearly told him was available to him.”
See also Breach of the Peace Laws; Civil Rights Movement; Goldberg, Arthur J.; Overbreath;Vagueness.
Karen Aichinger
furthe r reading “Comment: The Constitutionally of a Requirement to Give Notice before Marching.” University of Pennsylvania Law Review 118 (1969): 270–279. Kalven, Harry, Jr. “The Concept of the Public Forum: Cox v. Louisiana.” Supreme Court Review (1965): 1–32.
Cox v. New Hampshire (1941) In Cox v. New Hampshire, 312 U.S. 569 (1941), the Supreme Court upheld the conviction of a number of Jehovah’s Witnesses for parading without a permit, ruling that their First Amendments rights to freedom of religion, speech, and assembly had not been violated. A group of Jehovah’s Witnesses had peacefully paraded single file on a sidewalk in Manchester, New Hampshire, carrying signs and handing out leaflets announcing a meeting. They had not secured the requisite permit. They invoked their First Amendment rights and argued that the permit requirement vested undue authority in the licensing authority and was “vague and indefinite.” In the opinion for the unanimous Court, Chief Justice Charles Evans Hughes rejected the assertion that the case involved “freedom of worship”; according to the Court, the permit requirement did not evidence interference with worship but was “only the exercise of local control over the use of streets for parades or processions.” In brief, the Jehovah’s Witnesses had not been prosecuted for the content of their expression but for parading without a permit. Hughes observed that constitutional civil liberties “imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.” He further noted,“The control of travel on the streets of cities is the most familiar illustration of this recognition of social need.” Permits would enable preparation for contingencies necessitated by demonstrations and were valid “time, place and manner” restrictions. Hughes also rejected the idea that permit fees, ranging from a nominal amount to $300, were unreasonable and asserted that a flat fee would not as easily allow the city to adapt to contingencies. He distinguished this decision from those concerning peaceful assembly in Lovell v. City of Griffin (1946), Hague v. Committee for Industrial Organization (1939), Schneider v. New Jersey (1939), Cantwell v. Connecticut (1940), Thornhill v. Alabama (1940), and Carlson v. California (1940).
Cox Broadcasting Corp. v. Cohn (1975) See also Cantwell v. Connecticut (1940); Carlson v. California (1940); Hague v. Committee for Industrial Organization (1939); Hughes, Charles Evans; Jehovah’s Witnesses; Licensing Laws; Lovell v. City of Griffin (1938); Parades; Schneider v. State (1939);Thornhill v. Alabama (1940);Time, Place, and Manner Restrictions.
John R.Vile
furthe r reading Lee,William E. “Lonely Pamphleteers, Little People, and the Supreme Court: The Doctrine of Time, Place, and Manner Regulations of Expression.” George Washington Law Review 54 (1986): 757–811.
Cox, Archibald Archibald Cox (1912–2004), a distinguished lawyer, is best known for his role as special prosecutor in the Watergate investigation, but his career also involved him in a number of First Amendment issues. Born in Plainfield, New Jersey, Cox graduated from Harvard Law School in 1937. In 1961 President John F. Kennedy, for whom Cox had previously served as a speechwriter and adviser, appointed him as solicitor general. In this capacity, Cox won a variety of cases defending the expressive rights of civil rights protesters. Examples of his success include Bell v. Maryland (1964) and Griffin v. Maryland (1964), in which he persuaded the Supreme Court to uphold sit-ins on relatively narrow grounds. In 1965 Cox returned to his former position on the faculty at Harvard Law School. He wrote a report for Columbia University dealing with student protests at that institution and helped guide Harvard University’s policies in response to student anti-war protests from 1969 to 1972. In May 1973, Attorney General Elliot Richardson appointed Cox the first special prosecutor in the Watergate scandal. Cox’s investigation contributed to the chain of events leading to the resignation of President Richard M. Nixon. After testimony revealed that the Nixon administration had installed a recording device in the Oval Office, Cox subpoenaed tapes of conversations that took place there. When Nixon refused to turn over the tapes, citing executive privilege, Cox took the matter to court. Finding that the president was not above the law, the courts ordered Nixon to give the tapes to Cox. The president instead offered to supply Cox with transcripts. When Cox rejected this approach, Nixon ordered him fired. Rather than carry out Nixon’s order, Attorney General Richardson and Deputy Attorney General William Ruckelshaus resigned. Solicitor General Robert Bork then agreed to fire Cox.The resigna-
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tions and firing became known as the “Saturday night massacre.” These events elicited protests and calls for Nixon’s impeachment. Nixon eventually conceded, relinquishing the tapes to the new special prosecutor, Leon Jaworski. Cox served as the chairman of Common Cause, a nonprofit lobbying organization focused on campaign finance reform that helped secure the decision in Buckley v. Valeo (1976) upholding much of the Federal Election Reform Act of 1974. He was the recipient of the Paul Douglas Ethics in Government Award in 1995 and also received a Thomas “Tip” O’Neill Citizenship Award. See also Bell v. Maryland (1964); Bork, Robert; Buckley v. Valeo (1976); Civil Rights Movement; Nixon, Richard M.
Howard Leib
furthe r reading Gormley, Ken. Archibald Cox: Conscience of a Nation. Boston: AddisonWesley, 1997. ———. “Cox, Archibald.” In Great American Lawyers: An Encyclopedia, ed. John R. Vile, 1:141–149. Santa Barbara, Calif.: ABC-CLIO, 2001.
Cox Broadcasting Corp. v. Cohn (1975) In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the Supreme Court absolved a reporter from criminal and civil charges for revealing the identity of a rape victim found in a search of public documents. In arriving at its decision, the Court in essence expressed value of the First Amendment over public disclosure privacy tort in the context of information revealed from a public record. In this case, a father had filed suit in a Georgia court against a television news reporter who had discovered and identified his daughter by name as being a rape victim. Claiming an unlawful invasion of privacy, the father cited a Georgia criminal statute proscribing the publication or broadcast of rape victims’ identities. In the opinion for the Court, Justice Byron R.White first confirmed that the Court had adjudicatory authority. The Court then considered whether “a State may extend a cause of action for damages for invasion of privacy caused by the publication of the name of a deceased rape victim which was publicly revealed in connection with the prosecution of the crime.” The Court ultimately concluded that the First Amendment (via the Fourteenth Amendment) protected the news
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reporter from civil and criminal liability stemming from the Georgia statute for three reasons. First, because the reporter had procured the information from the “public domain on official court records,” the justices maintained that merely furthering already public information does not constitute a crime. Second, the Court turned to defamation cases, reasoning that because the reporter’s disclosure of the rape victim’s name was neither false nor in reckless disregard for truth or falsity, liability should not be imposed. At the same time, however, the justices “carefully left open the question whether the First and Fourteenth Amendments require that truth be recognized as a defense” in defamation or public disclosure cases. Third, arguing more generally on policy grounds, the Court was reluctant to sanction the press for disseminating public records—even if damaging or harmful to another’s reputation—given that the press is necessary to an informed society. The justices pointedly feared that creating liability for the publication of public information deemed “offensive to the sensibilities” would end in “selfcensorship” and the “suppression of many items that would otherwise be published and that should be made available to the public.” Justice William H. Rehnquist filed a solo dissent, chiefly on jurisdictional grounds. See also Censorship; Libel and Slander; Privacy;White, Byron R.
Sandeep C. Ramesh
furthe r reading Deutsch, Norman T. “Professor Nimmer Meets Professor Schauer (and Others): An Analysis of ‘Definitional Balancing’ as a Methodology for Determining the ‘Visible Boundaries of the First Amendment.’ ” Akron Law Review 39 (2006): 483–539. Sims, Andrew B. “Food for the Lions: Excessive Damages for Newsgathering Torts and the Limitations of Current First Amendment Doctrines.” Boston University Law Review 78 (1998): 507–563.
Craig v. Harney (1947) In Craig v. Harney, 331 U.S. 367 (1947), the Supreme Court cited freedom of speech and press grounds to overturn a criminal contempt of court conviction against a publisher, an editorial writer, and a newspaper reporter for stories they ran about a case being tried by a local judge who was a layman. The trial judge had concluded that the writings improperly had been designed to influence his decision in the pending case, and a Texas court of criminal appeals had agreed. In the opinion for the Court, Justice William O. Douglas noted that Texas had not given adequate attention to the decisions in Nye v. United States (1941), Bridges v. California
(1941), and Pennekamp v. Florida (1946). Douglas asserted that courts should only use criminal contempt in instances involving a clear and present danger to the administration of justice. He stated that although the articles were not accurate, such inaccuracies were “commonplace” and not criminal. He characterized the editorial as “strong,”“intemperate,” and perhaps “unfair,” but then said that it did not “immediately imperil” justice. “Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” Justice Francis W. Murphy’s concurring opinion stressed the importance of the free press and the dangers of giving judges summary powers to punish it. In a dissent joined by Chief Justice Frederick M.Vinson, Justice Felix Frankfurter attempted to distinguish prior cases from this one by suggesting that state courts had greater power under their laws to issue contempts than did federal courts. Frankfurter cited Justice Oliver Wendell Holmes Jr.’s language in Patterson v. Colorado (1907) on the importance of having judges influenced by what happened in the court as opposed to outside criticisms. Frankfurter feared that the editorials constituted such outside influences. Frankfurter thought that states had the power to prevent the “psychological danger” of improper influence. Justice Robert H. Jackson’s dissent emphasized the importance of “a calm and fair trial free from outside pressures and influences.” He noted that the case at hand involved a civil lawsuit in a case in which the judge was not a lawyer and may not have been as confident in his professional opinions. See also Bridges v. California (1941); Clear and Present Danger Test; Contempt of Court; Douglas, William O.; Frankfurter, Felix; Patterson v. Colorado (1907); Pennekamp v. Florida (1946).
John R.Vile
furthe r reading Krause, Stephen J. “Punishing the Press: Using Contempt of Court to Secure the Right to a Fair Trial.” Boston University Law Review 76 (1996): 537–574.
Craig v. Hecht (1923) In Craig v. Hecht, 263 U.S. 255 (1923), the Supreme Court decision ruled that a circuit court judge had improperly issued a writ of habeas corpus to Craig, the comptroller of New York City, for a contempt ruling that a U.S. district judge had issued against Craig after Craig had written and published a letter to the public service commissioner criticizing one of the judge’s rulings.
Creationism Justice James C. McReynolds’s opinion for the Court focused almost solely on showing that the circuit court judge had no authority to issue a writ of habeas corpus in this case and that Craig should have appealed his contempt citation to a three-judge court of appeals. Reynolds cited Toledo Newspaper Co. v. United States (1918) in upholding the district judge’s issuance of his initial contempt citation. In a concurring opinion, Chief Justice William Howard Taft agreed that courts should preserve the public right to comment on and criticize judicial actions, but he went on to say that “it is also essential that courts and judges should not be impeded in the conduct of judicial business by publications having the direct tendency and effect of obstructing the enforcement of their orders and judgments, or of impairing the justice and impartiality of verdicts.” Justice Oliver Wendell Holmes Jr., who had dissented in Toledo, authored a dissent, joined by Louis D. Brandeis, arguing that the trial judge’s conduct “was more than an abuse of power” and should be held “wholly void.” He thought that a trial judge should not have the power to “judge in matters in which he is likely to have keen personal interest and feeling although neither self-protection nor the duty of going on with the work requires him to take such a part.” .
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oath. He sued the Orange County school board on the grounds that the statute constituted an unconstitutional ex post facto law and bill of attainder and that the requirement of an oath was unconstitutionally vague. In the opinion for the Court, Justice Potter Stewart asserted that the law at issue was indeed unconstitutionally vague and that such vagueness was of special concern when First Amendment rights were involved. He added that this finding was not intended to “question the power of a State to safeguard the public service from disloyalty.”According to Stewart, vagueness could lead to “the risk of unfair prosecution and the potential deterrence of constitutionally protected conduct,” such as speech. He observed that a vague statute was particularly likely to weigh upon those with tender consciences. Experience shows that “prosecutors too are humans” and that some are “always ready to affix a Communist label upon those whose ideas they violently oppose.” Justices Hugo Black and William O. Douglas concurred but for reasons expressed in dissents and concurrences in other free speech cases. See also Communist Party of the United States; Loyalty Oaths; Stewart, Potter;Vagueness.
John R.Vile See also Contempt of Court; Holmes, Oliver Wendell, Jr.; Toledo Newspaper Co. v. United States (1918).
John R.Vile
furthe r reading Raveson, Louis S. “Advocacy and Contempt: Constitutional Limitations on the Judicial Contempt Power: Part One. The Conflict Between Advocacy and Contempt.” Washington Law Review 65 (1990): 477–593.
Cramp v. Board of Public Instruction of Orange County (1961) In Cramp v. Board of Public Instruction of Orange County, 368 U.S. 278 (1961), the Supreme Court unanimously struck down as unconstitutionally vague a 1949 Florida statute requiring all state employees to swear in writing that they had not lent their “aid, support, advice, counsel or influence to the Communist Party.” Cramp, a public school teacher, had declared that he was not a member of the Communist Party and had not lent support to the party, but he nonetheless refused to sign an
furthe r reading Goldsmith, Andrew. “The Void-for-Vagueness Doctrine in the Supreme Court Revisited.” American Journal of Criminal Law 30 (2003): 279–313.
Creationism The concept of creationism holds that life originated through a process governed by a divine being, with some creationists believing that Earth is relatively young. In contrast, Charles Darwin’s theory of evolution, published in 1859, purports that the various species of animals, including humans, are products of natural selection and random mutation that gradually, over long periods of time, produce more complex life forms from simpler life forms. A controversy over the origin of life and related scientific theories has raged for decades, with creationists pitted against evolutionists. Legal decisions concerning the teaching of creationism and evolution in public schools hinge upon the First Amendment of the U.S. Constitution. In the 1920s, some religious fundamentalists charged that teaching evolution was destroying people’s faith in God and in the Bible. The Scopes monkey trial of 1925 in Dayton,
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Tennessee, focused on the issue of whether the theory of evolution should be taught in public schools. The outcome of the trial provided no resolution to the question of whether the First Amendment permitted states to ban teaching a theory that contradicted religious beliefs. A decision was finally reached when in Epperson v. Arkansas (1968) the Supreme Court ruled that such bans on scientific theories directly conflicted with the establishment clause of the First Amendment. The Court applied the same rationale in Edwards v. Aguillard (1987) to invalidate Louisiana’s Creationism Act, which required biology teachers who taught the theory of evolution to teach creationism as well. These two decisions paved the way for state legislative bodies to pass acceptable laws that would allow teachers to present scientific theories about the origins of life in public schools. Since the 1980s, advocates of creationism, sometimes called creation science, have argued that they should have an equal opportunity to teach their views in public schools along with the theory of evolution in order to preserve academic freedom and to maximize scientific education about origins.This argument is sometimes referred to as the “balanced time” proposition. In addition, creationists assert that the controversy involving creationism and evolution needs to be explained to students in public schools. Evolutionists counter that the theory of evolution is supported by evidence that can be tested using the scientific method, whereas creationism cannot be confirmed or denied by employing the scientific method; creationism therefore has no place in the science curriculum. In 1999 the Kansas Board of Education removed the teaching of evolution from the state high school biology curriculum, but lawmakers reinstated it in 2001. In 2005 the Board of Education voted to include forms of creationism, particularly intelligent design (ID), as part of the scientific curriculum in Kansas high schools. Whereas creationism postulates a supernatural creator, ID simply suggests that life was designed but does not state the nature of the designer. In Dover, Pennsylvania, in 2005, the local school board voted that teachers be required to read a statement about ID before they discussed evolution. District judge John E. Jones ruled that the Dover mandate was unconstitutional and that ID is simply a form of creationism. Since 1968 federal legislators have cited the establishment and free exercise clauses of the First Amendment in ruling that a state, school district, or public school cannot ban the teaching of the theory of evolution, require equal time for
creationism, nor require that a disclaimer about evolution be included in the public school curriculum.Teachers can discuss creationism and controversies that involve religious topics, but if they do so they must present these topics in a nondevotional context that does not endorse any particular religion so that students of all faiths can attend school without a sense of coercion. See also Edwards v.Aguillard (1987); Epperson v.Arkansas (1968); Evolution; Intelligent Design; Scopes Monkey Trial.
Alvin K. Benson
furthe r reading Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. 2d ed. Chapel Hill: University of North Carolina Press, 1994. Reule, Deborah A. “The New Face of Creationism: The Establishment Clause and the Latest Efforts to Suppress Evolution in Public Schools.” Vanderbilt University Law Review 54 (2001): 2555–2610. Scott, Eugenie C. Evolution vs. Creationism: An Introduction. Berkeley: University of California Press, 2005. Stewart, Douglas E., Jr. “Going Back in Time: How the Kansas Board of Education’s Removal of Evolution from the State Curriculum Violates the First Amendment’s Establishment Clause.” Review of Litigation 20 (Spring 2001): 549–588.
Criminal Defamation Although defamation is now primarily a civil claim, it once was primarily a criminal offense, prosecuted by the government and punishable by imprisonment or a fine. In the United States, courts have based decisions regarding slanderous or libelous statements on the First Amendment rights of free speech and freedom of the press. Criminal statutes punishing defamatory statements date from as early as the thirteenth century in England. Criminal libel law as applied in America can be traced directly to the English Star Chamber, which, during the time of King Henry VIII (r. 1509–1547), became a forum for prosecuting critics of the monarch. Although the Star Chamber dealt primarily with prosecution of seditious libel against the state, it also increasingly applied the developing law of libel to defamatory statements made by one private individual about another. The rationale for this expansion was set out in De Libellis Famosis (1609):“libels, regardless of what actual damage results to the reputation of the defamed, may be penalized by the state because they tend to create breaches of the peace when the defamed or his friends undertake to revenge themselves on the defamer.” Under English common law, conviction for libel generally required only that
Criminal Defamation proof of a defamatory statement had been uttered.The truth of a statement was irrelevant. After the abolition of the Star Chamber, in 1641, common law courts took jurisdiction of criminal libel. Seditious libel was part of the English law adopted by the American colonies and was vigorously prosecuted in preindependence America.The most famous case of this era was the 1735 prosecution of John Peter Zenger, a New York printer, in which Zenger’s lawyer, Andrew Hamilton, persuaded the jury to ignore the judge’s instruction that truth of the statements at issue was irrelevant. Criminal defamation continued to be prosecuted at the state level after the colonies gained independence. Ratification of the First Amendment in 1791 had little impact since this amendment applied at the time only to actions by the national government. In 1798 the federal government passed the Sedition Act, which imposed criminal liability on individuals who defamed the country or its officials. This law, an outgrowth of the bitter rivalry between the Federalists and the Democratic-Republicans, was signed by Federalist president John Adams to stifle his political enemies—many of whom were Democratic-Republican newspaper editors. Although it is now conventional wisdom that the Sedition Act was unconstitutional (and James Madison so argued in his Virginia Report of 1800), courts at the time rejected such arguments. After the bitter election of 1800 ended with Democratic-Republican Thomas Jefferson assuming office as president, the Sedition Act was allowed to expire in 1801. Jefferson pardoned all those convicted under the act, and Congress refunded the fines imposed on them. Meanwhile, state libel prosecutions continued. In 1801 the Massachusetts Supreme Judicial Court held that the Constitution did not alter the English common law of criminal libel, and in 1828 the same court rejected the argument that the right to criticize public officials should be protected. Other courts, however, began moving away from the English common law of criminal libel. In People v. Croswell (N.Y. 1804), the appellate court split on the argument that newspapers were entitled to publish the truth with “good motives and justifiable ends.” The New York legislature adopted this formulation of truth as a qualified defense to criminal libel in 1805 and incorporated it into the 1821 state constitution.A majority of states gradually adopted this limited-truth defense. Some states developed their own varieties of criminal libel, such as applying it to statements about groups of people, those made only to the complainant, and those about the dead.
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In the 1930s, the Supreme Court justified criminal libel in a handful of cases that indirectly raised the issue. In Near v. Minnesota (1931), the Court held that an injunction barring the publication of a newspaper that criticized local elected officials was unconstitutional. It stated, however, that “[t]he law of criminal libel rests upon that secure foundation” which was “not abolished by the protection extended in our [state and federal] constitutions.” In Cantwell v. Connecticut (1940), the Court noted that “[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” In Chaplinsky v. New Hampshire (1942), the Court stated that punishment of libelous words has “never been thought to raise any constitutional problem.” The Court’s first decision directly confronting criminal libel was Beauharnais v. Illinois (1952), in which it narrowly upheld a conviction under Illinois’s criminal group libel law. Despite the split regarding the result, all of the justices accepted that criminal libel law rested on secure constitutional foundations. There was also a growing sentiment against criminal libel, which led the drafters of the 1962 American Law Institute’s Model Penal Code specifically to exclude the crime of criminal defamation.The major figure behind development of the code was Herbert Wechsler, a Columbia Law School professor, who argued in the Supreme Court on behalf of the New York Times in a landmark civil libel case, New York Times Co. v. Sullivan (1964). Although Sullivan involved civil libel, the decision also influenced criminal libel. In Sullivan, the Supreme Court held that the First Amendment requires that public officials, in order to recover damages in a civil libel trial, must show that a defendant acted with “actual malice”—that defendants either knew that an alleged defamatory statement was false or they acted with “reckless disregard” for the truth or falsity of the statement. Later the same year the Court ruled, in Garrison v. Louisiana (1964), that truth must be an absolute defense to criminal libel. The Court also held that the actual malice requirement in Sullivan applied to criminal libel prosecutions stemming from statements about public officials, but it did not address the standard for criminal libel prosecutions involving “purely private libels.” The Court’s most recent ruling regarding criminal libel was Ashton v. Kentucky (1966), which held that Kentucky’s unwritten, common law crime of libel was too indefinite and uncertain to be prosecuted.This ruling effectively eliminated common law crim-
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inal libel. The result of these decisions is that criminal libel may survive only if it is enacted by statute, does not place limits on truth as a defense (cannot require “good motives and justifiable ends” to use truth as a defense), and requires “actual malice” for conviction for statements regarding public officials. These rulings, and the influence of the restatement, led several jurisdictions to repeal their criminal libel provisions. In other jurisdictions, courts struck down these provisions, either totally or as they applied to statements regarding public officials and matters of public concern. Courts in some states, however, upheld criminal libel statutes, often by reading an actual malice requirement into the law. In Phelps v. Hamilton (1995), the Tenth Circuit Court of Appeals did this to uphold Kansas’s criminal libel law.The state later amended its statute explicitly to require actual malice. The criminal defamation laws in thirty-four states and territories have either been repealed or struck down as unconstitutional. As of mid-2006, seventeen states and one U.S. territory have criminal libel statutes; these numbers include statutes that have been upheld under Garrison, those limited to private libels, or those that appear to meet the Garrison requirements.These criminal libel statutes are rarely invoked, but there were several criminal prosecutions in the early 2000s, including some that led to the statutes being held invalid by courts or rescinded by legislatures. See also Actual Malice; Ashton v. Kentucky (1966); Cantwell v. Connecticut (1940); Chaplinsky v. New Hampshire (1942); Garrison v. Louisiana (1964); Near v. Minnesota (1931); New York Times Co. v. Sullivan (1964); People v. Croswell (N.Y. 1804); Public Figures and Officials; Sedition Act of 1798; Seditious Libel; Virginia Report of 1800; Zenger, John Peter.
Eric P. Robinson
furthe r reading “Constitutionality of the Law of Criminal Libel.” Columbia Law Review 52 (1952): 521–534. Eldridge, Larry. “Before Zenger: Truth and Seditious Speech in Colonial America, 1607–1700.” American Journal of Legal History 39 (1995): 337–358. Leflar, Robert. “The Social Utility of the Criminal Law of Defamation.” Texas Law Review 34 (1956). Riesman, David. “Democracy and Defamation.” Columbia Law Review 42 (1942): 1282–1318. Stevens, John, et al. “Criminal Libel as Seditious Libel, 1916–65.” Journalism Quarterly 43 (1966).
Criminal Syndicalism Laws Numerous states and U.S. territories enacted criminal syndicalism laws in the late 1910s and early 1920s with the purpose of making it illegal for individuals or groups to advocate radical political and economic changes by criminal or violent means.These laws were in direct opposition to the ideas and intentions of individual freedoms established by the founders in the First Amendment. Criminal syndicalism laws were created in response to the social changes taking place during the early part of the twentieth century in the United States and in other countries, along with the conflicts that led to World War I. At the time, government perceived challenges to American democracy coming from various fronts, including the growth of trade unions, increases in the numbers of immigrants from abroad, and the global rise of communism and fascism. During the 1910s and 1920s, authorities arrested thousands of people for advocating views and opinions that differed from or opposed those of the government. In many cases, despite the fact that these views and opinions took the form of peaceful protests and organized meetings, hundreds were tried, convicted, and sent to prison under the criminal syndicalism laws of more than twenty states and territories. Many of the laws were enacted to undermine the Industrial Workers of the World (IWW), which emerged in the United States in the early twentieth century as a labor movement promoting industrial unionism and social equality by peaceful means. Amid a shared feeling that the prosecution of radical elements within society was necessary, appellate courts at the state level and federal courts generally upheld criminal syndicalism laws, even at the expense of individual rights. Many of the cases tried in the courts defied even moderate notions of civil liberty and procedural fairness, and the IWW and other organizations considered radical were subject to persecution with the creation of illiberal and reactionary legislation. The Supreme Court upheld convictions for violations of criminal syndicalism laws in four important cases: Schenck v. United States (1919), Abrams v. United States (1919), Gitlow v. New York (1925), and Whitney v. California (1927). In each of these cases, the defendants’ views and opinions challenged generally held public ones, and the courts found sufficient basis to uphold restrictive interpretations of First Amendment rights. Such interpretation enabled states to enact criminal syndicalism laws overriding First Amendment rights. For example, in Whitney v. California, Charlotte Anita
Critical Race Theory Whitney was convicted under California’s 1919 Criminal Syndicalism Act for helping to organize the Communist Labor Party of California. Whitney claimed that it was not her intention or that of the other organizers for the party to become an instrument of violence. In this case, the Supreme Court’s decision, delivered by Justice Edward T. Sanford for the majority, invoked Justice Oliver Wendell Holmes Jr.’s clear and present danger test. Of more significance, Sanford argued that the state should have the power to punish those who abuse their rights to speech by disturbing the public peace, inciting crime, or endangering the public or by threatening to overthrow or endanger the government.The intention of Justice Sanford’s conclusions was that opinions and words that have the ability—not necessarily the intention—to incite disturbances and endanger government should be punished. In the late 1920s, a counterreaction to this period of suppression of free speech sparked the development of new laws and the reassertion of First Amendment rights. Despite this shift in perspective, cases involving violations of criminal syndicalism laws still reached the Supreme Court. In Brandenburg v. Ohio (1969), the Court held that Ohio’s criminal syndicalism statute violated the right of Clarence Brandenburg to free speech. Brandenburg, a Ku Klux Klan leader, had been charged with and convicted of advocating violence. In overruling the appellate court, the Supreme Court deemed that Ohio’s law made the advocacy of doctrines illegal, without determining whether advocacy would likely lead to imminent lawless action. The Court decided that the failure to make a clear distinction rendered the law overly broad and in violation of the Constitution. See also Abrams v. United States (1919); Brandenburg v. Ohio (1969); Clear and Present Danger Test; Congress; Espionage Act of 1917; Gitlow v. New York (1925); Holmes, Oliver Wendell, Jr.; Incitement; Schenck v. United States (1919); Whitney v. California (1927).
D. Mineshima-Lowe
furthe r reading Bobertz, Bradley C.“The Brandeis Gambit: The Making of America’s ‘First Freedom,’ 1909–1931.” William and Mary Law Review 40 (1999): 557–652. Brissenden, Paul F. The I.W.W.: A Study of American Syndicalism. New York: Russell and Russell, 1920. Kohn, Stephen M. American Political Prisoners: Prosecutions under the Espionage and Sedition Acts. Westport, Conn.: Greenwood, 1994. Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W. W. Norton and Co., 2004.
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White,Ahmed. “Criminal Syndicalism Laws, the Industrial Workers of the World, and the Criminalization of Economic Radicalism, 1917–1928.” University of Colorado Law School, Legal Studies Research Paper No. 06-05, 2006. http://ssrn.com/abstract= 893212.
Critical Race Theory Critical race theory (CRT) is a movement that challenges the ability of conventional legal strategies to deliver social and economic justice and specifically calls for legal approaches that take into consideration race as a nexus of American life.The movement champions many of the same concerns as the civil rights movement, but places those concerns within a broader economic and historical context. It often elevates the equality principles of the Fourteenth Amendment above the liberty principles of the First Amendment. CRT has its underpinnings in the philosophical writings of Derrick Bell in the 1970s and early 1980s. It was born out of the realization by legal scholars, lawyers, and activists that many of the advances of the civil rights era had stopped and in some circumstances were being reversed. Early on, legal scholars, including Bell,Alan Freemen, and Richard Delgado, began developing alternative legal theories and frameworks for combating racial inequality. Their approaches combined various other theoretical positions, among them critical legal studies, critical theory, feminist theory, postmodernism, and cultural studies. Some of the basic tenets of CRT rest on the belief that racism is a fundamental part of American society, not simply an aberration that can be easily corrected by law; that any given culture constructs its own social reality in its own self-interest, and in the United States this means that minorities’ interests are subservient to the system’s self-interest; and that the current system, built by and for white elites, will tolerate and encourage racial progress for minorities only if this promotes the majority’s self-interest. In 1989 CRT became a unified movement at the first annual Workshop on Critical Race Theory. Other notable scholars from the original movement include Kimberle Crenshaw, Angela Harris, Charles Lawrence, Mari Matsuda, and Patricia Williams. Today CRT has expanded beyond its legal studies foundations into the fields of education, political science, American studies, and ethnic studies. It also has produced several offshoots, including critical white studies, Latino critical race studies,Asian American critical race studies, American Indian critical race studies, and critical queer studies.
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CRT scholars have critiqued many of the assumptions that they believe constitute the ideology of the First Amendment: for example, instead of helping to achieve healthy and robust debate, the First Amendment actually serves to preserve the inequities of the status quo; there can be no such thing as an objective or content-neutral interpretation in law in general or of the First Amendment in particular; some speech should be viewed in terms of the harm it causes, rather than all speech being valued on the basis of it being speech; and there is no “equality” in “freedom” of speech. In terms of the First Amendment, the primary battlefield for CRT has been hate speech regulation. No one legal definition exists for hate speech, but it generally refers to abusive language specifically attacking a person or persons based on their race, color, religion, ethnic group, gender, or sexual orientation. Hate speech is currently still protected by the First Amendment. CRT scholars have critiqued this protection and the ideology driving it. Early on, these scholars focused primarily on the question of hate speech codes on college campuses and later moved on to review laws and court opinions concerning the broader societal regulation of hate speech. In general, these scholars argue that there is no societal value in protecting speech that targets already oppressed groups. They also question the logic of using the First Amendment to protect speech that not only has no social value, but also is socially and psychologically damaging to minority groups. Perhaps the most well known and certainly the most prolific CRT scholar on hate speech is Richard Delgado, a founding member of the CRT movement who began publishing on hate speech in the early 1980s. On CRT’s connection to the First Amendment, Delgado states,“Until now, the following argument has been determinative: the First Amendment condemns that; therefore it is wrong. We are raising the possibility that the correct argument may sometimes be: the First Amendment condemns that, therefore the First Amendment (or the way we understand it) is wrong” (Delgado 1994: 173). He questions the old axiom that the answer to disfavored speech is more speech, noting that power relationships might make it difficult or impossible for members of socially disempowered groups to respond to certain types of speech. Following the Supreme Court’s ruling in R.A.V. v. St. Paul (1992), which seemingly closed the door on hate speech regulation, Delgado continued to publish extensively on the legality and necessity of hate speech regulation.
Relying heavily on social scientific data, Delgado outlined the harm caused by racist speech and developed a tort action for racial insults that he believes could pass First Amendment scrutiny. Mari Matsuda and Charles Lawrence are two more early CRT proponents of hate speech regulation. Matsuda suggested the creation of a legal doctrine to limit hate speech in cases where the message is one of racial inferiority, the message is directed against a historically oppressed group, and the message is persecutorial, hateful, and degrading. Lawrence contends that the way in which scholars and jurists enter the hate speech debate “makes heroes out of bigots and fans the flames of racial violence” (Lawrence 1990: 438). According to him, hate speech violates the Fourteenth Amendment. He has pushed for the establishment of hate speech regulations that will further enhance the role of the First Amendment in society, while still adhering to the principles of the Fourteenth Amendment. See also Campus Speech Codes; Content Neutrality; Hate Speech; R.A.V. v. St. Paul (1992).
Chris Demaske
furthe r reading Bell, Derrick. And We Are Not Saved:The Elusive Quest for Racial Justice. New York: Basic Books, 1987. ———. Race, Racism, and American Law. Boston: Little and Brown, 1973. Crenshaw, Kimberle, et al., eds. Critical Race Theory: Key Writings That Formed the Movement. New York: New Press, 1995. Delgado, Richard. “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling.” Harvard Civil Rights–Civil Liberties Law Review 17 (1982): 133. ———. “First Amendment Formalism Is Giving Way to First Amendment Legal Realism.” Harvard Civil Rights–Civil Liberties Law Review 29 (1994): 169–174. Delgado, Richard, and Jean Stefancic, eds. Critical Race Theory: The Cutting Edge. 2d ed. Philadelphia:Temple University Press, 2000. Harris, Angela. “Forward: The Jurisprudence of Reconstruction.” California Law Review 82 (1994): 741–785. Knaus, Christopher Bodenheimer. Race, Racism and Multiraciality in American Education. Bethesda, Md.: Academica Press, 2006. Lawrence, Charles. “If He Hollers Let Him Go: Regulating Racist Speech on Campus.” Duke Law Journal (1990) 431–483. Matsuda, Mari. “Public Responses to Racist Speech: Considering the Victim’s Story.” Michigan Law Review 87 (1980): 2320–2381. ———. Where Is Your Body and Other Essays on Race, Gender, and the Law. Boston: Beacon Press,1996. Valdes, Francisco, et al., eds. Crossroads, Directions and a New Critical Race Theory. Philadelphia:Temple University Press, 2002. Wing, Adrien Katherine, ed. Critical Race Feminism: A Reader. New York: New York University Press, 1997.
Cross Burning
Cross Burning Cross burning, which has been used as a form of intimidation against African Americans and Jews, has been defended in the courts on free speech grounds.The practice dates back to fourteenth-century Scotland, where tribes burned crosses as signaling devices. The modern use of cross burning is directly linked to a revival of the Ku Klux Klan in the early twentieth century. An earlier version of the Klan, which was created by former Confederate officers to impede Reconstruction in the South and to terrorize newly freed slaves, did not burn crosses. D. W. Griffith’s controversial, if popular, 1915 film The Birth of a Nation played a crucial role in the revival of the Klan, which had declined after Reconstruction. In the film, Klan members chase and catch an African American man who had pursued a white woman, and ultimately lynch him in front of a burning cross. Not long after the film’s appearance, a cross was burned on Stone Mountain, outside Atlanta, Georgia. Shortly thereafter, a cross was burned in nearby Marietta, Georgia, to celebrate the lynching of Leo
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Frank, a Jewish factory manager who had been accused of raping and killing a white Christian girl. As the Klan grew in numbers and influence, cross burning became an important ritual of group solidarity. At Klan gatherings, members, dressed in hoods, sang “Onward Christian Soldiers” and “The Old Rugged Cross.” Crosses were burned not only at lynchings but also more generally to terrorize African Americans, Roman Catholics, Jews, and others hated by the Klan. As the Klan declined in the late 1920s and 1930s, intimidation became the primary but not exclusive use of the cross. During the civil rights era beginning in the 1950s, white supremacists burned crosses to express opposition to desegregated schools, to frighten civil rights workers, and to show support in 1960 for the Republican presidential candidate, Richard M. Nixon (who declined the support). In addition, people with no Klan affiliation have burned crosses on the lawns of African Americans moving into allwhite neighborhoods. Since the 1950s, a number of states, including Virginia, have passed laws banning cross burnings.The constitutional-
Ku Klux Klansmen of the United Klans of America burn crosses at a rally in May 1965 in Carthage, Mississippi. The Court has since ruled that cross burning is protected by the First Amendment as long as it is not undertaken with the intent to intimidate.
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ity of these laws did not reach the Supreme Court until the early 1990s, and then, in slightly more than a decade, the Court issued two seminal rulings on the subject.These decisions, R.A.V. v. St. Paul (1992) and Virginia v. Black (2003), addressed the constitutionality of laws banning cross burnings and gave the Court a chance to discuss the role of the practice in U.S. history. In R.A.V., Justice Antonin Scalia held for a majority of the Court that the Bias-Motivated Crime Ordinance of St. Paul, Minnesota, was unconstitutional because it targeted the display of symbols that inspired hatred based on “race, color, creed, religion or gender” but did not take other characteristics into consideration.Thus, Scalia argued, the statute was viewpoint discriminatory as it allowed one side of a debate to fight “freestyle” while the other had to rely on stricter “Marquis of Queensbury rules.” Although Scalia deplored cross burning, he did not discuss its historical context in his opinion. In Virginia v. Black, the Court held that states could ban cross burning undertaken with the intent to intimidate. In the opinion for the Court, Justice Sandra Day O’Connor provided ample historical background. She wrote several pages outlining the role of cross burning in terrorizing African Americans and other opponents of the Klan. She used historical evidence to support the ruling that a provision in the Virginia law was unconstitutional in allowing a jury to infer intent to intimate solely from the cross burning itself. This evidence led her to conclude that crosses were sometimes burned for expressive purposes, such as maintaining group solidarity. Dissenting in the case, Justice Clarence Thomas faulted O’Connor’s conclusion that a cross could have expressive meaning. Relying on a variety of evidence, including testimony from a victim of cross burning and newspaper articles from 1952, when Virginia passed its law, Thomas held that intimidation was the only meaning cross burning could have in the United States. After R.A.V., several state courts invalidated cross burning laws on the basis that cross burning, as an expressive activity, is protected by the First Amendment. See also Anti-mask Laws; The Birth of a Nation (1915); Hate Speech; Ku Klux Klan; R.A.V. v. St. Paul (1992);Virginia v. Black (2003).
Robert A. Kahn
furthe r reading Bell, Jeannine. “O Say, Can You See: Free Expression by the Light of Fiery Crosses.” Harvard Civil Rights–Civil Liberties Law Review 39 (2004): 335–389.
Chalmers, David. Hooded Americanism:The History of the Ku Klux Klan in America. Chicago: Quadrangle, 1980. Kahn, Robert A. “Did the Burning Cross Speak? Virginia v. Black and the Debate between Justices O’Connor and Thomas over the History of Cross Burning.” Studies in Law, Politics and Society 39 (2006): 77–92. Wade, Craig Wyn. The Fiery Cross:The Ku Klux Klan in America. New York: Simon and Schuster, 1987.
Crouter v. Lemon (1973) See Sloan v. Lemon (1973)
Cruz v. Beto (1972) In Cruz v. Beto, 405 U.S. 319 (1972), the Supreme Court established that claims of religious freedom by prison inmates should not be dismissed outright without, at the least, factual findings by trial courts. Fred Cruz, a Buddhist incarcerated in a Texas prison, claimed that prison officials had retaliated against him for sharing his religious beliefs with other inmates. He also charged that prison officials had denied him access to his religious adviser and in general discriminated against Buddhists by not making provisions for Buddhist inmates similar to those provided for Christian and Jewish inmates. A federal district court granted the state’s motion to dismiss without holding an evidentiary hearing. The district court reasoned that the matters addressed in Cruz’s complaint—such as which inmates had access to the prison chapel—were best “left to the sound discretion of prison administrators.” The Fifth Circuit Court of Appeals affirmed. On appeal, the Supreme Court issued a per curiam decision vacating the lower court decision and reinstating Cruz’s complaint by an 8-1 vote. The Court recognized that federal courts generally should not “supervise prisons,” but also that courts must enforce the constitutional rights of all, including prisoners. The justices reasoned that Cruz’s allegations, if true, did plead a cause of action under the First Amendment that should not have been summarily dismissed by the trial court. The Court cited its decision in Cooper v. Pate (1964), which held that an inmate stated a constitutional claim when he alleged denial of the right to purchase religious publications because of his faith. “If Cruz was a Buddhist and if he was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the State against the Buddhist religion,” the Court wrote.
C-SPAN Justice Harry A. Blackmun concurred without writing an opinion, while in a short written concurrence Chief Justice Warren E. Burger agreed that the trial court should not have dismissed the entire lawsuit without at least conducting a hearing. Burger believed that some of Cruz’s allegations bordered on the frivolous, writing, “There cannot possibly be any constitutional or legal requirement that the government provide materials for every religion and sect practiced in this diverse country.” In dissent, Justice William H. Rehnquist reasoned that Cruz’s complaint failed to show that he was being punished for his religious beliefs and that his First Amendment rights were not violated just because Texas prison officials did not offer Buddhist services. See also Blackmun, Harry A.; Burger, Warren E.; Cooper v. Pate (1964); Prisons; Rehnquist,William H.
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. Prisoners’ Rights. New York: Chelsea House, 2007. Mushlin, Michael B. Rights of Prisoners. 3d ed. St. Paul, Minn.: Thomson West, 2002. Palmer, John W., and Steven E. Palmer. Constitutional Rights of Prisoners. 7th ed. Cincinnati: Anderson Publishing, 2003.
C-SPAN The Cable Satellite Public Affairs Network, or C-SPAN, a nonprofit company with the stated mission of providing public access to the political process, makes it possible for the public to view firsthand congressional floor debates and committee meetings, opportunities that Congress had long attempted to stifle. Founded in the 1970s by Brian Lamb, C-SPAN operates from profits generated by the cable industry rather than from tax monies. Several earlier attempts to allow broadcasts of congressional activity had failed. In 1922 a proposal by Rep.Vincent Brennan, R-Mich., to permit radio coverage of the House and Senate died in committee. Two years later, a similar measure passed the Senate but was not implemented because of the expense. Finally, in 1932, debate on the repeal of the Eighteenth Amendment to the Constitution was broadcast to the radio audience—but only because two reporters surreptitiously placed microphones in a House doorway. After the opening of the Eightieth Congress was televised in 1947, TV coverage was limited for decades to occasional big events, including the 1951 Kefauver Commission hearings on organized crime and the 1954 Army-McCarthy hearings. It was not until 1970 that congressional commit-
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tees were permitted to set their own rules for televised coverage.That change in the rules paved the way for the commercial networks to provide gavel-to-gavel airings of the Senate Watergate Committee and the House Judiciary Committee hearings on the impeachment of President Richard M. Nixon in 1973.The momentum of those hearings helped make House Speaker Thomas P. “Tip” O’Neill Jr. amenable to the creation of some means of getting representatives’ words back to their home districts in full context instead of in truncated sound bites. Brian Lamb, then Washington bureau chief of Cablevision magazine, used his contacts to approach cable TV insiders and politicians about the concept of airing House activities on cable stations nationwide. Although the new channel would air no advertising, and would be paid for by the cable industry, cable operators were persuaded that performing such a public service would solidify the fledgling industry’s credibility with viewers and improve its contacts with the federal government. C-SPAN began airing floor activities of the House of Representatives in 1979.The Senate was a tougher sell, with coverage coming after Robert C. Byrd, D-W.Va., the Senate minority leader, was introduced as the Speaker of the House on a trip back home. That mistake helped convince Byrd that the Senate needed television coverage if only to make sure the House did not become the more visible chamber. In 1986 the Senate voted to allow cable coverage, and CSPAN II was born. Since then, the network also has launched C-SPAN III, C-SPAN Radio, and www.c-span.org, which provides streaming audio and video. In addition to House and Senate coverage, programming now includes viewer call-in shows, interviews with authors, and a program about the judicial system, although the Supreme Court continues to reject C-SPAN’s requests for television access to its proceedings. Since C-SPAN’s inception, the House and Senate have controlled the camera angles in Congress. Consequently, the network’s reputation for objective, neutral coverage came under fire in the 1980s because of the way the cameras were used. As Republican conservatives in the House came to dominate special order speeches, given at the end of the day’s legislative business, the Democratic majority attempted to embarrass the opposition by directing camera operators to pan the chamber, showing it to be virtually empty.This practice continued until 1994, when House rules were changed to require the parties to take turns in taking the floor first during special orders and to limit the time spent on them.
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See also Cable Communications Policy Act of 1984; Congress; Must-Carry Rules.
Gina Logue
furthe r reading “Debunking the Myths: Speech.” National Press Club, Washington, D.C., January 6, 1997. www.c-span.org/about/company/debunk .asp?code=DEBUNK2. Frantzich, Stephen, and John Sullivan. The C-SPAN Revolution. Norman: University of Oklahoma Press, 1996.
Curfews Curfews are government policies that order certain persons—or all persons—to be off the streets by a certain time, usually in the evening, and to remain off the streets until the curfew is lifted, usually in the morning. During the Jim Crow era and occasionally during the civil rights movement of the 1950s and 1960s, governments in the South imposed curfews on African Americans, and on the West Coast during World War II, Gen. John L. Dewitt of the Western Defense Command imposed them on Japanese Americans. Such policies, aside from being racially discriminatory, are viewed as odious to those who seek to preserve the freedoms and ideals of the First Amendment. In the United States, governments legitimately may impose limited curfews only during times of dire emergency. Most litigation over curfews, however, concerns policies targeted at juveniles. Cities and states have enacted juvenile curfews to address juvenile crime or to protect the safety and well-being of youths. Some juvenile curfew laws have existed since the nineteenth century. President Benjamin Harrison referred to them as “the most important municipal regulation for the protection of the children of American homes, from the vices of the street” (Harvard Law Review 2005: 2402). Many times, juveniles and their parents challenge restrictive curfew policies, alleging violations of due process, equal protection, and the First Amendment. In Nunuz v. City of San Diego (1997), the Ninth Circuit Court of Appeals ruled that to survive judicial scrutiny, a curfew law generally must contain an exception for minors who are engaged in First Amendment–protected activities, such as political events, death penalty protests, or religious services. The lower courts have been divided over the constitutionality of curfews, even in the face of a First Amendment defense. In Hodgkins v. Peterson (2004), the Seventh Circuit Court of Appeals struck down Indiana’s curfew law although
the law provided minors an affirmative defense if they were participating in activity protected by the First Amendment. The court reasoned that the defense did not save the ordinance because it “does not significantly reduce the chance that a minor might be arrested for exercising his First Amendment rights.” Many courts will, however, uphold curfew ordinances if they provide for a First Amendment defense, whether specifically for the right of assembly or the free exercise of religion or for expressive activities in general. The D.C. Circuit Court of Appeals, in Hutchins v. District of Columbia (1999), upheld a curfew from a challenge that the law’s First Amendment exception was too vague. The appeals court reasoned that the ordinance’s First Amendment defense was “no more vague than the First Amendment itself.” Earlier, the Fourth Circuit Court of Appeals had upheld a city curfew for juveniles in Schleifer v. City of Charlottesville (1998): “We decline to punish the City for its laudable effort to respect the First Amendment. A broad exception from the curfew for such activities fortifies, rather than weakens, First Amendment values.” Confusion on this issue in the lower courts likely will continue until the Supreme Court examines the constitutionality of a juvenile curfew law. In Bykofsky v. Middleton (1976), the Court denied certiorari. Justice Thurgood Marshall dissented, writing that the Court should take the case to examine whether “the due process rights of juveniles are entitled to lesser protection than that of adults.” See also Loitering Laws; Students, Rights of;Vagueness.
David L. Hudson Jr.
furthe r reading Newton, Adam. “Curfews, Loitering and Freedom of Association: An Overview.” First Amendment Center Online. www.first amendmentcenter.org/assembly/topic.aspx?topic=freedom_ association. “Note: Juvenile Curfews and the Major Confusion over Minor Rights.” Harvard Law Review 118 (2005): 2400–2421.
Curtis Publishing Co. v. Butts (1967) In Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the Supreme Court upheld a libel judgment on behalf of the athletic director at the University of Georgia and gave the Court the opportunity to clarify the First Amendment standard of libel for public figures. Although a majority agreed
Cutler, Lloyd N. that the director, Wally Butts, was a public figure, it also decided that allegations by the Saturday Evening Post that he had fixed a game constituted libel under the standards established in New York Times Co. v. Sullivan (1964).The Butts case was decided along with Associated Press v. Walker. Butts had brought suit against the publisher of the Post after it had run an article charging that he had fixed a football game between the University of Georgia and the University of Alabama. Butts challenged the veracity of the article and accused the magazine of a serious departure from investigative standards. The story was based on information provided by George Burnett, an Atlanta insurance salesman who had claimed to have overheard a phone conversation in which Butts allegedly fixed the game. Butts submitted evidence at the trial showing that the Post knew Burnett to be on probation and that it had not interviewed a person who had been with Burnett when the phone call was received and had otherwise failed to find independent support for Burnett’s affidavit. Butts also charged that no one at the Post had viewed the game films or checked for any adjustments in Alabama’s game plans after the allegations of game-fixing were divulged. In addition, the magazine had assigned the story to a writer who was not a football expert and made no attempt to have such an expert check the story. The district court trial was held prior to the Supreme Court’s decision in New York Times Co. v. Sullivan (1964), but Butts’s case reached the Court after Sullivan. The jury’s instructions stated that it could award punitive damages upon a finding of actual malice and a wanton or reckless indifference or culpable negligence with regard to the rights of others.The jury found there to be libel and awarded Butts $60,000 in compensatory damages and $400,000 in punitive damages.The award was upheld by the court of appeals. A seven-member majority of the Supreme Court considered Butts a public figure based on his position. The Court also noted that the same would be true of a private citizen who through purposeful activities thrust his or her personality into the vortex of an important public controversy. A majority also held that libel actions against public figures cannot be left entirely to state libel laws, unlimited by First Amendment safeguards. Although the Court voted 5-4 in favor of Butts, it did not reach a majority on its reasoning. Justice John Marshall Harlan II—who wrote the four-justice plurality opinion for Justices Tom C. Clark, Potter Stewart, and Abe Fortas—concluded that a “public figure” who is not a public official may recover damages for defamatory falsehoods substantially endangering his reputation on
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a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. Chief Justice Earl Warren agreed that Curtis had libeled Butts, but he believed that the appropriate standard of libel for public figures should be actual malice, which was established for public officials in New York Times v. Sullivan and which Warren believed had been demonstrated by the actions of the Saturday Evening Post. See also Actual Malice; Associated Press v. Walker (1967); Libel; New York Times Co. v. Sullivan (1964); Public Figures and Officials.
Tom McInnis
furthe r reading Lewis, Anthony. Make No Law. New York: Random House, 1991. Sack, Robert D. Sack on Defamation, Libel, Slander and Related Problems. 3d ed. New York: Practicing Law Institute, 2005. Smolla, Rodney A. Suing the Press. New York: Oxford University Press, 1986.
Cutler, Lloyd N. In the course of a long and distinguished legal career, Lloyd N. Cutler (1917–2005), an attorney based in Washington, D.C., argued several First Amendment cases before the Supreme Court. He also served as a presidential counselor and adviser. Born in New York City, Cutler followed in the footsteps of his father, a law partner with Fiorello H. LaGuardia, a future mayor of the city. After earning undergraduate and law degrees from Yale University, he joined a corporate law firm on Wall Street. During World War II Cutler moved to Washington, where he worked briefly for the federal government before enlisting in the army. In 1962 he co-founded Wilmer, Cutler & Pickering, which became one of the country’s leading law firms, and went on to serve as White House counsel to Presidents Jimmy Carter and Bill Clinton. Cutler argued three notable First Amendment cases before the Supreme Court, including Buckley v. Valeo, the landmark campaign finance case in which the Court upheld most third-party contribution limits of the Federal Election Campaign Act of 1971. In NAACP v. Claiborne Hardware (1982), Cutler convinced a majority of the Court to protect the NAACP from civil liability for a boycott of white businesses. He also successfully argued for free speech rights of public employees in Rankin v. McPherson (1987), a case brought after Ardith McPherson, a government employee in
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Texas, was fired for making an intemperate remark following the attempted assassination of President Ronald Reagan. See also Buckley v.Valeo (1976); NAACP v. Claiborne Hardware Co. (1982); Rankin v. McPherson (1987).
David L. Hudson Jr.
furthe r reading Taylor, Stuart, Jr. “Lloyd Cutler: The Last Superlawyer.” National Journal, May 14, 2005.
Cutter v. Wilkinson (2005) In Cutter v.Wilkinson, 544 U.S. 709 (2005), a case involving a challenge by prisoners against the Ohio director of rehabilitation and correction, the Supreme Court unanimously ruled that the provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) did not violate the establishment clause of the First Amendment in allowing members of minority religions to challenge unequal accommodation of their religious practices. The Cutter decision continued an ongoing dispute between Congress and the Supreme Court over religious liberty that began in Employment Division, Department of Human Resources of Oregon v. Smith (1990). In that case, the Court had ruled that Oregon could deny unemployment benefits to members of the Native American Church who had been fired for violating a generally applicable state law prohibiting the use of peyote, which was part of their religious worship. In response, Congress adopted the Religious Freedom Restoration Act of 1993 (RFRA). Through the enforcement clause in section 5 of the Fourteenth Amendment, Congress attempted to restore a standard that the Court had applied in earlier cases, among them Sherbert v.Verner (1963), in which the justices held that governments could not substantially burden the exercise of religious practices except in furtherance of “a compelling governmental interest” and through “the least restrictive means.” In City of Boerne v. Flores (1997), the Court overturned the application of RFRA to state governments, deciding that Congress had exceeded its constitutional authority under section 5 in redefining the level of constitutional protection for religious liberty. In a brief concurrence in Boerne, Justice John Paul Stevens noted that RFRA violated the establishment clause. Based on Steven’s concurrence, the Sixth Circuit Court of Appeals then ruled, in 2003, that Congress’s latest religious liberty law—RLUIPA—impermissibly advanced religion, thus violating the establishment clause.
Congress had adopted the narrowly tailored RLUIPA to apply specifically to federal land use regulations and to persons that states had institutionalized. Before adopting the law, Congress held hearings that raised concerns about governmental insensitivity to the needs of incarcerated believers, especially members of minority, or nonmainstream, religions. Congress used its powers under the spending and commerce clauses to specify that prisoners exhaust administrative remedies before filing suits under RLUIPA. Writing for the Court, Justice Ruth Bader Ginsburg justified RLUIPA as “a permissible legislative accommodation of religion that is not barred by the Establishment Clause” and as an example of permissible action within the “play in the joints” between the two religion clauses of the First Amendment. Quoting from Smith, she acknowledged that free exercise often involves not simply belief but also actions. She emphasized, however, that safety in prisons could serve as a compelling governmental interest that might outweigh some claims of religious exercise. Citing Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos (1987), Ginsburg further ruled that accommodation of specifically religious belief did not require equal accommodation of nonsecular preferences. In a concurring opinion, Justice Clarence Thomas argued for his understanding of the establishment clause as a provision of federalism, preventing federal interference with state establishments. See also City of Boerne v. Flores (1997); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos (1987); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Religious Freedom Restoration Act of 1993; Sherbert v.Verner (1963).
John R.Vile
furthe r reading Gaubatz, Derek L. “RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA’s Prisoner Provisions.” Harvard Journal of Law and Public Policy 28 (2005): 501–607. Hamilton, Marci. “The Supreme Court’s New Ruling on the Religious Land Use and Institutionalized Persons Act’s Prison Provisions: Deferring Key Constitutional Questions.” Findlaw.com. http://writ.news.findlaw.com/hamilton/2005-602.html.
Cybersquatting Cybersquatting has been defined as “the deliberate, badfaith, and abusive registration of Internet domain names in violation of the rights of trademark owners” (Holland 2005: 307) While cybersquatters claim protection under the
Cyberstalking First Amendment, they sometimes run afoul of trademark laws. Cybersquatters sometimes attempt to be the first to register domain names for the purpose of selling the names to others. Holland (2005) observes that “typosquatting,” a variant of cybersquatting, occurs “when a party registers a domain name that is very close to another’s trademark or name for the purpose of capitalizing on an Internet user’s typographical errors when entering a web address” (p. 308). In a similar vein, “cyberjesters” and “cyberzealots” attempt “to make humorous or political statements about the trademark holder,” and “cyberpornographers” or “cyberopportunists” seek “to capitalize on the goodwill of the trademark holder to steer internet users to pornographic web sites” (p. 308). Normally aggrieved parties claim that cybersquatters have violated trademark or other generally applicable intellectual property laws, while the cybersquatters claim they have a First Amendment right to parody or express themselves by using a particular domain name. Early efforts to regulate cybersquatting referred to the Lanham Act of 1946, which attempted to protect trademarks. In 1999 Congress adopted the Anticybersquatting Consumer Protection Act (ACPA), which permits civil suits against individuals who engage in “bad faith” attempts to appropriate the trademarks of others into their domain names without approval. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization, has established and approved the Uniform Dispute Resolution Policy (UDRP) to resolve domain name disputes. See also Internet.
John R.Vile
furthe r reading Gatsik, Jonathan H. “Cybersquatting: Identify Theft in Disguise.” Suffolk University Law Review 35 (2001): 277–301. Holland, H. Brian.“Tempest in a Teapot or Tidal Wave? Cybersquatting Rights and Remedies Run Amok.” Journal of Technology Law and Policy 10 (2005): 301–351. Hudson, David L., Jr. Point/Counterpoint: Protecting Ideas. Philadelphia: Chelsea House, 2006. Martin, Elizabeth Robison. “ ‘Too Famous to live Long!’ The Anticybersquatting Consumer Protection Act Sets Its Sights to Eliminate Cybersquatter Opportunistic Claims on Domain Names.” St. Mary’s Law Journal 31 (2000): 797–845. Reich, Jarrod F. “Cybersquatting.” First Amendment Center. www.first amendmentcenter.org/speech/inter net/topic.aspx?topic= cybersquatting.
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Cyberstalking Cyberstalking involves using the Internet or related technologies to harass, threaten, or alarm others. The perpetrators of these crimes are hard to trace and apprehend. Nevertheless, federal, state, and local governments have enacted laws to protect against cyberstalkers without infringing upon their First Amendment rights, one of the major concerns about these laws. Cyberstalking can take many forms and is found in many places, including in e-mails, chat rooms, and guest books and through Internet sites, newsgroups, and message boards. Andrew Archambeau became the first person to be convicted of cyberstalking, in State of Michigan v.Archambeau (1996). Archambeau and a woman he had met through an online dating service began an e-mail and telephone correspondence.When she asked Archambeau to stop contacting her, he instead barraged her with e-mails and voice messages for two months. His actions ultimately escalated to offline stalking, and he was convicted of a misdemeanor under the state’s cyberstalking law. Other perpetrators of cyberstalking have been prosecuted successfully since this case. Law enforcement personnel face several problems when trying to prosecute cyberstalkers. Many states do not have laws explicitly addressing online stalking. Until 2006 the closest federal legislation was 18 U.S. Code 875, which prohibits interstate transmission of threats through the use of any type of electronic device. Before bringing charges under existing laws, law enforcement personnel must usually show that there is either a credible threat to the victim or at least two or more acts that point to a credible threat. They must also gain cooperation from Internet service providers, which have varying standards for determining what constitutes reasonable cause to grant access to a subscriber’s records. Another barrier to tracking down perpetrators of cyberstalking is the growing number of tools that allow Internet users to maintain their anonymity. In Reno v. American Civil Liberties Union (1997), the Supreme Court ruled against two provisions in the Communications Decency Act of 1996 because they were too vague and were found to violate First Amendment rights. These regulations prohibited electronically transmitting “patently offensive” or “indecent transmissions” to minors under eighteen years of age.The Court ruled that the statute was not specific enough to protect speech as allowed by the First Amendment. Threatening speech, obscenity, fighting words, and libel, all receive little or no First
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Amendment protection. Laws that outlaw cyberstalking specifically state that a true threat must be involved, and threats are not protected actions. These statutes must be written with care in order to be detailed enough not to violate First Amendment rights but broad enough to be effective in prosecuting true criminals. In January 2006, President George W. Bush signed into law the Violence Against Women and Department of Justice Reauthorization Act of 2005, which was designed to extend many of the provisions of the Violence Against Women Act of 2000. Section 113 is “Preventing Cyberstalking.”The new provision extended an existing federal law on telephone harassment to include the use of the Internet to stalk or harass individuals. The constitutionality of the language of the law, which applies to communications made with the “intent to annoy,” awaits judicial decisions.
See also Reno v. American Civil Liberties Union (1997); True Threats.
Chris L. Gibson
furthe r reading Hudson, David. L., Jr. “New Cyberstalking Law Challenged over ‘Annoy’ Language.” First Amendment Center, February 24, 2006. www.firstamendmentcenter.org//news.aspx?id=16535. Packard, Ashley. “Does Proposed Federal Cyberstalking Legislation Meet Constitutional Requirements?” Communication Law and Policy (2000): 505–537. U.S. Department of Justice. “1999 Report on Cyberstalking: A New Challenge for Law Enforcement and Industry. A Report from the Attorney General to the Vice President.” 1999. www.usdoj.gov/ cybercrime/cyberstalking.htm.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
Dancing, Nude According to the Supreme Court, nude dancing—when performed before an audience with the purpose of conveying feelings of eroticism to spectators—qualifies as a form of expressive conduct that triggers First Amendment review. The Court first hinted that nude dancing might be entitled to First Amendment protection in California v. LaRue (1972). In this case, the Court upheld the power of state government officials to regulate the sale of alcoholic beverages at bars offering nude dancing, but Justice William H. Rehnquist’s opinion for the Court observed that “at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression.” Three years later, in Doran v. Salem Inn (1975), the Court again alluded to constitutional protection for nude dancing. Rehnquist wrote, “Although the customary ‘barroom’ type of nude dancing may involve only the barest minimum of protected expression, . . . this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.” In Schad v. Mount Ephraim (1981), the Court struck down a local ordinance banning all live entertainment in a New Jersey borough. The operators of an adult bookstore that offered nude dancers in booths for patron viewing successfully challenged the ordinance. Justice Byron R.White wrote for the Court that “nude dancing is not without its First Amendment protections from official regulation.” The Supreme Court next confronted the issue of nude dancing and the First Amendment in Barnes v. Glen Theatre, Inc. (1991), in which two clubs and individual dancers
employed by the clubs objected to the application of an Indiana public indecency law prohibiting public nudity. The law required that the dancers wear G-strings and pasties, which the dancers argued detracted from their erotic messages.The Court upheld the law by a 5-4 vote, but the five justices split across three different opinions. Eight of the nine justices agreed that nude dancing has First Amendment implications. Chief Justice Rehnquist described nude dancing as “expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.” Joined by Justices Sandra Day O’Connor and Anthony M. Kennedy, Rehnquist also determined that the requirement of G-strings and pasties was a “minimal restriction . . . [that] leaves ample capacity to convey the dancer’s erotic message.” The plurality justified the Indiana law as a valid way for the state to target the “evil” of public nudity. Justice Antonin Scalia contended that the law did not trigger First Amendment review as it was a law of general application targeting public nudity. Justice David H. Souter asserted in his concurrence that the state could ban public nudity because of the government’s interest in combating the harmful secondary effects associated with adult businesses, such as increased crime and decreased property values. In dissent, Justice White—joined by three other justices— contended that the state law targeted exotic dancing because legislators wished to “protect the viewers from what the State believes is the harmful message that nude dancing communicates”—an impermissible reason to censor expression. In City of Erie v. Pap’s A.M. (2000), a six-member majority upheld a Pennsylvania ordinance banning public nudity, including totally nude dancing at clubs. In line with Barnes,
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however, the justices reiterated that municipalities cannot ban semi-nude, nonobscene dancing.The Court, in an opinion by Justice O’Connor, justified the Pennsylvania law based on the secondary effects doctrine:“The State’s interest in preventing harmful secondary effects is not related to the suppression of expression,” she wrote. “In trying to control the secondary effects of nude dancing, the ordinance seeks to deter crime and the other deleterious effects caused by the presence of such an establishment in the neighborhood.” Justice Souter—who had advanced the secondary effects rationale in Barnes—dissented in Pap’s A.M., explaining that he had erred in not requiring the government to advance greater evidence of secondary effects. “After many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted,” Souter wrote. “I hope it is enlightenment on my part, and acceptable even if a little late.” Municipalities continue to impose licensing, zoning, and other regulatory measures upon businesses that offer nude dancing; secondary effects are the primary justification. Some measures include patron-performer buffer zones that regulate the distance between the dancer and customer, restricted hours of operation, and restrictions on the movements made by the dancers during their performances. Most courts have upheld the buffer zone and operation requirements but have invalidated restrictions that seek to regulate the content of the dances, as in Schultz v. City of Cumberland (7th Cir. 2000). See also Barnes v. Glen Theatre, Inc. (1991); California v. LaRue (1972); City of Erie v. Pap’s A.M. (2000); Doran v. Salem Inn (1975); Expressive Conduct; Schad v. Mount Ephraim (1981); Secondary Effects Doctrine;Young v. American Mini Theatres (1976).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. Adult Entertainment and the Secondary-Effects Doctrine. First Reports, vol. 2, no. 1. Nashville, Tenn.: First Amendment Center, 2002. ———. “Justice Stevens, Justice Souter, and the Secondary Effects Doctrine.” University of West Los Angeles Law Review 35 (2003): 48–61. ———. “The Secondary Effects Doctrine: The Evisceration of First Amendment Freedoms.” Washburn Law Journal 37 (1997): 55–94. Kopf, Jon B., III. “City of Erie v. PAPS’s A.M.: Contorting Secondary Effects and Diluting Intermediate Scrutiny to Ban Nude Dancing.” Capital University Law Review 30 (2002): 823–859.
Darrow, Clarence Clarence Darrow (1857–1938) was one of America’s most famous and controversial defense attorneys, known for his role in the Scopes monkey trial of 1925 and other major cases of his day. He lived and practiced law during a period of unprecedented upheaval and profound change in the United States. The transition from a largely rural and agricultural society to an industrialized and urbanized nation created sharp contrasts between the wealthy and the new working-poor class. Darrow considered the conditions the poor faced in the new industrial society inhuman and unjust. He took unpopular cases—representing labor-movement clients charged with violence, treason, and conspiracy—to give voice to “the weak, the suffering, and the poor” by defending their First Amendment rights to free speech, to a free press, and to petition the government (Darrow 1934: 32). The legal and political machinery of the industrializing nation tended to favor corporations and stockholders over emerging labor unions and workers, and attempts to improve workers’ conditions were met with resistance. The unions’ demands sometimes resulted in violence against individuals and property, and they were viewed as a serious threat by the new capitalists, who feared that the labor movement had ties to international communism and might lead to anarchy. In response to the perceived risk and the “red scare” hysteria of the early 1900s, the government passed laws that, in effect, restricted advocacy of ideas considered incompatible with the existing order. Darrow believed that such restrictions were unconstitutional. Of all the threats to freedoms of speech, of the press, and to gather and to petition the government, the most sinister, Darrow thought, was the increasing use of conspiracy laws to combat labor unrest and other forms of dissent. Such laws both increased the potential severity of sentences and criminalized the discussion of or dissemination of information or ideas that were directed at improving the lot of the working class. In Darrow’s words, conspiracy was “the modern and ancient drag-net for compassing the imprisonment and death of men whom the ruling class does not like” (1934: 144). In 1895 Darrow had the chance to argue against conspiracy laws in front of the Supreme Court. The American Railway Union, led by Eugene Debs, had struck for higher wages in 1894. Based on the strike’s ensuing violence and the disruption of the railways, a federal court granted the
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unconstitutionality of conspiracy laws that linked speech to potential or actual violent behavior, however distant the connection. In 1904 he again argued before the Court, attempting to prevent the deportation of John Turner, an English anarchist and union organizer who had been convicted of advocating the forceful overthrow of the U.S. government. In United States ex rel. Turner v. Williams (1904), Darrow linked the right to abolish old governments, as written in the Declaration of Independence, with the First Amendment right of free speech. Once again, the Court disagreed with Darrow, and it upheld Turner’s deportation order. 1n 1925 Darrow led the defense counsel employed by the American Civil Liberties Union in the Scopes monkey trial in Dayton, Tennessee. In the case, a high school biology teacher was charged with violating a state law that forbade teachers from presenting the theory of evolution in the classroom. During the trial, Darrow subjected William Jennings Bryan, a member of the prosecution, to a withering crossexamination that exposed difficulties with Bryan’s views. Although First Amendment issues were not raised at the time, the Scopes trial has since become a landmark legal symbol. Darrow, a brilliant defense attorney, considered the First Amendment to be the written guarantee that the government could place “no fetters on thought and actions and dreams and ideals of men, even the most despised of them’ ” (Weinberg 1987: 291). Clarence Darrow
railroads an injunction that prohibited anyone from, among other things, encouraging workers to join the strike. Debs and other union leaders were found guilty of violating the injunction, and a federal judge sentenced them to three months in jail. Darrow appealed the decision to the Supreme Court, where he argued that Debs and the others had been convicted of doing and advocating what is lawful—organizing support for a union.They had not encouraged violence and had even cautioned their supporters to avoid any violent activity. “If men could no do lawful acts because violence might possibly or reasonably result,” Darrow argued in In re Debs (1895), “then the most innocent deeds might be crimes. To make them responsible for the remote consequences of their acts would be to destroy individual liberty and make men slaves.” The Supreme Court disagreed and upheld the sentences. Nevertheless, Darrow continued to seek opportunities to champion his cause before the Supreme Court, declaring the
See also Debs, Eugene; Red Scare; Scopes Monkey Trial; United States ex rel.Turner v.Williams (1904).
Alex Aichinger
furthe r reading Darrow, Clarence. The Story of My Life. New York: Charles Scribner’s Sons, 1934. Weinberg, Arthur, and Lila Weinberg. Clarence Darrow: A Sentimental Rebel. New York: Atheneum, 1987.
Dartmouth College v. Woodward (1819) In Dartmouth College v. Woodward, 17 U.S. 481 (1819), the Supreme Court ruled that the state of New Hampshire had violated the contract clause in its attempt to install a new board of trustees for Dartmouth College.This case also signaled the disestablishment of church and state in New Hampshire. Dartmouth College was founded by Congregational minister Eleazar Wheelock, who had received in 1769 a
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Davenport v.Washington Education Association (2007)
charter from the English Crown that granted authority to a board of trustees created by Wheelock. After the American Revolution, the institution sometimes received state funds and was largely controlled by Federalist trustees, who continued to emphasize the college’s original religious mission. John Wheelock succeeded his father as president in 1779; the trustees fired him in 1816 because of his autocratic manner. In 1816 Democratic-Republicans in the state legislature amended the college’s charter and attempted to convert the school into a secular institution, Dartmouth University, more compatible with their party’s objectives.They created a new board of elected trustees and appointed Wheelock president. The original trustees continued to operate Dartmouth College and employed Dartmouth alumnus Daniel Webster to represent them in suing William Woodward, the secretary and treasurer of the college who had transferred to the new university, taking with him the college’s charter, records, and seal. The original trustees argued that the legislature had violated vested rights, the state constitution, and the U.S. Constitution’s contract clause. A state court sided with Woodward, declaring the college a public corporation, which therefore made it subject to state legislation. The Supreme Court reversed in a 5-1 decision. In the opinion for the Court, Chief Justice John Marshall wrote that by establishing a corporation, Eleazar Wheelock had created “an artificial being, invisible, intangible, and existing only in contemplation of the law.” He explained that “by these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being.” Over the years, individuals had contributed to the college believing their donations would continue to support the institution’s original mission; if governments did not protect such entities, individuals would be less likely to contribute to them in the future.The charter had not created a “civil institution to be employed in the administration of the government”—which would have permitted continuing governmental control—but rather “a private eleemosynary [charitable] institution.” Marshall concluded that Dartmouth’s charter constituted a contract and that New Hampshire had violated this contract in attempting to replace the original trustees. Much as Justice Joseph Story had observed in Terrett v.Taylor (1815), which related to Virginia’s attempt to sell lands owned by the Episcopal Church, Marshall observed that Dartmouth
College “is no more a state instrument than a natural person exercising the same powers would be.” In a separate concurring opinion, Justice Story observed that in creating contracts, states could reserve certain powers for themselves (as they sometimes did after this decision), but that the state of New Hampshire had not done so in this case. Justice Bushrod Washington also wrote a separate opinion concurring with the collective thoughts of Marshall and Story. Justice Gabriel Duvall dissented without a written opinion. Mark McGarvie notes that this opinion must be considered in conjunction with the Court’s decisions in Philadelphia Baptist Association v. Hart’s Executors (1819) and Terrett v. Taylor (1815). McGarvie observes, “After the Dartmouth College decision, government could not rely upon private philanthropic associations to address public perceptions of societal needs. The public-private distinction required states to define their priorities more carefully” (2005: 178).That is, states could not assume that private entities would take the same approach to issues that they would. McGarvie further observes that New Hampshire did not disestablish its own church until after this decision and that it may thus have assumed it had greater authority over religious entities than it would later have. See also Established Churches in Early America; Marshall, John; Story, Joseph;Terrett v.Taylor (1815).
John R.Vile
furthe r reading Finkelman, Paul, and Melvin I. Urofsky. Landmark Decisions of the United States Supreme Court. 2d ed. Washington, D.C.: CQ Press, 2008. McGarvie, Mark Douglas. One Nation under Law: America’s Early National Struggles to Separate Church and State. Dekalb: Northern Illinois University Press, 2005.
Darwinism See Evolution
Davenport v. Washington Education Association (2007) In Davenport v.Washington Education Association, 551 U.S. ____ (2007)—consolidated with Washington v. Washington Education Association—the Supreme Court upheld a 1992 Washington campaign finance law requiring public sector unions representing nonunion employees in collective bar-
Davis v. Beason (1890) gaining to obtain nonmembers’ affirmative consent before spending their service fees, known as “agency-shop” funds, for political purposes. In these cases, a group of four nonunion teachers (the Davenport plaintiffs) and the state of Washington sued labor union Washington Education Association (WEA) in separate proceedings, contending that the union had not complied with the statute. The WEA countered that the “opt-in” statute violated the First Amendment by infringing on the associational rights of the union and its members. A state trial court ruled against the WEA, but the union prevailed in the state court of appeals and supreme court. Both sets of plaintiffs appealed to the U.S. Supreme Court, which granted review and reversed. Writing for the unanimous Court, Justice Antonin Scalia addressed the Court’s agency-shop First Amendment decisions in Abood v. Detroit Board of Education (1977) and Chicago Teachers Union v. Hudson (1986). In Abood, the Court ruled that a public sector union might violate the First Amendment by forcing nonmembers to fund ideological causes unrelated to the union’s collective-bargaining duties. In Hudson, the Court established procedural safeguards that public sector unions must observe with regard to agencyshop arrangements to comport with the Constitution. According to Scalia, who disagreed with the WEA’s contention that the statute infringed on the union members’ First Amendment rights, “the mere fact that Washington required more than the Hudson minimum does not trigger First Amendment scrutiny. The constitutional floor for unions’ collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions.” He characterized the Washington law as “a reasonable, viewpoint-neutral limitation on the State’s general authorization allowing public-sector unions to acquire and spend the money of governmental employees.” Even though the Washington law was content-based, Scalia emphasized the “unique content of public-sector agency-shop arrangements” and noted that “our cases recognize that the risk that content-based distinctions will impermissibly interfere with the marketplace of ideas is sometimes attenuated when the government is acting in a capacity other than as regulator.” See also Abood v. Detroit Board of Education (1977); Chicago Teachers Union v. Hudson (1986); Compelled Speech; Content Based.
David L. Hudson Jr.
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furthe r reading Mauro,Tony.“Public unions suffer setback over fees.” First Amendment Center Online, June 15, 2007. www.firstamendmentcenter.org// analysis.aspx?id=18680.
Davis v. Beason (1890) In Davis v. Beason, 133 U.S. 333 (1890), the Supreme Court upheld an Idaho law directed at Mormons that withdrew the right to vote from individuals who refused to take an oath swearing that they did not participate in or advocate polygamy. Writing for the Court, Justice Stephen J. Field referred to bigamy and polygamy as “crimes by the laws of all civilized and Christian countries.” He observed that the practices “tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man,” noting that “to extend exemption from punishment for such crimes would be to shock the moral judgment of the community.” Field’s decision is notable for its definition of “religion,” which he wrote “has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.” Field acknowledged that the First Amendment allows every American “to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.” Having so argued, Field added,“However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.” He placed laws against polygamy in the latter category. Citing the decisions in Reynolds v. United States (1879) and Murphy v. Ramsey (1885), he observed that “laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Field defined polygamy as a practice and compared it with the practices of child sacrifice and suttee. In a note appended to the decision, the Court observed that “the constitutions of several States, in providing for religious freedom, have declared expressly that such freedom
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shall not be construed to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the State.”The Court quoted from New York’s constitution, but noted that twelve other state constitutions contained similar provisions. See also Murphy v. Ramsey (1885); Polygamy; Reynolds v. United States (1879); State Constitutional Provisions on Religion.
John R.Vile
furthe r reading Gordon, Sarah Barringer. The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 2002.
Davis v. Massachusetts (1897) In Davis v. Massachusetts, 167 U.S. 43 (1897), the Supreme Court’s first decision regarding the right to speak in city streets and parks, Justice Edward Douglass White gave municipalities almost limitless authority over open-air speech. In Boston, starting in 1862, anyone wishing to deliver “any sermon, lecture, address, or discourse” on city land was required to first obtain a municipal permit. In 1884 William F. Davis, a fiery itinerant street preacher, applied for a permit to preach on Boston Common. The city declined his request, but Davis preached anyway and was arrested. Thereafter, he frequently preached on Boston Common, refusing to apply for permission as a matter of principle.The city fined him repeatedly, and he refused to pay. In 1887 the state finally incarcerated him. While behind bars, Davis wrote Christian Liberties in Boston, a long pamphlet that marked an intellectual breakthrough. Previously, Davis and other street preachers had conceptualized their struggles as crusades for religious liberty. Davis’s 1887 pamphlet reiterated this freedom of religion argument but also argued that open-air licensing schemes violated the constitutional freedom of speech. In 1894, seven years after the pamphlet’s publication, Davis was again convicted for unlicensed preaching on Boston Common. He appealed to the Supreme Judicial Court of Massachusetts, where his case came before Justice Oliver Wendell Holmes Jr., who later would be lauded as a free speech stalwart for some of his opinions while serving on the U.S. Supreme Court. With the “stinging brevity” at which later generations would marvel, Holmes dismissed Davis’s free speech claim in 1895. Holmes concluded that
the legislature had as much right “to forbid public speaking in a highway or public park” as “the owner of a private house to forbid it in his house.” On city land, in other words, municipal governments had almost total regulatory discretion: they could allow unrestricted speech, restricted speech (by permit only), or no speech at all. As Holmes read the Constitution, citizens had no right to deliver unauthorized speeches on public land. Davis appealed to the U.S. Supreme Court, where he cited the First and Fourteenth Amendments to argue that Boston’s “arbitrary, oppressive, and unconstitutional” ordinance violated “the rights of free public speech” and “free assembly.” Writing for the Court, Justice White rejected Davis’s appeal.White fully endorsed Holmes’s Massachusetts holding that cities could restrict open-air speech on public property as fully as homeowners could under their roofs. Two decades before Holmes developed the Court’s “clear and present danger” test, the Court embraced its first Holmesian free speech standard: the “public-park-as-privatehouse” rule.This rule remained good law until 1939, when the Court effectively (though not explicitly) reversed it in Hague v. Committee for Industrial Organization (1939). See also Holmes, Oliver Wendell, Jr.; Hague v. Committe for Industrial Organization (1939).
John W.Wertheimer
furthe r reading Kairys, David.“Freedom of Speech.” In The Politics of Law:A Progressive Critique, ed. David Kairys, 140–171. New York: Pantheon Books, 1982. Rabban, David. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997.
Dawson v. Delaware (1992) The Supreme Court ruled in Dawson v. Delaware, 503 U.S. 159 (1992), that the First Amendment imposes limitations on the introduction of a criminal defendant’s group associations during sentencing. David Dawson, a prison escapee, was convicted of crimes including murdering a woman while committing a burglary. During the penalty phase of the trial, prosecutors introduced evidence that Dawson was a member of—and had tattooed on his right hand the name of—the Aryan Brotherhood, a prison gang with racist beliefs. Prosecutors submitted a stipulation to the court that read: “The Aryan Brotherhood refers to a white racist prison gang that began
Dean v. Utica Community Schools (E.D. Mich. 2004) in the 1960’s in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exists in many state prisons including Delaware.” Although Dawson agreed to the stipulation to prevent the state from introducing further evidence about the gang, he contended that the introduction of this evidence violated his First Amendment free association rights. The trial court imposed the death penalty, which the Delaware Supreme Court affirmed. On appeal the U.S. Supreme Court agreed 8-1 that introducing Dawson’s association with the Aryan Brotherhood infringed on his First Amendment rights. Writing for the Court, Chief Justice William H. Rehnquist declared that “the receipt into evidence of the stipulation regarding his membership into the Aryan Brotherhood was constitutional error.” Rehnquist determined that the First Amendment “does not erect a per se barrier to the admission” of evidence of beliefs and association. In this case, however, Rehnquist explained that Dawson’s alleged association was not relevant to the crime he committed. As both Dawson and his victim were white, “elements of racial hatred were therefore not involved in the killing.” To Rehnquist these circumstances distinguished Dawson from Barclay v. Florida (1983), in which the Court ruled that a judge could consider defendant Elwood Barclay’s membership in the Black Liberation Army in sentencing him for the death of a white woman. Rehnquist noted that “on the present record one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible.” Justice Clarence Thomas dissented, finding evidence of Dawson’s gang membership relevant to his character. He added that “the Due Process Clause, not the First Amendment, traditionally has regulated questions about the improper admission of evidence.” See also Rehnquist,William H.;Thomas, Clarence.
David L. Hudson Jr.
furthe r reading Smith, Catherine. “Hate on Trial.” Intelligence Report, no. 116. Montgomery, Ala.: Southern Poverty Law Center, 2004. www.splcenter .org/intel/intelreport/article.jsp?aid=519&printable=1. Stevens, John Paul. “The Freedom of Speech.” Yale Law Journal 102 (1993): 1292–1313.
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Dean v. Utica Community Schools (E.D. Mich. 2004) In Dean v. Utica Community Schools, 345 F.Supp.2d 799 (E.D. Mich. 2004), a federal district court judge rejected censorship of a Michign high school’s student newspaper. Judge Arthur Tarnow ruled that the Arrow, the newspaper at Utica High School, was an example of a limited public forum and that under Hazelwood School District v. Kuhlmeier (1988) the school district had no right to censor its contents. In 2002 Arrow staff members Katherine Dean and Dan Butts discovered that local residents Joanne and Rey Frances, who lived near the school district’s bus garage, had filed a lawsuit against the district, claiming that diesel fumes from idling buses constituted a nuisance, violated their right of privacy, and harmed their health. Rey Frances had been diagnosed with lung cancer in 2000. Dean contacted school district officials about the lawsuit, but they refused to comment. She also researched whether exposure to diesel fumes could have carcinogenic effects. She found conflicting evidence, which she noted in her story. Nevertheless, Principal Richard Machesky ordered Gloria Olman, the newspaper’s adviser, to pull the story, accompanying editorial, and cartoon. The Arrow staff complied but published an editorial on censorship. In April 2003 Dean filed a lawsuit in federal court against the school district. In his decision, Tarnow said the district’s censorship was “indefensible.” In concluding that the Arrow was a limited public forum,Tarnow noted that during the past twenty-five years no adviser or administrator had attempted to control content or had required newspaper students at Utica to submit content to school officials for prior review. He also pointed out that the district’s curriculum guide, its course descriptions, and the masthead in the Arrow showed that the newspaper operated as a limited public forum. Tarnow observed that the article was nonbiased and fair, grammatically correct, well researched, and well written. The administration had no solid reason for censoring the story. The decision indicates that there are two types of schoolsponsored student media: the limited public forum, like the Arrow, where students have the right to determine content either by written policy or by practice, and the nonpublic forum, where school officials retain more authority over content. Public forum student media,Tarnow said, fall under the standard created by the Supreme Court in Tinker v. Des Moines Independent Community School District (1969), and
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nonpublic forum papers under the Hazelwood standard. Tinker permits officials to censor only if they can reasonably forecast that the student expression would disrupt normal school activities.The district could not prove this in Dean. See also Hazelwood School District v. Kuhlmeier (1988); Public Forum Doctrine; Tinker v. Des Moines Independent Community School District (1969).
H. L. Hall
furthe r reading Student Press Law Center.“Overcoming Hazelwood.” SPLC Report 26, no. 1 (Winter 2004–2005): 4–5. www.splc.org/report_detail.asp?id =1166&edition=34.
Debs v. United States (1919) Justice Oliver Wendell Holmes Jr. authored the unanimous Supreme Court decision in Debs v. United States, 249 U.S. 211 (1919), sustaining socialist leader Eugene V. Debs’s conviction under the Sedition Act of 1918. Debs was a well-known public figure; he had received almost one million votes when he ran for president in 1912. On June 16, 1918, Debs gave a speech outside the Canton, Ohio, prison, where he had visited three socialists convicted of violating the Sedition Act. Before an audience of about 1,200 people, Debs offered his support for the prisoners, saying that they were paying the price for “seeking to pave the way to better conditions for all mankind.” Debs, a pacifist, condemned the ongoing war but took care not to advocate any illegal activity and even commented to his audience that he had to be prudent with his word choice. He was arrested for the speech, however, and was convicted of obstructing military recruitment and enlistment. Sentenced to ten years in prison, Debs appealed his conviction, arguing his speech was protected by the First Amendment. Just one week before the Debs opinion was announced, Holmes had introduced the “clear and present danger” test in Schenck v. United States (1919), suggesting that judges must examine the context in which the speech was made, rather than the “bad tendency” of the words alone as had been traditional in free speech cases. In Debs, however, Holmes did not address the circumstances that may have led Debs’s speech to be potentially dangerous to recruitment. Instead, Holmes determined that even though Debs did not expressly advocate draft resistance, his intent and the general tendency of his words were together sufficient for a jury to convict him fairly. According to Holmes, Debs’s warning
that he had to be careful with his words meant that the audience was free to infer an underlying meaning. The decision did not discuss potentially salient differences between Debs and Schenck; for example, Schenck had addressed draft inductees, whereas Debs had spoken to a general audience. Scholars generally view Debs as a low-water mark in the protection of free speech during wartime. One of the pressing questions in the history of the First Amendment concerns how Holmes moved from Debs in March 1919 to the strong defense of free speech he penned eight months later in his dissent in Abrams v United States (1919). Holmes’s correspondence at the time reveals that although he never questioned the correctness of his decision, he was unhappy that the federal government had chosen to prosecute Debs and that he had been chosen to write the opinion. Discussions over the value of free speech and dissent with Judge Learned Hand and political science professor Harold Laski, combined with an influential article by Ernst Freund criticizing the Debs decision in the May issue of The New Republic, may have led Holmes to reevaluate the relationship between political liberty and criticism of the government, as well as his own commitment to free speech. In 1920, while in prison, Debs again ran for president and received almost one million votes. President Warren G. Harding commuted his sentence in 1921. See also Abrams v United States (1919); Debs, Eugene V.; Espionage Act of 1917; Hand, Learned; Holmes, Oliver Wendell, Jr.; Schenck v. United States (1919); Sedition Act of 1918; Seditious Libel.
Douglas C. Dow
furthe r reading Kalven, Harry, Jr. “Professor Ernst Freund and Debs v. United States.” University of Chicago Law Review 40 (1973): 235. Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997. Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W. W. Norton and Co., 2004.
Debs, Eugene V. Labor leader, socialist, and five-time presidential candidate Eugene V. Debs (1855–1926) had a twofold relationship with the First Amendment. First, as a member of an unpopular minority, he appealed for protection under the amendment. Second, as a labor organizer, he was at the forefront of work-
Debs, Eugene V. ers’ appeals for statutory protection in an area that appeared to be neglected by the amendment. Although Debs lost his battles, his causes won the war. Debs was born in Terre Haute, Indiana, in 1855. He served his hometown as city clerk from 1879 to 1883; two years later, he served in the Indiana legislature. But it was Debs’s early work at age fourteen in the railroad shops and as a locomotive fireman soon thereafter that led to his labor leadership role. He helped organize a local branch of the Brotherhood of Locomotive Firemen and was later elected the union’s national secretary-treasurer in 1880. Debs led a successful strike against the Great Northern Railway that achieved national prominence during the Pullman Strike in the summer of 1894. Acting as the president of the American Railway Union, which he had formed, Debs led workers in a strike against the Pullman Palace Car (Railroad) Company and a boycott of its enterprises when the profitable railroad reduced wages in its company town of Pullman, Illinois, without enacting a corresponding reduction in living costs.After violating a district court’s injunction against the strike and boycott, based on the government’s power regarding interstate commerce and mail delivery, Debs and other union leaders were convicted of contempt of court. Debs submitted a habeas corpus petition to the Supreme Court, which ultimately rejected it, based on a claim that he should have been afforded the protection of a criminal trial on the contempt charge rather than a hearing in chancery court.The Court’s unanimous holding against Debs In re Debs (1895), as announced by Justice David Brewer, quoting Chief Justice Salmon P. Chase, was based on the “incontrovertible principle, that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it.” Debs served six months in prison. After leaving jail, Debs turned his attention to organizing the Socialist Party. He ran for president as the Socialist Party candidate in the four consecutive elections between 1900 and 1912; he received 94,768 votes in the first and 897,011 in the fourth. However, his work to promote his party’s ideals sent him back to prison. In 1918 Debs was convicted of giving a speech at Canton, Ohio, that “caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States and with intent so to do [he] delivered, to an assembly of people, a public speech.” He was found guilty of
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This 1894 Harper’s Weekly cover illustration depicts Eugene Debs, leader of the American Socialist Party, as “King Debs” after his successful leadership of a strike against the Great Northern Railway that brought him to national prominence.
violating the Espionage Act of 1917, which essentially prohibited all acts—including speech—that were seditious, and the Sedition Act of 1918, which strengthened the anti-sedition provision of the 1917 law by making it a crime to “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about” the U.S. government, Constitution, or armed forces. Writing for the unanimous Supreme Court, Justice Oliver Wendell Holmes Jr. criticized Debs for speaking favorably of imprisoned persons who had been convicted of sedition and other war-related crimes. After a detailed discussion of the content of the speech—including Debs’s comment that he was unable to speak his mind due to restrictions on permissible speech, which Holmes viewed as Debs “intimating to his hearers that they might infer that he meant more”—Holmes affirmed Debs’s conviction.
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Declaration of Independence
The Debs decision was handed down one week after the Court upheld the 1917 and 1918 Espionage and Sedition Acts in Holmes’s famous decision in Schenck v. United States (1919), which introduced the “clear and present danger test.” In Debs, however, the Court did not consider whether Debs’s speech posed a “clear and present danger.” Debs received a ten-year prison sentence of which he served two years. From prison, he ran in his fifth presidential election as the Socialist Party’s 1920 candidate and garnered almost one million votes. President Warren G. Harding pardoned him in 1921. Debs was vindicated just months before his death with the enactment of the Railway Labor Act of 1926, which gave railway workers more input regarding their conditions of employment. Further, the passage of the National Labor Relations Act of 1935 recognized the general right of workers to organize and act collectively, rights that Debs would have argued were within the spirit, if not the letter, of the First Amendment. See also Darrow, Clarence; Debs v. United States (1919); Espionage Act of 1917; Holmes, Oliver Wendell, Jr.; Schenck v. United States (1919); Sedition Act of 1918.
Clyde E.Willis
furthe r reading Salvatore, Nick. Eugene V. Debs: Citizen and Socialist. Urbana: University of Illinois Press, 1982 Currie, Harold W. Eugene V. Debs. Boston:Twayne Publishers, 1976.
Declaration of Independence The Declaration of Independence, formally adopted by the Continental Congress on July 4, 1776, announced the United States’ independence from Britain and enumerated to “a candid World” the reasons necessitating this separation. Today the Declaration stands as the best-known document of the American founding, describing not only the U.S. origin, but also its goals and values. The Declaration’s indictments against King George III show a vigorous exercise of freedom of speech and press; further, by using the document to express frustration with rebuffs received to previous petitions to the king, the founders paved the way for later recognition of the right of petition, which is contained within the First Amendment. In June 1776 the Continental Congress appointed John Adams, Benjamin Franklin, Roger Sherman, Robert Livingston, and Thomas Jefferson to the committee that
would write the Declaration. Jefferson’s fellow members chose him to write the initial draft, largely due to his rhetorical skills.Although Jefferson claimed that he did not refer to any books or pamphlets while drafting the Declaration, the document bears the clear marks of previous charters of civil liberties and limited government, such as the 1628 Petition of Right, the 1689 English Bill of Rights, and the 1776 Virginia Declaration of Rights. The heart of the Declaration lies in the twenty-seven separate indictments against George III, whom the founders label a tyrant unfit to rule over a free people. In making such accusations, the authors risked punishment for what the British considered a form of seditious libel. The charges list specific abuses or violations of British statutory or constitutional law. Some are articulated in broad language, such as a charge that the king refused to assent to laws beneficial to the public interest of the colonies. Others address more parochial concerns; Adams, for example, inserted an accusation against the Crown for moving legislatures to uncomfortable and distant places, a reference to the relocation of the Massachusetts legislature from Boston to Cambridge, four miles away. The Declaration’s indictments are not made, as is often believed, in the name of universally valid natural rights but rather are based upon the legal customs and traditions accepted by the Crown and Parliament. Somewhat ironically, therefore, only as British subjects did the Declaration’s signers have the authority to declare their confederation with Britain broken, and to bring into existence their new identities as Americans. It is fitting, then, that the Declaration is not addressed to the Crown, but rather to the broader “opinion of Mankind” as the United States seeks entrance into the community of nations. Jefferson recasts the British Empire as a confederation of peoples and describes the colonialists as a people breaking their alliance with other people, thereby dissolving that confederation without committing an act of civil war. The Declaration does not attack the way in which George III ruled Britain, advocate the overthrow of the British regime outside the American colonies, or call for the other peoples of the British Empire similarly to rise up. The second paragraph locates the specific indictments against the Crown into a broader framework of contractual government. In so doing, Jefferson makes the Declaration’s most famous assertion that “all Men are created equal,” each possessing the inalienable right to “Life, Liberty, and the Pursuit of Happiness.” By 1776 such concepts, derived from British Whigs like John Locke and Algernon Sydney, had
DeGregory v. Attorney General of New Hampshire (1966) become common in the colonies. By the nineteenth century, politicians such as Abraham Lincoln saw in the Declaration’s universalistic aspiration a blueprint for a new and more egalitarian political community, one that included African Americans and, later, women. The final section formally declares the independence, in fact and by right, of the United States but does not define the nature of the relationship that these “united states” have with one another.The text is unclear as to whether they are united only in their grievances and their act of independence, or whether a more permanent political or legal form of union exists. The Articles of Confederation and the U.S. Constitution would later define the relationship among the states with greater clarity. See also Jefferson,Thomas; Locke, John; Sidney, Algernon;Virginia Declaration of Rights.
Douglas C. Dow
furthe r reading Becker, Carl L. Declaration of Independence: A Study in the History of Political Ideas. NewYork:Vintage Books, 1958. First published 1922. Maier, Pauline. American Scripture: Making the Declaration of Independence. New York: Vintage Books, 1998. Reid, John Phillip.“The Irrelevance of the Declaration.” In Law in the American Revolution and the Revolution in the Law, ed. Hendrik Hartog, 46–89. New York: New York University Press, 1981. Wills, Garry. Inventing America: Jefferson’s Declaration of Independence. New York: Doubleday and Co., 1978.
Deep Throat Deep Throat (1972), arguably the most famous pornographic film, introduced mainstream society to pornography, made millions of dollars, and was banned as obscene in twentythree states. When released in 1972, the sixty-two-minute film—featuring actress Linda Lovelace performing oral sexual acts on several male actors—generated a great deal of controversy. Prosecutors across the country brought obscenity charges against theater owners who showed the film. Many lower courts determined that the film constituted obscenity. For example, in 1973 in United States v. One Reel of Film, the First Circuit Court of Appeals described Deep Throat as “a film so single-minded as to fail even the older Roth-Memoirs test [which required a work to be “utterly without any redeeming social value” to be obscene]—unless one is tempted, as plainly a majority of the Supreme Court is not, to find redeeming social value in the explicit portrayal, without
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more, of sexual congress itself.” In 1973, in People v. Mature Enterprises, New York criminal trial court judge Joel J. Tyler ruled the film obscene, calling it a “feast of carrion of squalor” and “a Sodom and Gomorrah gone wild before the fire.” The primary male actor in the film, Herbert Streicher (whose stage name was Harry Reems), faced obscenity charges in Memphis, Tennessee, for his participation in the movie. A jury convicted him in March 1976, but an appeals court overturned the conviction in 1977. Those lengthy legal proceedings also resulted in convictions for the film’s producers Louis Peraino, Anthony Battista, and others for transporting (showing) the allegedly obscene film in interstate commerce and conspiracy to violate obscenity laws. The Supreme Court denied review of these cases in Peraino v. United States (1981) and Armone v. United States (1981). Linda Lovelace (Marchiano) later became a spokesperson against pornography and published a book accusing her first husband, Chuck Traynor, of pressuring her to perform unwanted sexual activity in the pornography industry. She died in 2002 from injuries sustained in an automobile accident. In the early 1970s, Bob Woodward and Carl Bernstein used the name “Deep Throat” to hide the identity of one of their most important sources in their award-winning Watergate investigations for the Washington Post. See also Devil in Miss Jones; Miller v. California (1973); Obscenity and Pornography.
David L. Hudson Jr.
furthe r reading Inside Deep Throat. Documentary. Imagine, HBO Films Documentary Films,World of Wonder, and Universal Studios, 2005. Montgomery, Paul L.“ ‘Throat’ Obscene, Judge Rules Here.” New York Times, March 2, 1973.
Defamation See Libel and Slander
DeGregory v. Attorney General of New Hampshire (1966) In DeGregory v. Attorney General of New Hampshire, 383 U.S. 825 (1966), the Supreme Court overturned a one-year prison term for contempt that New Hampshire had imposed on Hugo DeGregory, a witness who refused to testify to the state attorney general regarding his Communist Party activities prior to 1957.
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De Jonge v. Oregon (1937)
Writing for the Court, Justice William O. Douglas observed that the witness had testified previously, and he had denied any association with, or knowledge of, the party since 1957. Douglas observed that the decision in Uphaus v. Wyman (1959) gave DeGregory reason to believe that the state would publish details of his past associations, but however justified such revelations might have been in Uphaus, here they were stale, as they related to past events rather than to current threats. Although “investigation is a part of lawmaking,” Douglas observed that “the First Amendment, as well as the Fifth [containing the provision against selfincrimination, which DeGregory had not invoked in this case], stands as a barrier to state intrusion of privacy.” In the Court’s view, the information that the attorney general was seeking “was historical, not current,” and the state had failed to establish the “nexus” between the information it was seeking here and that which it had sought in Uphaus. In a dissenting opinion joined by Justices Potter Stewart and Byron White, Justice John Marshall Harlan II argued that New Hampshire “should be free to investigate the existence or nonexistence of Communist Party subversion, or any other legitimate subject of concern to the State, without first being asked to produce evidence of the very type to be sought in the course of the inquiry.” He thought the majority opinion was an attempt to determine the wisdom rather than the constitutionality of the investigation. See also Congressional Investigations; Douglas,William O.; Harlan, John Marshall, II; Sweezy v. New Hampshire (1957); Uphaus v. Wyman (1959) (1960).
John R.Vile
furthe r reading Bigel, Alan I. “The First Amendment and National Security: The Court Responds to Governmental Harassment of Alleged Communist Sympathizers.” Ohio Northern University Law Review 19 (1993): 885–926.
De Jonge v. Oregon (1937) In De Jonge v. Oregon, 299 U.S. 353 (1937), the Supreme Court ruled that state governments may not violate the constitutional right of peaceable assembly. The decision contributed to the development of “symbolic speech” and “speech plus” categories, concepts relating to speech combined with conduct or action. On July 27, 1934, the Portland police arrested Communist Party member Dirk De Jonge and three other speakers at a meeting of 150–300 people who were protest-
ing police brutality in recent confrontations with striking union longshoremen. While De Jonge appealed to some communist ideas during his speech, neither he nor the other speakers advocated violence. In the unanimous decision, the Court ruled against Oregon’s 1930 Criminal Syndicalism Act, as amended in 1933, which made it a felony for “any person to become a member of any society or assemblage of persons which teaches or advocates the doctrine of criminal syndicalism.” The statute, which was intended to suppress communism, defined criminal syndicalism as the doctrine that “advocates crime, physical violence, sabotage, or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” The De Jonge ruling rested on previous cases, most notably Gitlow v. New York (1925) and Whitney v. California (1927). In Gitlow, the Court found that a state may restrict expressions calling for the violent overthrow of government if the expressions in question possess a “tendency” to incite such activity. Importantly, the Court’s opinion in that case defended the concept that the Fourteenth Amendment’s due process clause protects First Amendment rights—in this case free speech and free press—at the state level. Further, although the Court had upheld a state law against syndicalism in Whitney, Justice Louis D. Brandeis’s concurring opinion provided a compelling defense of free speech and made the distinction between advocacy and incitement. Portland attorney and American Civil Liberties Union member Gus J. Solomon was instrumental in placing the De Jonge case in the context of these earlier First Amendment decisions. He believed that winning the case would be a victory for the constitutional guarantee of due process, and he asked New York attorney Osmond K. Fraenkel to defend De Jonge. Writing on behalf of the unanimous Court (8-0, with Justice Harlan Fiske Stone absent), Chief Justice Charles Evans Hughes applied the right to assemble peacefully to the states and affirmed the protection of free speech from state governments:“The holding of meetings for peaceable political action cannot be prescribed.” Furthermore, Hughes continued, a state could not interfere with a group’s right to gather and discuss political issues; such laws were “repugnant to the due process clause of the Fourteenth Amendment.” See also Criminal Syndicalism Laws; Fraenkel, Osmond; Gitlow v. New York (1925);Whitney v. California (1927).
Gary Bugh and Preston Adair
Democratic Party of United States v.Wisconsin ex rel. LaFollette (1981) furthe r reading Friendly, Fred W., and Martha J. H. Elliot. The Constitution:That Delicate Balance: Landmark Cases that Shaped the Constitution. New York: McGraw-Hill, 1984. “Notes:The Supreme Court as Protector of Political Minorities.” Yale Law Review 46 (1937): 862–866. Spencer, Carlton E.“Criminal Syndicalism: De Jonge v. Oregon.” Oregon Law Review 16 (937): 278–285.
Deleting Online Predators Act The proposed federal Deleting Online Predators Act (DOPA) would require public schools and libraries to block student access to “social networking websites,” such as MySpace.com, raising questions about minors’ First Amendment rights. First introduced in the U.S. House of Representatives in May 2006, DOPA is designed to protect children from sexual predators online. According to factual findings presented in the legislation, sexual predators often “approach minors on the Internet using chat rooms and social networking websites”; moreover, “one in five children has been approached sexually on the Internet.” DOPA would require public schools and libraries that receive federal funds for Internet access to provide a “technology protection measure” that protects children from accessing certain material online, including child pornography, material that is obscene or harmful to minors, or “commercial social networking website(s) or chat room(s) unless used for an educational purpose with adult supervision.” Further, DOPA’s “technology protection measure” would require children to have parental authorization to access social networking websites and would inform “parents that sexual predators can use these websites and chatrooms to prey on children.” The House passed DOPA in July 2006 by a vote of 410–26.The bill was referred to a Senate committee but did not make it to a full Senate vote. Another version, the Deleting Online Predators Act of 2007, was introduced in the House in February 2007. Critics, such as the American Library Association (ALA), assert that DOPA would violate the First Amendment by blocking access to material that is not harmful to minors. The ALA also contends the legislation is unnecessary because of the Children’s Internet Protection Act, enacted in December 2000 and upheld by the Supreme Court in United States v. American Library Association (2003).
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See also American Library Association; Children’s Internet Protection Act of 2000; Internet; United States v. American Library Association (2003).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “House Votes to Restrict Students from MySpace.” First Amendment Center Online. August 1, 2006. www.firstamendmentcenter.org//news.aspx?id=17225.
Democratic Party of United States v. Wisconsin ex rel. LaFollette (1981) In Democratic Party of United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981), the U.S. Supreme Court ruled that state laws attempting to dictate how delegates vote at national party conventions violate the associational rights of political parties. Democratic Party Selection Rule 2A for the 1980 national convention restricted participation in the delegate selection process to Democratic voters “who publicly declare their party preference and have that preference publicly recorded.” This rule conflicted with a Wisconsin electoral statute allowing members of competing political parties, as well as independents, to vote in the state’s “open” Democratic primary without having declared their Democratic Party preference. In addition, Wisconsin law required that delegates selected under this system vote in accordance with the results of the primary election. The national Democratic Party indicated its intent to refuse to seat delegates selected through Wisconsin’s primary process. In response, the Wisconsin attorney general brought a declaratory action seeking a court determination affirming the constitutionality of the statute. The Wisconsin Supreme Court entered an order upholding the provision. The U.S. Supreme Court reversed, ruling that the provision violated the freedom of association guaranteed by the First Amendment. Justice Potter Stewart, writing for the Court, framed the issue as a question of “whether, once Wisconsin has opened its Democratic Presidential preference primary to voters who do not publicly declare their party affiliation, it may then bind the National Party?”The justices determined that organizations such as the Democratic Party enjoy constitutionally protected First Amendment associational rights that are implicated when a state defines the set of individuals
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eligible to pass judgment on an important party matter, such as delegate selection. The Wisconsin Supreme Court had argued that the burden imposed on the national party was a minor one. Stewart judged this largely immaterial because courts should not interfere with a decision or expression of a party even if it finds that expression “unwise or irrational.” The Court also carefully considered whether the state proffered a sufficiently compelling rationale to justify the regulation.The state asserted interests in preserving the overall integrity of the electoral process, furthering the secrecy of the ballot, increasing primary participation, and preventing voter harassment. Although the Court recognized the importance of these goals, the majority concluded that each of the interests “go to the conduct of the Presidential preference primary—not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates.” Therefore, the Court rejected the requirement that Wisconsin’s party delegates vote in accordance with the results of Wisconsin’s open primary. Justice Lewis F. Powell Jr. authored a dissenting opinion, joined by Justices Harry A. Blackmun and William H. Rehnquist, denying that Wisconsin’s regulation substantially burdened freedom of association. See also Campaign Regulation; Political Parties; Stewart, Potter.
Daniel M. Katz
furthe r reading Lowenstein, Daniel. “Associational Rights of Political Parties: A Skeptical Inquiry.” Texas Law Review 71 (1993): 1741–1792.
Dennis v. United States (1951) In Dennis v. United States, 341 U.S. 494 (1951), the Supreme Court applied the clear and present danger test to uphold the convictions of eleven U.S.-based communists for their political teachings. Eugene Dennis and ten other party leaders had been convicted of conspiring to form the American Communist Party, thereby violating the Smith Act of 1940, which made it a crime to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing . . . the government of the United States by force or violence.” The bitter and contentious trial, which lasted about nine months and was followed around the world, featured demonstrations, threats, and countless courtroom challenges by both
This Christian Science Monitor cartoon from 1948 suggests that the nation uproot the “tree of communism” with enlightened policies rather than chopping away at free speech. Three years after the leaders of the U.S. Communist Party were indicted in 1948 for advocating the overthrow of the government, the Supreme Court in Dennis v. United States upheld the constitutionality of a federal law criminalizing such advocacy, even if the threat is not imminent.
sides. Defense counsel insisted that the defendants’ teaching of and advocating communist doctrine could not possibly constitute conduct that posed a “clear and present danger” to the United States, referring to the test first enunciated in Schenck v. United States (1919), when the Court upheld the conviction of a draft protester during World War I. At the trial’s conclusion, Judge Harold Medina instructed the jury members that they were not to deliberate on whether the defendants’ actions could possibly have caused harm to the nation. They were merely to decide whether the defendants had engaged in a conspiracy and would take steps to overthrow the government given the chance, as alleged by the federal prosecutors. Judge Medina thus reserved to himself, and ultimately to Congress, the heart of
Denver Area Educational Telecommunications Consortium v. FCC (1996) the clear and present danger test: an inquiry into the nature of the conduct outlawed.The jury, after deliberating less than a day, returned guilty verdicts for all defendants. The convictions were upheld on appeal. Writing for the Second Circuit Court of Appeals, Judge Learned Hand carefully explained the current First Amendment doctrine of clear and present danger. Referring to a concurring opinion in Whitney v California (1927), he discussed the lack of a fixed standard by which to determine when a danger is clear or how remote a danger may be and yet be called present. According to Hand, the question was “how long a government, having discovered such a conspiracy, must wait” to act. “When does the conspiracy become ‘a present danger’?” He concluded, “In each case [the government] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” The Supreme Court limited its review of this decision to two questions: whether the Smith Act as written or as applied was contrary to the First Amendment protection of freedom of speech, and whether the statute was so vague as to violate the First and Fifth Amendments. There was no majority opinion. Chief Justice Frederick M. Vinson’s plurality opinion, joined by Justices Stanley F. Reed, Harold H. Burton, and Sherman Minton, was based in its entirety on Hand’s analysis. Vinson began with his own explanation of the meaning of “clear and present danger” but finally simply adopted the “gravity of the evil” test, adding little beyond the rhetorical flourish that “the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited.” He dispatched the issue of the vagueness of the Smith Act in two short paragraphs at the end of the opinion. Justices Felix Frankfurter and Robert H. Jackson joined Vinson and concurred in the result. Frankfurter’s opinion relied heavily on his preference for judicial deference to the legislature. Jackson’s concurrence stressed the inadequacy of the clear and present danger test in dealing with worldwide conspiracies such as communism. He said the standard was more appropriate for street corner disputes than ideological causes. In an eloquent opinion, he wrote that there “is no constitutional right to ‘gang up’ on the Government.” In a brief and pointed dissent, Justice Hugo L. Black argued that the law on its face and as applied in this case was nothing more than a prior restraint on speech and press forbidden by the First Amendment. Justice William O. Douglas’s
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dissent stressed that the defendants were being prosecuted for teaching and advocating from books that were not themselves banned. He concluded that the government was punishing the communists for their beliefs rather than their advocacy. Dennis has not been overruled, but its strength has been diluted by subsequent cases—most notably Brandenburg v. Ohio (1969)—which have both limited the scope of its holding and substituted a standard of imminent lawlessness for the gravity of the evil test. See also Brandenburg v. Ohio (1969); Clear and Present Danger Test; Communist Party of the United States; Gravity of the Evil Test; Hand, Learned; Schenck v. United States (1919); Smith Act of 1940; Whitney v. California (1927);Yates v. United States (1957).
James L.Walker
furthe r reading Gorfinkel, John A., and Julian W. Mack Jr. “Dennis v. United States and the Clear and Present Danger Rule.” California Law Review 39 (1951): 475–496. Kalven, Harry, Jr. A Worthy Tradition: Freedom of Speech in America. New York: Harper and Row, 1988.
Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996) In a sharply contested decision with six separate opinions in Denver Area Educational Telecommunications Consortium v. Federal Communications Commission, 518 U.S. 727 (1996), the Supreme Court ruled on key elements of the Cable Television Consumer Protection and Competition Act of 1992, regulating indecency on “leased access” (that is, commercial television and public broadcasting stations) and “public access” cable television channels. The case was brought by a coalition of cable television programmers and viewers who alleged that the act violated their First Amendment rights to freedom of expression. Local governments impose “public access” programming requirements when they grant the local monopoly on cable service to a cable system operator. The grant requires the operator to provide production and transmission services for noncommercial programming over which the operator exercises no content control. The 1992 act permitted a cable system operator to refuse to transmit programming, even “public access” programming over which the operator has no content control, if the
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operator “reasonably believes” the programming “describes or depicts sexual or excretory activities or organs in a patently offensive manner.” Another provision of the act required operators to segregate “patently offensive” programming from other channels and to block viewer access to such channels unless viewers request access as far as thirty days in advance and in writing. The Court upheld the act’s guarantee of an operator’s discretionary authority over leased access programming, reasoning that such authority is essentially an exercise of editorial control by the system operator, consistent with the goal of protecting young viewers from offensive programming. However, the Court rejected the provision allowing operators to ban offensive or indecent programming on public access channels. Finally, the Court held that the “segregate and block” requirement limited speech unconstitutionally by requiring subscribers to undertake “considerable advance planning” to receive programming.The requirement’s all-ornothing character was also deemed unrealistic because subscribers would have to forego programming they desired if they did not want to receive other programming on the segregated channel, or if they feared disclosure of subscriber lists. As such, the provisions were not appropriately tailored to achieve the objective of limiting the availability of patently offensive materials to children, particularly when less restrictive means, such as the “V chip,” are available. The Court divided over the appropriate analogy for regulation of cable television programming. In some ways, cable is like broadcast television: it is pervasive, intrudes into the home, and is easily accessed by children. Cable is also like print media: it does not require use of scarce public airwaves, is the private property of an operator who presumably has editorial rights under the First Amendment over what content to transmit, and is accessed by choice by paying customers. The search for a governing analogy continues as Congress, the Federal Communications Commission, and the Court struggle over the regulation of indecent and obscene content accessible via cable, satellite, and broadband technologies. See also Cable Television Consumer Protection and Competition Act of 1992; Federal Communications Commission v. Pacifica Foundation (1978); Indecency and the Electronic Media; Miami Herald Publishing Co. v. Tornillo (1974); Obscenity and Pornography; Pacific Gas and Electric Co. v. Public Utilities Commission (1986);Turner Broadcasting System, Inc. v. Federal Communications Commission (1994) (1997).
Ronald Steiner
furthe r reading Brenner, Daniel L., Monroe E. Price, and Michael I. Meyerson. Cable Television and Other Nonbroadcast Video: Law and Policy. St. Paul, Minn.:Thomson West, 2003. Fiss, Owen. “The Censorship of Television.” In Eternally Vigilant: Free Speech in a Modern Era, ed. by Lee C. Bollinger and Geoffrey R. Stone, 256–283. Chicago: University of Chicago Press, 2002. Kelly, Christopher. “The Spectre of a ‘Wired’ Nation: Denver Area Educational Telecommunications Consortium v. FCC and First Amendment Analysis in Cyberspace.” Harvard Journal of Law and Technology 10 (1997): 559–646.
De Scandalis Magnatum Enacted in thirteenth-century England, the series of laws known as De Scandalis Magnatum (literally, libels upon peers) made it illegal knowingly to spread false rumors that cause public mischief. The goal of the statutes was to preserve good relations between the Crown and the nobility as well as among the nobles themselves. Unlike other forms of libel, Scandalis Magnatum did not require that the false news or tale be directed at an individual. For example, in an early nineteenth century case, the accused was charged with raising the price of public funds by spreading false rumors about the death of Napoleon Bonaparte. Further, early punishments for violating Scandalis Magnatum could be draconian. In Elizabethan England the penalty for spreading false rumors was to have one’s right hand chopped off (in cases of libel) or one’s ears chopped off (in cases of slander). The laws were rarely enforced, though. The developing law of libel and slander replaced Scandalis Magnatum for defamatory statements directed at individuals.As a result, the British repealed the Scandalis Magnatum statutes in 1888. The United States never adopted a counterpart to the laws. In Canada, however, the authors of the 1892 Canadian Criminal Code, who relied on an 1880 treatise as their source for English law, adopted Scandalis Magnatum four years after its repeal in Britain. The Canadian False News Law, as it came to be known, made it illegal knowingly to spread false news that harmed the public interest. Like its repealed counterpart, the Canadian False News Law was rarely used.The sole successful prosecution was R. v. Hoaglin, 12 C.C.C. 226 (1914), in which the accused was prosecuted for asserting that Americans (that is, settlers from the United States) were not welcome in Canada. Later, in an influential 1952 law review article, F. R. Scott suggested that the False News Law could be used to target anti-Semitism and other hate speech. Scott’s suggestion lay
Detached Memoranda dormant until the 1980s, when a group of Holocaust survivors persuaded the government to prosecute Ernst Zundel for publishing Did Six Million Really Die?, a pamphlet that denied the Holocaust. After two trials, in which juries twice found Zundel guilty, the Canadian Supreme Court, in R. v. Zundel, 95 D.L.R. (4th) 202 (1992), ruled by a 4-3 vote that the False News Law violated the protection of free expression enshrined in the Canadian Charter of Rights and Freedoms. See also Group Libel; Holocaust Denial; Libel and Slander.
Robert A. Kahn
furthe r reading Braken, Harry. Freedom of Speech:Words are not Deeds. Westport, Conn.: Praeger, 1994. Kahn, Robert A. Holocaust Denial and the Law: A Comparative Study. New York: Palgrave-Macmillan, 2004. Scott, F. R. “Publishing False News.” Canadian Bar Journal 30 (1952): 37–47.
Detached Memoranda James Madison was one of the most important contributors to the Bill of Rights (1791) and later served as the fourth president of the United States. Although his role in protecting religious liberty by helping draft the Virginia Declaration of Rights (1776) and sponsoring the Virginia Statute for Religious Liberty (1779) is relatively well known, his work on the “Detached Memoranda,” written between 1817 and 1832, is less so. This document, first published in full in 1946, reveals Madison’s increasing emphasis on separation of church and state, showing that he second-guessed some of the actions that he had taken as president. In addition to reminiscing about his experiences at the Constitutional Convention of 1787, as a coauthor of The Federalist Papers, and as a member of Congress during the Washington administration, Madison addresses church-state issues in the Memoranda. In discussing the dangers of “Ecclesiastical Endowments,” Madison cites his presidential vetoes of bills that would have permitted the incorporation of religious bodies in the District of Columbia, and he recalls opposing a Kentucky measure attempting “to exempt Houses of Worship from taxes” (Fleet 1946: 555). He reviews his role in circulating the “Memorial and Remonstrance” against religious assessment (taxes used for paying ministers to teach) in Virginia, reiterating “the danger of encroachment by Ecclesiastical Bodies” and the threat of “indefinite accu-
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mulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations” (p. 556). He argues that the United States needs to learn from the example of religious conflict in Europe on this point, and he observes that Americans, who owed their independence to “the wisdom of descrying [sic] in the minute tax of 3 pence on tea, the magnitude of the evil comprised in the precedent,” need to exercise the same caution in regard to religious assessment. Next addressing the issue of congressional chaplains, Madison argues that “the establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles” (p. 558). He notes the unlikelihood that members of minority religions would ever be appointed to the post and suggests that members who want a chaplain should pay for him out of their own expenses. Madison takes a similar view of chaplaincies for the military, which he states would be better served by volunteers than by individuals paid by the government. Acknowledging that “navies with insulated crews may be less within the scope of these reflections,” he argues that “it is safer to trust the consequences of a right principle, than reasonings in support of a bad one” (p. 560). Although Madison had himself issued proclamations of thanksgiving and fasts during his presidency, he observes that government has no legitimate authority in this area and that “an advisory Govt is a contradiction in terms” (p. 560).When such proclamations are issued, he considers it particularly important to avoid direct mention of Jesus and to employ “a form & language” that would “deaden as much as possible any claim of political right to enjoin religious observances by resting these expressly on the voluntary compliance of individuals, and even by limiting the recommendation to such as wished simultaneous as well as voluntary performance of a religious act on the occasion.” See also Bill of Rights; Chaplains; Jefferson, Thomas; Madison, James; “Memorial and Remonstrance”; Proclamations for National Days of Prayer or Thanksgiving; Separation of Church and State; Taxation of Religious Entities;Virginia Declaration of Rights;Virginia Statute for Religious Freedom.
John R.Vile
furthe r reading Fleet, Elizabeth. “Madison’s ‘Detached Memoranda.’ ” William and Mary Quarterly, 3d Ser., Vol. 3, no. 4 (1946): 534–568. Grunes, Rodney. “James Madison and Religious Freedom.” In James Madison: Philosopher, Founder, and Statesman, ed. John R. Vile, William Pederson, and Frank Williams. Athens: Ohio University Press, 2008.
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The Devil in Miss Jones
The Devil in Miss Jones
Dietemann v. Time (9th Cir. 1971)
Like its predecessor Deep Throat (1972), Gerard Damiano’s follow-up film The Devil in Miss Jones (1973) led to obscenity charges throughout the United States. Damiano’s films were key in the adult film industry’s quest to be treated as art protected by the First Amendment rather than as pornography, which can be deemed obscene and therefore prosecuted. Although many of the people involved in making and exhibiting The Devil in Miss Jones were arrested, tried, and sometimes convicted of violating federal, state, and local obscenity laws, their convictions were overturned on appeal and the obscenity statutes they were tried under were declared invalid on free speech grounds. For example, a Massachusetts obscenity law was struck down after litigation involving a theater owner’s showing of the film. Like many adult films, this one was derived from an earlier movie: the 1941 RKO comedy The Devil and Miss Jones starring Jean Arthur and Charles Coburn. A number of respected film critics applauded Damiano’s version, despite its numerous explicit sex scenes. Still, Damiano’s success was largely driven by publicity generated from obscenity litigation.After The Devil in Miss Jones played in Memphis,Tenn., for example, Assistant U.S. Attorney Larry Parrish indicted everyone he could in connection with the film. Similarly, after a New York City court declared Deep Throat to be obscene and it was subsequently banned in twenty-three states, one of the film’s stars, Harry Reems, was indicted by Parrish and convicted of obscenity in federal court. But Reems, like the others who were prosecuted by Parrish, had their convictions overturned on appeal. The Devil in Miss Jones spawned numerous sequels, none of which was as popular or critically acclaimed as the original—and none of which appears to have provoked obscenity suits.
In Dietemann v.Time, 449 F.2d 245 (9th Cir. 1971), the Ninth Circuit Court of Appeals ruled that the First Amendment freedom of the press does not give reporters special license to violate individuals’ privacy. The oft-cited decision stands for the principle that there is not special constitutional immunity for newsgathering, which is entitled to less First Amendment protection than publication. During their newsgathering efforts for an article on quackery in medicine, Life magazine reporters targeted A. A. Dietemann, a disabled veteran and plumber who claimed to heal people with herbs and other unusual remedies. Two magazine employees entered his home, posing as patients, and used a hidden camera to photograph Dietemann and a hidden microphone to record the conversation. Life later published the photos and a transcript of parts of the conversation.The magazine also turned the materials its reporters collected over to a local district attorney, who prosecuted Dietemann for practicing medicine without a license. After the publication of the article, accompanied by photos, Dietemann sued magazine publisher Time, Inc. for invasion of privacy.A federal trial court awarded him $1,000 in damages. On appeal, attorneys for Life argued that the First Amendment protected the magazine’s intrusive newsgathering and investigative reporting efforts. The Ninth Circuit Court of Appeals, however, rejected that claim: “The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office. It does not become such a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime.”
See also Deep Throat; Obscenity and Pornography.
Artemus Ward
furthe r reading Lehman, Peter, ed. Pornography: Film and Culture. Piscataway, N.J.: Rutgers University Press, 2006. Lewis, Jon. Hollywood v. Hard Core: How the Struggle over Censorship Created the Modern Film Industry. New York: New York University Press, 2000.
Dial-a-Porn See Anti-Dial-a-Porn Act of 1989
See also Privacy.
David L. Hudson Jr.
furthe r reading Dienes,Thomas C., Lee Levine and Robert C. Lind. Newsgathering and the Law, 3rd ed. Newark, N.J.: LexisNexis/Matthew Bender, 2005. Hudson, David L., Jr. “Privacy and Newsgathering: An Overview.” First Amendment Center Online. www.firstamendmentcenter.org/ Press/topic.aspx?topic=privacy_newsgathering.
Disclaimers
Digital Millennium Copyright Act of 1998 The Digital Millennium Copyright Act (DMCA) of 1998 introduced to American copyright law prohibitions against the circumvention of technological measures that control access to or use of copyrighted works. Critics have focused on two DMCA provisions relating to the copyright status of digital works as the most threatening to First Amendment freedoms: the access protection provisions of 17 U.S.C. §1201(a) and the copy protection provision of §1201(b). These sections prohibit actions circumventing technological barriers to access a work, as well as the manufacture or distribution of devices or services that circumvent copy protection measures utilized by a copyright owner.Through these provisions, the DMCA restricts access to information contained in published works as opposed to the reproduction, sale, or distribution of the work—a first in copyright law. The DMCA was enacted to comply with the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty requiring participating countries to give legal effect to copy protection measures utilized by copyright owners. Citing the two provisions discussed above, many critics of the DMCA, however, argue that it exceeds WIPO’s requirements and intrudes into an area protected by the First Amendment. The DMCA provides exemptions to its anticircumvention rules, including pre-purchase browsing by nonprofit libraries, archives, and educational institutions, and some forms of encryption research, but its limitations on accessing works curtails activities that some critics believe to be protected under the fair use doctrine. First Amendment challenges to the DMCA in lower courts have failed through 2007.The courts recognized that the DMCA assists copyright owners in exploiting their works in digital environments without the fear of piracy and in sustaining the act’s anti-circumvention measures, in particular against vendors of de-encryption software. For instance, in Universal City Studios v. Reimerdes (S.D.N.Y. 2000) a programmer of DVD de-encryption software was found to have violated the DMCA by opening access to copyrighted materials.A federal district court in United States v. Elcomsoft, Inc. (N.D. Cal. 2002) sustained a criminal indictment brought by the U.S. government against a software vendor accused of wrongfully distributing an application that would make protected Adobe Acrobat eBook files freely available. Further, in 321 Studios v. MGM Studios, Inc. (N.D. Cal. 2004),
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a federal district court rejected the claim of a plaintiff seeking a declaratory judgment that distribution of its DVD copying software should be deemed fair use. The DMCA’s potentially sharpest conflict with the First Amendment, not yet addressed by the Supreme Court, centers on the extent to which speech authorized under the statutory fair use doctrine, permitting limited access to and use of copyrighted material, often for educational purposes, is co-extensive with speech protected by the First Amendment. Critics of the DMCA allege that by prohibiting the circumvention of access protection controls, copyright owners are allowed to use a back-door regulation on speech by banning the means needed to make fair use of content. Supporters of the DMCA contend that it only prevents actions that are distinguishable from speech, such as the act of circumventing an access protection measure, which are more like picking the lock on a door than expressing an opinion. See also Copyright; Fair Use.
Kevin R. Davis
furthe r reading Benkler,Yochai. “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain.” New York University Law Review 74, no. 2 (1999): 354–446. Lampman, David V. “ ‘A Prologue to a Farce or a Tragedy’? A Paradox, a Potential Clash: Digital Pirates, the Digital Millennium Copyright Act, the First Amendment & Fair Use.” Gonzaga Law Review 38 (2002/2003): 367–407. Electronic Frontier Foundation. “Unintended Consequences: Seven Years under the DMCA.” April 2006. www.eff.org/IP/DMCA/ unintended_consequences.php.
Disclaimers The government mandates disclaimers to protect consumers, but they often present a First Amendment issue. Advertisers who resist disclaimers contend that forced disclaimers amount to a form of compelled speech. Supporters contend disclaimers present a less speech-restrictive alternative than flat bans on speech. The Supreme Court has addressed the disclaimer issue in two attorney-advertising cases: Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985) and Ibanez v. Florida Department of Business and Professional Regulation Board (1994). In Zauderer, the Supreme Court upheld a state rule requiring an attorney’s advertisements to include a disclaimer
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statement that clients could be required to pay significant litigation costs even if their lawsuits were unsuccessful. According to the Court, the lawyers’ “constitutionally protected interest in not providing any particular factual information in his advertising is minimal.” The justices, led by Byron R.White, added that disclaimers “might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception.” The Court, however, hedged its ruling by noting that not all disclaimers would be constitutional: “We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” In Ibanez, the Court ruled that the Florida Bar could not censure an attorney for accurately stating she was a certified public accountant and a certified financial planner. Led by Justice Ruth Bader Ginsburg, the Court noted that the state had limited interest in suppressing truthful information, and that the required detail that a disclaimer would require would be too expansive to include on a business card. The lower courts are divided on the issue of whether mandatory disclaimers violate the First Amendment. The Supreme Court declined to address the issue in Borgner v. Florida Board of Dentistry (2002). Justice Clarence Thomas, however, would have granted review, writing in his dissent: “This case presents an excellent opportunity to clarify some oft-recurring issues in the First Amendment treatment of commercial speech and to provide lower courts with guidance on the subject of state-mandated disclaimers.” See also Borgner v. Florida Board of Dentistry (2002); Commercial Speech; Ibanez v. Florida Department of Business and Professional Regulation Board (1994); Thomas, Clarence; Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Advertising and the First Amendment: What’s On the Horizon.” First Amendment Center. www.firstamendment center.org/speech/advertising/horizon.aspx?topic=advertising. Smolla, Rodney A. “Lawyer Advertising and the Dignity of the Profession.” Arkansas Law Review 59 (2006): 437–469.
Disclosure Requirements Individuals and organizations that act in a political forum— officeholders, candidates, donors, and interest groups promoting or opposing issues during election cycles—are subject to government-mandated disclosure requirements. These requirements allow interested parties, such as the media and the public, to examine records otherwise hidden from them. The result is closer scrutiny of facts and figures and of the relationships between political actors. Bribes given in return for favors have, of course, long been illegal, but since 1907 commentators have also been interested in political actors disclosing the sources of funding for their campaigns. It was not until the Watergate scandal and the ensuing 1974 amendments to the Federal Election Campaign Act (FECA), however, that disclosure became a public concern and was legally mandated. Supporters of disclosure laws continue to clash with those who believe that such requirements impinge on First Amendment freedoms of speech and association. In Buckley v. Valeo (1976), the Supreme Court rejected a challenge to a FECA provision requiring individuals and groups that expressly advocated for the election or defeat of candidates for federal office to file reports detailing contributions and expenditures with the Federal Election Commission. In this same seminal case that upheld the disclosure requirement practice, the Court held that the government’s interests are sufficiently important to justify the disclosure requirements’ imposition on speech. In weighing the benefits of disclosure against the burdens to First Amendment protection, the Court found that the requirements serve to deter corruption by allowing interested parties to follow the flow of money through contributions and expenditures, provide information helpful to voters, and aid in the enforcement of other campaign finance laws. This information puts outside parties in a better position to appreciate the interests behind specific political candidates and organizations, allowing voters to make more informed political choices.To the extent that disclosure provisions burden minor parties, the Court stated that courts could grant exemptions from disclosure requirements to individuals or groups for whom the requirements provide a threat of harassment. With the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA) Congress sought to tighten FECA disclosure provisions, which suffered from loopholes established in the thirty-year-old rules that administered the act’s imple-
Discrimination Laws mentation. In McConnell v. Federal Election Commission (2003), the Court upheld the increased disclosure requirements, which apply to advertisements mentioning specific candidates within sixty days of an election and to “soft money” contributions and expenditures not coordinated with the people conducting the campaigns. In light of ample evidence that such monies were being used to circumvent disclosure requirements, the Court in McConnell reaffirmed the government’s interests outlined in Buckley. Even most of the dissenting justices found that disclosure continues to provide necessary information to voters so that they can—if they so choose—make more informed decisions.What is more, the Court in McConnell took a more pragmatic look at quid pro quo corruption and determined that the BCRA captures sham issue advocacy, in which voters are encouraged to contact a candidate or group about an issue that has been negatively presented to them, just as well as straight candidate advocacy.Those who produce communications in the style of the former must provide additional disclosure about the source of funds and the manner in which those funds are spent. Further, broadcasters must keep records on contracts that create “electioneering communications” even if they are not completed, thus affirming the BCRA’s amendment to the Communications Act of 1934. Mindful of the burdens of such limitations on free speech, the Court determined that disclosure reporting need not occur until the minimum threshold financials provided in the BCRA are triggered, the result being that only truly serious candidates will be affected by the disclosure requirements. Members of groups that espouse unpopular ideas and whose membership identity could face reprisals from such disclosure may seek court exemptions on a case-by-case basis by producing specific evidence of this risk. It is an open question as to whether the case-by-case exemption requiring one to go to court will chill speech. On the state level, disclosure laws vary in what and how information is reported. Some states’ election offices purge information within specific time periods after elections while others do not make certain data public. Others simply do not collect much information. Such disparities in record keeping make scrutiny and over-time comparisons more difficult. In McIntyre v. Ohio Elections Commission (1995), the Court exempted from state disclosure requirements the distribution of an anonymous pamphlet opposing a school tax levy, but Justice John Paul Stevens’s majority opinion in McConnell relegates the decision to footnote 88 in the opinion and is otherwise silent about it.
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See also Bipartisan Campaign Reform Act of 2002; Buckley v.Valeo (1976); Campaign Regulation; Federal Election Campaign Act of 1971; McConnell v. Federal Election Commission (2003); McIntyre v. Ohio Elections Commission (1995).
Cleveland Ferguson III
furthe r reading The Campaign Disclosure Project. http://disclosure.law.ucla.edu/. Garrett, Elizabeth. “McConnell v. FEC and Disclosure.” Election Law Journal 3 (2004): 237. Hasen, Richard L. “The Surprisingly Easy Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy.” Election Law Journal 3 (2004): 251. Schultz, David, “Disclosure Is Not Enough: Empirical Lessons from State Experiences.” Election Law Journal 4 (2005): 349–370. Wilcox, Clyde. “Designing Campaign Finance Disclosure in the States: Tracing the Tributaries of Campaign Finance.” Election Law Journal 4 (2005): 371–386.
Discrimination Laws Laws enacted to protect individuals from discrimination based on race, sex, ethnicity, age, religion, or sexual orientation often have First Amendment free expression implications. For example, individuals or policies that enforce distinct roles for men and women, condemn homosexuality, or exercise racial segregation may run afoul of anti-discrimination laws. States and institutions then face the difficult problem of balancing competing rights—how to protect rights to free speech and expression while also protecting the right of certain groups to live and work in an environment free from discrimination. Distinct sets of rules apply depending upon whether the regulatory body is public or private, the context in which the speech or expression occurs, and whether the speech is subject to First Amendment protection.Thus, some forms of “hate speech” may be exempt from First Amendment protection under the exceptions carved out for “fighting words,” which prohibits First Amendment protection of speech directed at a particular individual that may incite an immediate and hostile reaction. Personal abuse in the form of racist or sexist epithets, for example, would likely fall under this exception. Policies that seek to restrict speech based on content, rather than the context in which the speech occurs, generally do not pass constitutional muster. Lower courts have struck down university regulations deemed overbroad in their attempts to minimize offensive speech on campus or that prohibited “offensive” speech in such a way that limited the ability of students or faculty to discuss the effects of biological
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sex differences or competing views on whether homosexuality could be “cured” through psychological counseling. Workplace harassment policies have also come under scrutiny by legal scholars, particularly in the aftermath of cases that hold employers to a strict liability standard for “hostile and intimidating environment” sexual harassment. Employers have extensive rights to regulate the speech, conduct, attire, and hours of employees as conditions of employment. In addition, workplace regulations exist to protect employees from liability for the discriminatory speech of other employees. Under strict liability, an employer may be held responsible for harassment perpetuated by one employee against another, even if there is no evidence that the employer had direct knowledge of the harassment. Cases such as Burlington Industries v. Ellerth (1998), in which an employee claimed sexual harassment caused her to leave her job, impose an obligation on employers to create rigorous anti-harassment policies and to take preventative measures against harassment. In other instances, anti-discrimination laws are challenged by groups that believe that the provisions of those laws infringe upon speech or associational rights. For example, the United States Jaycees’ policy of excluding women from membership was challenged in Roberts v. United States Jaycees (1984) under the Minnesota Human Rights Act as a violation of state anti-discrimination law.The Jaycees argued that enforcement of the act unconstitutionally limited their associational rights under the First Amendment, as it forced them to “associate” involuntarily with women.The Supreme Court acknowledged that the right to associate necessarily implied a right not to associate. But it also held that the right was not absolute and that a compelling state interest might justify a policy narrowly tailored to serve that interest. The elimination of certain forms of invidious discrimination, including sex discrimination, was sufficiently compelling to meet the standard. The Court also concluded that compliance with the state law neither altered the group’s message nor impaired its ability to express its views. The Court adopted a very different stance with regard to the conflict between anti-discrimination laws protecting homosexuals and the policies of the Boy Scouts of America. The Boy Scouts revoked the adult membership of James Dale upon learning of his open homosexuality. Dale filed suit under the New Jersey public accommodations law, which prohibits discrimination on the basis of sexual orientation in places of public accommodation. In Boy Scouts of America v. Dale (2000), the Supreme Court distinguished the
case from Roberts, noting that the Boy Scouts promulgated a specific moral message that it asserted was inconsistent with homosexual conduct.Were the Boy Scouts to be required to accept Dale as a member, they would be compelled to support a moral position inconsistent with the message, values, and goals of the organization. While a group may be compelled to extend the benefits of membership to an undesired group, it may not be compelled to deliver a message contrary to its actual views.Thus, the New Jersey law infringed on the Boy Scouts’ expressive associational rights in violation of the First Amendment. The regulation of speech, while permissible, depends very much on the context in which the speech is restricted and on whether the restrictions themselves serve compelling interests.As a result, the issue will continue to be litigated on a case-by-case basis. See also Boy Scouts of America v. Dale (2000); Fighting Words; Religious Discrimination; Roberts v. United States Jaycees (1984); Sexual Harassment Laws.
Sara L. Zeigler
furthe r reading Allen, David S. and Robert Jensen, eds. Freeing the First Amendment: Critical Perspectives on Freedom of Expression. New York: New York University Press, 1995. Balkin, J. M. “Free Speech and Hostile Environments.” Columbia Law Review 99 (1999): 1–28. Volokh, Eugene. “Thinking Ahead About Freedom of Speech and ‘Hostile Work Environment’ Harassment.” Berkeley Journal of Employment and Labor Law 17 (1996): 305–319.
Disorderly Conduct Statutes See Breach of the Peace Laws
Dixie Chicks Through controversial political comments, the Dixie Chicks—a popular, progressive bluegrass music trio— became a symbol of the U.S. political and cultural polarization and the First Amendment’s protection of free speech. The group, composed of singer Natalie Maines and multiinstrumentalist sisters Emily Robison and Martie Maguire, originates from Texas. Onstage at the 2,000-seat Shepherd’s Bush Empire theater in London, England, on March 10, 2003, Maines said, “Just so you know, we’re ashamed the president of the United States is from Texas.” Quoted in Betty Clarke’s review of the show in The Guardian, word of the statement traveled home rapidly.
Doe v. Gonzales (2005) Perceived as a criticism of President George W. Bush’s policies, primarily the decision to go to war in Iraq, the mainstream country music industry criticized the Dixie Chicks. Many fans took great offense at Maines’s comments and at the support provided to her by her bandmates. A few suggested her words were an act of treason. While many people found her words strongly objectionable, if not offensive, the singer broke no laws, and the controversy revolved around the boundaries of free speech. The outrage directed toward the group in the wake of Maines’s ten-word statement was from other U.S. citizens exercising the same right to free speech.The vigor of this discussion, short of making credible threats, points out the importance of maintaining protection for unpopular speech. The uproar, however, did not limit itself to words. Boycotts of the Dixie Chicks’ American tour were announced. Country radio stations, including all outlets of the Cumulus Broadcasting Company, removed the group from their play lists. During a demonstration protesting the singer’s statement, protestors publicly destroyed copies of the Dixie Chicks’ recordings. Many in the audience of the Academy of Country Music awards that May booed when the group’s name was read as a nominee. In 2004 the Dixie Chicks played several dates on the Vote for Change tour, organized to raise money and encourage people to vote for Bush’s opponent for reelection, John Kerry. A documentary film, Dixie Chicks: Shut Up and Sing, detailing the controversy and how the group dealt with its aftermath, screened at the 2006 Toronto International Film Festival and was released on DVD in 2007. At the National Academy of Recording Arts and Sciences Grammy Awards in 2007, the group won all five of the awards for which it was nominated, including Song, Record, and Album of the year for the album Taking the Long Way and its single “Not Ready to Make Nice,” which referred directly to their experiences of the preceding three years. Country radio continues to ostracize the Dixie Chicks, but the group clearly retains the support of the larger music industry, as well as fans. The Dixie Chicks continue to sell millions of discs and appear content to continue their careers without compromising the integrity of their artistic and individual expressions. See also Music Censorship.
Paul Fischer
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furthe r reading Clarke, Betty. “The Dixie Chicks.” The Guardian, March 12, 2003. http://arts.guardian.co.uk/reviews/story/0,,912236,00.html. Tyrangiel, Josh. “Chicks in the Line of Fire.” Time, May 29, 2006. Cabin Creek Films. Dixie Chicks: Shut Up and Sing. 2006. Distributed by the Weinstein Company. DVD.
Doe v. Gonzales (2005) In Doe v. Gonzales, 546 U.S. 1301 (2005), Justice Ruth Bader Ginsburg, acting in her capacity overseeing the Second Circuit Court of Appeals, denied an application by a member of the American Library Association (designated John Doe) and others to overturn an order by the Second Circuit that had stayed a U.S. district court injunction against a provision of the USA Patriot Act prohibiting librarians from disclosing that the FBI had requested information about a patron in a national security letter; in this instance, the bureau had demanded details about a visitor’s electronic communications. The Second Circuit had issued the order while granting expedited review of the district court’s ruling that the provision was unconstitutional. Doe had challenged the provision as an unlawful prior restraint that restricted his ability to provide firsthand information about the debate surrounding this provision of the law. Ginsburg noted that the government had advanced a “mosaic theory” by which while agreeing that the identify of Doe’s patron might prove innocuous by itself, it “could still be significant to a terrorist organization when combined with other information available to it.” Although acknowledging the cogency of some of the applicants’ arguments, Ginsburg observed that she could not justify interfering with an interim order simply because she “disagrees about the harm a party may suffer.” She further stated,“Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition.” She argued that she owed special deference to the appeals court because it was reviewing a decision by a district court holding a congressional law to be unconstitutional. In somewhat minimizing the issue of prior restraint, she further observed that the American Library Association was free to note that one of its members had been served with a national security letter. See also American Library Association; Ginsburg, Ruth Bader; Prior Restraint; USA Patriot Act of 2001.
John R.Vile
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Dombrowski v. Pfister (1965)
furthe r reading Raab, Christopher P. “Fighting Terrorism in an Electronic Age: Does the Patriot Act Unduly Compromise Our Civil Liberties?” Duke Law and Technology Review 3 (2006).
Dombrowski v. Pfister (1965) In Dombrowski v. Pfister, 380 U.S. 479 (1965), the Supreme Court decided that a court may enjoin enforcement of a statute that is so overbroad in its prohibition of unprotected speech that it substantially prohibits protected speech—especially if the statute is being enforced in bad faith. James A. Dombrowski was executive director of the Southern Conference Education Fund (SCEF), a civil rights advocacy group that promoted desegregation and African American voting rights. State officials in Louisiana declared the SCEF a subversive or communist-front organization whose members were violating the Louisiana Subversive Activities and Communist Front Control Law. Louisiana officials seized and searched Dombrowski’s and two lawyers’ papers and indicted them. Dombrowski and the others sued in federal court to have the statute declared unconstitutional and enjoin its enforcement.Two of the three judges on the Fifth Circuit Court of Appeals panel declined to do so, opining that federal courts should abstain from intruding into state litigation before it has been reviewed by the state’s highest court. The third judge dissented, arguing that the statute was facially unconstitutional and the defendants were using “the policeman’s club” to persecute Dombrowski and the others for their antisegregationist positions. Dombrowski and the others appealed to the Supreme Court. Justice William J. Brennan Jr. wrote the opinion for the five-justice majority. The Court held that although federal courts ordinarily should abstain from interfering in state litigation, even when constitutional issues are involved, they may intrude when a statute substantially chills free expression through overbroad application and when parties challenge a statute facially. Moreover, when a statute is substantially overbroad, persons may challenge the entire statute and not just those aspects that apply to them. The Court found the Louisiana statutes to be void on their face and ordered the district court to grant the requested relief. Two justices did not participate in this case. Justice John Marshall Harlan II, joined by Tom C. Clark, dissented because he thought that abstention is appropriate even when federal rights are involved as states are also bound by the
Constitution. The Court later came closer to Harlan’s view in Younger v. Harris (1971), after civil rights attorneys had attempted to circumvent state courts by filing of lawsuits in federal courts alleging that enforcement of state statutes violated the First Amendment rights of civil rights activists. See also Brennan, William J., Jr.; Broadrick v. Oklahoma (1973); Chilling Effect; Overbreadth;Younger v. Harris (1971).
Leonard W. Peck
furthe r reading Adams, Frank. James A. Dombrowski: An American Heretic, 1897–1983. Knoxville: University of Tennessee Press, 1992. Brown, Sara Hart. Standing Against Dragons:Three Southern Lawyers in an Era of Fear. Baton Rouge: Louisiana State University Press, 1998. Fallon, Richard H., Jr. “Making Sense of Overbreadth.” Yale Law Journal 100 (1991): 853–908. Tigar, Michael. “Book Review: Whose Rights? What Danger? Our Endangered Rights:The ACLU Report on Civil Liberties Today Edited by Norman Dorsen. New York: Pantheon Books, 1984.” Yale Law Journal 94 (1985): 970–995.
Donaldson v. Read Magazine (1948) In Donaldson v. Read Magazine, 333 U.S. 178 (1948), the Supreme Court ruled that the First Amendment does not protect ordinary crime and that the postmaster general may deny the use of the mails to persons in order to prevent fraud. Read magazine and related companies launched a “Facts Magazine Hall of Fame Puzzle Contest.” After conducting administrative hearings, the postmaster general determined that the contest was a scheme to obtain money through the mail through false and fraudulent representations. He then entered a “fraud order” against Read, related companies, and some of their employees.The original order blocked all mail to and from Read and the others, but the postmaster general later modified his order; the order the Court considered effectively limited the denial to mail about the contest. Read and the others sued, complaining that the evidence was insufficient to support the postmaster general’s findings, and also that the governing statutes that authorized the fraud order constituted prior censorship of the mails and thus violated their First Amendment rights. The district and appeals courts agreed that the evidence was insufficient and enjoined enforcement of the order. They did not address the constitutionality of the statutes. In a 7-2 decision written by Justice Hugo L. Black, the Supreme Court found the evidence sufficient to support the
Door-to-Door Solicitation postmaster general’s findings. More critically, the Court found that the statutes were valid because the constitutional guarantees of freedom of speech and of the press—and the related reluctance about prior censorship—do not prohibit Congress from preventing the use of the mails “for perpetuation of swindling schemes.” Justices Harold Burton and William O. Douglas dissented, but only concerning the sufficiency of the evidence. See also Black, Hugo L.; Mail; Prior Restraint.
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In upholding Don’t Ask, Don’t Tell, the courts emphasize the military’s interest in maintaining morale, unit cohesiveness, and order. Most courts deflect the First Amendment argument by contending that the challengers were discharged for conduct rather than speech. Members of the armed forces, discharged for their sexual orientation, continue to challenge the policy. So far, however, Don’t Ask, Don’t Tell has survived all such challenges. See also Military Personnel, Rights of.
Leonard W. Peck
furthe r reading “Symposium: Commercial Speech and the First Amendment: Ambiguity, Commercial Speech and the First Amendment.” University of Cincinnati Law Review 56 (1988): 1165–1395.
Don’t Ask, Don’t Tell ”Don’t Ask, Don’t Tell” popularly refers to the U.S. military’s policy toward gays and lesbians serving in the armed forces. Adopted as a compromise measure in 1993, the policy allows individuals to enlist without being questioned about their sexual orientation. However, it also permits the military to discharge individuals for engaging in homosexual conduct, admitting they are homosexual, or attempting to marry a person of the same sex. Before Don’t Ask, Don’t Tell, the military could initiate investigations to determine whether service members were homosexual. During the 1992 presidential campaign, Bill Clinton pledged that he would end the ban on gays and lesbians in the military. Faced with stiff opposition from highranking military leaders, after taking office Clinton instead approved the Don’t Ask, Don’t Tell compromise, codified at 10 U.S.C. 554 (b). Federal appeals courts have rejected the constitutional challenges leveled at the policy, including claims that the policy violates the due process and equal protection clauses as well as the First Amendment.The First Amendment claim asserts that the law punishes an individual for speech by providing that an individual “shall” be removed from the Department of Defense if “the member has stated that he or she is a homosexual or bisexual or words to that effect.” In Thomasson v. Perry (4th Cir. 1996), the Fourth Circuit Court of Appeals reasoned that the statute did not target speech but rather “homosexual acts and the propensity or intent to engage in homosexual acts, and permissibly uses the speech as evidence.”
David L. Hudson Jr.
furthe r reading Carr, John A. “Free Speech in the Military Community: Striking a Balance between Personal Rights and Military Necessity.” Air Force Law Review 45 (1998): 303–368. Eskridge,William N., Jr. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, Mass.: Harvard University Press, 1999. Hudson, David L., Jr. Gay Rights. Philadelphia: Chelsea House Publishers, 2005.
Door-to-Door Solicitation Door-to-door solicitation by political parties, candidates for public office, religious groups, charities, and purely commercial enterprises can lead to clashes between First Amendment free expression and homeowners’ privacy rights. Via the Fourteenth Amendment, the courts have applied to states and localities First Amendment provisions protecting the free exercise of religion, freedom of speech, freedom of the press, freedom of association, freedom of petition, and freedom of peaceable assembly. These rights sometimes come into conflict with localities’ legitimate interests in protecting their citizens from fraud and violence and preserving their privacy in their homes. These divergent interests are reflected in the tensions among cases that have addressed these issues. In Breard v. Alexandria (1951), the Supreme Court upheld the constitutionality of a Green River ordinance prohibiting door-to-door commercial solicitations other than those invited by residents.The precedent established by the case is not clear, however, because the Court has extended increased protection to commercial speech in more recent decisions. Moreover, in many instances the Court has upheld the right of individuals to engage in door-to-door solicitations for noncommercial causes, especially those of a religious
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nature. In Lovell v. City of Griffin (1938) and Schneider v. State (1939), the Court struck down ordinances requiring Jehovah’s Witnesses and others to obtain the city manager’s permission prior to engaging in door-to-door solicitations. It reiterated these rulings in Cantwell v. Connecticut (1940) and Largent v.Texas (1943). In Martin v. City of Struthers (1943), the Court overturned a blanket prohibition on the door-to-door distribution of literature. The decision in Murdock v. Pennsylvania (1943) invalidated a license tax required to solicit door-to-door, thus overturning a recent contrary decision in Jones v. City of Opelika (1942). By contrast, in Prince v. Massachusetts (1944), the Court upheld child labor regulations that applied to door-to-door solicitations, even those involving religion. More recent cases have repeated many of the same themes. In Staub v. City of Baxley (1958), the Court reaffirmed that a state could not vest discretion in local officials to determine who would or would not be permitted to make doorto-door solicitations based on officials’ judgments of the public interest. Similarly, in Hynes v. Mayor of Oradell (1976) the Court decided that a law requiring door-to-door solicitors to notify town officials of their activities in writing was too vague. It voided a similar registration requirement in Watchtower Bible and Tract Society v.Village of Stratton (2002). The Supreme Court has often affirmed the reasonableness of “time, place, and manner” restrictions on speech in the door-to-door context. It thus seems that courts would be likely to uphold laws designed to limit solicitations to daylight hours or laws affirming the rights of residents to post signs indicating that they do not wish to be disturbed by solicitors. See also Breard v. Alexandria (1951); Green River Ordinances; Hynes v. Mayor of Oradell (1976); Jehovah’s Witnesses; Jones v. City of Opelika (1942) (1943); Largent v.Texas (1943); Lovell v. City of Griffin (1938); Martin v. City of Struthers (1943); Murdock v. Pennsylvania (1943); Prince v. Massachusetts (1944); Privacy; Schneider v. State (1939); Staub v. City of Baxley (1958); Time, Place, and Manner Restrictions;Watchtower Bible and Tract Society v. Village of Stratton (2002).
John R.Vile
furthe r reading McAninch, William Shepard. “A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court.” University of Cincinnati Law Review 55 (1987): 997–1077. Hunter, Howard O., and Polly J. Price. “Regulation of Religious Proselytism in the United States.” Brigham Young University Law Review 2001 (2001): 537–574.
Doran v. Salem Inn (1975) In Doran v. Salem Inn, 422 U.S. 922 (1975), the Supreme Court considered a First Amendment challenge to an ordinance banning topless dancing in nightclubs. Writing for the majority of eight, Justice William H. Rehnquist suggested that barroom dancing “might be entitled to First and Fourteenth Amendment protection under some circumstances.” The Court ruled that one nightclub, which was being prosecuted, was not entitled to have its claims for relief considered whereas the other two were. Although Rehnquist’s decision touched briefly upon freedom of expression, the case focused on three New York nightclubs (M & L, Salem, and Tim-Rob) that sued North Hempstead’s attorney Francis F. Doran and others seeking a temporary restraining order (TRO), preliminary injunction, and declaratory relief from an ordinance proscribing topless dancing. The clubs, which argued that the law infringed upon their First Amendment rights, voluntarily stopped their topless performances to file suit. After the district court denied the TRO, but about two weeks before the preliminary injunction hearing, M & L resumed topless dancing and was promptly served with criminal summonses. The district court and court of appeals concluded that judicial energy would be conserved, and potentially conflicting outcomes avoided, by granting a preliminary injunction to all three nightclubs. In reviewing the First Amendment challenge, the Court considered Younger v. Harris (1971), barring federal injunctive relief when state prosecution is pending; Samuels v. Mackell (1971), barring declaratory relief when state prosecution is pending; and Steffel v.Thompson (1974), allowing declaratory relief when no state prosecution is pending. The Court asked whether Younger, Steffel, and Samuels “must give way” to interests in efficient judicial administration and avoiding conflicting outcomes. While recognizing that there “may be some circumstances in which legally distinct parties are so closely related that they should all be subject to the Younger considerations which govern any one of them,” Rehnquist distinguished Doran, observing that the bars (although sharing counsel and operating in similar formats) were “unrelated in terms of ownership, control, and management.” Rehnquist concluded that each corporation “stood alone.” M & L’s requests for injunctive and declaratory relief were barred under Younger and Samuels, respectively. Salem and Tim-Rob were free to seek declaratory relief because
Dorsen, Norman neither had been prosecuted before obtaining the preliminary injunction. The preliminary injunctions against Salem and Tim-Rob were thus not subject to the restrictions of Younger. See also California v. LaRue (1972); Dancing, Nude; Rehnquist, William H.; Samuels v. Mackell (1971);Younger v. Harris (1971).
Cary Wiggins
furthe r reading Howard B. Stravitz. “Younger Abstention Reaches a Civil Maturity: Pennzoil Co. v.Texaco, Inc.” Fordham Law Review 57 (1989): 997.
Doremus v. Board of Education (1952) In Doremus v. Board of Education, 342 U.S. 429 (1952), the Supreme Court denied a declaratory judgment sought by residents of New Jersey who were challenging the daily reading, without comment, of five Bible verses from the Old Testament at the beginning of each public school day. The plaintiffs, one of whom objected as a parent of a high school student and the other as a taxpayer, apparently relied on Illinois ex rel. McCollum v. Board of Education (1948), which had barred on-campus religious exercises, as precedent. Writing for the Court, Justice Robert H. Jackson declared that neither plaintiff ’s status established the requisite standing.There was no evidence that the child of the parent bringing the case was offended by the Bible reading, or that she was compelled to listen or participate; moreover, she had already graduated, so no Court decision could protect her rights. Further, in contrast to Everson v. Board of Education (1947), where funds for bus transportation could be isolated from other expenses, there was no evidence in this case that the Bible reading cost taxpayers any additional money. Jackson concluded, “If the Act may give rise to a legal case or controversy on some behalf, the appellants cannot obtain a decision from this Court by a feigned issue of taxation.” In a dissent joined by Justices Stanley F. Reed and Harold H. Burton, Justice William O. Douglas argued that the Court should render a decision on the merits of the case. He believed that taxpayers might be able to “establish that their public schools were being deflected from the education program for which the taxes were raised.” Although the case would not meet the standards for a federal taxpayer suit, there was nothing to prevent New Jersey from accepting such suits under its state laws.
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The reasoning in Jackson’s decision likely explains why parents who brought subsequent cases challenging prayer and Bible reading in public schools, such as Engel v. Vitale (1962) and Abington School District v. Schempp (1963), alleged specific injury to their children rather than resorting to their status as taxpayers. Later, the Court opened the door narrowly to some taxpayer suits in Flast v. Cohen (1968), when taxpayer plaintiffs successfully established standing to challenge government spending on secular textbooks for and transportation to religious schools. See also Abington School District v. Schempp (1963); Douglas, William O.; Engel v. Vitale (1962); Everson v. Board of Education (1947); Flast v. Cohen (1968); Illinois ex rel. McCollum v. Board of Education (1948); Jackson, Robert H.
John R.Vile
furthe r reading Staudt, Nancy. “Taxpayers in Court: A Systematic Study of a (Misunderstood) Standing Doctrine.” Emory Law Journal 52 (2007): 771–846.
Dorsen, Norman Norman Dorsen (1930– ) is a leading academic and civil liberties lawyer. He serves as the Frederick I. and Grace A. Stokes Professor of Law at New York University School of Law and also as the counselor to the university president. He made many of his contributions to First Amendment jurisprudence during his long career at the helm of the American Civil Liberties Union (ACLU). Dorsen was born in 1930 in New York City, and he grew up there, attending public schools. He received his bachelor’s degree in 1950 from Columbia University and his law degree in 1953 from Harvard, where he served as editor of the law review. Upon graduation, Dorsen served in the military before embarking upon his impressive legal career. He clerked for Judge Calvert MacGruder of the First Circuit Court of Appeals and then for U.S. Supreme Court justice John Marshall Harlan II. After completing his clerkship in 1958, Dorsen practiced with the New York law firm Dewey Ballantine. Dorsen joined the faculty of the New York University Law School in 1961. In the 1960s he also began his decades-long leadership role in the ACLU, first serving as general counsel (1969–1976), then as president (1976–1991). Nadine Strossen (2001), his successor as president, remarked that “the ACLU has never had a better friend than Norman Dorsen” (p. 38).
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The numerous cases Dorsen has argued before the Supreme Court include the First Amendment case Law Students Research Council v.Wadmond, 401 U.S. 154 (1971). In addition, “he helped write petitioner’s brief in Roe v. Wade and appeared amicus curiae in the Gideon case, the Pentagon Papers case, the Nixon Tapes case and the Flag Desecration case” (New York University School of Law). He was the founding president of the Society of American Law Teachers and of the U.S. Association of Constitutional Law. In addition, Dorsen has authored many books dealing with First Amendment issues, including Frontiers of Civil Liberties (1968), The Rights of Americans (1971), and The Evolving Constitution (1987). Yale law professor Judith Resnik (2001) has summed up Dorsen’s excellence as a law teacher and a Supreme Court litigator, and in many other roles: “He knew about ‘multitasking’ long before it became a buzz word, as he worked simultaneously in several modes, litigating, organizing, and lobbying, all with a common purpose: to make the world better for people who were not like himself ” (p. 30). See also American Civil Liberties Union; Harlan, John Marshall, II; Law Students Research Council v.Wadmond (1971).
David L. Hudson Jr.
furthe r reading McFadden, Robert D.“A.C.L.U. Picks Dorsen as Its New Chairman.” New York Times, December 7, 1976. New York University School of Law. “Norman Dorsen.” http://its .law.nyu.edu/faculty/profiles/index.cfm?fuseaction=cv.main&pers onID=19885. Resnick, Judith. “A Tribute to Norman Dorsen.” New York University Annual Survey of American Law 58 (2001): 29–34. Strossen, Nadine. “A Tribute to Norman Dorsen.” New York University Annual Survey of American Law 58 (2001): 35–38.
Dot Kids Implementation and Efficiency Act of 2002 The Dot Kids Implementation and Efficiency Act of 2002 (Public Law 107-371) attempts to protect minors from inappropriate material on the Internet by creating a “safe haven” Web site, or what Rep. Fred Upton, R-Mich., has referred to as “a children’s library section of the Internet” (Browne 2004: 90). The federal law responds to Supreme Court decisions invalidating portions of the Communications Decency Act of 1996 and the Child Online Protection Act of 1998 on grounds of vagueness and overbreadth. In some respects, the law resembles an online zoning requirement. It entrusts the responsibility of creating the safe
haven to the National Telecommunications and Information Administration (NTIA), which is part of the Commerce Department. The NTIA must select an operator for the domain to draft standards ensuring that all materials on the site are in accord with the law, “suitable for minors, and not harmful to minors.”The operator also must create “rules and procedures for enforcement and oversight that minimize the possibility that the new domain provides access to content that is not in accordance with the standards and requirements of the registry.” Scholars debate whether the law has problems of vagueness and overbreadth similar to some of its predecessors; some also question whether the government is the proper guardian of such a site. The contents of the site, which can be accessed at www.kids.us, remain relatively limited; much of the accessible material is provided by government entities such as the Smithsonian Institution and state governments. See also Child Online Protection Act of 1998; Communications Decency Act of 1996; Internet.
John R.Vile
furthe r reading Browne, Maureen E. “Comment: Play It Again Uncle Sam: Another Attempt by Congress to Regulate Internet Content. How Will They Fare This Time?” CommLaw Conspectus 12 (2004): 79–99.
Douglas v. City of Jeannette (1943) The Supreme Court’s decision in Douglas v. City of Jeannette, 319 U.S. 157 (1943), focused on the jurisdiction of federal courts in First Amendment cases. It was decided the same day as Murdock v. Pennsylvania (1943) and Martin v. City of Struthers (1943). In this case, a group of Jehovah’s Witnesses claimed that the city of Jeannette’s ordinance requiring a license to engage in door-to-door solicitations violated their First Amendment rights. After refusing to obtain such permits, they faced criminal prosecution and successfully sought an injunction in the U.S. District Court for Western Pennsylvania. The Third Circuit Court of Appeals overturned the injunction on the authority of Jones v. City of Opelika (1942). Murdock, in which the Court struck down licensing requirements similar to those in this case, subsequently overturned Jones. Writing for the Court, Chief Justice Harlan Fiske Stone acknowledged that the Fourteenth Amendment applies First Amendment guarantees to the states, but he also noted that
Douglas,William O. the Court would have to establish appropriate equity jurisdiction before it intervened in the case. Stone observed: “It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts.” Federal courts should not intervene in ongoing state prosecutions except “on a showing of danger of irreparable injury ‘both great and immediate.’ ” Seeing no reason to believe that state courts would not apply the law as announced in Murdock, Stone declined to intervene. Justice Robert H. Jackson authored a passionate dissent, joined by Justice Felix Frankfurter, concurring in the result of this case but dissenting in Murdock v. Pennsylvania and in Martin v. City of Struthers. Jackson concentrated on the facts of the case: Jehovah’s Witnesses had descended in force on the city of Jeannette and had been aggressive in their unlicensed door-to-door solicitations. He did not think that their behavior was analogous to the free exercise rights of individuals gathering freely in churches to hear sermons. Jackson observed: “The First Amendment grew out of an experience which taught that society cannot trust the conscience of a majority to keep its religious zeal within the limits that a free society can tolerate. I do not think it any more intended to leave the conscience of a minority to fix its limits.” Jackson also noted that “civil government cannot let any group ride rough-shod over others simply because their ‘consciences’ tell them to do so.” In Younger v. Harris (1971), the Court cited the principle of “comity” to affirm that federal courts should allow state courts to proceed before intervening in most First Amendment cases. See also Federalism; Jackson, Robert H.; Jehovah’s Witnesses; Jones v. City of Opelika (1942)(1943); Martin v. City of Struthers (1943); Murdock v. Pennsylvania (1943); Stone, Harlan Fiske; Younger v. Harris (1971).
John R.Vile
furthe r reading Pepper, Stephen. “Symposium: New Directions in Religious Liberty: Conflicting Paradigms of Religious Freedom: Liberty versus Equality.” Brigham Young University Law Review 1993 (1993): 7–62.
Douglas, William O. William O. Douglas (1898–1980), the longest-serving justice in the history of the Supreme Court, sat on the Court from 1939 to 1975. He was one of the Court’s most controversial
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members as well as one of its most passionate defenders of individual freedoms and First Amendment rights. Douglas was born on October 16, 1898, in Maine, Minnesota, but his family moved to the West Coast when he was very young. After his father’s death in 1904, the family settled in Yakima, Washington. Douglas was valedictorian of his high school class, which earned him a scholarship to attend Whitman College. After graduation, he made a brief attempt at teaching before attending Columbia University Law School, from which he graduated in 1925. Finding that a career as a practicing lawyer did not suit him, Douglas joined the faculty at Columbia and then at Yale Law School, where he taught commercial law. In 1936 President Franklin D. Roosevelt appointed him to the new Securities and Exchange Commission; he became its chair in 1937. On March 20, 1939, Roosevelt nominated Douglas to the Supreme Court as an associate justice to replace Justice Louis D. Brandeis, who had retired. The Senate confirmed the appointment by a 62-4 vote, and the forty-year-old Douglas was sworn in on April 17, 1939, becoming one of the youngest justices to join the Court. By his own admission, however, he was unhappy on the bench.Although he served as a justice for thirty-six years, he aspired to the presidency. He sought the Democratic nomination for the vice presidency in 1944 and was bitter when Sen. Harry S. Truman was chosen instead (and then became president upon Roosevelt’s death in 1945). Another brief, failed attempt in 1948 marked the end of his presidential dreams. Douglas’s tenure on the Court proved to be as controversial as it was long. A maverick professionally and personally, he was nicknamed “Wild Bill.” As a justice, Douglas was an unusually visible figure whose passionate advocacy made him a lightning rod for criticism. He made numerous public appearances and wrote many books and articles supporting liberal causes, especially civil liberties. An avid outdoorsman, he worked tirelessly for the environmental movement. He drew criticism when he blocked the pending execution of Julius and Ethel Rosenberg in 1953 for giving atomic and military secrets to the Soviet Union and, later, when he upheld a lower court order that would have blocked funding for the Vietnam War. In each case, he issued his order and promptly left Washington, forcing the other justices to overrule him in absentia. The House of Representatives made three short-lived attempts to impeach him. Douglas’s personal life also was equally controversial. He married four times (progressively younger women) and divorced three of his wives.While quiet affairs were not unknown among justices,
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Douglas’s womanizing was common knowledge. He also had a tendency to exaggerate. As a justice, Douglas was a passionate civil libertarian. He believed that the Constitution rests upon fundamental and transcendent natural rights that limit government. Although he never seriously developed this theory, it is evident in his authorship of the Court’s decisions in Skinner v. Oklahoma (1942) and Griswold v. Connecticut (1965), both of which establish basic rights— to marriage, procreation, and privacy—not found in a literal reading of the Constitution. Douglas was uncompromising in his support of free speech rights. While never completely endorsing the absolutist doctrine advocated by Justice Hugo L. Black, Douglas repeatedly contended that thought and speech may not be limited in the absence of injurious actions. Douglas wrote the majority opinion in Terminiello v. Chicago (1949), overturning the disorderly conduct conviction of an anti-Semitic priest whose stirring speech nearly led to a riot. Similarly, Douglas rejected the idea that obscenity should be unprotected speech in his dissent in Roth v. United States (1957). In his dissent in Dennis v. United States (1951), Douglas argued that mere membership in a group such as the Communist Party does not pose a clear and present danger that warrants banning speech and limiting association. He stressed the importance of free speech to the United States: “Free speech has occupied an exalted position because of the high service it has given our society. Its protection is essential to the very existence of a democracy. . . . It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us. . . . [Free speech] has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality.” Along the same lines, Douglas joined the majority in Brandenburg v. Ohio (1969) and New York Times Co. v. United States (1971), insisting that the government must have a compelling and immediate interest to impose any limit on speech or the press. Writing for the majority in Murdock v. Pennsylvania (1943), Douglas struck down a local license tax required for door-to-door solicitation because it applied to Jehovah’s Witnesses and amounted to a tax on religious speech. Douglas’s concurrence in Engel v. Vitale (1962), the landmark school prayer case, reflected a wider wariness about using any tax funds for religious purposes. In his decision allowing “released time” for public school children to attend off-campus religious instruction in Zorach v. Clauson (1952), however, Douglas observed that “we are a religious people whose institutions presuppose a Supreme Being.”
Accommodation of such religious beliefs “follows the best of our traditions” and “respects the religious nature of our people.” Douglas’s defense of civil liberties put him in step with the Warren Court but made him increasingly at odds with the Burger Court that followed. As the Court became more conservative, Douglas wrote increasing numbers of dissents, leading to another nickname:“The Great Dissenter.” Liberal and conservative commentators alike have criticized Douglas for failing to live up to his brilliant potential as a jurist. As noted, he never made an effort to develop the natural law theory he endorsed. Further, Douglas wrote many of his opinions in as few as thirty minutes and rarely revised them, leading to sloppy legal scholarship and thus diminishing their impact. On December 31, 1974, Douglas suffered a debilitating stroke but did not retire until November 12, 1975. He attempted to fulfill his duties on the Court until his disability became so obvious that his fellow justices agreed among themselves to put off any cases in which he would have the deciding vote. See also Black, Hugo L.; Brandenburg v. Ohio (1969); Burger, Warren E.; Dennis v. United States (1951); Engel v.Vitale (1962); Murdock v. Pennsylvania (1943); New York Times Co. v. United States (1971); Privacy; Roth v. United States (1957); Terminiello v. Chicago (1949);Warren, Earl; Zorach v. Clauson (1952).
Stephen L. Robertson
furthe r reading Douglas, William O. The Court Years, 1939–1975: The Autobiography of William O. Douglas. New York: Random House, 1980. Murphy, Bruce Allen. Wild Bill: The Life and Legend of William O. Douglas. New York: Random House, 2003. Powe, Lucas A.“Evolution to Absolutism: Justice Douglas and the First Amendment.” Columbia Law Review 74 (1974): 371–411. Urofsky, Melvin I., ed. The Douglas Letters: Selections From the Private Papers of William O. Douglas. Bethesda, Md.: Adler and Adler, 1987. Wasby, Stephen L., ed. He Shall Not Pass This Way Again:The Legacy of Justice William O. Douglas. Pittsburgh, Penn.: University of Pittsburgh Press, 1990.
Draft Card Mutilation Act of 1965 From 1941 through 1973, with a short interruption in the late 1940s, young men at age eighteen were required by law to register with their local draft boards. Each was classified according to his fitness for service and issued a draft card noting his name, age, and draft status. Possession of the card
Dress Codes
Ken Love burns his draft card on June 20, 1969. Draft card burning, a popular form of symbolic protest, became a punishable offense after implementation of the Draft Card Mutilation Act of 1965.
proved that the card bearer was compliant with the Selective Service System and had not tried to evade classification for military service. Draft operations ran relatively smoothly before and during World War II and again during the Korean War and the 1950s. By the mid-1960s, as the United States drafted more troops for the Vietnam War and opposition to the war heightened, some men viewed the public destruction of their draft cards as an effective form of symbolic protest against both the war and the draft system that supported it. Draft card burning became one of the most iconic forms of protest during the war. It was a gesture made by young men who wished to buck the system but were not comfortable with more extreme measures such as going to Canada, participating in riots, or destroying induction centers. The symbolic act had legal implications, however. Burning draft cards was ipso facto illegal because all eligible men were legally required to carry their draft cards with them at all times. Furthermore, after Congress adopted the Draft Card Mutilation Act of 1965 to promote the efficient
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operation of the Selective Service System and preempt venues of resistance, it became a criminal offense knowingly to destroy or mutilate one’s draft card.The law codified previous inferences that men needed to carry and maintain their cards in a presentable manner. In passing the measure, Congress curtailed the scope of symbolic speech in the name of good government. In United States v. O’Brien (1968), the Supreme Court considered the government’s right to require possession and punish mutilation of draft cards against individuals’ rights to engage in symbolic speech acts under the protection of the First Amendment. David Paul O’Brien opposed the Vietnam War and was frustrated by what he deemed an unconstitutional restriction of symbolic speech as protected by the First Amendment, so he burned his draft card publicly, on the steps of a Boston courthouse.Arrested and convicted of draft card mutilation, he appealed his case until it reached the Supreme Court. In a 7-1 decision written by Chief Justice Earl Warren, the Court upheld O’Brien’s conviction and upheld the law as a means of protecting the nation that incidentally affected freedom of speech. In the decision, the Court established a four-part test that it continues to apply in cases of symbolic speech.This test requires the government to show that it has the power to enact such a measure, that it has established an important governmental interest, that the measure’s purpose is unrelated to speech, and that it has imposed the least restrictions necessary to accomplish the objective. See also Expressive Conduct; Symbolic Speech; United States v. O’Brien (1968);Vietnam War.
Jason Friedman
furthe r reading Baskir, Lawrence, and William A. Strauss. Chance and Circumstance:The Draft, the War, and the Vietnam Generation. New York: Alfred A. Knopf, 1978. Fallows, James. “What Did You Do in the Class War Daddy?” Washington Monthly 7 (October 1975): 5–20. Flynn, George Q. The Draft: 1940–1973. Lawrence: University of Kansas Press, 1993. Foley, Michael S. Confronting the War Machine: Draft Resistance during the Vietnam War. Chapel Hill: University of North Carolina Press, 2003.
Dress Codes Dress codes are typically implemented by school districts and employers to promote learning, safety, and image.
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Although such regulations face First Amendment challenges by students, parents, and employees, the courts generally support the schools and employers. School dress codes that merely exclude types of clothing, such as gang colors or provocative attire, tend to be enacted without controversy. When codes require uniform-like attire, however, many parents and children object. The Supreme Court has never directly addressed school dress codes. In Tinker. v. Des Moines Independent Community School District (1969), which involved high school students wearing black armbands to protest the Vietnam War, the Court affirmed students’ First Amendment rights to free speech.Although the Court’s decision upheld students’ right to express themselves through certain items they wear, the Court has never specified whether that right bars uniforms, dress codes, or grooming requirements. Faced with increasing student discipline problems, particularly from gang violence (whose members often identified themselves through items of clothing) and a rise in more prurient clothing in the 1980s and 1990s, school systems in the 1990s began to introduce dress codes, school uniforms, and uniform-like dress codes. In two State of the Union addresses, President Bill Clinton advocated public school uniforms, similar to those in parochial schools and many public schools overseas.The number of schools that adopted uniforms is not known, but in California, where they were first mandated, at least fifty schools abandoned their uniform requirements between 2000 and 2002. Short of restricting pure political expression that does not disrupt learning, school officials have much constitutional latitude.The law in this area is far from settled, and the courts frequently side with the schools when dress requirements are challenged by students and parents. In practice, however, the bitterness and the cost of litigation have reduced the practical maneuvers of school administrators and school boards. If school officials attempt to punish students who exercise their expressive rights by wearing buttons, writing on fingernails, or protest messages on shirts, they could find themselves slapped with protected speech or petition action lawsuits. In addition, in districts that have imposed incentives to increase participation in voluntary uniform and uniform-like dress codes, threats of or actual lawsuits have quickly emerged to halt this allegedly coercive practice. Opponents of dress codes and uniforms are often divided between those who do not want the schools to usurp parental rights, who desire student independence, and who wish to use secondhand clothing and those who simply want
to show off their attire. Similarly, the motives of advocates of mandatory uniforms or uniform-like dress codes vary from those who want to de-emphasize clothing and promote the egalitarianism implicit in similar clothing to those who primarily wish to avoid fights with their children over what to wear. School administrators and teachers are divided on the issue. Some, particularly those in underperforming or less disciplined school environments, welcome uniforms and uniform-like dress codes. Supporters also argue that uniforms help identify intruders on school property. Opponents contend, however, that uniforms also make it more difficult to identify distressed students, who may reveal symptoms of psychological disorders by wearing unusual clothing. They also point out that teachers often waste the first minutes of class trying to determine which of their students who are not in uniform have waivers and which are violating the code. In addition, friction and discipline problems may worsen as rule breakers crowd the principal’s office. Over time, students may simply stop wearing the uniform or uniform-like dress, or they may mock the policy by wearing the uniform in a revealing way. Scholars have studied the effects of uniforms and dress codes on discipline and academic performance, but their findings have been mixed: Researchers, including sociologist David L. Brunsma at the University of Alabama at Huntsville, have concluded that no relationship exists, that the uniform or dress code is much less important than most other factors, or even that uniforms lower test scores. Employers are entitled to enact dress codes, including uniforms, if there is a rational basis for the requirement, such as fostering a particular business image, encouraging harder work, or complying with public safety and health standards. They can ban anything reasonably deemed to be distracting from work, including body art. Employers may also offer alternative dress codes, such as minimum requirements for “casual Fridays.” Although employees do not have a First Amendment right to dress in any way they choose to express themselves, they do have rights under the First Amendment to contest a dress code in a civil manner without fear of employer retribution.The courts generally defer to employer judgments and have thus upheld prohibitions of torn clothing, sweat pants, short skirts or blouses, and hats. Provided that the dress code is written clearly, is not excessive or onerous, is applied in a consistent fashion, and does not obviously discriminate on the basis of race, sex, religion, and perhaps ethnicity, then the code is constitutional
Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) and does not violate Title VII of the Civil Rights Act of 1965.A dress code that discriminated on the basis of gender, except consistent with social customs, would be struck down.Thus, in Harper v. Blockbuster Entertainment (11th Cir., 1998), the Eleventh Circuit Court upheld a rule requiring shorter hair cuts for male employees. See also Hair Length and Style; Public Employees; Students, Rights of; Tinker v. Des Moines Independent Community School District (1969).
Henry F. Carey
furthe r reading Anderson, A. J. et al. “Should a Library Have a Dress Code?” Library Journal 117, no. 21 (1992): 98–100. Brunsma, David L. “School Uniforms: A Critical Review of the Literature.” Bloomington, Ind.: Phi Delta Kappa International, 2002. ——— and Kerry A. Rockquemore. “The Effects of Student Uniforms on Attendance, Behavior Problems, Substance Use, and Academic Achievement.” Journal of Educational Research 92, no. 1 (1998): 53–62. Edwards, Owen.“Buttoning up the Business.” Forbes 159, no. 7 (1997), 98–99. Lynn, Jacquelyn. “War and Pierce: Setting Policies on Facial Jewelry and Body Art.” Entrepreneur 26, no. 16 (1998): 104. Zernike, Kate. “Plaid’s Out, Again, as Schools Give up Requiring Uniforms.” New York Times, September 13, 2002. www.nytimes .com/2002/09/13/education/13UNIF.html?ex=1032927691&ei =1&en=4300b4eec3bc0b93.
Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) In Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), a majority of Supreme Court justices agreed that nonmedia distributors of information, such as credit agencies, do not enjoy First Amendment protections as defendants in libel lawsuits. Dun and Bradstreet provided financial and other information about businesses to its subscribers, who by contract could not further distribute that information. When its information collector misinterpreted court records, Dun and Bradstreet incorrectly reported to five clients that Greenmoss Builders had filed for bankruptcy—information that was potentially devastating to Greenmoss’s ability to do business. Greenmoss sued successfully in state court, and a jury awarded the company compensatory or actual damages plus punitive damages. Dun and Bradstreet argued that, as a nonmedia information distributor, it was entitled to the same First Amendment protections provided to the media
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defendants in Gertz v. Robert Welch, Inc. (1974).The Vermont Supreme Court disagreed and saw no reason that Dun and Bradstreet could not be required to pay the awarded damages for its error. Until 1964, liability for libel had been controlled by the states and was not limited by First Amendment considerations.Then in New York Times Co. v. Sullivan (1964), the U.S. Supreme Court declared that public officials suing publications for libel must prove, by clear and convincing evidence, that the libel was committed with “actual malice”—with knowledge of the falsity or with reckless disregard for the truth—to be awarded damages. In Curtis Publishing Co. v. Butts (1967), the Court appeared to apply the same standard to public figures who were not public officials. In Gertz, however, the Court was unwilling to fully apply New York Times Co. v. Sullivan to libel suits brought by people who were neither public officials nor public figures, but it did require that liability must be with fault and that presumed and punitive damage awards be supported by actual malice findings.The lingering question was whether the Gertz standard protected nonmedia distributors of information about people, like credit bureaus. In Dun and Bradstreet, the Court answered that question in the negative, holding that the First Amendment protects speech “on matters of public concern,” not speech related to purely private concerns, as in this case. Justice Lewis F. Powell Jr., joined by Justices William H. Rehnquist and Sandra Day O’Connor, wrote the plurality opinion, with which Chief Justice Warren E. Burger and Justice Byron R.White concurred on the judgment. Justices William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun, and John Paul Stevens dissented, opining that the Gertz rule should apply in this case. See also Actual Malice; Curtis Publishing Co. v. Butts (1967); Gertz v. Robert Welch, Inc. (1974); Libel and Slander; New York Times Co. v. Sullivan (1964); Powell, Lewis F., Jr.
Leonard W. Peck
furthe r reading Drechsel, Robert E. “Defining ‘Public Concern’ in Defamation Cases since Dun and Bradstreet v. Greenmoss Builders.” Federal Communications Law Journal 43 (1990): 1–22. VerSteeg, Russ. “Slander and Slander Damages after Gertz and Dun & Bradstreet.” Villanova Law Review 38 (1993): 655–691.
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Dworkin, Andrea
Dworkin, Andrea In defense of women’s rights,Andrea Dworkin (1946–2005), a radical feminist writer and theorist, launched sweeping attacks on pornography that led to harsh criticism of her by civil libertarians as well as by anti-feminists. Born in Camden, New Jersey, she attended Bennington College in Vermont. During an anti–Vietnam War protest march in New York City, she was arrested and subjected to a violent and humiliating body cavity search by two male policemen. In 1969 she moved to Europe, where she suffered through an abusive marriage. Perhaps influenced by these experiences, upon her return to the United States in 1972 she established herself as one of the foremost, and most controversial, radical feminist voices. Dworkin is best known for her strident opposition to pornography, which she defined in Pornography: Men Possessing Women (1981) as “a celebration of rape and injury to women.” She campaigned tirelessly against pornography, rejecting free speech defenses and arguing that it perpetuated male domination, encouraged violence against women, and made women into second-class citizens, in violation of their equal rights. Working with law professor Catharine MacKinnon, Dworkin drafted a law that defined pornography as sexually explicit materials depicting women as dehumanized objects to satisfy men’s desires and that allowed those harmed by pornography to file civil suits against its makers and distributors. Indianapolis adopted the proposed ordinance, but the Seventh Circuit Court of Appeals, in American Booksellers Association v. Hudnut (7th Cir. 1985), ruled that it was an unconstitutional violation of the First Amendment.
Dworkin was also an important witness before the Attorney General’s Commission on Pornography (the Meese Commission) in 1986. In her testimony, she attacked pornography and urged prosecutors to use anti-racketeering statutes against pornographers. She explained that she opposed obscenity laws on the grounds that they were ineffective and “woman-hating in their very construction.Their basic premise is that it’s women’s bodies that are dirty.” The controversy over Dworkin’s work stems from her radical views and her provocative expression of them. She wrote that a rape victim should be allowed to personally execute her attacker and famously that “[intercourse] is the means by which the male colonizes the female.” (She did not, however, claim that all heterosexual intercourse is rape, a statement that is often attributed to her.) Amid equally passionate supporters and detractors, Dworkin crusaded for women’s rights throughout her life. In addition to her individual writings, she co-authored, with Catharine MacKinnon, Pornography and Civil Rights: A New Day for Women’s Equality ( 1987) and In Harm’s Way:The Pornography Civil Rights Hearings (1998). See also American Booksellers Association v. Hudnut (7th Cir. 1985); MacKinnon, Catharine; Obscenity and Pornography.
Steve Robertson
furthe r reading Dworkin, Andrea. Heartbreak:The Political Memoir of a Feminist Militant. New York: Basic Books, 2002.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
Eagle Forum The Eagle Forum is a conservative women’s group founded in 1972 by Phyllis Schlafly.The organization’s stance on First Amendment policy issues depends on how they correlate to the group’s perspective.The Eagle Forum promotes its agenda by lobbying Congress and state legislatures and through litigation. In the 1980s, standing with groups across the political spectrum, including the NAACP and AFL-CIO, the Eagle Forum opposed the Federal Communications Commission’s repeal of the fairness doctrine, which had required broadcast networks to voice opposing stances on major controversies. The Eagle Forum also played a major role in passing legislation in Tennessee mandating that any teacher presenting the theory of evolution as a fact be fired. The organization sometimes joins more liberal organizations in opposing government intrusion on personal affairs. Thus, in the wake of the September 11, 2001, al-Qaida attacks, the Eagle Forum joined the American Civil Liberties Union and Human Rights Watch, among others, in warning Congress against thinking that all legislation labeled anti-terrorist would necessarily increase national security. See also Evolution; Fairness Doctrine.
Tobias T. Gibson
furthe r reading “Brief of Amicus Curiae Eagle Forum Education and Legal Defense Fund in Support of Petitioner.” Issues in Law and Medicine 21 (2005). Brown, Ruth Murray. For a “Christian America.” New York: Prometheus Books, 2002. Eagle Forum, www.eagleforum.org.
Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961) In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), the Supreme Court held that use of the Sherman Antitrust Act to penalize railroad operators for restraint of trade for a publicity campaign against truckers violated the First Amendment right to petition. The campaign by twenty-four eastern railroads had included use of the so-called third-party technique, whereby propaganda is made to appear spontaneous. As a result of this publicity campaign, the Pennsylvania governor vetoed the Fair Truck Bill, which would have allowed trucks to increase the weight of their loads. In the unanimous opinion for the Court, Justice Hugo L. Black noted that violations of the Sherman Act could not “be predicated upon mere attempts to influence the passage or enforcement of laws” because the First Amendment’s right to petition protected such actions. The lower courts had decided that the measures taken by the railroads were illegal because they were designed to destroy truck competition, but Black asserted that “[i]t is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors.” Black acknowledged that the railroads’ campaign fell “far short of the ethical standards generally approved in this country,” but he further observed that insofar as the Sherman Act “sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity.” The evidence demonstrated that the railroads had
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attempted “to influence the passage and enforcement of laws,” and the First Amendment gave them the right to employ “circulars, speeches, newspaper articles, editorials, magazine articles, memoranda and all other documents” to do so. Although the lower courts had justified the truckers’ own publicity campaign as an appropriate reaction to the campaign initiated by the railroads, both sides had engaged in a “no-holds-barred fight,” and each “appears to have utilized all the political powers it could muster in an attempt to bring about the passage of laws that would help it or injure the other.” Black concluded that “the contest itself appears to have been conducted along lines normally accepted in our political system.” The Court would refine this decision in United Mine Workers of America v. Pennington (1965), where it ruled that antitrust laws might apply to cases in which businesses attempted to put others out of business by instituting actions in state and federal proceedings or by deterring their access to such governmental agencies. See also Black, Hugo L.; Noerr-Pennington Doctrine.
John R.Vile
furthe r reading Perrine, James B. “Defining the ‘Sham Litigation’ Exception to the Noerr-Pennington Antitrust Immunity Doctrine: An Analysis of the Professional Real Estate Investors v. Columbia Pictures Industries Decision.” Alabama Law Review 46 (1995): 815–841.
Ecstasy Ecstasy (Extáze) (1933), a Czech film directed by Gustav Machat´y and starring the then-unknown actress Hedy Lamar (under her real name, Hedwig Keisler), was the first film to be blocked by the U.S. Customs Service from entering the United States, thus continuing the service’s earlier censorship of books and magazines in violation of the modern conception of the First Amendment and the presumption against prior restraints on expression. In a simple story of an unhappy marriage the film showed Lamar in the nude while racing across a meadow and swimming. Another scene, revolutionary for its time, showed a simulated female orgasm, although only Lamar’s face was shown. In 1935 Ecstasy’s American distributor, Samuel Cummins of Eureka Productions, attempted to import the film, but the U.S. Customs Service banned it as obscene and immoral. He appealed the ruling but found he had no physical evidence
to offer the appeals court because Customs agents had burned the print.A year later, Cummins returned with a significantly reedited print, and Customs allowed it into the United States. For major distribution, however, the film still needed a seal of approval from the Motion Picture Producers and Distributors of America (MPPDA); without it, it could play only in a handful of art houses. Some states and localities banned the film altogether, including New York state. Cummins’s company sought a court order that would force New York officials to show the film. However, in Eureka Productions v. Lehman (S.D.N.Y. 1936), a federal district court ruled that state officials could exercise their police powers and deny a permit for the showing of a film they believed obscene. Cummins had little success in state court as well. A state court reached a similar ruling in Eureka Productions v. Byrne (N.Y.S. 1937), finding that state officials did not have to issue a permit, in part because the film “unduly emphasizes the carnal side of the sex relationship.” The film had problems in other states as well. In June 1937, a judge in Nebraska ruled that the film violated the decency laws of the state. Nevertheless, Ecstasy’s success in limited release persuaded Cummins to again request MPPDA approval in order to book it into larger theaters. MPPDA’s refusal to approve the film led to a highly public battle, and such national magazines as Look ran articles on the censorship battle, ironically featuring the very nude photos of Lamar that were at the heart of the controversy. In 1940, after more than a dozen court battles, and significant cuts to the most controversial scenes, Ecstasy was at last granted a seal of approval. See also Motion Picture Ratings.
Douglas C. Dow
furthe r reading Miller, Frank. Censored Hollywood: Sex, Sin, and Violence on Screen. Atlanta:Turner Publishing, 1994. Schaefer, Eric. “Bold! Daring! Shocking! True!”: A History of Exploitation Films, 1919–1959. Durham, N.C.: Duke University Press, 1999.
Edenfield v. Fane (1993) In Edenfield v. Fane, 507 U.S. 761 (1993), the Supreme Court held that direct, personal, uninvited solicitation to obtain clients was within the First Amendment rights of certified public accountants (CPAs). The decision furthered the Court’s development of commercial speech law. Scott Fane, a CPA, moved from New Jersey, which permitted direct, personal, uninvited solicitation of business
Edwards v. Aguillard (1987) clients, to Florida, which prohibited this activity. He sued the Florida Board of Accountancy for relief on the ground that its anti-solicitation rule violated the First and Fourteenth Amendments. Fane won in the district court and the Eleventh Circuit Court of Appeals. The Supreme Court affirmed the judgment in an 8-1 vote. In the opinion for the majority, Justice Anthony Kennedy applied the three-pronged test established in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980) for determining the constitutionality of commercial speech regulations.This test requires that the government interest be substantial, that the regulations advance this interest in a direct and material way, and that the regulations be reasonably tailored to the interest served. He concluded that “Florida’s law threatens social interest in broad access to complete and accurate commercial information that First Amendment coverage of commercial speech is designed to safeguard.” Because the speech was neither deceptive nor related to illegal activity, Kennedy further concluded that although the state had a substantial interest in protecting consumers from deception and ensuring clients’ privacy, the evidence did not support the claims that the ban on in-person solicitation would satisfy those interests. The Florida Board of Accountancy had relied on the Court’s prior decision in Ohralik v. Ohio State Bar Association (1978), in which the justices had refused to extend First Amendment protection to in-person solicitation by lawyers. Kennedy, however, distinguished accountants from lawyers, asserting that lawyers but not accountants are “trained in the art of persuasion” and that the audiences of lawyers may be much more “susceptible to manipulation.” Thus, Kennedy concluded that the “ends sought by the State are not advanced by the speech restriction, and legitimate commercial speech is suppressed” by the Florida law. The courts have long been concerned with the ability of trained persuaders to manipulate audiences, especially when the receiver may be “vulnerable to influence,” for example, because he or she is an “unsophisticated, injured, or distressed lay person.” In Edenfield, the majority of the Court appears to have extended or denied First Amendment rights to professionals based on typical rhetorical characteristics of the profession. See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Ohralik v. Ohio State Bar Association (1978).
Richard Parker
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furthe r reading DeVore, P. Cameron, and Robert D. Sack. Advertising and Commercial Speech: A First Amendment Guide. New York: Practising Law Institute, 2003. Levy, Evan R.“Edenfield v. Fane: In-Person Solicitation by Professionals Revisited—What Makes Lawyers Different?” Albany Law Review 58 (1994): 261–298. Shiner, Roger A. Freedom of Commercial Expression. Oxford: Oxford University Press, 2003.
Edwards v. Aguillard (1987) In Edwards v. Aguillard, 482 U.S. 578 (1987), the Supreme Court held that a Louisiana law mandating instruction in “creation science” whenever evolution was taught in public schools violated the establishment clause of the First Amendment.The 7-2 ruling did not outlaw the teaching of creation science; it held only that states could not require science teachers to teach it. Creationists had successfully prevented the teaching of evolution in several states until Epperson v. Arkansas (1968), when the Supreme Court overturned a statute prohibiting the teaching of the theory. In 1981 Louisiana governor Edwin Edwards signed the Balanced Treatment Act into law, which forbade the teaching of evolution in public schools unless students were also taught creation science. Donald Aguillard, a high school biology teacher, joined by other public school teachers, parents, and religious leaders, charged that the law endorsed religious beliefs and lacked a secular purpose.The federal district and appeals courts agreed. In the majority opinion of the Supreme Court, Justice William J. Brennan Jr. observed that the law served no clear secular purpose and promoted a particular religious belief, thus violating the establishment clause. Brennan found the statute’s professed goal of protecting academic freedom deceptive because teachers were granted no more flexibility than they already had; the legislative history and the discriminatory preference for creation science over all other challenges to the theory of evolution revealed the real purpose of the law to be to promote a specific religious belief. Moreover, the statute’s author repeatedly expressed his religious objections to evolution during legislative hearings. Brennan stressed that because attendance in public schools is mandatory, and schoolchildren are especially impressionable, the Court had to be especially vigilant when the schools become entangled with religious beliefs.Applying the threepronged test from Lemon v. Kurtzman (1971), used to determine if a law falls under the First Amendment’s prohibition
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of laws “respecting an establishment of religion,” Brennan found that the statute failed the “secular purpose” prong. In a dissenting opinion, Justice Antonin Scalia accepted Louisiana’s assertion that its motives were not solely religious, finding a sincere secular purpose in its desire to foster a balanced understanding of the origins of life. Scalia then urged the Court to discard Lemon’s secular purpose test. It was futile, he argued, to try to determine subjective legislative intent given the multiple and often conflicting motivations behind a vote for any law. The issue arose again, in Kitzmiller v. Dover Area School District (M.D. Pa. 2005), when a Pennsylvania school district required that a statement endorsing “intelligent design,” a form of creationism stripped of its religious references, be read to children in biology classes. A federal district judge held that the statement violated the establishment clause. See also Creationism; Epperson v. Arkansas (1968); Evolution; Lemon v. Kurtzman (1971).
Timothy O’Neill
furthe r reading Irons, Peter. The Courage of Their Convictions. New York: Penguin Press, 1990. Larson, Edward. Trial and Error. New York: Oxford University Press, 2003.
Edwards v. South Carolina (1963) In Edwards v. South Carolina, 372 U.S. 229 (1963), the Supreme Court ruled that South Carolina had violated students’ First Amendment rights of peaceable assembly, speech, and petition when the police dispersed a peaceful protest against segregation. The case illustrates one of the roles played by the First Amendment in the civil rights movement of the 1950s and 1960s. The case began on March 2, 1961, when a group of African American high school and college students marched on the South Carolina State House grounds in Columbia to protest segregation. Carrying placards reading “Down with Segregation” and similar protest phrases, the students walked single and double file for approximately forty-five minutes, attracting a crowd of 200 to 300 onlookers, when the police gave them fifteen minutes to disperse. Instead of leaving, the students chanted patriotic and religious songs. At the end of the fifteen minutes, police officers arrested the students. A magistrate’s court in Columbia convicted 187 students for violating a breach-of-the-peace law.The convictions carried
a fine of between $10 and $100 and a jail sentence of ten to thirty days.The South Carolina Supreme Court affirmed the convictions. In the majority opinion for the Supreme Court, Justice Potter Stewart wrote that the students’ actions “reflect an exercise of these basic constitutional rights [to speech, assembly, and petition] in their most pristine and classic form.” Stewart emphasized that the students acted peaceably and never threatened violence or harm. He concluded that the First and Fourteenth Amendments do not “permit a State to make criminal the peaceful expression of unpopular views.” Justice Tom C. Clark, in a lone dissent, asserted that the majority understated the facts that faced the police in Columbia and that the students’ actions were “by no means the passive demonstration which this Court relates.” He believed that the police had acted reasonably in preventing a possible riot. “But to say that the police may not intervene until the riot has occurred is like keeping out the doctor until the patient dies,” he wrote. In Adderly v. Florida (1966), the Court would distinguish demonstrations on state capitol grounds from similar demonstrations on the grounds of a jail. See also Adderly v. Florida (1966); Civil Rights Movement; Clark, Tom C.; Stewart, Potter.
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “First Amendment Freedoms Crucial to Success of Civil Rights Movement.” First Amendment Center, January 15, 1999. www.firstamendmentcenter.org. Kalven, Harry, Jr. The Negro and the First Amendment. Chicago: University of Chicago Press, 1965.
Eldred v. Ashcroft (2003) In Eldred v. Ashcroft, 537 U.S. 186 (2003), the Supreme Court denied a First Amendment challenge to the Copyright Term Extension Act of 1998 (CTEA). The challenge had been made on the grounds that Congress exceeded its authority as set forth in Article 1, section 8—the copyright clause—of the Constitution and that the CTEA violated the First Amendment. The CTEA extended the terms of existing and future copyrights by twenty years, effectively stopping any works from falling into the public domain from 1999 until 2019. The petitioners represented groups who were in the business of re-publishing and otherwise using works that had
Electioneering fallen into the public domain after the expiration of copyright protection. The copyright clause empowers Congress to pass laws “[i]n order to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Writing for the majority (7-2), Justice Ruth Bader Ginsburg specifically denied the argument that the expansion of protection for existing works went beyond a “limited” term. Limited, she said, did not mean inalterable but, rather,“confined within certain bounds.”Thus a term of ninety-five years was just as “limited” as a term of seventyfive years. The CTEA was a rational exercise of authority, wrote Ginsburg, because Congress wanted to harmonize U.S. laws with those of the European Union and to encourage the preservation and reissue of older works. Deference, she said, was due to congressional enactments that were within its authority. The Court rebuked the First Amendment challenge because copyright and the First Amendment are fundamentally compatible, both seeking the creation and dissemination of knowledge. Because copyright protects only expression and not ideas or facts, Ginsburg said, others can use the same ideas or facts in their own speech. The fair use doctrine of copyright law allows some uses of otherwise protected expression for purposes of review, criticism, education, commentary, news, and so forth. “The First Amendment,” she wrote, “securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” See also Copyright; Copyright Act of 1790; Copyright Act of 1976; Fair Use.
Geoffrey P. Hull
furthe r reading Ginsburg, Jane C. “How Copyright Got a Bad Name for Itself.” Columbia Journal of Law and the Arts 26 (2002): 61–73. Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. NewYork: Penguin Press, 2004. Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York University Press, 2001.
Electioneering Electioneering involves actively advocating for or opposing a political candidate or party in an election. It ranges from
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canvassing to advertising nationally on television. Electioneering through advertising has sparked numerous constitutional controversies. The Bipartisan Campaign Reform Act of 2002 (BCRA) regulates contributions and expenditures for electioneering purposes. The BCRA amended the Federal Election Campaign Act of 1971 (FECA). In Buckley v.Valeo (1976), the Supreme Court had interpreted FECA as regulating “express advocacy” by corporations and unions. The BCRA narrowed the express advocacy standard by barring corporations and unions from contributing or spending general treasury funds for “electioneering communications,” defined in the act as advertisements that refer to a specific candidate for federal office, are made within sixty days of a general election or thirty days of a primary election, and (for federal candidates other than the president or vice president) are targeted at the electorate. Several interest groups challenged this regulation of political speech, arguing that many of the BCRA’s provisions, including its restrictions on electioneering, violate the First Amendment. In 2003 in McConnell v. Federal Election Commission, the Supreme Court upheld most provisions of the BCRA, including limits on electioneering. Despite the Court’s decision, advocacy groups continue to challenge the constitutionality of the act as applied to their electioneering efforts. The major controversy in post-McConnell electioneering communications cases has been delineation between electioneering and issue-related speech. According to the BCRA, electioneering is distinguishable from general issuerelated speech, which is afforded significant protection under the First Amendment, because it involves a “clearly identifiable candidate.” The distinction between these two forms of political speech has proved blurry, however, thus sparking litigation. In 2006 in Wisconsin Right to Life, Inc. v. Federal Election Commission, a three-judge panel of the federal district court in the District of Columbia held that a group’s proposed anti-filibuster advertisements asking listeners to contact specific senators running for reelection did not violate the BCRA because although the ads mentioned particular candidates, they did not endorse or oppose anyone.The decision was appealed to the Supreme Court, which granted review in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), and was upheld. The Court ruled that the group’s First Amendment rights were violated by the application of the BCRA.
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State regulation of electioneering has also given rise to litigation. In Alaska Right to Life Committee v. Miles (2006), the Ninth Circuit Court of Appeals upheld a definition of “electioneering communication” in Alaska’s campaign finance law that was slightly broader than the BCRA’s definition. To this point, federal courts have found the application of most post-McConnell federal and state electioneering laws constitutional. In another related area of controversy, the Supreme Court upheld 100-feet campaign-free zones around polling booths in Burson v. Freeman (1992). See also Bipartisan Campaign Reform Act of 2002; Buckley v.Valeo (1976); Burson v. Freeman (1992); Federal Election Campaign Act of 1971; McConnell v. Federal Election Commission (2003).
Monica C. Bell
furthe r reading Ellis, Ryan. “ ‘Electioneering Communication’ under the Bipartisan Campaign Reform Act of 2002: A Constitutional Reclassification of ‘Express Advocacy.’ ” Case Western Reserve Law Review 54 (2003): 187–224. Kuhne, Cecil C., III. “Restricting Political Campaign Speech: The Uneasy Legacy of McConnell v. FEC.” Capital University Law Review 32 (2004): 839–858. Levine, Raleigh Hannah.“The (Un)Informed Electorate: Insights into the Supreme Court’s Electoral Speech Cases.” Case Western Reserve Law Review 54 (2003): 225–295. Moramarco, Glenn J.“Beyond ‘Magic Words’: Using Self-Disclosure to Regulate Electioneering.” Catholic University Law Review 49 (1999): 107–131.
Electronic Frontier Foundation The Electronic Frontier Foundation (EFF) was founded in 1990 by Mitchell Kapor and John Perry Barlow as a San Francisco–based civil liberties group that advocates for First Amendment rights in the area of digital and other new technologies. The EFF supports free speech on the Internet, seeks the protection of encryption technologies, and defends the rights of online journalists and bloggers. The EFF was one of many civil liberty groups that challenged the constitutionality of the Internet indecency provisions of the Communications Decency Act of 1996, which resulted in the victory before the Supreme Court in Reno v. American Civil Liberties Union (1997). The EFF supported the ACLU again in a challenge to the constitutionality of the Child Online Protection Act of 1998, which resulted in successful litigation before the Supreme Court in Ashcroft v. American Civil Liberties Union (2004). The EFF also represented one of the challengers to
the Internet filtering law—the Children’s Internet Protection Act of 2000—that was upheld by the Supreme Court in United States v. American Library Association (2003). See also Ashcroft v.American Civil Liberties Union (2002) (2004); Blogging; Child Online Protection Act of 1998; Children’s Internet Protection Act of 2000; Communications Decency Act of 1996; Reno v. American Civil Liberties Union (1997); United States v. American Library Association (2003).
David L. Hudson Jr.
furthe r reading Electronic Frontier Foundation. www.eff.org. Messmer, Ellen. “Fighting for Justice on the New Frontier.” Network World, January 11, 1993, S19.
Electronic Privacy Information Center The Electronic Privacy Information Center (EPIC), based in Washington, D.C., advocates for freedom of speech and privacy rights, particularly in new kinds of media. Formed in 1994, the group’s lodestar First Amendment issues are free speech on the Internet, the protection of anonymous speech on the Internet, privacy, and open government. EPIC was one of the many civil liberties groups that challenged the constitutionality of the Internet indecency provisions of the Communications Decency Act that the Supreme Court struck down on First Amendment grounds in Reno v. American Civil Liberties Union (1997). EPIC also successfully challenged the second major attempt made by Congress to restrict harmful speech on the Internet: the Child Online Protection Act of 1998. Additionally, EPIC joined the American Library Association in challenging the Internet filtering law—the Children’s Internet Protection Act of 2000—which the Supreme Court ruled constitutional in United States v. American Library Association (2003). The group also filed amicus briefs before the Supreme Court in First Amendment cases, including Watchtower Bible and Tract Society v.Village of Stratton (2002), which affirmed the rights of Jehovah’s Witnesses to make door-to-door solicitations without a permit. See also Ashcroft v. American Civil Liberties Union (2002); Child Online Protection Act of 1998; Children’s Internet Protection Act of 2000; Communications Decency Act of 1996; Reno v.American Civil Liberties Union (1997); United States v.American Library Association (2003).
David L. Hudson Jr.
Elk Grove Unified School District v. Newdow (2004) furthe r reading Electronic Privacy Information Center. www.epic.org. Solove, Daniel, Marc Rotenberg, and Paul M. Schwartz. Privacy, Information and Technology. Gaithersburg, Md.: Aspen Publishers, 2006.
Elfbrandt v. Russell (1966) In Elfbrandt v. Russell, 384 U.S. 11 (1966), the Supreme Court held that a 1961 Arizona statute requiring that present and potential state employees sign a loyalty oath was an infringement of the freedom of political association guaranteed by the First Amendment.Those signing the oath swore, in part, to “defend the United States and Arizona against all enemies, foreign and domestic” and to renounce political ideas and groups that the legislature viewed as a threat to the state’s security and political institutions. Furthermore, an employee would be subject to prosecution for perjury if he or she “knowingly” became or remained a member of the Communist Party of the United States or any other organization that sought to overthrow the government of Arizona. In 1961 Barbara Elfbrandt, an elementary school teacher in Tucson, Arizona, refused to sign the state loyalty oath and subsequently filed suit in county court against Imogene Russell, chairperson of the local school board, to prevent enforcement of the loyalty oath requirements. Unsuccessful in the local court and on appeal to the state supreme court, she sought review in the U.S. Supreme Court. In 1964 the recently decided case of Baggett v. Bullitt (1964), in which the Supreme Court had struck down a similar loyalty oath applied to university teachers in the state of Washington, prompted the Court to send the case back to the Arizona court for reconsideration.The Arizona court, however, reaffirmed its previous decision with one dissenting vote, and Elfbrandt again sought review in the U.S. Supreme Court. In 1966 the Court handed down a 5-4 decision in favor of Elfbrandt in an opinion written by Justice William O. Douglas. Douglas reasoned that “political groups may embrace both legal and illegal aims, and one may join such groups without embracing the latter.” The Arizona loyalty oath did not focus on individuals who might join a subversive organization with the “specific intent” to further the group’s illegal aims. Douglas concluded, therefore, that the oath “unnecessarily infringe(d) on the freedom of political association.” The dissenters, led by Justice Byron White, argued that the statute barred only “knowing membership” and that innocent members of any group could sign the oath without fear of prosecution.
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See also Baggett v. Bullitt (1964); Communist Party of the United States; Douglas,William O.;White, Byron R.;Wieman v. Updegraff (1952).
John R. Rink
furthe r reading Irons, Peter. The Courage of Their Convictions. New York: Penguin Books, 1990.
Elk Grove Unified School District v. Newdow (2004) In Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), the Supreme Court, by holding that Michael Newdow lacked legal standing to litigate as his daughter’s “next friend,” avoided addressing whether the words “under God” in the Pledge of Allegiance violated the First Amendment’s establishment clause.The Court, minus Justice Antonin Scalia, who recused himself for having criticized the decision of the Ninth Circuit Court of Appeals, decided the case in an 8-0 vote, with three concurrences. In March 2000, Newdow sued the Elk Grove, California, school district, contending that because the Pledge of Allegiance referred to the United States as “one nation, under God,” its daily recitation violated the establishment clause. Allowing students to opt out of the pledge, as required by West Virginia State Board of Education v. Barnette (1943), he argued, forced his child “to watch and listen as her state-employed teacher . . . led her classmates in a ritual proclaiming that there is a God.” The Ninth Circuit Court of Appeals, reversing the district court’s dismissal of the complaint, held that Newdow possessed legal standing to challenge a practice that interfered with his right to direct his daughter’s religious education. In a separate 2-1 decision, the Ninth Circuit held that the pledge violated the First Amendment’s establishment clause. Writing for the Supreme Court, Justice John Paul Stevens, joined by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, stated that since the state courts had not yet clarified Newdow’s standing and custodial status, “the prudent course is for the federal court to stay its hand rather than to reach out to resolve a weighty question of federal constitutional law.” Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas concurred with the outcome but dissented in their view that Newdow possessed standing. Both Rehnquist and Thomas asserted that the
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Ellis v. Brotherhood of Railway, Airline and Steamship Clerks (1984) furthe r reading Meng, Karen A.“In Light of Elk Grove Unified School District v. Newdow, Where does the Court Stand on Standing?” Widener Law Journal 14 (2005): 1021–1050. Russo, Charles J., and Ralph D. Mawdsley. “The Supreme Court and the Pledge of Allegiance: A Hollow Victory.” Education and the Law 16 (December 2004): 261–267.
Ellis v. Brotherhood of Railway, Airline and Steamship Clerks (1984)
Michael Newdow leaves court in July 2005 after a hearing of Elk Grove Unified School District v. Newdow, in which he challenged the phrase “under God” in the Pledge of Allegiance—recited by his daughter in school—as an unconstitutional endorsement of religion in violation of the First Amendment.
phrase “under God,” added by Congress in 1954, did not transform recitation of the pledge into a religious exercise or create an establishment of religion. In a separate concurrence O’Connor held that the phrase “under God” represented “a tolerable attempt to acknowledge religion and to invoke its solemnizing power without favoring any individual religious sect or belief system.” Newdow subsequently filed new lawsuits in the district court in Sacramento against five California school districts, the state, and the federal government in his continued efforts to remove the words “one nation under God” from the pledge. Newdow has promised to file other lawsuits, starting with Texas and Florida. See also Pledge of Allegiance; Stevens, John Paul;West Virginia State Board of Education v. Barnette (1943).
Jon L. Brudvig
In Ellis v. Railway, Airline and Steamship Clerks, 466 U.S. 435 (1984), the Supreme Court held unanimously that a rebate scheme for nonunion members who objected to a union’s collection of dues was constitutionally inadequate in protecting the First Amendment rights of these nonunion members to refrain from supporting views and activities with which they disagreed.The Court went on to address six specific activities to see if they were impermissible expenditures of union dues: the Grand Lodge Convention, litigation not involving the negotiation of agreements or settlement of grievances, union publications, social activities, death benefits for employees, and general organizing efforts. Howard Ellis was one of the nonunion members who objected to paying for union expenditures that were not directly related to work that the union was conducting on his behalf. Ellis and his colleagues tried to distinguish what they owed for collective bargaining services from other union interests. In a decision written by Justice Byron R. White, the Court held that the collection of dissenting members’ dues, even temporarily, constituted an impermissible loan. Because alternatives were readily available to charging and then rebating the dues, such as advance reduction of dues or the use of escrow accounts, White wrote, the union could not be allowed to use dissenters’ dues for improper purposes, even temporarily.The union, he continued, could charge their expenditures to all employees only if they were germane to collective bargaining. When an objection to certain fees is raised, White wrote, the proper test must be “whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.” He went on to say that under this test, employees could reasonably be compelled to pay not just the direct costs of
Elrod v. Burns (1976) negotiating and administering a collective-bargaining agreement but also the expenses of activities or undertakings normally employed to implement the duties of the union as the exclusive representative of the employees. In addressing the six activities, White stated that social activities and publications were appropriate uses of union fees, but general organizing efforts and litigation of nonnegotiation matters were outside the scope of permissible activities.The Court failed to rule on the question of death benefits, since the union was no longer the exclusive representative of the employees. But it did hold that the employees were not entitled to a refund of previous dues paid for the death benefit. Justice Lewis F. Powell Jr. concurred in most of the Court’s opinion. He disagreed with the treatment of the Grand Lodge Convention, finding that the convention could be, and in fact was, used for political objectives. See also Abood v. Detroit Board of Education (1977); Chicago Teachers Union v. Hudson (1986); International Association of Machinists v. Street (1961); Powell, Lewis F., Jr.;White, Byron R.
Alan Tauber
furthe r reading Brock, Ralph H. “Giving Texas Lawyers Their Dues: The State Bar’s Liability under Hudson and Keller for Political and Ideological Activities.” St. Mary’s Law Journal 28 (1966). Lake, James B. “Lawyers, Please Check Your First Amendment Rights at the Bar: The Problem of State-Mandated Bar Dues and Compelled Speech.” Washington and Lee Law Review 50 (1993).
Ellsberg, Daniel Daniel Ellsberg (1931– ), a former defense analyst, set in motion a chain of events that led to a landmark Supreme Court ruling that government efforts to halt publication of the Pentagon Papers represented a prior restraint in violation of the First Amendment freedom of the press. Born in Chicago, Illinois, Ellsberg attended Harvard University, where he studied economics and was elected to the editorial board of the Harvard Crimson. He later received a master’s degree and doctorate at Harvard and served in the U.S. Marine Corps from 1954 through 1957. Ellsberg worked as an analyst at the Rand Corporation from 1959 to 1964 and served as a special assistant to John T. McNaughton, the assistant secretary of defense for International Security Affairs from 1964 to 1965. He then spent two years as a civilian in Vietnam working for the Department of State. Ellsberg returned home persuaded that
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the Vietnam War was misguided and wrong. After returning to Rand in 1967, he took part in writing “History of U.S. Decision-Making in Vietnam, 1945–68.” The report, a history of U.S. involvement in Vietnam, is popularly known as the Pentagon Papers. Initiated by Secretary of Defense Robert McNamara, the report included secret documents revealing that U.S. involvement in the war was greater than the government had publicly acknowledged. After leaving Rand in 1969, Ellsberg, with the help of his former Rand colleague Anthony J. Russo Jr., photocopied the report. When his attempt to get the Senate Foreign Relations Committee to hold hearings on the papers failed, he gave it to Neil Sheehan, a New York Times reporter. Soon after the Times published the first installment of the papers on June 13, 1971, Ellsberg and Russo were indicted for conspiracy, misappropriation of government property, violations of the Espionage Act, and other crimes. The indictments concerned the photocopying of the document. In the case involving publication, the Supreme Court decided in New York Times Co. v. United States (1971) that the injunctions the Nixon administration had sought against the New York Times and other newspapers publishing the Pentagon Papers were unconstitutional prior restraints of publication. Because of government misconduct—such as a break-in at Ellsberg’s psychiatrist’s office, illegal wiretaps, and destruction of relevant documents—Judge William Matthew Byrne Jr. dismissed the charges against Ellsberg and Russo in May 1973. Ellsberg has written two books about the Pentagon Papers: Papers on the War and Secrets: A Memoir of Vietnam and the Pentagon Papers. See also New York Times Co. v. United States (1971); Nixon, Richard M.; Pentagon Papers; Prior Restraint
Brandon R. Burnette
furthe r reading Rudenstine, David. The Day the Presses Stopped:A History of the Pentagon Papers Case. Berkeley: University of California Press, 1996. Schrag, Peter. Test of Loyalty: Daniel Ellsberg and the Rituals of Secret Government. New York: Simon and Schuster, 1974.
Elrod v. Burns (1976) In Elrod v. Burns, 427 U.S. 347 (1976), the Supreme Court held, 5-4, that a sheriff violated the First Amendment when he conditioned the retention of a government job upon membership in a specific political party. Elrod and subsequent cases have made it more difficult to consider partisanship in
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Ely, John Hart
public employment, except for those engaged in policymaking functions. In December 1970, when Richard Elrod, a Democrat, replaced a Republican as the sheriff of Cook County, Illinois, he fired or threatened to fire the Republican employees of the office. These non-civil-service workers challenged their dismissal on the grounds that the First Amendment protects their freedom to join or be members of a political party of their choice without fear of losing their government jobs. Writing for the plurality, Justice William J. Brennan Jr. stated that political party loyalty and affiliation was not a constitutionally legitimate ground for dismissing government employees. In ruling for the first time that a public personnel decision could not be based on political patronage, the Court rejected the government’s contentions that political patronage was not expressly prohibited in the Constitution and that the practice helped contribute to the democratic process. The Court could not agree as to what standard the government had to meet when terminating employees for political party reasons. Two justices, Potter Stewart and Harry A. Blackmun, refused to join the totality of Brennan’s opinion, concurring on narrower grounds that the government could not use partisanship as grounds to fire employees in nonconfidential, non-policymaking positions. Writing in dissent, Justice Lewis F. Powell Jr. passionately defended political patronage. Specifically, Powell emphasized the contributions patronage has made historically to the country—people getting involved in governance, elected officials being able to expect employee loyalty, and the public being able to expect government efficiency. See also Branti v. Finkel (1980); Brennan,William J., Jr.; Powell, Lewis F., Jr.; Public Employees; Rutan v. Republican Party of Illinois (1990).
absolutist interpretations of the First Amendment, or other amendments within the Bill of Rights, than on interpreting such amendments to enhance democratic processes. Born in New York City, Ely graduated from Princeton University and Yale Law School and clerked for Chief Justice Earl Warren. He later taught law at Yale and Harvard and served as dean at Stanford Law. His last position was as the Richard A. Hausler Professor at the University of Miami Law School. In Democracy and Distrust, he argued that what he calls a “clause-bound interpretivism” of the Constitution—like that advocated by Justice Hugo L. Black—was appealing, but largely unworkable. Accordingly, he preferred “a participation-oriented, representation reinforcing approach to judicial review” (p. 87). Applying this theory to the First Amendment, Ely wrote that “[j]udicial review in this area must involve, at a minimum, the elimination of any inhibition of expression that is unnecessary to the promotion of a government interest” (p. 105). He asserted that his theory was consistent with the Supreme Court applications of the doctrines of “overbreadth,” “less restrictive alternative,” “tight fit,” and the like (p. 105). Ely’s theory built in part on Justice Harlan Fiske Stone’s footnote four of United States v. Carolene Products Co. (1938), especially the second paragraph, which focused on the importance of keeping political processes open. Ely also built on the jurisprudence of Warren. Ely’s theory has been especially important in justifying judicial decisions relative to legislative apportionment and voting rights, but it also supports broad interpretations of most First Amendment rights, especially those relating to political speech. Ely is also the author of War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (1993) and On Constitutional Ground (1996).
John M. Aughenbaugh
furthe r reading Martin, Susan Lorde. “A Decade of Branti Decisions: A Government Official’s Guide to Partronage Dismissals.” American University Law Review 39 (1989): 11–58.
Ely, John Hart A prominent legal scholar, John Hart Ely (1938–2003) contributed to First Amendment jurisprudence with an approach set forth in his highly influential book Democracy and Distrust:A Theory of Judicial Review (1980).The Court, he asserted, should concentrate less on attempting to enforce
See also Black, Hugo L.; Carolene Products Footnote Four; Stone, Harlan Fiske;Warren, Earl.
John R.Vile
furthe r reading Dorf, Michael C.“The Coherentism of Democracy and Distrust.” Yale Law Journal 114 (2004): 101–142. www.yalelj.org/oldsite/symposium2004/pd.html.
Emerson, Thomas Thomas Irwin Emerson (1907–1991) was arguably the foremost First Amendment scholar of his generation. A System of
Employment Division, Department of Human Resources of Oregon v. Smith (1990) Freedom of Expression (1970), Emerson’s classic book on free speech, remains one of the seminal works in First Amendment history. Supreme Court justice William O. Douglas, a former law school classmate, referred to him in a concurring opinion in Columbia Broadcasting System v. Democratic National Committee (1973) as “our leading First Amendment scholar,” and renowned civil liberties advocate and academician Norman Dorsen (1991) called him “the leading civil liberties scholar of his generation” (p. 317). Born in Passaic, New Jersey, Emerson obtained his undergraduate and law degrees from Yale University in 1928 and 1931, respectively. Upon graduation, he entered private practice with the prestigious New York firm Engelhard, Pollak, Pitcher and Stern, which represented the Scottsboro Boys in Powell v. Alabama (1932). In 1933 Emerson joined the administration of Franklin D. Roosevelt, serving at the National Recovery Administration, the National Labor Relations Board, the Social Security Board, and the Department of Justice. He later became general counsel of the Office of Economic Stabilization and the Office of War Mobilization and Reconversion. In 1946 Emerson returned to Yale Law as a professor. While at Yale, he also achieved great success as a Supreme Court advocate, successfully arguing the famous privacy decision of Griswold v. Connecticut (1965) and the First Amendment and academic freedom case of Sweezy v. New Hampshire (1957). He served as president of the National Lawyers Guild in 1950–1951. In addition to numerous other books and articles, many of which examined First Amendment issues, he wrote Toward a General Theory of the First Amendment (1966). He retired from Yale in 1976. For Emerson’s many contributions to the cause of civil liberties, the American Civil Liberties Union awarded him the group’s first Medal of Liberty in 1983. See also American Civil Liberties Union; Columbia Broadcasting System v. National Democratic Committee (1973); Dorsen, Norman; Douglas,William O.; Griswold v. Connecticut (1965); Sweezy v. New Hampshire (1957).
David L. Hudson Jr.
furthe r reading Dorsen, Norman.“In Memory of Tom Emerson.” Yale Law Journal 101 (1991): 317–320. Pollak, Louis H.“Thomas I. Emerson: Pillar of the Bill of Rights.” Yale Law Journal 101 (1991): 321–326.
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Employment Division, Department of Human Resources of Oregon v. Smith (1990) In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Supreme Court changed free exercise law dramatically by ruling that generally applicable laws not targeting specific religious practices do not violate the free exercise clause of the First Amendment.The Court abandoned the compelling interest test that it had used in free exercise cases since 1963 in Sherbert v.Verner. The case began when Alfred Smith and Galen Black were fired from their jobs as private drug rehabilitation counselors for ingesting peyote as part of a sacrament of the Native American Church. When Smith and Black applied for unemployment benefits, the Employment Division denied their request because they had violated a state criminal statute. Smith then brought suit against the Employment Division and won his case in the lower courts.The Supreme Court reversed the decision, holding that Smith’s and Black’s free exercise rights were not violated. In writing the opinion of the Court, Justice Antonin Scalia held that the denial of unemployment benefits to a member of the Native American Church for using the illegal drug peyote in the practice of his religion was not a violation of the free exercise clause of the First Amendment. Scalia wrote that there have been two types of free exercise cases, hybrid and pure. In hybrid cases, the Supreme Court used the strict scrutiny standard, in which the state must show that it has a compelling governmental interest and uses the least restrictive means. Hybrid cases involve a constitutional right coupled with another fundamental right, for example, parental rights plus a First Amendment right, as in Wisconsin v.Yoder (1972). In purely religious cases, the Court used the valid secular policy test, in which the state has a lighter burden in demonstrating that the law has a legitimate governmental interest and is neutrally applied. The Court held that Smith was a purely religious case, because it only involved violating a criminal statute. Using the valid secular policy test, the Court held that combating a national drug problem was a legitimate governmental interest and that the law was neutrally applied to all citizens of Oregon. Scalia concluded the Court’s opinion by musing that precluding Smith from practicing his religion was the inevitable ramification of living in a democratic regime.
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Encryption
In concurrence, Justice Sandra Day O’Connor argued that the strict scrutiny standard should be used in all free exercise clause cases. O’Connor claimed that the state’s interest in safety, health, and order would pass the strict scrutiny standard. In dissent, Justice Harry A. Blackmun, like O’Connor, asserted that the Court should continue to apply the prevailing standard of strict scrutiny. He notes, however, that the state would not pass this standard, because peyote has nothing to do with the national drug problem in the United States. The Religious Freedom Restoration Act (RFRA) of 1993, which mandated the Court’s use of strict scrutiny in free exercise clause cases, would later reverse the Court’s decision in Smith and restore the compelling interest test from Sherbert v.Verner (1963). Four years later, however, in City of Boerne v. Flores (1997), the Court ruled that RFRA was unconstitutional because it represented an attempt by Congress to overrule a Supreme Court decision in violation of the concept of separation of powers. In Cutter v. Wilkinson (2005), however, the Court upheld provisions of the Religious Land Use and Institutionalized Persons Act of 2000, which applied this standard to religious land uses and to persons incarcerated in prisons and in mental institutions. See also City of Boerne v. Flores (1997); Cutter v. Wilkinson (2005); Native Americans; Religious Freedom Restoration Act of 1993; Sherbert v.Verner (1963);Wisconsin v.Yoder (1972).
John R. Hermann
furthe r reading Choper, Jesse H. “The Rise and Decline of the Constitutional Protection of Religious Liberty.” Nebraska Law Review 70 (1991): 651–688. Rhodes, John. “An American Tradition:The Religious Persecution of Native Americans.” Montana Law Review 52 (1991): 13–72. Smith, Christopher E., and Linda Fry. “Vigilance or Accommodation: The Changing Supreme Court and Religious Freedom.” Syracuse Law Review 42 (1991): 893–944.
Encryption Encryption is the process of protecting information by rendering it unreadable by anyone without the specific knowledge necessary to decipher it. The advent of wide-scale electronic communication, such as with the Internet and e-mail, has brought the government’s desire to control encryption technology into sharp conflict with First Amendment rights.
The invention of the computer accelerated the development of complex encryption schemes that remained largely in the realm of government intelligence agencies until the widespread adoption of the Internet in the early 1990s. Although the government recognized the value of privacy in electronic communications, it also was concerned that widespread use of encryption could impair its ability to use wiretaps. The Clipper Chip, announced by the White House in 1993, was an effort to establish a standard technology for telephone encryption. In 1994 President Bill Clinton signed an executive order that classified encryption technology as munitions and restricted its export. In several lawsuits challenging the export restrictions, the plaintiffs argued that in order to create, study, and teach cryptography one must be free to communicate the processes involved.They contended that the requirement to obtain an export license before communicating internationally was an unconstitutional restraint of speech. In Bernstein v. United States Department of State (N.D. Cal. 1997), Judge Marilyn Hall Patel found the export restrictions unconstitutional, and the government appealed. Before the appeals process was finished, the export restrictions were eased because of widespread opposition from the technology and civil liberties communities, and the case became moot. The opposition helped establish freely available encryption as a necessary part of free expression in the Internet age. These same issues have resurfaced in the context of the USA Patriot Act and the expansion of the government’s electronic surveillance capabilities, especially as news stories in 2006 and 2007 revealed that the National Security Agency was engaged in warrantless surveillance of hundreds of millions of telephone conversations as part of the war on terrorism. In general, the availability of encryption products allows people who require secrecy to secure their electronic communications, and encryption technology, which makes online commerce and online banking secure, has become a part of many of the computer systems in use today. See also Internet; USA Patriot Act of 2001.
Ned Ramage
furthe r reading Crain, Norman Andrew. “Bernstein, Karn, and Junger: Constitutional Challenges to Cryptographic Regulations.” Alabama Law Review 50 (1999): 869–909.
Engel v.Vitale (1962)
Endorsement Test Courts use the endorsement test to determine whether the government impermissibly endorses or disapproves of religion in violation of the establishment clause of the First Amendment.The test is often used in cases involving public displays of religious symbols. Supreme Court justice Sandra Day O’Connor proposed the test in her concurring opinion in the crèche-display case Lynch v. Donnelly (1984) as a “clarification of our Establishment Clause doctrine.” For many years the Court had applied the familiar threepart Lemon test to establishment clause cases from the Court’s decision in Lemon v. Kurtzman (1971). O’Connor explained that focusing on endorsement “clarifies the Lemon test as an analytical device.” The first two prongs of the Lemon test focus on the purpose of a governmental law and its primary effect. Applying endorsement to Lemon, O’Connor wrote that “the purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion.”The effects prong asks whether a governmental practice has “the effect of communicating a message of government endorsement or disapproval of religion.” O’Connor later explained in her concurring opinion in Capitol Square Review and Advisory Board v. Pinette (1995) that her test “focuses upon the perception of a reasonable, informed observer.” Such an observer must be assumed to be aware of the history and context underlying a challenged program or religious display. Critics have charged that O’Connor’s jurisprudence including the endorsement test was too malleable. Others praise the endorsement analysis as a practical, commonsense approach to a most difficult area of First Amendment jurisprudence. See also Capitol Square Review and Advisory Board v. Pinette (1995); Lemon v. Kurtzman (1971); Lynch v. Donnelly (1984); O’Connor, Sandra Day.
David L. Hudson Jr.
furthe r reading Biskupic, Joan C. Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice. New York: ECCO Press, 2005. Failinger, Marie A.“In Praise of Contextuality—Justice O’Connor and the Establishment Clause.” Hamline Law Review 29 (2006): 7–16.
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Huhn,Wilson Ray. “The Constitutional Jurisprudence of Sandra Day O’Connor: A Refusal to Foreclose the Unanticipated.” Akron Law Review 39 (2006): 373–415. Nussbaum, Martha C. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008).
Engel v. Vitale (1962) In Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court ruled that school-sponsored prayer in public schools violated the establishment clause of the First Amendment. The case involved a twenty-two-word, nondenominational prayer recommended to school districts by the New York Board of Regents: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” The Union Free School District in New Hyde Park, New York, adopted the recommendation and instituted a practice whereby teachers led students in the prayer every morning.The practice was voluntary, and students could be excused without punishment upon written request from their parents. Steven Engel and several other parents challenged the officially sponsored prayer as a violation of the
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First Amendment. Engel, a Jewish man, believed that the state should not impose a one-size-fits-all prayer upon children of many different faiths or no faith. The plaintiffs lost before the Supreme Court of New York in 1959, the Appellate Division of the Supreme Court of New York in 1960, and the Court of Appeals of New York in 1961, none of which viewed the prayer practice as the establishment of an official religion. Engel and the others appealed to the U.S. Supreme Court, which ruled in favor of the parents in a 6-1 vote (Justices Felix Frankfurter and Byron R.White did not participate). Writing for the majority, Justice Hugo L. Black focused on the history of religious discrimination and intolerance in England and the early colonial days of the United States. This history, according to Black, showed that by the time of the adoption of the U.S. Constitution Americans had a “widespread awareness . . . of the dangers of a union of Church and State.” Black did not cite a single U.S. Supreme Court case in the text of his majority opinion, although he cited Everson v. Board of Education (1947) in a footnote. Instead, he cited a variety of secondary sources on the history and struggle for religious liberty. According to Black, “the First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say.” Black concluded that “government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people.” Justice William O. Douglas wrote a concurring opinion, contending that “once government finances a religious exercise it inserts a divisive influence into our communities.” Justice Potter Stewart wrote the lone dissent. He argued that the majority “misapplied a great constitutional principle” and denied public schoolchildren “the opportunity of sharing in the spiritual heritage of our Nation.” He noted that history and tradition showed many religious influences and elements in society, such as “In God We Trust” on the nation’s money, opening sessions of the Supreme Court with “God Save This Honorable Court,” the opening prayers in Congress, and the many acknowledgments of God by various presidents in public speeches. The decision caused outrage among many and harsh criticism of the Warren Court. Engel said that he and his family members suffered obscene phone calls, taunts, and community ostracism.
The decision led the Court to strike down similar schoolsponsored prayers in the consolidated cases of Abington School District v. Schempp and Murray v. Curlett (1963). The principles of Engel have been extended by Court decisions invalidating an Alabama law requiring a moment of silence that appeared to have been rewritten specifically to encourage school prayer in Wallace v. Jaffree (1985), a middle-school graduation school prayer in Lee v.Weisman (1992), and prayer at high school football games in Santa Fe Independent School District v. Doe (2000). See also Abington School District v. Schempp (1963); Black, Hugo L.; Douglass,William O.; Everson v. Board of Education (1947); Lee v. Weisman (1992); Prayer at Public School Events; Santa Fe Independent School District v. Doe (2000); Stewart, Potter;Wallace v. Jaffree (1985).
David L. Hudson Jr.
furthe r reading Dierenfield, Bruce. The Battle over School Prayer: How Engel v. Vitale Changed America. Boston: Northeastern University Press, 2007. Haynes, Charles C. Religion in American History:What to Teach and How. Alexandria,Va.: ASCD, 1990. Hudson, David L., Jr.“Plaintiff in 1962 Landmark School-Prayer Case Reflects on His Role.” First Amendment Center. www.firstamendmentcenter.org.
English Bill of Rights The First Amendment constitutes the first forty-five words of a larger document known as the Bill of Rights.The English also have a document called a Bill of Rights, mainly the work of the English Parliament but associated with “The Glorious Revolution” in 1688, when Prince William and Queen Mary succeeded to the throne on the abdication of King James II. The document, which initially came to be known as the English Bill of Rights of 1689, contains many rights that were later included in the First Amendment, such as the right to petition and freedom of speech and debate (specifically targeted, like the speech and debate clause in the U.S. Constitution, to members of Parliament). Whereas the Constitution prohibited test oaths requiring individuals to affirm religious beliefs, however, and the First Amendment sought to disestablish all national religions, the English Bill of Rights favored Protestants and excluded “Papists” from serving as monarchs or as members of Parliament. See also Catholics, Roman; Magna Carta; Speech and Debate Clause.
John R.Vile
Epperson v. Arkansas (1968) furthe r reading “English Bill of Rights 1689.” www.yale.edu/lawweb/avalon/england.htm. Lockyer, Robert. Tudor and Stuart Britain: 1471–1714. 2d ed. New York: St. Martin’s Press, 1991.
English-Only Laws Many Americans believe that the ability to speak or read English, or both, should be a requirement of U.S. citizenship, and ballot initiatives in some states have attempted to promote this ideal. Nevertheless, English-only laws might violate the equal protection provision of the Fourteenth Amendment and one or more clauses of the First Amendment. Legal commentator Margaret Robertson has observed that lower courts that have addressed this issue have found that English-only laws can violate “(1) the free speech rights of government employees; (2) the free speech rights of legislators and elected government officials; (3) the free speech rights of the recipients; and (4) the First Amendment rights of non-English-speaking citizens to petition their government for redress of grievances” (2001: 1645–1646). In 1998 Arizona adopted a constitutional provision making English the state’s official language and requiring that “[t]his State and all political subdivisions of this State shall act in English and no other language.” Maria-Kelley Yniguez, an insurance claims adjustor for the Arizona Department of Administration, challenged this law as a violation of the free speech clause.Yniguez wanted to continue the practice of counseling her clients in Spanish or English, depending on their needs. Even though Yniguez subsequently transferred to a job in the private sector, the Ninth Circuit Court of Appeals affirmed a lower court judgment that the law was an overbroad infringement of the rights of both public officials and public employees. The Supreme Court, in a decision written by Ruth Bader Ginsburg, subsequently voided this ruling in the case of Arizonans for Official English and Robert D. Park v. Arizona (1997) on the grounds that Yniguez’s subsequent employment had made her case moot. In Meyer v. Nebraska (1923), the U.S. Supreme Court voided a Nebraska law that limited the teaching of modern languages to schoolchildren. The Court ruled in Lau v. Nichols (1974) that schools had to make provisions for teaching students who knew no English in their native tongue, although many schools have subsequently adopted English immersion programs designed to enable students to make a
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successful transition to English. Not satisfied with legislation at the state level, some members of Congress have proposed amendments to the Constitution that would make English the official language of the nation. Such an amendment would presumably trump existing First Amendment objections, but courts might still have considerable leeway in how they interpret it. See also Government Speech Doctrine; Meyer v. Nebraska (1923); Overbreadth.
John R.Vile
furthe r reading Baron, Dennis. The English-Only Question: An Official Language for America? New Haven, Conn.:Yale University Press, 1990. Nemec, Jennifer A. “Comment: Yniguez v. Arizonans for Official English: Free Speech May Have Lost the Battle, But in the End It Will Win the War.” Maryland Journal of International Law and Trade 22 (1998). Robertson, Margaret. “Comment: Abridging the Freedom of NonEnglish Speech: English-Only Legislation and the Free Speech Rights of Government Employees.” Brigham Young University Law Review 2001 (2001): 1641–1690.
Epperson v. Arkansas (1968) In Epperson v. Arkansas, 393 U.S. 97 (1968), the Supreme Court unanimously struck down an Arkansas law that criminalized the teaching of evolution in public schools. The Court found that the law had the unconstitutional purpose and effect of advancing religious beliefs, contrary to the establishment clause of the First Amendment. Under the Arkansas statute, enacted in 1928 and based on the Tennessee statute at issue in the infamous Scopes monkey trial, a teacher in a public school or university could not “teach the theory or doctrine that mankind ascended or descended from a lower order of animals, [or] . . . adopt or use in any such institution a textbook that teaches” the theory of evolution. In 1965 the Little Rock, Arkansas, school district adopted a new biology textbook that included the theory of evolution. Faced with the possibility that teaching from this book would constitute a criminal offense (the law had never been enforced against a teacher but remained on the books), a new biology teacher, Susan Epperson, sought a declaratory action, which could ensure that she could teach the text without being prosecuted. After losing her case before the Supreme Court of Arkansas, Epperson appealed to the U.S. Supreme Court. Her initial argument was that the statute was void for vagueness. Although this argument appealed to
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two concurring justices, the others disagreed—at oral argument, counsel for the state of Arkansas had stated, “just to teach that there was such a theory [of evolution]” would violate the statute. The majority, led by Justice Abe Fortas, focused its analysis on the establishment clause. It relied on the general principle that government “may not be hostile to any religion or to the advocacy of nonreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite.”The Court then extracted the legal test from Abington School District v. Schempp (1963) and found that the law had both the unconstitutional purpose and effect of advancing religious beliefs.The decision in Epperson marked the end of the first generation of socalled anti-evolution statutes. In response to Epperson, many states enacted statutes requiring a balanced treatment of evolution and creationism (or creation science), which later were held unconstitutional in McLean v. Arkansas (E.D. Ark. 1981) and Edwards v. Aguillard (1987). See also Abington School District v. Schempp (1963); Edwards v. Aguillard (1987); Evolution; Intelligent Design; Scopes Monkey Trial; Vagueness.
Kristi Bowman
furthe r reading Brauer, Matthew J., Barbara Forrest, and Stephen G. Gay.“Is It Science Yet?: Intelligent Design Creationism and the Constitution.” Washington University Law Quarterly 83 (2005). Buchanan, G. Sidney. “Evolution, Creation-Science, and the Meaning of Primary Religious Purpose.” Southern Methodist University Law Review 58 (2005). Hudson, David L., Jr. “Science Teacher Relates Role in Landmark Evolution Case.” First Amendment Center. www.firstamendmentcenter.org. Mawdsley, Ralph W. “Evolution and the Public School Curriculum: What Limitations on Teaching Evolution Are Permissible and Acceptable?” Education Law Reporter 203 (2005).
Epton v. New York (1968) In Epton v. New York, 390 U.S. 29 (1968), the Supreme Court declined to review the conspiracy and anarchy convictions of the African American Marxist leader William Epton, who contended that his convictions violated his First Amendment free speech rights. Justice William O. Douglas dissented. In July 1964, Epton—the leader of the Harlem Progressive Labor Movement—made several inflammatory speeches in Harlem after the killing of a fifteen-year-old
African American youth by a white police officer. Epton made statements such as,“They [the police] declared war on us and we should declare war on them and every time they kill one of us damn it, we’ll kill one of them and we should start thinking that way right now . . . because we had better stop talking about violence as a dirty word.” In December 1965, a jury convicted Epton of conspiring to riot, advocating the overthrow of the state government, and advocacy of criminal anarchy. He was charged under the same New York anarchy law used to prosecute and convict Benjamin Gitlow in the famous case Gitlow v. New York (1925).The New York Court of Appeals (the state’s highest court) affirmed Epton’s convictions in May 1967 in People v. Epton (1967). On January 22, 1968, the Supreme Court denied Epton’s appeal in per curiam fashion. Justice Potter Stewart concurred in the denial, writing that “these cases do not require the Court to consider either the criminal anarchy conviction or the associated conspiracy conviction.” Stewart also wrote that he concurred with the denial because Epton’s convictions resulted in only three concurrent one-year terms. In his dissent Justice Douglas wrote that “the use of constitutionally protected activities to provide the overt acts of conspiracy convictions might well stifle dissent and cool the fervor of those with whom society does not agree at the moment.” He pointed out that the Court “has never decided whether activities protected by the First Amendment can constitute overt acts for purposes of a conviction for treason.” The conviction of Epton, who died in 2002 at the age of seventy, may not have survived Supreme Court review if it had been presented after the Court’s 1969 decision in Brandenburg v. Ohio, which limited convictions for the advocacy of illegal conduct to situations in which there is an incitement to imminent lawless action. See also Brandenburg v. Ohio (1969); Douglas,William O.; Gitlow v. New York (1925); Stewart, Potter.
David L. Hudson Jr.
furthe r reading Mitchell, Don.“The Liberalization of Free Speech: Or, How Protest in Public Space Is Silenced.” Stanford Agora 4 (2004): 1–44.
Equal Access Act of 1984 The Equal Access Act of 1984 forbids public schools from receiving federal funds if they deny students the First Amendment right to conduct meetings because of the “religious, political, philosophical, or other content of the speech
Equal Time Rule at such meetings.” Passed by 88 to 11 in the Senate and 337 to 77 in the House of Representatives, it was motivated by the Supreme Court ruling in Widmar v.Vincent (1981), which guaranteed these protections on public university campuses. It was part of an ongoing effort by religious conservatives to secure a presence for religion in public schools in the wake of the Court’s decisions in Engel v. Vitale (1962) and Abington School District v. Schempp (1963), forbidding school-sponsored prayer and Bible reading. Congress had made repeated attempts to overrule the Court or strip it of jurisdiction in “school prayer” cases. Many states, meanwhile, had introduced legislation requiring a moment of silence in public schools. In 1984 President Ronald Reagan promised a constitutional amendment to put matters concerning prayer in schools in the hands of state and local authorities. Despite the previous rejection of equal-access proposals by various federal and state courts as violations of the establishment clause, ”school prayer” advocates, after failing repeatedly in their efforts, turned their attention to passing equal access legislation. Because 1984 was an election year, Republicans had a strong incentive to make good on promises to “put God back in the schools,” whereas Democrats wanted to avoid being seen as anti-religious. The Equal Access Act of 1984 applies only to schools that allow students to form groups not specifically linked to the curriculum (a chess club, for example). Moreover, the act applies only to groups that meet during noninstructional times and under the same terms that existing noncurricular clubs function. The act also stipulates that meetings must be voluntary, initiated by the students, and of no specified numerical size. School employees, such as faculty advisers, may attend, but not participate, in meetings with religious content. Persons not connected with the school may not direct or regularly attend the meetings. Students may not interfere with the educational purpose of the school. School authorities cannot specify the content of prayer, and no student or school employee can be compelled to attend religious activities; public funding for these religious activities is limited to the incidental cost of providing space. Supporters of the Equal Access Act of 1984 promoted it as protection of the “free exercise” rights of students, whereas strict separationists voiced concerns about its use of public facilities for religious purposes. However, its protection extends to political and philosophical content as well, allowing the argument that exclusion of religious meetings would violate the required government neutrality toward religion.
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Upheld by the Supreme Court in the case of Board of Education of the Westside Community Schools v. Mergens (1990), the Equal Access Act of 1984 has been the source of considerable controversy and litigation since its passage. The Mergens litigation arose after Nebraska public school officials refused to allow student Bridget Mergens and classmates to form a Bible club in school arguing that the Equal Access Act violated the establishment clause; the argument was rejected by the Supreme Court. Some schools sought to avoid allowing controversial clubs to form by eliminating all other noncurricular clubs, and other schools redefined existing clubs as “curricular,” asserting their presumed benefits for the curriculum. Ironically, although the intent of the original promoters of the Equal Access Act of 1984 was to give Christian groups a presence on campus, the act has precipitated controversy because of the emergence of nonChristian groups such as Wiccans. Recently, attempts to form gay and lesbian groups have kept the Equal Access Act of 1984 in the spotlight. See also Abington School District v. Schempp (1963); Board of Education of the Westside Community Schools v. Mergens (1990); Engel v.Vitale (1962); Students, Rights of;Widmar v.Vincent (1981).
Jane G. Rainey
furthe r reading Haynes, Charles C., and Oliver Thomas, eds. Finding Common Ground: A Guide to Religious Liberty in Public Schools. Nashville, Tenn.: First Amendment Center, 2001. Wood, James E., Jr. “Equal Access: A New Direction in American Public Education.” Journal of Church and State 27 (1985): 5–17.
Equal Time Rule The federal equal time rule requires broadcasters to treat a candidate for the same political office identically to every other candidate for that office. If a radio or television station sells air time to one candidate, the rule states that it must offer to sell the same amount of time to other candidates for that office. The same stipulation applies to free air time. Although many argue that the equal time rule is a reasonable means to regulate the public airwaves and prevent broadcasters from using their media power to promote a particular candidate, others see it as a violation of the First Amendment free speech and freedom of the press rights of radio and television station owners. The equal opportunity section (315) of the Communications Act of 1934 attempts to further First Amendment
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freedoms by providing that broadcast licensees must permit equal use of broadcast facilities to all legally qualified candidates for political office and that the broadcast licensee may not censor the candidates’ messages. Often confused with the fairness doctrine—a Federal Communications Commission (FCC) policy concerned with the overall balance of broadcast programming and repealed in 1987—the equal opportunity provision remains an enforceable congressional statute.The law first emerged in the Radio Act of 1927 and was established by the Communications Act of 1934. Central to the equal opportunity law is the belief that the free speech right of a political candidate to engage in political speech before a broadcast audience trumps the right of broadcasters to engage in private control over their broadcast facilities. Ostensibly, the law prevented broadcasters from censoring an opponent’s voice, thus ensuring more robust political debate and better serving public interests. In 1959, however, when a political candidate used the equal opportunity law to make defamatory remarks about an opposing candidate, and in light of growing television news coverage of political campaigns, Congress amended the Communications Act of 1934 to include four statutory exemptions to the equal opportunity provision. Under the amendment, broadcasters are not subject to equal access obligations when a legally qualified candidate is included in a bona fide newscast, news interview, documentary, or onthe-spot coverage of a news event.This amendment sought to relieve broadcasters of the impossibility of providing free air time to every minor candidate. In 1960 Congress had to suspend the equal opportunity law to allow the Kennedy-Nixon presidential debates to take place, because the FCC did not recognize the debates as meeting one of the four exemption categories authorized by Congress. Not until fifteen years later did the FCC rule that the exemption for on-the-spot news coverage of a bona fide news event would include debates, but only when sponsored by a party unrelated to the political candidates. In 1984 the FCC removed third-party sponsorship requirements from debate coverage. Today, the U.S. Supreme Court holds that broadcasters may exclude third-party candidates or other minor candidates from debates on the basis of content neutrality and because debates are not viewed as public forums. In 1971 Congress amended the Communications Act by enacting the Federal Election Campaign Act. The statute held that the FCC may revoke a station’s license “for willful or repeated failure” to allow access to a station’s facilities or the opportunity to purchase reasonable amounts of time for
use. In October 1979, CBS, NBC, and ABC denied the Carter-Mondale presidential campaign’s request to purchase thirty minutes of prime time, stating that the 1980 presidential campaign was not under way.The Carter-Mondale campaign filed a complaint that eventually appeared before the Supreme Court. In a 5-4 decision in CBS, Inc. v. Federal Communications Commission (1981), the Supreme Court upheld the constitutionality of a limited right of “reasonable access” to the broadcast media. In 1991 the FCC significantly altered the exemption policy by defining the “use” of a broadcast facility to include only those images and voiceovers that were authorized by a candidate or sponsored by the campaign committee. Previously, for example, if a station broadcast a film in which Ronald Reagan had starred as an actor, then the broadcast facility would have been obligated to provide the political opponent equal access.Also, as new entertainment programming has adopted elements of news and current events discussion, the FCC has granted equal access exemptions to programs such as Today, Politically Incorrect, Access Hollywood, and the Howard Stern Show, because these programs and others offer their viewers bona fide news interviews. Today the equal time rule is more of a formality than a real burden on broadcasters.With all the exceptions granted to the rule, it rarely limits the ability of a television or radio station to give air time to a candidate.Thus, although some claim that the rule violates the First Amendment, there has been no real effort to repeal it or to challenge it in court. Moreover, as new forms of the media, such as the Internet, become more important, others claim that the relevancy of the equal time rule is diminishing. The equal time rule is often confused with the now repealed fairness doctrine.The latter, in existence from 1949 to 1987, required broadcasters airing one side of a controversial issue to provide equal time to opposing viewpoints.The fairness doctrine’s constitutionality on First Amendment grounds was upheld in Red Lion Broadcasting Co. v. Federal Communications Commission (1969). See also Arkansas Educational Television Commission v. Forbes (1998); CBS, Inc. v. Federal Communications Commission (1981); Communications Act of 1934; Fairness Doctrine; Federal Communications Commission; Radio Act of 1927.
Shannon K. McCraw
furthe r reading Cramm, T. “The Designated Non Public Forum: Remedy the Forbes Mistake.” Albany Law Review 67 (2003): 89–166.
Espionage Act of 1917 Ricchiuto, Anne Kramer. “The End of Time for Equal Time? Revealing the Statutory Myth of Fair Election Coverage.” Indiana Law Review 38 (2005). Rowan, Ford. Broadcast Fairness: Doctrine, Practice, Prospects:A Reappraisal of the Fairness Doctrine and Equal Time Rule. New York: Longman, 1984. Sunstein, Cass R. “Television and the Public Interest.” California Law Review 88 (2000): 499–564.
Erznoznik v. City of Jacksonville (1975) In Erznoznik v. City of Jacksonville, 422 U.S. 295 (1975), the Supreme Court held that under the First Amendment the government may not censor expression simply because it offends some people. City officials of Jacksonville, Florida, had contended that an ordinance that prohibited drive-in theaters from showing films that contained nudity protected the privacy rights of unwilling viewers and protected minors from harmful material. Richard Erznoznik, the manager of a local drive-in theater, challenged the ordinance on First Amendment grounds. A Florida trial court upheld the law as a valid exercise of the city’s police powers. A Florida appeals court affirmed the decision, and the state supreme court declined to review the matter. Erznoznik then appealed to the U.S. Supreme Court, which reversed the Florida courts by a 6-3 vote. Justice Lewis F. Powell Jr., who wrote the majority opinion, asserted that “when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power.” In rejecting the city’s argument that the ordinance furthered its compelling interest in protecting minors from harmful material, Powell observed that the movie in question was not legally obscene. Powell and his colleagues in the majority also rejected the city’s argument that the measure furthered the city’s valid interest in traffic safety. “By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive,” Powell explained. “There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist.” Chief Justice Warren E. Burger wrote a dissenting opinion, criticizing the majority’s analysis as “rigidly simplistic.” He noted that drive-in movie screens were a “unique type of eye-catching display that can be highly intrusive and dis-
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tracting.” City officials, he wrote, could reasonably conclude that displays of nudity may cause traffic accidents. Justice Byron R.White also wrote a dissenting opinion, questioning the majority’s dismissal of the city’s privacy rationale. See also Burger,Warren E.; Harmful to Minor Laws; Obscenity and Pornography; Powell, Lewis F., Jr.
David L. Hudson Jr.
furthe r reading Tucker, Dana. “Preventing the Secondary Effects of Adult Entertainment Establishments: Is Zoning the Solution?” Journal of Land Use and Environmental Law 12 (1977): 385–431.
Espionage Act of 1917 Congress enacted the Espionage Act of 1917 on June 15, two months after the United States entered World War I. Just after the war, prosecutions under the act led to landmark First Amendment precedents. The Espionage Act of 1917 prohibited obtaining information, recording pictures, or copying descriptions of any information relating to the national defense with intent or reason to believe that the information may be used for the injury of the United States or to the advantage of any foreign nation.The act also created criminal penalties for anyone obstructing enlistment in the armed forces or causing insubordination or disloyalty in military or naval forces. Further, the Wilson administration determined that any written materials violating the act or otherwise “urging treason” were “nonmailable matter,” and Postmaster General Albert S. Burleson ordered local postmasters to report any suspicious materials. Along with Attorney General Thomas Watt Gregory, Burleson led the way in aggressively enforcing the Espionage Act of 1917 to limit dissent. By 1918, in actions that seriously threatened First Amendment freedoms and that likely would not be upheld today, seventy-four newspapers had been denied mailing privileges. In 1917 the socialist Charles T. Schenck was charged with violating the Espionage Act of that year after circulating a flyer opposing the draft. In Schenck v. United States (1919), the Supreme Court upheld the act’s constitutionality.Writing for the majority, Justice Oliver Wendell Holmes Jr. held that the danger posed during wartime justified the act’s restriction on First Amendment rights to freedom of speech. The Court upheld similar convictions under the Sedition Act of 1918 in Debs v. United States (1919), Frohwerk v. United States (1919), and Abrams v. United States (1919).
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Although Congress repealed the Sedition Act of 1918 in 1921, many portions of the Espionage Act of 1917 are still law. Two former lobbyists for the American Israel Public Affairs Committee (AIPAC) were charged with violating the Espionage Act of 1917 in August 2005. See also Abrams v. United States (1919); Debs v. United States (1919); Frohwerk v. United States (1919); Holmes, Oliver Wendell, Jr.; Schenck v. United States (1919); Sedition Act of 1918; World War I.
David Asp
furthe r reading Kennedy, David M. Over Here:The First World War and American Society. New York: Oxford University Press, 1986.
Established Churches in Early America Although the establishment clause of the First Amendment clearly prohibits the creation of a national church, when the amendment was ratified in 1791 it did not eliminate established churches in those states where they still existed; indeed, it would have encountered opposition in those states if it had sought to do so. Puritans and others came to the New World in search of religious freedom. Some of these very groups, however, sought to persecute others in order to further their own religions. Puritans persecuted Quakers and perceived heretics in Massachusetts; Roger Williams fled from Massachusetts in order to practice his religion in Rhode Island; and Baptists generally opposed establishments, although, with other opponents of specific establishments, they sometimes took it for granted that schools and other public institutions would reflect general Protestant sentiments. Congregationalism generally prevailed in the New England states, whereas the Church of England (Episcopal) generally prevailed in the southern states (and in time usurped the Dutch Reformed Church in New York), and Quakers and their allies were prominent in the middle states. Although Maryland was originally founded in part to provide religious freedom for Roman Catholics, it eventually established the Episcopal Church. Establishment generally meant that government provided direct aid to the church. Many colonies and early state constitutions also required officeholders or voters to take an oath stating that they adhered to the major tenets of the established faith. In 1787 the authors of Article 6 of the U.S.
Constitution specifically precluded such test oaths as a condition for national office. The First Great Awakening in the 1730s and 1740s increased religious diversity, and the American Revolution furthered the impetus of southern states to drop their affiliations with the Church of England, which most did between 1776 and 1790. The Second Great Awakening, which occurred after 1800 and created further religious diversity, led to another wave of disestablishments (Noll and Harlow 2007: 29). New Hampshire kept its establishment until 1817; Connecticut kept its establishment until 1818; and Massachusetts did not abandon its state support for Congregationalism until 1833 (Kidd 1999: 1021). Between 1776 and 1796, however, in attempts to prevent undue clerical influence on state politics, seven states adopted constitutional provisions that excluded ministers from public office (Kidd 1999: 1019). One of the most public efforts to disestablish the church took place in Virginia. Thomas Jefferson introduced the Virginia Statute for Religious Freedom, which James Madison succeeded in getting adopted in 1786. As a state legislator, Madison beat back an attempt supported by Governor Patrick Henry to provide tax money to pay for the salaries of religious teachers, a mild form of establishment, which might otherwise have prevailed. Concern about the distance between the Church of Jesus Christ of Latterday Saints and the state in Utah delayed the state’s entry into the Union until the end of the nineteenth century. Although the Fourteenth Amendment originally restrained only the national government, today’s Supreme Court interprets the amendment so that it applies the provisions of the First Amendment equally to both state and national governments. Despite the provision in Article VI of the Constitution of 1787 prohibiting religious oaths as a condition for national office, from time to time individuals still indicate their reluctance to elect individuals from nonmainstream, or non-Protestant, faiths. John F. Kennedy became the first Roman Catholic to be elected as a U.S. president in 1960; Mitt Romney, a Mormon who sought the Republican presidential nomination in 2008, encountered some opposition because of his faith. See also Baptists; Catholics, Roman; Church of Jesus Christ of Latter-day Saints; Clergy, Bans on Holding Office by; Federalism; Jefferson, Thomas; Madison, James; “Memorial and Remonstrance”; Puritans; Quakers; Separation of Church and State;Virginia Statute for Religious Freedom;Williams, Roger.
John R.Vile
Estes v.Texas (1965)
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Puritans in America sometimes persecuted members of other religious groups whom they considered to be heretics. Established churches continued to exist after passage of the First Amendment.
furthe r reading Butler, Jon. Awash in a Sea of Faith: Christianizing the American People. Cambridge, Mass.: Harvard University Press, 1990. Kidd, Colin. “Civil Theology and Church Establishments in Revolutionary America.” Historical Journal 42 (1999): 1007–1026. Noll, Mark A., and Luke E. Harlow, eds. Religion and American Politics: From the Colonial Period to the 1980s. 2d ed. New York: Oxford University Press, 2007.
Estes v. Texas (1965) In Estes v. Texas, 381 U.S. 532 (1965), the Supreme Court overturned a conviction based on the presence of cameras in the courtroom and explored the relation between First Amendment press freedoms and the Sixth Amendment right to a fair trial.The case arose from the trial of Billie Sol Estes for swindling.Although live coverage was limited during the trial itself, the opening days of the preliminary hearing had developed into a circus atmosphere as dozens of cameramen staked out the courtroom. Writing the majority opinion of the Court, Justice Tom C. Clark indicated that this disruption had been enough to
deny due process to Estes. Acknowledging the important role that the press could play in “informing the citizenry of public events and occurrences, including court proceedings,” Clark thought that the media at the preliminary hearing had created enough distraction to both the judge and the jury as to interfere with the chief judicial task of ascertaining the truth. In a concurring opinion, Chief Justice Earl Warren observed that this decision was “not based on generalities or abstract fears,” but on the actual record of disruption in this case. He believed that excessive publicity turned judicial proceedings into theatrical events. Warren denied that freedom of the press conferred any “special benefit on the press,” explaining that “so long as the television industry, like other communications media, is free to send representatives to trials and to report on those trials to its viewers, there is no abridgment of the freedom of the press. The right of the communications media to comment on court proceedings does not bring with it the right to inject themselves into the fabric of the trial process to alter the purpose of that process.”
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Eu v. San Francisco County Democratic Central Committee (1989)
In a separate concurrence, Justice John Marshall Harlan II found no “independent right to bring the mechanical facilities of the broadcasting and printing industries into the courtroom” within the First Amendment. He did, however, observe that “the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process.” Four dissenting justices, led by Potter Stewart, argued that the Court should “be wary of imposing any per se rule which, in the light of future technology, might serve to stifle or abridge true First Amendment rights.” Stewart was also deeply concerned by suggestions that “there are limits upon the public’s right to know what goes on in the courts.” In his dissent, Justice Byron R. White feared that the Court was discouraging “further meaningful study of the use of television at criminal trials.” The dissent of Justice William J. Brennan Jr. emphasized that Justice Harlan’s concurrence meant that the decision as a whole did not establish “a blanket constitutional prohibition against the televising of state criminal trials.” See also Cameras in the Courtroom; Sheppard v. Maxwell (1966).
John R.Vile
furthe r reading Abraham, Henry J., and Barbara A. Perry. Freedom and the Court. 8th ed. Lawrence: University Press of Kansas, 2003.
Eu v. San Francisco County Democratic Central Committee (1989) In Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989), the Supreme Court held that California’s extensive regulation of the internal operations of political parties violated their members’ First Amendment rights of free speech and association. Plaintiffs representing various governing bodies, their members, and politically active groups and individuals challenged several provisions of the California Election Code. In particular, the code prohibited “the official governing bodies from endorsing candidates in party primaries.” It also imposed restrictions on the internal affairs of a party, including its size and composition, the terms of office, and the selection rules for the central committee of the respective political parties. Both the federal district court and the Ninth
Circuit Court of Appeals held that the regulations ran afoul of the Constitution. The Supreme Court, in an opinion for the majority written by Justice Thurgood Marshall, affirmed the lower court decisions. Marshall first reviewed the state’s restrictions on primary endorsements. He rejected the state’s assertion that the imposed burden was minuscule and instead held that the ban implicated speech that “is at the core of the electoral process and of the First Amendment freedoms.” He noted that the regulation implicated both speech and associational rights.Thus, the imposition could be justified only if the regulation advanced a compelling interest and did so in a manner narrowly tailored to serve the proffered ends. The state argued that the regulation was necessary both to further stable government and to protect voters from confusion and undue influence.Yet, Justice Marshall wrote, the state “never adequately explains how banning parties from endorsing or opposing primary candidates advances that interest.” Thus, “even if a ban on endorsements saves a political party from pursuing self-destructive acts, that would not justify a state substituting its judgment for that of the party.” After rejecting the ban on endorsements, the Court addressed California’s attempted regulation of party internal affairs. Because the state provision implicated First Amendment associational rights, Marshall held that if the provision were to survive, it must withstand strict scrutiny. Although the state had shown a compelling interest in preserving the integrity of the electoral process, the Court struck down its attempt to regulate the internal affairs of its political parties, because, Marshall wrote, California had not narrowly tailored its law to this objective. Justice John Paul Stevens wrote a concurring opinion questioning the usefulness of the “compelling state interest” test to this case; Chief Justice William H. Rehnquist did not participate in the decision. See also Campaign Regulation; Marshall, Thurgood; Political Parties.
Daniel M. Katz
furthe r reading Lowenstein, Daniel. “Associational Rights of Political Parties: A Skeptical Inquiry.” Texas Law Review 71 (1993): 1741–1792.
Everson v. Board of Education (1947)
Evans v. Selma Union High School District of Fresno County (Cal. 1924) In Evans v. Selma Union High School District of Fresno County, 193 Cal. 54, 222 P. 801 (1924), the California Supreme Court permitted a high school to purchase twelve copies of the King James Bible for its library. In so ruling, the court decided that the purchase did not offend state constitutional provisions prohibiting “discrimination or preference” in religious profession or worship or prohibiting any state appropriation for sectarian purposes. In a unanimous opinion, the justices of the California court pointed out that the school was purchasing the Bibles for reference rather than for devotional exercises—the issue the U.S. Supreme Court would later address in Abington School District v. Schempp (1963).The California court decided that the King James Bible was not a “sectarian” book. In the process, it also stated that the Douai Version (chiefly used by Catholics) was not sectarian. Although the library was thus free to purchase “either or both” versions, the California high court did not, at least not in this case, have to choose between them. In implications for future cases involving library purchases, the justices observed that “[t]he mere act of purchasing a book to be added to the school library does not carry with it any implication of the adoption of the theory or dogma contained therein, or any approval of the book itself except as a work of literature fit to be included in a reference library.” See also Abington School District v. Schempp (1963).
John R.Vile
furthe r reading American Library Association. “Notable First Amendment Court Cases.” www.ala.org/ala/oif/firstamendment/courtcases/courtcases.cfm.
Everson v. Board of Education (1947) In Everson v. Board of Education, 330 U.S. 1 (1947), the Supreme Court ruled as constitutional a New Jersey statute allocating taxpayer funds to bus children to religious schools—because it did not breach the “wall of separation” between church and state—and held that the establishment clause of the First Amendment applied to state and local
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governments as well as to the federal government. Despite the Court’s narrow 5-4 decision, the mix of separationist reasoning and accommodationist outcome has made the case a popular precedent for liberals as well as conservatives.The commonly used phrase “separation of church and state” is derived from the “wall” metaphor in this case; the Court in turn borrowed it from Roger Williams and Thomas Jefferson. A New Jersey statute gave school boards the authority to reimburse parents for the cost of busing their children to private schools, including Catholic and other parochial schools. Everson, a taxpayer, challenged this law as an impermissible expenditure under the establishment clause. In the first part of the majority opinion, Justice Hugo L. Black addressed the issue of incorporation. Prior to Everson, the establishment clause, like most of the provisions of the Bill of Rights, applied only to the national government as the First Amendment explicitly states: “Congress [an arm of the national government] shall make no law respecting an establishment of religion. . . .” Yet Everson involved a state law. The majority held that the Fourteenth Amendment language—“No State shall . . . deny . . . liberty without due process of law”—applied this liberty to the states. Black then turned to the substance of the case, the reimbursement to parents of the costs of busing students to private schools, including religious ones. Black began with a detailed explanation of the establishment clause, explaining that the founders were particularly concerned with religious liberty and thought that the best way to protect it was to ensure that the government could neither tax nor support religion in any way. He cited the opposition of James Madison and Thomas Jefferson to a state tax to benefit Virginia’s established church and quoted from Madison’s “Memorial and Remonstrance Against Religious Assessments” (1785) and Virginia’s Statute for Religious Freedom (1786). Of more controversy, he referred to an 1802 letter Jefferson sent to the Danbury Baptist Association in which he interpreted the First Amendment as “building a wall of separation between church and state.” Black added that the “wall must remain high and impregnable.” This discussion had a decidedly separationist tone and has been cited by liberals as authoritative ever since. Yet, Black then argued that distributing public funds to parents to cover the cost of busing their children to religious schools did not breach the wall. He reasoned that the establishment clause should be balanced against the free exercise
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clause: “New Jersey cannot . . . exclude individual[s] . . . because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” Black likened school busing to such other general government services as police, fire, sewage, highways, and sidewalks. He concluded by explaining that the First Amendment “requires the state to be neutral in its relations with groups of religious believers and non-believers.” In dissent, Justice Wiley B. Rutledge claimed that the founders would have struck down the New Jersey statute. Rutledge likened reimbursements for transportation to those for tuition, teacher salaries, and other educational expenses. Justice Robert H. Jackson’s dissent echoed Rutledge’s in arguing that because parochial school is a vital part of Roman Catholicism,“to render tax aid to its Church school is indistinguishable . . . from rendering the same aid to the Church itself.” The seemingly contradictory majority opinion reflected the indecision on the part of some of the justices. Initially, only Felix Frankfurter and Rutledge voted to invalidate the statute, but Justices Jackson and Harold H. Burton changed their minds and also decided that reimbursements were unconstitutional. Justice Francis W. Murphy, a liberal but also a devout Catholic, cast the deciding vote to uphold the law. He wrote to a friend after the decision was announced,“If I err, I want to err on the side of religion.” Instead of resolving church and state issues, Everson began a debate that continues to this day over how to define an “establishment” of religion so that the right of individuals freely to exercise their religious beliefs is protected. See also Aid to Parochial Schools; Bill of Rights; Black, Hugo L.; Jackson, Robert H.; Jefferson,Thomas; Madison, James; Separation of Church and State; Virginia Statute for Religious Freedom; Wall of Separation.
Artemus Ward
furthe r reading Alley, Robert S. The Supreme Court on Church and State. New York: Oxford University Press, 1988. Dickson, Del, ed. The Supreme Court in Conference (1940–1985): The Private Discussions behind Nearly 300 Supreme Court Decisions. New York: Oxford University Press, 2001. Ferren, John M. Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge. Chapel Hill: University of North Carolina Press, 2004.
Evolution In On the Origin of Species (1859), Charles Darwin proposed that small mutations in plants and animals aggregate over generations, leading to diversity within, and eventually among, species. Later, in Descent of Man and Selection in Relation to Sex (1871), Darwin applied this theory to humans. The theory remained largely unchanged until the 1940s, when scientists proposed that variations within species are passed down through organisms’ genetic code, thus making the offspring of better-suited individual plants or animals more likely to survive.The teaching of the scientific theory of evolution has been at the heart of numerous cases brought under the establishment clause, the free exercise clause, and the free speech clause of the First Amendment. Since the early part of the twentieth century, those critical of evolution have attempted to ban it from public school curricula. Evolution’s adherents agree that the diversity of species is attributable to biological processes, but they disagree about the involvement of a divine being. Although much opposition to evolution has been religiously based, many religious organizations, including the Catholic Church, many mainline Protestant denominations, and the American Jewish Congress, acknowledge that evolution can be consistent with religious faith. For several decades after the publication of Descent of Man, into the early twentieth century, evolution was a staple of biology textbooks and classroom instruction. About this same time, however, a Christian fundamentalist movement took root in the United States, arguing that evolution was inconsistent with the biblical six-day creation story and should not be taught in schools. Twenty state legislatures considered prohibiting science teachers from instructing their students about evolution. Six states (mostly in the Deep South) adopted such laws. One of these laws, Tennessee’s, gave rise to what is still known as the Scopes monkey trial. Knowing that he would be arrested, John Scopes taught evolution in a high school science class. Eventually, Scopes was convicted and fined $100, but his conviction was overturned on a technicality. Although public discussion of this trial has always focused on the propriety of teaching evolution, the legal issue in State v. Scopes (1925) was the narrow one of whether the statute was violated, and appellate challenges to the statute’s validity were dismissed summarily (Scopes v. State [Tenn. 1927]). After the Scopes decision textbook publishers mini-
Evolution
Charles Darwin
mized the coverage of evolution until the late 1950s and early 1960s. The establishment clause, which requires a degree of separation between church and state, has been the most common legal basis for challenges to state attempts to restrict evolution-related instruction. By 1968, when Epperson v. Arkansas (1968) made its way to the Supreme Court, only two states maintained their Scopes-like anti-evolution statutes: Arkansas and Mississippi (Tennessee rescinded its statute in 1967). In Epperson, the Supreme Court invalidated the Arkansas statute as a violation of the establishment clause. Evolution’s detractors then began recasting creationism as “creation science” and asking that it be treated as evolution’s equal—when one concept was taught, the other would be, too. In McLean v. Arkansas (1982), the first test of this socalled balanced treatment approach, a federal district judge held that “creation science” was not science and that the state lacked the requisite secular purpose when enacting the statute.The Supreme Court confronted the same issue a few years later, holding in Edwards v. Aguillard (1987) that teach-
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ing “creation science” endorsed religion and also undermined comprehensive science instruction. More recently, school districts have included disclaimers of evolution at the beginning of that unit in science classes. The Fifth Circuit Court of Appeals rejected an oral disclaimer in Tangipahoa Parish Board of Education v. Herb Freiler (1999). Similarly, a district court in Georgia rejected a sticker placed inside the science textbook in Selman v. Cobb County School District (2005), but that decision was vacated and remanded on appeal in 2006 for further factual findings. A disclaimer also was at issue in one recent battle over “intelligent design,” a concept consisting of two main arguments: various organisms in their most basic forms were irreducibly complex and could not have evolved from simpler organisms, and the odds of current systems and organisms randomly evolving to exist as they do today are prohibitively low. Both approaches rely on the existence and involvement of an unnamed “intelligent agent” to account for the current diversity of species. The vast majority of scientists reject intelligent design’s claims in favor of evolution. In October 2004, a school district in Dover, Pennsylvania, voted to inform students about intelligent design by reading a statement in biology class and providing reference copies of the book Of Pandas and People. The American Civil Liberties Union challenged this policy in Kitzmiller v. Dover Area School District (2005); after a six-week trial in a federal district court in Pennsylvania, which included the testimony of numerous experts, the judge noted the scientific community’s overwhelming rejection of intelligent design and concluded that intelligent design is not science. Whereas the establishment clause focuses broadly on the purpose and effect of government action, the free exercise clause focuses on individuals’ expression of their own religious beliefs. Attempts to challenge evolution instruction as a free exercise violation have been unsuccessful. For example, in Seagraves v. State of California (1981), the Sacramento Superior Court rejected the claim that a school’s teaching of evolution violated the free exercise rights of a parent and his children whose religious beliefs conflicted with evolution; important to the case was the state’s policy of not teaching evolution “dogmatically.” In another case, Peloza v. Capistrano Unified School District (1994), the Ninth Circuit determined that a teacher’s free exercise rights were not violated when he was required to teach evolution in science class and not criticize evolution outside of class; the court noted the school district’s strong interest in avoiding an establishment clause violation.
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Teachers have also unsuccessfully challenged mandatory evolution instruction as a violation of their own free speech rights. Specifically, in Webster v. New Lenox School District (1990), the Seventh Circuit Court of Appeals held that a teacher could be prohibited from teaching creation science because doing so would amount to the promotion of religion. A state appellate court in Minnesota reached a similar decision in LeVake v. Independent School District (2001). See also Creationism; Edwards v. Aguillard (1987); Epperson v. Arkansas (1968); Intelligent Design; Scopes Monkey Trial.
Kristi Bowman
furthe r reading Bowman, Kristi L. “Seeing Government Purpose through the Objective Observer’s Eyes: The Evolution-Intelligent Design Debates.” Harvard Journal of Law and Public Policy 29 (2006): 417–490. Brauer, Matthew J., Barbara Forrest, and Stephen G. Gay.“Is It Science Yet? Intelligent Design Creationism and the Constitution.” Washington University Law Quarterly 83 (2005): 4–149. Greenawalt, Kent. Does God Belong in Public Schools? Princeton, N.J.: Princeton University Press, 2005. Hamilton, Marci. God vs. the Gavel: Religion and the Rule of Law. New York: Cambridge University Press, 2005. Larson, Edward. Summer for the Gods: The Scopes Trial and American’s Continuing Debate over Science and Religion. New York: Basic Books, 1997. Miller, Kenneth. Finding Darwin’s God: A Scientist’s Search for Common Ground between God and Evolution. New York: Cliff Street Books, 1999. Wexler, Jay. “Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools.” Vanderbilt Law Review 56 (2003): 749–855.
Exit Polling In exit polling, pollsters ask voters as they leave the polls whom they voted for and sometimes other questions as well. The media argue that exit polling is a form of expression protected by the First Amendment. States that seek to regulate the practice contend that the practice disrupts the electoral process. The Supreme Court upheld a Tennessee law that prohibited the solicitation of votes and the display of campaign literature within 100 feet of the entrance to a polling place in Burson v. Freeman (1992). Although acknowledging that the statute was a content-based restriction on political speech, the majority of the sharply divided Court ruled that the law survived strict scrutiny. Supporters of restrictions on exit polling cite Burson as a favorable precedent. Critics note that
the Tennessee law at issue in Burson was not applied to exit polling. Many lower courts have invalidated laws that restrict exit polling. In Daily Herald Co. v. Munro (1988), the Ninth Circuit Court of Appeals invalidated a Washington law that restricted exit polling within 300 feet of polling places.The appeals court determined that the content-based law did not survive strict scrutiny because it prohibited even “nondisruptive exit polling.”The court concluded that the law was “content-based, overbroad and not the least restrictive means of keeping peace, order, and decorum at the polls.” Despite these rulings, states continue to regulate exit polling, insisting that it protects the integrity of the electoral process and prevents voter intimidation. Recent court decisions—CBS v. Cobb (S.D. Fla. 2006) and ABC v. Heller (U.S. Dist. Nev. 2006)—have enjoined the enforcement of such statutes in Florida and Nevada. Blake Morant (2005) notes a difference in how reviewing courts treat laws that regulate what he calls pre-vote activity and post-vote activity. Exit polling represents a form of postvote activity. Morant writes that “courts view governmental attempts to limit post-vote activities with notable antipathy” (p. 121). See also Burson v. Freeman (1992); Content Based; Overbreadth.
David L. Hudson Jr.
furthe r reading Morant, Blake D. “The Jurisprudence of the Media’s Access to Voting Polls.” First Amendment Law Review 4 (2005): 107–138. “Note: Exit Polls and the First Amendment.” Harvard Law Review 98 (1985): 1927–1945.
Ex parte Curtis (1882) In Ex parte Curtis, 106 U.S. 371 (1882), the Supreme Court upheld the constitutionality of an 1876 act prohibiting U.S. government officials from requesting or receiving money from other government employees for political purposes. Justice Joseph Bradley’s dissent specifically evoked the First Amendment freedoms of speech, press, and assembly. Chief Justice Morrison R.Waite argued that the law did not differ in principle from previous laws that limited businesses in which government employees could be engaged. Congress designed the law to “promote efficiency and integrity . . . and to maintain proper discipline in the public service,” and it had the implied power to do so. If government supervisors could call on their subordinates for cam-
Ex parte Vallandigham (1863) paign contributions, government salaries might be raised and government funds used to sustain the political party in power. Justice Bradley, in contrast, thought the law limited First Amendment freedoms and regarded it as too sweeping. He feared that the government was trying to buy out such rights and might even extend prohibitions to expenditures for money on religious causes. He distinguished this law from those that prohibited employees from engaging in incompatible pursuits. He indicated that the government had the power “to prevent the corrupt use of money in elections, or in political matters generally, or to prevent what are called political assessments on government employees, or any other exercise of undue influence over them by government officials or others.” The Hatch Act and other twentieth-century laws have subsequently imposed further restrictions on the political speech of public employees.
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circulation was vital to a free press, but he denied that the postal ban prevented free circulation. Items barred from the mails remained free to circulate in other ways, he maintained. Congress did not abridge press freedom, he asserted, but merely refused to abet the distribution of matter that it deemed immoral. Anti-lottery laws strengthened in the wake of Jackson. All states but Louisiana prohibited lotteries entirely. In 1895 Congress, in a path-breaking attempt to use its interstate commerce power as a way to exert a federal police power over public morals (a power generally reserved to the states), made it a federal crime to transport lottery tickets or advertisements across state lines, through the mails or otherwise. The Supreme Court upheld this statute in Champion v.Ames (1903), thus sanctioning the exercise of a federal police power. See also Comstock, Anthony; Mail.
John W.Wertheimer See also Hatch Act of 1939; Political Parties; Political Patronage.
John R.Vile
furthe r reading Gibson, Michael T. “The Supreme Court and Freedom of Expression from 1791 to 1917.” Fordham Law Review 55 (1986): 263–333.
Ex parte Jackson (1877) In Ex parte Jackson, 96 U.S. 727 (1877), the Supreme Court ruled that Congress did not violate the free speech clause of the First Amendment by closing the postal system to literature concerning lotteries, although it lacked the constitutional authority to prevent such materials from circulating by other means. Government control of lotteries, moderate during the first half of the nineteenth century, had stiffened during the second half, and most states banned lotteries outright.The federal government started the mail ban in 1876. A zealous “special agent of the post office,” Anthony Comstock, arrested dozens of lottery dealers, including A. Orlando Jackson, and charged them with violating the new federal law. Jackson protested his arrest as a violation of his freedom of expression. He insisted that Congress had no power “to prohibit the transmission of intelligence,” through the mails or otherwise. He also warned of a slippery-slope threat to commerce. Neither argument impressed Justice Stephen F. Field, who wrote the decision for the Court. Field admitted that free
furthe r reading Almes, Berthold C. “The History of the Louisiana State Lottery Company.” Louisiana Historical Quarterly 28 (July 1944). Rabban, David. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997.
Ex parte Vallandigham (1863) In Ex parte Vallandigham, 68 U.S. 243 (1863), the Supreme Court decided that it had no jurisdiction to hear appeals from a military commission that had sentenced a gubernatorial candidate to life in prison for an inflammatory speech, thus missing an opportunity to set an important precedent on behalf of freedom of speech. The case arose after General Ambrose Burnside followed up on Abraham Lincoln’s declaration of martial law by issuing a general order declaring that he would try individuals as spies or traitors for declaring their sympathies for the enemy. In May 1863, Clement L. Vallandigham, a former congressional representative from Ohio who was running for governor as a “peace” candidate, gave a fiery speech in which he pronounced that “the sooner the people inform the minions of usurped power that they will not submit to such restrictions upon their liberties, the better” (Swisher 1974: 925). The military therefore subsequently arrested Vallandigham and tried him, although Lincoln decided to commute the sentence from imprisonment to exile beyond enemy lines, from which Vallandigham went to Canada and
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continued his ultimately unsuccessful political campaign. Vallandigham’s case ultimately made it to the Supreme Court, which declared that the Constitution had not granted it any power to review the decisions of military tribunals. After the war, the Court declared in Ex parte Milligan (1866) that military courts had no power to try civilians outside of a war zone. Seeking to defend Vallandigham’s trial by the military commission, Lincoln rhetorically asked,“Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of the wily agitator who induces him to desert?” (Swisher 1974: 928). Further answering those who feared that the trial might set a bad precedent, Lincoln said that he was no more able “to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them during the remainder of his healthful life” (Swisher 1974: 928). Chief Justice William Rehnquist (1998) observed that Lincoln’s argument for detaining individuals who had engaged in sabotage was “stronger” than “for arresting and trying Vallandigham, who had simply expressed views strongly critical of the administration” (p. 73). Vallandigham returned to Ohio after the war and practiced law. He died in 1871 after accidentally shooting himself while attempting to show that a victim had committed suicide rather than being killed by his client. See also Civil War, U.S.; Lincoln, Abraham.
John R.Vile
furthe r reading Rehnquist,William H. All the Laws But One: Civil Liberties in Wartime. New York: Alfred A. Knopf, 1998. Swisher, Carl B. The Taney Period, 1836–64. Vol. 5 of History of the Supreme Court of the United States. NewYork: Macmillan Publishing, 1974.
Express Advocacy According to the Supreme Court in Buckley v.Valeo (1976), express advocacy is the use of words such as vote for, elect, or support in political communications. Although political communications are entitled to First Amendment protection, the spending of money for such communications may be limited. Efforts have been made for more than 100 years to restrict who can give money and how much they can give to influence elections.The Tillman Act of 1907 banned corporations from spending money to influence federal elec-
tions, and then the Taft-Hartley Act of 1947 did the same for labor unions. The fund-raising scandals surrounding the election of President Richard M. Nixon in 1972 spurred new efforts to restrict the spending of money for political purposes. The issue of express advocacy first came before the Supreme Court in 1976 in Buckley v.Valeo, when the Court had to rule on the constitutionality of the Federal Election Campaign Act amendments of 1974, which contained limits on political contributions and expenditures. In that case, although the Court did not say money was speech for the purposes of the First Amendment, it did rule that First Amendment concerns were implicated both in political contributions and in expenditures. Because they raised free speech issues, neither political contributions nor expenditures could be limited unless the government could show that such limitations would address an overriding compelling governmental interest in addressing corruption or its appearance. The Court ruled that although it did not then see how the quantity of campaign expenditures could corrupt the political process, and therefore could not be limited, political contributions to candidates did raise potential concerns about corruption that constitutionally could be addressed by limiting how much individuals or political organizations could give. In general the Court appeared unwilling to limit political expenditures, but by making a distinction between express and issue advocacy, it allowed restrictions on unions and corporations to remain in place.Although political communications by these and other groups that expressly advocated the election or defeat of a federal candidate could be regulated, those that did not use the “magic words” of “vote for,” “oppose,” or similar words constituted issue advocacy, which could not be limited.The Court reasoned that issue advocacy was pure political speech that did not raise concerns about corruption. As a result of the distinction between express and issue advocacy in Buckley, groups sought to bypass federal restrictions by running political ads and communications that did not use the magic words, although the ads would often show pictures of candidates they opposed. This meant, among other things, that despite the Tillman and Taft-Hartley Acts, corporations and labor unions could find a constitutional way to influence federal elections. In some cases these groups and others were legitimately engaged in issue advocacy, but the distinction between express and issue advocacy left, for many, a large hole in the campaign finance laws.
Express Advocacy In the years that followed Buckley, almost all the federal appeals courts that considered the issue took the view that a communication must contain express words of advocacy to qualify for federal regulation. The Ninth Circuit Court of Appeals, by contrast, found in Federal Election Commission v. Furgatch (1989) that in order to qualify as express advocacy, a communication need not contain magic words so long as it unmistakably and unambiguously suggested only one plausible meaning, presented a clear plea for action, and clearly articulated the action it intended to elicit.The court also explained that a communication could not be considered express advocacy if reasonable minds could differ as to its intent. Many circuit courts subsequently rejected this “reasonable person” standard. The Bipartisan Campaign Reform Act of 2002 (BCRA) introduced a new term—electioneering communications—to resolve the debate about issue advocacy versus express advocacy by slating for regulation all communications falling within its scope. The statute was intended to close a loophole created by the Court’s decision in Buckley, which allowed groups to spend huge sums on advertisements that closely resembled traditional campaign ads but which escaped regulation by avoiding terms of express advocacy. The law defines “electioneering communications” as broadcast, cable, or satellite communications targeted at the relevant electorate and referring to a clearly identified federal candidate that are made within sixty days of a general election or thirty days of a primary election. Congress also included a backup definition (in case the first definition was ruled unconstitutional), which integrated the reasonableperson test articulated in Furgatch. The statute exempts from regulation the media, independent expenditures, and candidate debates and forums, and it grants the Federal Election Commission (FEC) authority to make additional exemptions consistent with the purposes of the law. Congress defined “independent expenditure” as spending for the purpose of expressly advocating the election or defeat of a federal candidate, so long as the money is not spent at the request of, or in cooperation with, the candidate or the candidate’s political party. The BCRA was almost immediately challenged in court by those who thought that several of its provisions (including the one defining “electioneering communications”) violated the First Amendment freedom of speech clause. In McConnell v. Federal Election Commission (2003) the Supreme Court affirmed the primary definition of electioneering communications and so did not need to resolve the constitutional
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validity of the Furgatch-inspired secondary definition. The Court concluded that advertisements broadcast within thirty days of a primary or sixty days of a general election were “the functional equivalent of express advocacy” and could be regulated accordingly. The Court also found that the Constitution drew no distinction between express and issue advocacy and accordingly invalidated the magic words test. Exercising its delegated authority to make exemptions to the BCRA’s electioneering communications provision, the FEC adopted rules that excluded from regulation all unpaid broadcast communications by tax exempt organizations and all communications distributed on the Internet. In 2004 and 2005, respectively, the District of Columbia district and circuit courts struck down the regulations in Shays v. Federal Election Commission. On remand, the commission adopted a new definition of “public communication” that includes communications posted for a fee on the Internet. Although McConnell seemingly resolved the BCRA’s constitutionality, the Court left the door open to as-applied challenges to the law. In Federal Election Commission v. Wisconsin Right to Life, Inc. (2007) the Supreme Court struck down on First Amendment grounds as applied the thirtyand sixty-day rule found in the BCRA that it had upheld in McConnell. Effectively, this ruling means that the express versus issue advocacy distinction articulated in Buckley remains good law and that efforts to restrict issue advocacy are unconstitutional. It also means that in some cases express advocacy may be regulated under the conditions specified in Buckley. See also Bipartisan Campaign Reform Act of 2002; Buckley v.Valeo (1976); Campaign Regulation; Electioneering; Federal Election Commission v. Massachusetts Citizens for Life (1986); Federal Election Commission v. Wisconsin Right to Life, Inc. (2007); Issue Advocacy; McConnell v. Federal Election Commission (2003); Media Exemption to Anti-trust Law.
Danielle Rosengarten
furthe r reading Cantor, Joseph E. Campaign Finance: An Overview. Washington, D.C.: Congressional Research Service, 2007. Potter, Trevor, and Kirk L. Jowers. “Issue and Express Advocacy.” September 2001. http://rboyd.web.wesleyan.edu. Whitaker, L. Paige. Campaign Finance Reform: A Legal Analysis of Issues and Express Advocacy. Washington, D.C.: Congressional Research Service, 2002.
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Expressive Conduct Expressive conduct is behavior designed to convey a message; its function as speech means that it has increasingly been protected by the First Amendment. Two rough synonyms are symbolic speech, statements made through the use of symbols rather than words, and speech plus, behavior used by itself or in connection with language to communicate a message. Expressive conduct allows individuals to express their opinions and contributes to societal debate, but it sometimes produces results that Congress seeks to prevent.When faced with legislation that infringes on expressive conduct, the Supreme Court generally asks whether the regulation is aimed at the expressive or the nonexpressive aspects of the conduct.When the regulation aims at the expressive aspects, the Court assesses it using strict scrutiny. When the regulation aims at the nonexpressive aspects, the Court assesses it using intermediate scrutiny. The Supreme Court began to address the use of symbols as speech in Stromberg v. California (1931), in which it struck down as a violation of the free speech clause of the First Amendment a California law that prohibited the display of a red flag as a sign of opposition to government. In writing the opinion for the Court, Justice Oliver Wendell Holmes Jr. asserted that red flags were a part of free political discussion, and were thus entitled to First Amendment protection. In West Virginia State Board of Education v. Barnette (1943), the Court held that compulsory flag salute laws were unconstitutional because they amounted to compelled symbolic speech. In Tinker v. Des Moines Independent Community School District (1969), the Court held that black armbands worn by students to protest the Vietnam War were symbolic speech, and that this conduct was entitled to First Amendment protection. In Texas v. Johnson (1989), the court recognized as speech the burning of an American flag and held that the state could not prohibit this action, either for its message or for its alleged, but unsubstantiated, tendency to cause breaches of the peace.
In determining whether expressive conduct deserves First Amendment protection, courts often apply a two-part test taken from the Supreme Court’s decisions in Spence v. Washington (1974) and Texas v. Johnson. First, the speaker must intend to convey a particular message. Second, the message must be one likely to be understood by listeners. Some expressive conduct involves actions alone, with no use of recognizable symbols. During the Civil Rights movement, protesters used tactics such as sit-ins and freedom rides to show—not just tell—the unfairness of segregation. In Garner v. Louisiana (1961), sit-in participants were arrested for disturbing the peace. Chief Justice Earl Warren argued for the majority that there was not enough evidence to convict the protesters. Justice Harlan, in concurrence, pointed out that the sit-in behavior was speech, and as such could not be curtailed by a general breach-of-peace prohibition. In United States v. O’Brien (1968), the Court, addressing a law prohibiting the burning of a draft card, disaggregated this conduct into its expressive and nonexpressive elements. The Court recognized that burning a draft card was expressive but pointed out that there were valid reasons, unrelated to expression, why the state had an interest in preventing it. As a result of this opinion, some restrictions on the time, manner, and place of the conduct are permitted as long as they have a minimal impact on the expressive part of the conduct. See also Breach of the Peace Laws; Compelling State Interest; Draft Card Mutilation Act of 1965; Flag Desecration; Garner v. Louisiana (1961); Spence v. Washington (1974); Street v. New York (1969); Stromberg v. California (1931);Texas v. Johnson (1989);Tinker v. Des Moines Independent Community School District (1969); United States v. O’Brien (1968);West Virginia State Board of Education v. Barnette (1943).
Katrina Hoch
furthe r reading Alfange, Dean. “Free Speech and Symbolic Conduct:The Draft-Card Burning Case.” Supreme Court Review 1968 (1968). Goldstein, Robert Justin. Flag Burning and Free Speech:The Case of Texas v. Johnson. Lawrence: University Press of Kansas, 2000. Nimmer, Melville.“The Meaning of Symbolic Speech under the First Amendment.” UCLA Law Review 21 (1973).
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
Facial Challenges A facial challenge contends that a government law, rule, regulation, or policy is unconstitutional as written—that is, on its face.This challenge differs from an as-applied challenge in that it invalidates a law for everyone—not just as that law is applied to the particular litigant challenging it. A facial challenge often asserts that a law is either unconstitutionally overbroad or unconstitutionally vague. A First Amendment facial challenge asserting overbreadth contends that the law sweeps too far and prohibits expression that should be protected, in addition to expression that can be proscribed. A First Amendment–based facial challenge asserting vagueness contends that the law fails to define key terms so that individuals do not know whether certain expression will constitute a violation of the law. Classic examples of laws suffering from facial overbreadth and vagueness are the provisions of the Communications Decency Act of 1996 that criminalized the online transmission of “patently offensive” and “indecent” speech on the Internet. In Reno v. American Civil Liberties Union (1997), the Supreme Court struck the provisions down on their face. In recent years, if the Court has struck down a law on First Amendment grounds, it has accepted the argument that the law is facially unconstitutional. If the Court has rejected a facial challenge, it often has asserted that litigants can prevail only by showing, in an as-applied challenge, that their speech was discriminated against. According to legal scholar David H. Gans (2005), “many of the most hotly contested constitutional questions turn on the choice between sustaining a facial challenge or requiring affected parties to bring a series of as-applied challenges” (p. 1334).
Some commentators have called for a fresh look at the notion of classifying a challenge as as-applied or facial. Harvard Law School professor Richard H. Fallon Jr. (2000) has concluded that “there is no single distinctive category of facial, as opposed to as-applied, litigation. Rather, all challenges to statutes arise when a particular litigant claims that a statute cannot be enforced against her” (p. 1324). See also As-applied Challenges; Overbreadth; Reno v. American Civil Liberties Union (1997);Vagueness.
David L. Hudson Jr.
furthe r reading Dorf, Michael C. “Facial Challenges to State and Federal Statutes.” Stanford Law Review 46 (1994): 235–295. Fallon, Richard H., Jr. “As-Applied and Facial Challenges and ThirdParty Standing.” Harvard Law Review 113 (2000): 1321–1370. Gans, David H. “Strategic Facial Challenges.” Boston University Law Review 85 (2005): 1333–1388.
Fairness Doctrine A policy of the Federal Communications Commission (FCC), the fairness doctrine attempted to ensure that broadcast stations’ coverage of controversial issues was balanced and fair. However, many journalists opposed the policy as a violation of the First Amendment rights of free speech and press. The fairness doctrine took effect shortly after the creation of the Federal Radio Commission (FRC) in 1927 and was continued by its successor, the FCC, until the late 1980s. In its 1929 Great Lakes Broadcasting Co. decision, the FRC asserted that the “public interest requires ample play for the
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free and fair competition of opposing views, and the Commission believes that the principle applies to all discussions of issues of importance to the public.” During this period, licensees were obliged not only to cover fairly the views of others, but also to refrain from expressing their own views. The fairness doctrine grew out of the belief that the limited number of broadcast frequencies available compelled the government to ensure that broadcasters did not use their stations simply as advocates of a single perspective. In its 1940 Mayflower Broadcasting Corp. decision, the FCC abandoned the restriction on expressing personal views, and the modern fairness doctrine was born. In the ensuing decade, the FCC laid out a twofold duty for broadcasters under the fairness doctrine. First, broadcasters were required to cover adequately controversial issues of public importance. Second, such coverage must be fair by accurately reflecting opposing views, and it must afford a reasonable opportunity for discussing contrasting points of view. The commission later obligated stations to actively seek out issues of importance to their communities and air programming that addressed those issues. The fairness doctrine gained greater legitimacy from the 1969 Supreme Court decision in Red Lion Broadcasting Co. v. Federal Communications Commission. In that decision, the Court ruled that a Pennsylvania broadcasting station was required to grant airtime for a response to an author who had been personally attacked by Rev. Billy James Hargis during a fifteen-minute “Christian Crusades” segment broadcast by the station. The FCC later promulgated rules dealing with stations’ obligations after they broadcast personal attacks, including those made during political editorializing. In 1971 the commission began requiring stations to report efforts to address issues of concern to the community. Reporters argued that they, not the FCC, should make decisions about balancing the fairness of stories. They believed that the fairness doctrine had a chilling effect by deterring them from tackling controversial issues rather than worrying about whether they could meet the FCC’s fairness standards. By the 1980s, the fairness doctrine was losing clout.The deregulatory nature of the Reagan administration and the technological advances that were rendering scarcity arguments moot combined to pressure the FCC to abandon the doctrine. In 1987 the FCC formally abolished it.
See also Federal Communications Commission; Federal Radio Commission; Red Lion Broadcasting Co. v. Federal Communications Commission (1969); Scarcity Rationale.
Audrey Perry
furthe r reading Cronauer, Adrian. “The Fairness Doctrine: A Solution in Search of a Problem.” Federal Communications Law Journal (1994): 51–77. Read, William H., and Ronald Alan Weiner. “FCC Reform: Governing Requires a New Standard.” Federal Communications Law Journal (1997): 289–325.
Fair Use Fair use is a copyright concept that allows works to be used in ways that otherwise would infringe on the copyright, but are allowed because the uses are particularly beneficial to society and not particularly harmful to the copyright owner. Fair use thus limits the rights of copyright. The Supreme Court has portrayed the concept of fair use as a way of preventing copyright protection from running afoul of the First Amendment’s guarantees of freedom of speech and press. Congress wrote the “well established” principles of fair use into law in the Copyright Act of 1976. The act articulates a four-factor balancing test to determine whether a use is a fair one: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work. In any consideration of use, a commercial application would weigh against fair use; a nonprofit, educational use would weigh in favor of fair use. Other potentially fair uses specifically mentioned in the act are “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Fair use purposes mentioned in the legislative history of the 1976 act include use in a parody, a summary with brief quotations, or reproductions by libraries or archives for preservation purposes. If a use is “transformative”—that is, it creates some new and markedly different work that benefits the public—such use may weigh in favor of fair use.The legislative history of the act contains specific guidelines as to what constitutes fair use for teaching uses of books, articles, and musical works. The nature of the protected or original work is also a factor. Fair use is more likely to be associated with use of a pub-
Faith-based Organizations and Government Aid lished work than an unpublished work. And use of a factual work such as a biography or research report is more likely to be deemed fair than is use of an original “core copyright” work such as a play or musical work. The portion used is weighed in both its total amount and in its substantiality— that is, how important the part used is to the original work. Finally, the impact of the use on the market value of the original work is weighed with an eye toward whether the new use creates some kind of substitute for the original or whether the new use is one for which the owner of the original work might expect to be compensated. Use as a criticism or commentary that prompts the public not to want to see or read the original is not considered to be market harm. See also Campbell v. Acuff-Rose Music, Inc. (1994); Copyright; Copyright Act of 1976.
Geoffrey P. Hull
furthe r reading Shelton, John L., and Bernard Timberg, eds. Fair Use and Free Inquiry: Copyright Law and the New Media. Norwood, N.J.:Ablex Publishing Corp., 1980.
Faith-based Organizations and Government Aid The U.S. government has long helped churches, religious neighborhood groups, and faith-related charities to pursue their public goals. The recent expansion of government funding for faith-based social programs, however, has sparked concerns about the constitutionality of such assistance. Although most scholars agree that the establishment clause of the First Amendment forbids government from favoring any particular faith, they differ over whether government efforts to enlist the aid of religious social service organizations threaten the healthy separation of church and state, which the establishment clause protects. Government and faith-based organizations have been partners since colonial America. The Congress that wrote the First Amendment also set aside in the Northwest Ordinance public land for churches. Presidents George Washington and Thomas Jefferson funded Christian missions for Indian tribes. Government programs for newly emancipated African Americans funneled much of their money through religious schools and social agencies. Local and state governments supported hospitals, medical clinics, orphan-
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ages, and homes for the aged operated by religious groups. Both state and federal governments have long granted tax breaks to religious institutions. By the 1990s, the perception that faith-based organizations were both more effective service providers and closer to their beneficiaries than government bureaucracies prompted Congress to enact “charitable choice” provisions. Government regulations had previously required faith-based groups to establish completely secular affiliates or to alter their religious character before receiving funding.“charitable choice” eliminated these restrictions. During the 2000 presidential campaign, both major-party candidates called for carefully tailored partnerships between government and faith-based groups. On taking office, President George W. Bush unveiled a faith-based initiative that significantly expanded opportunities for federal funding. Despite initial bipartisan support, the initiative stalled in Congress. Bush then issued a series of executive orders requiring equal treatment for religious organizations seeking federal funds, permitting them to use religious beliefs in selecting employees and methods but not in choosing clients, and barring religious worship in subsidized social programs. Funding is available through grants, contracts, and individual vouchers. By 2004, more than 10 percent of all federal grants were going to faith-based organizations. Faith-based initiatives pose several constitutional and political questions. Critics charge that the initiatives violate the establishment clause by delegating government functions to religious organizations and funding institutions whose secular and religious activities are inseparable.They fear that the religious freedoms of recipients are jeopardized by religious indoctrination. They also claim that exemptions from employment laws blur the boundary between private and government discrimination. Advocates assert that government should assist faith-based social programs as long as it does so in a nondiscriminatory fashion without any endorsement or coercion. They acknowledge that the redemptive power of religion is critical to such organizations’ effectiveness, but they are confident that these organizations distinguish between permissible social services and impermissible proselytizing. Advocates are also reassured that the government’s requirement that initiatives include secular alternatives protects beneficiaries from improper religious pressure. And they defend religiously based hiring as crucial to the success of such programs. The Supreme Court has never struck down a government-funded, faith-based social program. It upheld a federal
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construction grant to a Catholic hospital in Bradfield v. Roberts (1899), a federal grant to a faith-based counseling program for teenagers in Bowen v. Kendrick (1988), and, more recently, a series of programs involving indirect aid.The current Court is satisfied if government assistance is neutral— that is, nonreligious as well as religious organizations are equally eligible to compete for funding—and beneficiaries are offered genuine choices about where to go for assistance. Relying on the Lemon test as modified by Agostini v. Felton (1997), the Court accepts as a sufficient secular purpose combating social and economic problems. The Court does demand safeguards to prevent the diversion of public funds for religious purposes. However, it presumes that faith-based organizations will comply with government restrictions and therefore that little oversight is necessary. Meanwhile, the controversies in this area continue to surface. For example, in Hein v. Freedom from Religion Foundation (2007), the Court dismissed a challenge to the charitable choice initiatives based on a lack of standing. That said, the battle over government aid to faith-based organizations will likely be more political than legal.The public supports such assistance, but important constituencies in both political parties are suspicious of it. Secular opponents fear that these programs impede social progress. Sectarian opponents fear that faith-based groups’ alliance with secular authority will trivialize or dilute religion’s message. See also Agostini v. Felton (1997); Bowen v. Kendrick (1988); Bradfield v. Roberts (1899); Hein v. Freedom from Religion Foundation (2007); Jefferson, Thomas; Separation of Church and State.
Timothy J. O’Neill
furthe r reading Black, Amy, Douglas Koopman, and David Ryden. Of Little Faith. Washington, D.C.: Georgetown University Press, 2004. Fowler, Robert Booth, et al. Religion and Politics in America: Faith, Culture, and Strategic Choices. 3d ed. Boulder, Colo.:Westview Press, 2004. Monsma, Stephen. When Sacred and Secular Meet. Lanham, Md.: Rowman and Littlefield, 1996.
False Light False light invasion of privacy is a cause of action for portraying an individual unflatteringly in words or pictures as someone or something that person is not. Some states recognize the concept by either common law or statute, although several states have explicitly rejected it. In Time, Inc.
v. Hill (1967) and Cantrell v. Forest City Publishing Co. (1974), the Supreme Court sanctioned the claim as exempt from First Amendment protection. As defined by the Restatement (Second) of Torts (1977), an individual who publicly gives such a false impression is subject to a false light claim if two criteria are met: (1) the false impression would be highly offensive to a reasonable person, and (2) the actor knew the impression was false, or acted with a reckless disregard as to the falsity of the publicized matter and the false light in which the victim would be placed. The second criterion is referred to as “actual malice,” a concept from defamation law. In Time, Inc. v. Hill, the Supreme Court added this requirement to the “false light” tort for cases involving matters of legitimate public concern. However, this requirement was muddled somewhat by a subsequent Court case, Gertz v. Robert Welch, Inc. (1974). In this defamation case, the Court held that “actual malice” applies only to plaintiffs who are “public figures.” As a result, although most states follow the Time formulation and require “actual malice” for all matters of public concern regardless of the status of the plaintiff, some courts apply a lower standard, often negligence, to cases involving “private figures.” Unlike libel and slander, which are meant to compensate for injury to reputation, the false light tort is meant to compensate for hurt feelings.Thus a corporation cannot sue for false light. Despite the different nature of false light, some courts have refused to recognize the tort on the grounds that it is too similar to defamation—see, for example, Denver Publishing Co. v. Bueno (Colo. 2002)—while others will not allow the same plaintiff to make both defamation and false light claims—see, for example, Kapellas v. Kofman (Cal. 1969), footnote 16. Another difference between false light and defamation relates to the requirement of a false statement. Plaintiffs making both types of claims are generally required to show that the statement at issue was false, but some courts have allowed plaintiffs to make false light claims when facts were presented in such as way as to give an overall false impression. For example, in Braun v. Flynt (5th Cir. 1984), the court allowed a woman who was pictured in a men’s magazine to sue for the overall impression given by publication of her (nonexplicit) photo in such a magazine. See also Actual Malice; Cantrell v. Forest City Publishing Co. (1974); Gertz v. Robert Welch, Inc. (1974); Libel and Slander; Privacy; Public Figures and Officials;Time, Inc. v. Hill (1967).
Eric P. Robinson
Farmers Educational and Cooperative Union of America v.WDAY (1959) furthe r reading “False Light Invasion of Privacy—Cognizability and Elements.” American Law Reports, 4th ser., 57 (1987): 22. “False Light Invasion of Privacy—Defenses and Remedies.” American Law Reports, 4th ser., 57 (1987): 244. Lasswell, Bryan R. “In Defense of False Light: Why False Light Must Remain a Viable Cause of Action.” South Texas Law Review 34 (1993): 149–179. Ray, Nathan E. “Note: Let There Be False Light: Resisting the Growing Trend against an Important Tort.” Minnesota Law Review 84 (2000): 713–751. Zimmerman, Diane Leenheer. “False Light Invasion of Privacy: The Light That Failed.” New York University Law Review 64 (198): 364–453.
Fanny Hill Probably the most famous pornographic novel in English literature is John Cleland’s Memoirs of a Woman of Pleasure, published in 1748 and 1749. It is the first-person narrative of a young woman’s adventures as a prostitute after losing her virginity to a gentleman who claimed to be in love with her. The novel describes scenes of lesbianism, flagellation, group sex, and male homosexuality, emphasizing throughout the size and appearance of the male genitalia. Some seventy years later, illustrations from later reprints of the book led to one of the earliest obscenity cases in the United States. Cleland reportedly sold the copyright to the book for twenty guineas to escape debtor’s prison, and the publisher, Ralph Griffiths, made a profit large enough to allow him to launch The Monthly Review, one of the first major literary periodicals in England. Although Memoirs was published anonymously and with a pseudonymous imprint, Cleland and Griffiths were prosecuted in Britain for obscenity in November 1749; they managed, however, to avoid punishment. In 1750 Griffiths released an expurgated edition of the book entitled The Memoirs of Fanny Hill; the novel went through frequent illicit reprints (many of them illustrated) over the next two centuries. In one of the earliest obscenity cases in the United States, Commonwealth v. Holmes (1821), the Supreme Court of Massachusetts upheld the conviction of individuals who had shown an illustration from the book. Almost a 150 years later, Putnam’s 1963 publication of the book led to the decision in Memoirs v. Massachusetts (1966), in which the Supreme Court ruled the book not to be obscene and articulated a legal standard for determining when material crossed the line into obscenity. Fanny Hill belongs to the same literary historical moment as Samuel Richardson’s Clarissa (1747–1748),Tobias Smollett’s Roderick Random (1748), and Henry Fielding’s Tom Jones (1749).
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See also Censorship; Memoirs v. Massachusetts (1966); Obscenity and Pornography.
Simon Stern
furthe r reading Epstein, William H. John Cleland: Images of Life. New York and London: Columbia University Press, 1974.
Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc. (1959) The Supreme Court decision in Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc., 360 U.S. 525 (1959), may not mention the First Amendment, but it addressed an important libel issue, even though it came years before the Court’s major decision on libel in New York Times Co. v. Sullivan (1964). A North Dakota radio-television station had permitted a U.S. senatorial candidate to speak and another to broadcast an uncensored reply to fulfill the requirements of the Communications Act of 1934 to allow a right of reply.The North Dakota Supreme Court decided that the first candidate could not sue the station for alleged libel, and Justice Hugo L. Black, speaking for five members of the U.S. Supreme Court, agreed. Black observed that Section 315 of the Communications Act barred a station from censoring political speeches. Black interpreted this prohibition to apply to “any examination of thought or expression in order to prevent publication of ‘objectionable’ material,” and he argued that past precedents backed this interpretation. He pointed out that it would be difficult for a station to determine quickly whether materials in such speeches were or were not libelous, and that “erroneous decisions by a station could not be corrected by the courts promptly enough to permit the candidate to bring improperly excluded matter before the public.” He did not find it fair to require stations to provide time for response and then to hold them liable for the consequences. The statute’s legislative history supported this conclusion, he noted. He further believed it necessary to abrogate any state laws that might have a different intent absent a clear statement of congressional intent on the subject. Justice Felix Frankfurter authored a dissent on behalf of four justices, who essentially argued that the Communi-
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cations Act of 1934 was designed to bar federal, but not state, libel prosecutions. See also Black, Hugo L.; Censorship; Communications Act of 1934; Federal Communications Commission; Frankfurter, Felix; Libel and Slander; New York Times Co. v. Sullivan (1964); Right to Respond.
John R.Vile
furthe r reading Melcher, Douglas C. “The D.C. Circuit Review—August 1996–July 1997: Chapter: Communications Law.” George Washington Law Review 66 (1998): 842–849.
Federal Anti-Obscenity Act (1873) See Comstock Act of 1873
Federal Bureau of Investigation Although it did not get its present name until 1933, the Federal Bureau of Investigation (FBI) was created in 1908 as an arm of the U.S. Department of Justice. The bureau enforces federal laws, but not without considerable controversy about its covert activities infringing on First Amendment rights.The FBI has a long history of monitoring critics of the government. In undertaking activities that some observers dub “official repression” and others call “political policing,” the bureau conducts surveillance of radicals and dissidents.Yet covert government surveillance of otherwise lawful speech poses a challenge to First Amendment freedoms of speech, press, association, and assembly. The FBI began keeping records on so-called subversives during the first red scare, from 1917 to 1920, when U.S. law enforcement officials arrested several thousand citizens and immigrants for their political activities. By the early 1920s, an estimated 450,000 Americans were listed in the FBI’s political files. As the nation emerged as a leading industrial and world power, spying on Americans became an institutional feature of U.S. politics.The COINTELPRO (Counter Intelligence Program) era, which lasted from 1956 to 1971, witnessed the greatest abuse of constitutional rights as nearly one million intelligence investigations were opened on Americans. Under J. Edgar Hoover’s leadership (1935– 1972), the FBI operated with autonomy in the government, with virtually no oversight by Congress or the Justice
Department. Hoover supplied political leaders and the media with information from secret files to fight movements spawned by civil rights, trade union, and anti-war groups. The bureau tried to weaken and silence political entities it disliked, restricting the free expression of ideas and taking a leading role in promoting anticommunism. Secrecy was so paramount that for many years the bureau maintained a special “Do Not File” records system that remained unknown to outsiders. In 1976 the Senate’s Church Committee (named after its chair, Democratic senator Frank D. Church of Idaho) concluded that COINTELPRO was a “sophisticated vigilante program” aimed at undermining the First Amendment.The bureau wiretapped phones and opened mail without warrants, and it placed more than fifty thousand human informers or infiltrators inside political groups. For example, by the 1960s the bureau had recruited an estimated 5–10 percent of the membership of the Communist Party of the United States to supply information about meetings, finances, literature, and organizing. In some organizations, informers rose to positions of leadership, affecting the content of speech, and some became provocateurs to discredit groups. Overall, the bureau admitted to about 2,300 covert disruptive acts conducted against Americans, including initiating warrantless break-ins, mailing anonymous and forged letters, spreading misinformation, and disrupting the growth of organizations. In a few cases, the FBI helped to falsely arrest subjects. For example, Black Panther Party leaders Geronimo ji Jaga (Pratt) and Dhoruba Bin Wahad spent many years in prison before being exonerated. They later sued the FBI and won substantial damage awards. Other victims of COINTELPRO used the Freedom of Information Act (1966) to obtain declassified copies of their FBI files. After the reform of the intelligence community in the late 1970s, the FBI shifted the hunt for subversives to the hunt for terrorists. The definition of domestic terrorists expanded over time to include peaceful protestors of many different backgrounds.The FBI monitored the left far more than the right, reflecting a political bias, but spying on Americans was conducted under both Democratic and Republican presidents. President Jimmy Carter reacted to the abuses of Watergate by trying to rein in the bureau, but President Ronald Reagan revived aggressive investigations in the 1980s of the nuclear freeze movement and opponents of U.S. policy toward Nicaragua and El Salvador. After the bombing of the Murrah Federal Building in Oklahoma City in 1995, the FBI vastly increased its investi-
Federal Communications Commission gation of right-wing groups. Another dramatic increase in spying occurred after the September 11, 2001, al-Qaida attacks on the United States. As the war on terrorism became the number one law enforcement priority, surveillance of communications was extended to the telephone, mail, fax, computers, and the Internet. In 2005 more than 270,000 people were listed in a FBI database on terrorism, including a large number associated with domestic groups, such as radical environmentalists, neo-Nazi white supremacists, Islamic groups, and Arab American religious and political organizations. Despite the expansion of protected political speech during the past fifty years, FBI monitoring of political expression has continued on a large scale. Political policing has undermined the First Amendment, creating a “chill” in politics that restricts the range of political speech and damages the democratic deliberative process. When the bureau photographs or videos the participants in protests and demonstrations, conducts official interviews to intimidate activists, or calls them before grand juries, it may deter legal free expression as well as illegal actions. Aided by the USA Patriot Act of 2001, the FBI continues to upset civil libertarians and others in its conduct of terrorism-related investigations because one can become a “person of interest” merely by associating with the subject of an investigation. For example, the FBI has investigated Americans who subscribe to radical newspapers, and has even been known to seek the library records and inspect the books that suspects read. It can open an investigation on a group based on the speech of only one of its members. Because the threshold used to monitor suspects has remained low, the FBI has amassed large files on such critics as the American Civil Liberties Union. Meantime, congressional oversight has often lagged because of the FBI’s refusal to open its secret files for scrutiny. See also American Civil Liberties Union; Chilling Effect; Communist Party of the United States; Freedom of Information Act of 1966; Hoover, J. Edgar; Palmer, A. Mitchell; Red Scare; USA Patriot Act of 2001.
Ivan Greenberg
furthe r reading Churchill, Ward, and Jim Vander Wall. The COINTELPRO Papers: Documents from the FBI’s Secret Wars against Dissent in the United States. Boston: South End Press, 1990. Cunningham, David. There’s Something Happening Here: The New Left, the Klan and FBI Counterintelligence. Berkeley: University of California Press, 2004.
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Dempsey, James X., and David Cole. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. New York: Free Press, 2002. Garrow, David. The FBI and Martin Luther King, Jr.: From “Solo” to Memphis. New York:W. W. Norton and Co., 1981. O’Reilly, Kenneth. “Racial Matters”: The FBI’s Secret Files on Black Americans, 1960–1972. New York: Free Press, 1988. Powers, Richard Gid. Broken: The Troubled Past and Uncertain Future of the FBI. New York: Simon and Schuster, 2004. Price, David H. Threatening Anthropology: McCarthyism and the FBI’s Surveillance of Activist Anthropologists. Durham, N.C.: Duke University Press, 2004. Robbins, Natalie. Alien Ink: The FBI’s War on Freedom of Expression. New York:William Morrow, 1992. Stone, Geoffrey R. Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism. New York:W. W. Norton and Co., 2004. Theoharis, Athan G. The FBI and American Democracy: A Brief Critical History. Lawrence: University Press of Kansas, 2004. Theoharis, Athan G., and J. S. Cox. The Boss: J. Edgar Hoover and the Great American Inquisition. Philadelphia: Temple University Press, 1988.
Federal Communications Commission The Federal Communications Commission (FCC) is an independent regulatory government agency established by the Communications Act of 1934. The act created a seven-person board (reduced to five in 1983) charged with developing and regulating a rapid, efficient, nationwide communications system. The members of the commission are appointed by the president, subject to the approval of Congress, and are headed by a chair appointed by the president but limited to a five-year term. At least one member of the board must be from a different political party. The Communications Act of 1934 brought together two communications industries not previously linked: common carriers, such as telecommunications (in the 1930s these took the form of utilities such as railroads and telegraph), and content carriers, such as the broadcast media. Common carriers were a neutral means of transporting individuals or information.These “natural monopolies” benefited the public by providing inexpensive, universal service.The broadcast media, primarily radio and later television and cable, were seen not only as content carriers, but also, because of the nature of the airwaves (like public property such as water), as embodying a public interest. However, the scarcity of frequencies led to a monopoly-like condition that required regulation. In the ambiguous language of the 1934 act, the FCC could regulate in the “public interest necessity and
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convenience.” The FCC has had a significant impact on questions of freedom through regulation of the media. After an era of regulation of monopolies and quasi monopolies, the FCC changed gears during the Reagan administration to become a conduit for deregulation of both common carriers and the broadcast media. During the early years of the FCC, it largely limited its regulation of telephone services to profits. In time, however, the agency began to promote competition. In 1982 the telephone company MCI successfully challenged AT&T’s monopoly.The courts ruled that there was no compelling public interest in a longdistance monopoly.The onset of this deregulatory mood led to the breakup of AT&T into eight separate companies in 1984. Recent regulatory issues have centered on the entry of telephone companies into other communications services. In 1986 the FCC removed restrictions on their foray into computer communications, and the Telecommunications Act of 1996 allowed telephone companies to enter the cable communications market by relaxing cross-ownership limits. Though a “common carrier,” telephone companies could offer content services. Because communications frequencies are scarce and the airways are public by nature, the FCC has been given (and has taken) some broad powers in regulating the broadcast media. In its early years, the FCC enforced limits on ownership, chain broadcasting, and content regulation. Among other things, it ordered the breakup of the NBC Blue radio network because of excessive monopoly control. In National Broadcasting Co. v. United States (1943), the Supreme Court upheld the breakup and ruled that, because of the scarcity of frequencies, the FCC could regulate broadcasting in the “public interest, convenience and necessity.” The regulation of ownership has, however, loosened in recent years, because the FCC, in a deregulatory mood, has allowed concentration of station ownership. The Telecommunications Act of 1996 raised the limits on station ownership and in several amendments since increased the limits and loosened the rules on media cross-ownership. However, these developments have not been without controversy. Consumer and other interest groups have protested that the increasing corporate concentration of power violates the public interest and excludes minorities from ownership. In October 2006, it was revealed that the FCC’s own report showing decreased ownership by minorities and women stemming from the concentration had been suppressed. Content regulation has also been justified through the “public interest, convenience and necessity” clause. The
FCC’s so-called fairness doctrine required broadcasters, as a condition of monopoly over frequencies, to provide programming in the public interest, to discuss controversial issues, and to give time to opponents for prevailing views. Some critics contend that the FCC has fallen short on content regulation. Driven by commercial interests, it often has failed adequately to insist on the presentation of diverse viewpoints. By contrast, free market champions often argue that FCC regulation stifles diversity by restricting competition. The fairness doctrine was challenged in 1969 in Red Lion Broadcasting Co. v. Federal Communications Commission, but it was upheld on the grounds of frequency scarcity. However, in 1984, during the deregulatory era, the FCC held that scarcity was no longer a consideration, and it formally abolished the doctrine in 1987. Other arenas for public interest programming are the Public Broadcasting System (PBS) and public access. PBS has been hampered both by conservative critics who decry its “liberal” bias and by its capture by corporate sponsors who eschew any large-scale criticism of existing social arrangements. Indecent or obscene speech has been an important regulatory content issue.The freedom of expression promised in the First Amendment has been limited by the proliferation of television and radio outlets accessible by young children. During the 1960s and 1970s, fraught with cultural change, obscene speech became an issue on radio and television, culminating in the decision in Federal Communications Commission v. Pacifica Foundation (1978) that allowed the FCC to limit the broadcasting of indecent speech—namely comedian George Carlin’s skit “Seven Words You Can Never Say on Television.” In recent years, as the cultural climate has become more conservative, enforcement has increased. Indeed, although the FCC has always played a role in the cultural conflicts of its time, it has been an important player in the so-called culture wars since the 1980s.The year 2004 was a high mark in fines, beginning with the singer Janet Jackson’s “wardrobe malfunction” and continuing concerns about shock jocks such as Howard Stern. Attempts to regulate programming include the family hour, the voluntary ratings system, and children’s programming requirements. In 2005 Congress passed the Broadcast Decency Enforcement Act, which empowered the FCC to increase fines for indecent programming tenfold. The FCC’s power to regulate indecent programming continues to engender controversy, as the agency faces off against CBS and other media entities in high-profile First Amendment lawsuits.
Federal Communications Commission v. League of Women Voters of California (1984) As Congress considered legislation in 2006 allowing telephone companies to offer cable broadband services and to limit or eliminate local franchising, the FCC remained in the middle of controversies on Internet neutrality and the nature of public interest obligations in a deregulated environment. See also Broadcast Decency Enforcement Act of 2005; Communications Act of 1934; Fairness Doctrine; Federal Communications Commission v. Pacifica Foundation (1978); Media Concentration; National Broadcasting Co. v. United States (1943); Public Television; Red Lion Broadcasting Co. v. Federal Communications Commission (1969);Telecommunications Act of 1996.
Brian Caterino
furthe r reading Aufderheide, Patricia. Communications Policy and the Public Interest. New York: Guilford Press, 1999. Bagdikian, Ben H. The New Media Monopoly. Rev. and updated ed. Boston: Beacon Press, 2004. Besen, Stanley M.,Thomas G. Krattenmaker, A. Richard Metzger, and John R.Woodbury. Misregulating Television: Network Domination and the FCC. Chicago: University of Chicago Press, 1984. Kellner, Douglas. Television and the Crisis of Democracy. Boulder, Colo.: Westview Press, 1990. Linder, Laura. Public Access Television: America’s Electronic Soapbox. Westport, Conn.: Praeger, 1999. McChesney, Robert W. Telecommunications, Mass Media and Democracy: The Battle for U.S. Broadcasting, 1928–1935. New York: Oxford University Press, 1993. Paglin, Max D., ed. A Legislative History of the Communications Act of 1934. New York: Oxford University Press, 1989. Paglin, Max D., Joel Rosenbloom, and James R. Hobson, eds. The Communications Act: A Legislative History of the Major Amendments, 1934–1996. Silver Springs, Md.: Pike and Fischer, 1999. Zarkin, Kimberly A., and Michael J. Zarkin. The Federal Communications Commission Front Line in the Culture and Regulation Wars. Westport, Conn.: Greenwood Press, 2006.
Federal Communications Commission v. League of Women Voters of California (1984) Editorializing by public broadcasting stations was the issue facing the Supreme Court in Federal Communications Commission v. League of Women Voters of California, 468 U.S.364 (1984). The Court ruled that the section of the Public Broadcasting Act of 1967 that barred noncommercial educational broadcasting stations receiving grants from the Corporation for Public Broadcasting from editorializing violated the First Amendment. Congress enacted the 1967 Public Broadcasting Act to encourage the development of commercial-free radio and
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television programming. Part of the act created the Corporation for Public Broadcasting, a nonprofit entity entrusted with distributing federal money to noncommercial stations. Section 399 of the act barred any station that received money under it from engaging in “editorializing.” Pacifica Corporation, which owned several noncommercial stations, along with a listener and the League of Women Voters of California, challenged the restriction as a violation of the First Amendment. A district court ruled in favor of the First Amendment challenge, and the Supreme Court agreed. Writing for the Court in a 5-4 decision, Justice William J. Brennan Jr. ruled that Section 399 was an attempt to directly regulate the content of speech that was at the heart of the First Amendment. Moreover, he argued that efforts to suppress editorial speech deprived listeners of commentary about matters of public importance. The government had contended that Section 399 was needed to prevent the government from interfering with speech and to prevent the public from becoming confused and assuming that the editorializing was the government speaking.The majority also rejected these arguments, asserting that the law was over- and underinclusive in that it suppressed speech from private groups and on topics that had nothing to do with the government. Finally, the Court rejected the claim that Section 399 was constitutional because it was a valid use of the government’s spending power to decide how to disburse its money. Overall, Federal Communications Commission v. League of Women Voters of California affirmed that the government may not use public funds to suppress or encourage the free speech rights of others. Although Legal Services Corp. v. Velazquez (2001) somewhat supported this principle, decisions in Rust v. Sullivan (1991) and National Endowment for the Arts v. Finley (1998) allowed the government to appropriate money in order to limit the specific viewpoints for which it was paying. See also Brennan,William J., Jr.; Legal Services Corp. v.Velazquez (2001); National Endowment for the Arts v. Finley (1998); Rust v. Sullivan (1991).
David Schultz
furthe r reading Kramer, Daniel. The Price of Rights:The Courts, Government Largesse, and Fundamental Liberties. New York: Peter Lang Publishing, 2004.
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Federal Communications Commission v. Midwest Video Corp. (1979)
See also Communications Act of 1934; Federal Communications Commission;White, Byron R.
Although the Supreme Court based its decision in Federal Communications Commission v. Midwest Video Corp., 440 U.S. 689 (1979), on the Communications Act of 1934, its interpretation of the law to prohibit cable television operators from being required to act as “common carriers” was itself designed to promote the journalistic freedom of cable station owners. In 1976 the Federal Communications Commission (FCC) adopted rules requiring cable television systems with 3,500 or more subscribers to develop a minimum twentychannel capacity and to make some channels available to other parties, including public, educational, local government, and leased-access users.These rules further denied the right of the cable operators to regulate the content of the programming and limited the fees they could charge. Although the FCC had upheld these rules when they were challenged, the Eighth Circuit Court of Appeals had decided that the rules were beyond the FCC’s jurisdiction. The Supreme Court affirmed. In the opinion for the Court, Justice Byron R. White observed that the Communications Act, which served as the basis for the FCC’s regulatory authority, had been applied to cable television, even though the act did not specifically address that medium, which was not then in existence. In United States v. Southwestern Cable Co. (1968), the Court had narrowly agreed to FCC regulations requiring cable companies to carry the signals of local stations into whose areas they broadcast, but had warned that the commission was straining “the outer limits of its jurisdiction.”White thought the FCC had exceeded these boundaries in this case by interfering with “the journalistic freedom of broadcasters” and with the intention of the Communications Act of 1934 that broadcasters not be considered “common carriers.” White observed that “Congress has restricted the Commission’s ability to advance objectives associated with public access at the expense of the journalistic freedom of persons engaged in broadcasting.”White made it clear, however, that his opinion rested on statutory rather than constitutional grounds. Justice John Paul Stevens, in a dissent joined by Justices William J. Brennan Jr. and Thurgood Marshall, indicated that he thought the majority had misread the statute in question and urged deference to the FCC.
Mimelman, Andrew A. “Of Common Carriage and Cable Access: Deregulation of Cable Television by the Supreme Court.” Federal Communications Law Journal 34 (1982): 167–192.
John R.Vile
furthe r reading
Federal Communications Commission v. National Citizens Committee for Broadcasting (1978) In Federal Communications Commission v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978), an eightjustice Supreme Court unanimously upheld regulations issued by the Federal Communications Commission (FCC) that prospectively barred the licensing or transfer of licenses of media companies that included both a radio or television station and a daily newspaper in the same community. The regulations did, however, permit the “grandfathering” of such arrangements in towns where they were already in place.The first part of this decision affirmed, while the second part reversed, a decision by the District of Columbia Circuit Court of Appeals. Justice William J. Brennan Jr. did not participate. Writing for the Court, Justice Thurgood Marshall traced federal regulations back to the Radio Act of 1927 and the Communications Act of 1934, reviewing the origins of licensing requirements and pointing out that the FCC had proceeded from the belief that diversification of media ownership served the public by promoting “diversity of program and service viewpoints” and “by preventing undue concentration of economic power.” Marshall then examined the statutory and constitutional issues. The law entrusted the FCC with the power to further “the First Amendment goal of achieving ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Citing Buckley v. Valeo (1976), a campaign finance case, for the proposition that “the broadcast media pose unique and special problems not present in the traditional free speech cases,” Marshall observed that “the physical limitations of the broadcast spectrum are well known,” and that “in light of this physical scarcity, Government allocation and regulation of broadcast frequencies are essential.” Marshall did not believe this goal was so important, however, that the FCC could not take other considerations into
Federal Communications Commission v. Pacifica Foundation (1978) account when reviewing existing licensing arrangements. He noted that the FCC had the right to take the “past performance” of existing radio-newspaper combinations into account and the possible burdens that such breakups might produce.The FCC was obligated to try to provide “the best practicable service to the public,” and could legitimately consider “diversification of ownership to be a factor of less significance when deciding whether to allow an existing licensee to continue in operation than when evaluating applicants seeking initial licensing.” See also Buckley v. Valeo (1976); Federal Communications Commission; Marshall, Thurgood; Media Concentration; Scarcity Rationale.
John R.Vile
furthe r reading Bondor, Todd. “Comment: A ‘Better’ Marketplace Approach to Broadcast Regulation.” Federal Communications Law Journal 36 (1984): 27–68.
Federal Communications Commission v. Pacifica Foundation (1978) In Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court allowed the government to regulate indecent speech over the broadcast medium, and it reaffirmed the notion that the government has a freer hand to regulate the broadcast medium than other forms of media. The case began in October 1973 when a man, who was riding in a car with his minor son, heard an afternoon radio broadcast of comedian George Carlin’s “Filthy Words” monologue. The man filed a complaint with the Federal Communications Commission (FCC), contending that minors should not be exposed to such profane and indecent comments. The FCC agreed and issued an order in February 1975 pointing out that the Pacifica Foundation, which owned the New York radio station that broadcast Carlin’s monologue, could have been subjected to administrative sanctions.The FCC did not impose formal sanctions, but placed a letter in the station’s file that could be used to enhance future punishments. The commission determined that “the language as broadcast was indecent and could be prohibited by 18 U.S.C. section 1464,” which enjoins the radio broadcast of “obscene, indecent or profane” speech.
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Pacifica appealed to the District of Columbia Circuit Court of Appeals, which ruled 2-1 that the FCC had engaged in improper censorship. The FCC then appealed to the Supreme Court, which ruled in its favor 5-4. In his opinion for the Court, Justice John Paul Stevens rejected Pacifica’s statutory and constitutional challenges.The statutory challenges centered on whether 47 U.S.C. section 326 authorized the prohibition of indecent speech and whether 18 U.S.C. section 1464 reached indecent speech or simply obscenity. Stevens concluded that the statutory language empowered the FCC to regulate indecent speech. Stevens characterized the constitutional issue as “whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances.” Stevens reasoned that the government had greater power to regulate the sexual speech at issue in this case for at least two reasons based on content and context. First, the sexual speech at issue in this case had lower value and was not entitled to as much protection as political speech. Second, the speech took place in the broadcast medium that “has received the most limited First Amendment protection.” He reasoned that the broadcast medium was “uniquely accessible to children,” and he emphasized the indecent speech was broadcast during daytime hours. Justice Lewis F. Powell Jr., joined by Justice Harry A. Blackmun, concurred and agreed with much of Stevens’s analysis except the proposition that the First Amendment allowed the government to decide that certain forms of speech are more “valuable” than others. Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, dissented vehemently, accusing the majority of “misapplication of fundamental First Amendment principles.” Brennan contended that if the First Amendment protected Robert Paul Cohen from wearing a jacket bearing the words “Fuck the Draft” in a California courthouse, at issue in Cohen v. California (1971), then it should also protect the radio station in this instance. Brennan criticized the plurality for allowing the suppression of nonobscene speech that adults and older minors should be able to listen to if they wished. He also accused the majority of failing to appreciate “cultural pluralism”: “It is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain.” Justice Potter Stewart, joined by Justices Byron R. White, Brennan, and Marshall, dissented on statutory grounds. Stewart argued that the prohibition in 18 U.S.C. section 1464 against “obscene, indecent or profane language” should
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be limited to reaching just obscene expression, as the Court had done with a similar federal statute in Hamling v. United States (1974). In 2008 the Court would revisit the issue of broadcast indecency in Federal Communications Commission v. Fox Television Stations. See also Carlin, George; Cohen v. California (1971); Hamling v. United States (1974); Indecency and the Electronic Media; Obscenity and Pornography; Stevens, John Paul.
David L. Hudson Jr.
furthe r reading Hilliard, Robert, and Michael C. Keith. Dirty Discourse: Sex and Indecency in American Radio. Ames: Iowa State Press, 2003. Lipschultz, Jeremy. Broadcast Indecency: FCC Regulation and the First Amendment. Newton, Mass.: Focal Press, 1996.
Federal Election Campaign Act of 1971 The Federal Election Campaign Act of 1971 (FECA) regulates the financing of federal election campaigns (president, Senate, and House), including the money raised and spent by the candidates pursuing those offices and by the political parties. FECA was preceded by laws regulating various aspects of federal election campaign finance.The Tillman Act of 1907 banned corporate contributions in federal elections. The Publicity Act of 1910, as amended in 1911, required disclosure by campaign committees and limited campaign spending, but the limits were struck down in Newberry v. United States (1921). The Federal Corrupt Practices Act of 1925 imposed additional disclosure requirements. Amendments passed in 1940 to the Hatch Act of 1939 limited contributions to candidates and to national party committees and imposed spending limits on party committees. And in 1947 the Taft-Hartley Act outlawed labor union contributions and purported to restrict corporate and labor spending on federal elections as well. The spending limits were largely ineffective, however, because they applied only to party committee spending and could easily be evaded.The disclosure requirements were honored more in the breach than in the observance in the absence of any meaningful enforcement mechanism. In 1971 Congress passed FECA, which limited the amount candidates could contribute to their own campaigns, limited the amount that a federal campaign could
spend on paid advertising, and expanded disclosure requirements. The new law went into effect in the 1972 presidential election, but it was overshadowed by the Watergate scandal, which led to the first and only resignation of a U.S. president, Richard M. Nixon, in 1974. The various investigations brought to light numerous campaign finance abuses, including illegal contributions from corporations, cash contributions, hidden funds controlled by the Nixon reelection committee, and favors extended to donors in exchange for large contributions. In the wake of the scandal, in 1974 Congress enacted extensive amendments to FECA.These amendments limited to $1,000 per election the amount an individual could contribute to any federal campaign and introduced limits on the amount an individual could contribute to a political party or political committee and on the amount a political committee could contribute to a candidate ($5,000 per election). The 1974 amendments also imposed a limit of $1,000 per election on independent spending by an individual or group “relative to a clearly identified candidate.” In addition, they limited the amount candidates for federal office could spend on their own campaigns and the amount parties could spend in support of candidates and on their national nominating conventions. The amendments established the Federal Election Commission (FEC) as an independent federal agency to enforce the regulatory regime, authorizing it to make rules and to investigate and impose civil penalties for violations of the law. The 1974 law also established a system of voluntary public financing for presidential campaigns under which candidates seeking the nomination of the major parties could receive from the federal government funds matching the first $250 of each contribution from an individual, if the candidates agreed to limit their overall spending in seeking the nomination. In the general election, major-party nominees could receive a substantial grant to finance their entire general election campaigns, if they agreed not to raise or spend any private contributions but to spend only the amount of the grant. In addition, the law strengthened public disclosure of campaign spending by requiring all political committees—not just campaigns or party organizations—to register and file regular reports with the FEC itemizing contributions to and expenditures by each committee. The constitutionality of the 1974 amendments was immediately challenged. In Buckley v. Valeo (1976), the Supreme Court upheld the limits on contributions, the reporting and disclosure rules, and the system of voluntary
Federal Election Commission v. Beaumont (2003) public financing for presidential campaigns, but it struck down the limits on independent expenditures, the caps on campaign spending, and the limits on what candidates could contribute to their own campaigns. As effectively rewritten by this decision, FECA served as the framework for regulating the financing of federal elections without major modification until passage of the Bipartisan Campaign Reform Act in 2002. See also Bipartisan Campaign Reform Act of 2002; Buckley v.Valeo (1976); Campaign Regulation; McConnell v. Federal Election Commission (2003);Taft-Hartley Act of 1947;Tillman Act of 1907.
Joseph E. Sandler
furthe r reading Burke, Debra. “Twenty Years after the Federal Election Campaign Act Amendments of 1974: Look Who’s Running Now.” Dickinson Law Review 99 (1995): 357–391. Corrado, Anthony. Paying for Presidents: Public Financing in National Elections. New York:Twentieth Century Fund Press, 1993. Corrado, Anthony, Thomas E. Mann, Daniel R. Ortiz, and Trevor Potter. The New Campaign Finance Sourcebook. Washington, D.C.: Brookings, 2005. Sorauf, Frank J. Inside Campaign Finance. New Haven, Conn.: Yale University Press, 1992. ———. “Politics, Experience and the First Amendment: The Case of American Campaign Finance.” Columbia Law Review 94 (1994): 1348–1368. Steele, Charles N., and Jeffrey H. Bowman. “The Constitutionality of Independent Regulatory Agencies under the Necessary and Proper Clause:The Case of the Federal Election Commission.” Yale Journal on Regulation 4 (1987): 363–392.
Federal Election Commission v. Beaumont (2003) In Federal Election Commission v. Beaumont, 539 U.S. 146 (2003), the Supreme Court ruled that First Amendment speech and the associational rights of nonprofit advocacy corporations are not violated by federal laws that bar corporations from making direct contributions to candidates for federal office. Since 1907 and the Tillman Act, federal law has prohibited corporations from making contributions or expenditures in federal elections.The ban on corporate contributions has three basic rationales. First, corporations should not be able to convert the special legal protections that allow them to attract capital into political war chests that could be funneled to legislators, corrupting them or creating the appearance of corruption. Second, individuals who pay money into a corporation should be protected from having that money used
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to support political candidates they oppose. Third, corporations should not serve as conduits for large contributions from individuals seeking to bypass other legal restrictions on their contributions. In 2000 Christine Beaumont, a North Carolina voter, joined with North Carolina Right to Life (NCRL) to sue the Federal Election Commission (FEC). NCRL is a taxexempt nonprofit advocacy corporation that provides crisis pregnancy counseling and promotes alternatives to abortion. It argued that the corporate contribution ban “clearly burdens a form of expression in which NCRL would like to engage” (direct contributions to candidates for federal office) and therefore violates the First Amendment. NCRL cited Federal Election Commission v. Massachusetts Citizens for Life (1986). In that case, the Court ruled that Massachusetts Citizens for Life (MCFL), a nonprofit corporation formed to disseminate ideas and not mass capital, posed no real threat of the kind of electoral corruption targeted by congressional regulation, and that the ban on its independent expenditures infringed on protected speech without compelling justification. The district court, as well as the Fourth Circuit Court of Appeals, ruled for Beaumont, arguing that the corporate contribution ban infringed on the NCRL’s First Amendment speech and associational rights. According to the courts, NCRL was an MCFL type of nonprofit corporation that posed no risk of “unfair deployment of wealth for political purposes.” On appeal to the Supreme Court, the government argued that the “analytical lynchpin” of Massachusetts Citizens for Life was the distinction between independent expenditures and direct campaign contributions. In this case, the Court ruled that Congress could not constitutionally bar certain nonprofit corporations from expending funds to advocate the election of candidates to federal office. But it did not extend this protection to contributions made directly to candidates for federal office. In fact, the Court has long held that prohibitions on direct corporate contributions to candidates burden First Amendment rights only minimally and serve important government interests in preventing the corruption of elections. In Beaumont, the Supreme Court ruled for the FEC, upholding the constitutionality of the ban on direct contributions even by nonprofit advocacy corporations. In a 7-2 opinion written by Justice John Paul Stevens, the Court held that contributions to candidates are at the “edges” of political expression, not at the “core.” Restrictions on political contri-
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Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001)
butions are merely “marginal” speech restrictions, and they require only a sufficiently important government interest, not a compelling one. Justices Clarence Thomas and Antonin Scalia dissented, arguing that any campaign finance regulations must be narrowly tailored to advance a compelling state interest.They argued that the ban on corporate contributions failed to meet these requirements and thus violated the First Amendment’s speech and associational protections. See also Campaign Regulation; Federal Election Commission v. Massachusetts Citizens for Life, Inc. (1986); Federal Election Commission v. National Right to Work Committee (1982); Stevens, John Paul.
Raymond B.Wrabley Jr.
furthe r reading Kerr, Robert L. “Subordinating the Economic to the Political: The Evolution of the Corporate Speech Doctrine.” Communication Law and Policy 10 (2005): 63. Woocher, Fredric D. “Beaumont v. Federal Election Commission: A PreCursor of More Important Things to Come?” Election Law Journal 2 (2003): 255–261.
Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) In Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001), sometimes referred to as Colorado Republican II, the Supreme Court upheld provisions of the Federal Election Campaign Act of 1971 (FECA) limiting direct contributions to candidates by political parties. It let stand, however, its previous decision on a FECA provision, thus confirming the right of political parties to engage in virtually unlimited independent expenditures. The litigation began with a complaint that was filed in 1986 and reached the Court in Colorado Republican Federal Campaign Committee v. Federal Election Commission, or Colorado Republican I. The Court remanded the case to the Tenth Circuit Court of Appeals to help sort out constitutional from statutory issues. In Colorado Republican II, Justice David H. Souter, writing for a Court majority, emphasized the need for limits on parties to prevent circumvention of the limits placed upon individual donors.To hold otherwise would allow individuals to contribute to political parties with the full understanding that such monies immediately would be forwarded to certain candidates. The Court took
seriously Congress’s concern and response through FECA about corruption as well as the appearance thereof. Citing Buckley v.Valeo (1976), Souter asserted that the potential for corruption made coordinated spending (involving parties and their candidates) analogous to a direct contribution. Thus, he subjected the statute to intermediate rather than strict scrutiny. “We accordingly apply . . . scrutiny appropriate for a contribution limit, enquiring whether the restriction is ‘closely drawn’ to match what we have recognized as the ‘sufficiently important’ governmental interest in combating political corruption.” With the adequacy of the governmental interest largely uncontested, Souter also found the chosen mechanism sufficiently closely drawn to survive constitutional scrutiny. The Court thus rejected a variety of alternative mechanisms suggested by the Colorado Republican Party. For example, the Republicans argued that the statute already treated earmarked funds as a direct contribution.Therefore, additional regulation was unnecessary to prevent conduit contributions.The Court responded, however, that “to treat the earmarking provision as the outer limit of acceptable tailoring would disarm any effort to limit the corrosive effects” of many in politics. The Republicans later argued that Congress should replace the limits on coordinated expenditures by parties with limits on contributions to parties. Souter disagreed with this potential prescription, stating that “there is no significant functional difference between a party’s coordinated expenditure and a direct party contribution to the candidate.” Justice Clarence Thomas wrote a dissent, joined by Antonin Scalia, Anthony M. Kennedy, and in part by Chief Justice William H. Rehnquist, arguing that the law at issue was too broad. Nonetheless, the Court majority brought some closure to this litigation. Unlike in Colorado Republican I, the court’s opinion in Colorado Republican II carried the force of a court majority. With the strength of that majority, Souter maintained the right of parties to engage in independent expenditures but upheld limits upon coordinated expenditures between political parties and their respective candidates. Colorado Republican II furthered a constitutional dialogue that continued into the court’s review of the McCainFeingold Act in McConnell v. Federal Election Commission (2003) and Federal Election Commission v. Wisconsin Right to Life, Inc. (2007). See also Buckley v.Valeo (1976); Campaign Regulation; Colorado Republican Federal Campaign Committee v. Federal Election
Federal Election Commission v. National Conservative PAC (1985) Commission (1996); McConnell v. Federal Election Commission (2003); Souter, David H.
Daniel M. Katz
furthe r reading Weinstein, James. “Campaign Finance Reform and the First Amendment: An Introduction.” Arizona State Law Journal 34 (2002): 1057–1094.
Federal Election Commission v. Massachusetts Citizens for Life (1986) In Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238 (1986), the Supreme Court found that while a publication by an anti-abortion rights group encouraging people to vote ”pro-life” violated the Federal Election Campaign Act (FECA), application of that federal statute to the MCFL contravened the First Amendment. Massachusetts Citizens for Life (MCFL), a nonprofit corporation, engaged in educational and political advocacy aimed at defending “the right to life of all human beings, born and unborn.” Its resources were derived exclusively from member donations and fund-raising activities. To further its mission, in September 1978 MCFL prepared a “Special Edition” of its periodic newsletter, encouraging people to vote “pro-life” in the upcoming primary election in Massachusetts. The newsletter featured photos of more than a dozen candidates identified as favoring the views of the organization. In response to release of the publication, several people filed a complaint with the FEC, arguing that the MCFL violated section 316 of the FECA by permitting an unauthorized expenditure of corporate funds in behalf of a political candidate. After reviewing the requirements imposed on the MCFL, including the reporting requirements and the segregated fund provision, Justice William J. Brennan Jr., for the unanimous Court, wrote that although FECA did not “remove all opportunities for independent spending by organizations such as MCFL, the avenue it leaves open is more burdensome than it forecloses.” He also noted, however, that a mere burden does not terminate the constitutional analysis. Therefore, Justice Brennan reviewed the state’s proffered interest to determine whether it was sufficiently compelling to justify the imposition. The regulation in question sought to prevent undue political influence by those who exercised control over large sums of aggregated wealth. It further
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aimed to prevent general corporate treasuries from being inappropriately diverted for political purposes. The Court concluded that the MCFL was designed to disseminate political ideas rather than to amass capital. This conclusion mitigated the concern about a diversion of funds, because the MCFL’s resources were “not a function of its success in the economic market place.” Unlike a business corporation, the MCFL was supported by those who were fully aware of its mission.And although the leadership of the MCFL may have supported an individual disfavored by the membership, “any contribution . . . involves some degree of delegation.” Brennan distinguished this case from Federal Election Commission v. National Right to Work Committee (1982), in which the Court upheld the application of section 316 to a nonprofit corporation. In his view, the MCFL was unlike the entity at issue in National Right to Work because the MCFL provided indirect expenditures, not “direct contributions to political candidates.” In short, the Court grounded its holding in three essential characteristics displayed by the MCFL. First, it was formed for the purpose of promoting political ideas. Second, it did not have shareholders.Third, it was not established by a business corporation or labor union, and it did not accept contributions from such organizations. See also Austin v. Michigan Chamber of Commerce (1990); Federal Election Commission v. National Right to Work Committee (1982); First National Bank of Boston v. Bellotti (1978).
Daniel M. Katz
furthe r reading “The Supreme Court, 1986 Term: Leading Cases.” Harvard Law Review 101 (1987): 119–250.
Federal Election Commission v. National Conservative PAC (1985) By a vote of 7-2, the Supreme Court ruled in Federal Election Commission v. National Conservative PAC, 470 U.S. 480 (1985), that a section of the Presidential Election Campaign Fund Act was unconstitutional.The section prohibited independent political action committee expenditures in excess of $1,000 in behalf of candidates who had accepted public financing for their campaigns. In the majority opinion, Justice William H. Rehnquist asserted that the type of speech practiced by independent political action committees was protected by the First
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Federal Election Commission v. National Right to Work Committee (1982)
Amendment, reasoning that limiting expenditures was, in effect, limiting speech. “Allowing the presentation of views while forbidding the expenditure of more than $1000 to present them is like allowing a speaker a public hall to express his views while denying him the use of an amplifying system.” Rehnquist used strict scrutiny to examine the speech regulation. He first asked whether the government had a compelling interest that justified circumvention of the speech.The government justified the regulation in order to prevent corruption, both realized and perceived. But Justice Rehnquist argued that the record demonstrated this risk was merely hypothetical. Moreover, even if the potential was real, the regulation was overbroad because it affected both “multimillion dollar warchests” and informal discussion groups. Justices Byron R.White and Thurgood Marshall dissented. Justice White’s comprehensive dissent took issue with Buckley v. Valeo (1976), the foundational precedent for the case. He also argued that as a precedent Buckley was ultimately irrelevant because Congress had acted in the narrowest manner possible to protect the public financing of elections. Justice Marshall’s dissent, in addition to most of Justice White’s, repudiated his previous support of Buckley. See also Buckley v. Valeo (1976); Campaign Regulation; Federal Election Commission v. National Right to Work Committee (1982); McConnell v. Federal Election Committee (2003); Rehnquist, William H.
Ryan C. Black
furthe r reading La Forge, Amanda S. “The Toothless Tiger—Structural, Political, and Legal Barriers to Effective FEC Enforcement: An Overview and Recommendations.” American University Administrative Law Journal (1996): 351–383.
Federal Election Commission v. National Right to Work Committee (1982) In Federal Election Commission v. National Right to Work Committee, 459 U.S. 197 (1982), the Supreme Court approved limits on the ability of corporations or labor organizations to solicit political action committee (PAC) contributions. Federal law allowed incorporated groups to establish PACs—called “separate segregated funds” in the law—using corporate treasury funds and to solicit PAC contributions from executives, shareholders, and members. The National
Right to Work Committee had solicited contributions for its PAC from individuals who had previously given to the group’s general account, claiming that if a donor had responded favorably to the contact earlier then that donor “qualifies as a member.” The District of Columbia Circuit Court of Appeals concluded that under prevailing First Amendment precedents—NAACP v. Button (1963) and Schaumburg v. Citizens for a Better Environment (1980)—the term member must be broadly construed to protect associational liberties. It therefore held that the National Right to Work Committee’s solicitations were legal. The Supreme Court reversed. Justice William H. Rehnquist, writing for the Court, concluded that the associational rights claimed by the group “are overborne by the interests Congress has sought to protect in enacting” the statute (2 U.S.C. 441b) prohibiting general corporate expenditures in campaigns. Congress could pass laws ensuring that corporations could not use the special advantages that come with the corporate form to “incur political debts from legislators.” Moreover, the restrictions protected against coercion of solicited individuals. The Court reasoned that these rationales properly could be extended to allow the regulation of a corporation raising funds under the federal limits from donors with a record of making past gifts. The Court observed that this specific group did not recognize members in its bylaws, and that the group’s claim that its communications were only to its members would “virtually excise from the statute the restriction of solicitation to ‘members.’ ” “Members,” the Court concluded, should have “some relatively enduring and independently significant financial or organizational attachment” to a group. After this opinion, the Federal Election Commission narrowed its regulatory definition of member in a 1993 rulemaking, so that fewer communications would fall within the exemption. But the D.C. Circuit rejected that stricter reading of the term in Chamber of Commerce v. Federal Election Commission (1995). See also Campaign Regulation; NAACP v. Button (1963); Schaumburg v. Citizens for a Better Environment (1980).
Allison Haywood
furthe r reading Brudney, Victor. “Business Corporations and Stockholders’ Rights under the First Amendment.” Yale Law Journal 92 (1981): 235–295. Mutch, Robert E. Campaigns, Congress and Courts:The Making of Federal Campaign Finance Law. Westport, Conn.: Praeger, 1988.
Federal Election Commission v.Wisconsin Right to Life, Inc. (2007)
Federal Election Commission v. Wisconsin Right to Life, Inc. (2007) In a 5-4 vote in Federal Election Commission v.Wisconsin Right to Life, Inc., 551 U.S. ___ (2007), the Supreme Court ruled that section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) was an unconstitutional violation of the First Amendment as applied to certain forms of political speech. Political speech is the core type of speech protected by the First Amendment. However, both Congress and the courts have also recognized that political activities and speech by certain actors, such as labor unions and corporations, may receive less protection than that offered to individuals because of the potential of labor unions and corporations to corrupt the political process. Since 1907 and passage of the Tillman Act, which was followed in 1947 by the Taft-Hartley Act, it has been illegal for corporations and labor unions to undertake activities that seek directly to influence federal elections. Among other provisions, the Tillman and Taft-Hartley Acts prohibited corporations and unions from running political advertisements that seek to influence the election or defeat of a candidate for federal office. However, it is often difficult to decide whether statements or advertisements made by these actors violate these two laws. In Buckley v. Valeo (1976), the Supreme Court distinguished express advocacy from issue advocacy. In arguing that express advocacy included appeals that used what have come to be known as the “magic words”—vote for, elect, support—the Court sought to distinguish electoral speech that would receive First Amendment protection from that which would not, especially when it came to particular speakers such as labor unions or corporations. The express versus issue advocacy distinction supposedly maintained the bar on speech directly affecting federal elections by these and other actors, such as nonprofit organizations, but preserved their First Amendment rights to comment on matters of public concern. The express versus issue advocacy became a loophole, however. Unions, corporations, and nonprofits all exploited it to influence federal elections by simply running ads that did everything an express advocacy ad did except say “vote for” or “support.” Instead, these ads often asked viewers to call their senator or representatives to ask them why they opposed X.
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Section 203 of BCRA was designed to fill in the loophole. It defined as electioneering communication any political speech depicting or referring to an identifiable federal candidate and appearing within thirty days of a primary or sixty days of a general election. The speech was presumed to be directed at influencing a federal election. If such ads were made by a corporation or union, they would be illegal. In McConnell v. Federal Election Commission (2003), the Supreme Court upheld section 203 against a facial challenge, but left open claims that it might violate the First Amendment in an as-applied challenge. In Wisconsin Right to Life, an ideological nonprofit corporation wanted to run ads urging viewers to contact their senators to oppose efforts to filibuster federal judicial nominations.The ads would run in Wisconsin within thirty days of its primary. To challenge section 203 and its implications for the nonprofit’s ad campaign, Wisconsin Right to Life sought a declaratory judgment against the Federal Election Commission (FEC), claiming that section 203 was unconstitutional. Initially, a three-judge panel denied Wisconsin Right to Life’s request for an injunction, but the Supreme Court vacated and remanded the decision. A federal district court then agreed with Wisconsin Right to Life, and the Supreme Court upheld the decision. Writing for the Court majority, Chief Justice John G. Roberts Jr. ruled that the ad or speech was not functionally equivalent to expressing advocacy and therefore deserved First Amendment protection. Because this and similar ads were not clearly directed toward federal candidates, the general justification of section 203 to regulate political contributions or corporate or union speech in order to address corruption was not present. Chief Justice Roberts also stated that, as applied, section 203 was overbroad in banning the type of speech protected by the First Amendment. In his concurrence, Justice Antonin Scalia argued that the Court had effectively overturned McConnell, whereas, writing in dissent, Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer stated that they would have upheld section 203. The Wisconsin Right to Life decision, then, effectively restores the express/issue advocacy rule to its status before passage of the BCRA.The importance of the decision is that it leaves open the possibility of a return to the types of political ads and speech that BCRA sought to regulate and control. For advocates of campaign finance reform, this is a step backward, while for many First Amendment supporters it is a protection of core free speech rights.
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See also Buckley v.Valeo (1976); Campaign Regulation; McConnell v. Federal Election Commission (2003); Roberts, John G., Jr.; TaftHartley Act of 1946;Tillman Act of 1907.
David Schultz
furthe r reading Schultz, David. “Buckley v. Valeo, Randall v. Sorrell, and the Future of Campaign Financing on the Roberts Court.” Nexus 12 (2007): 153–176.
Federalism In the United States, the organizing principle of federalism distributes power between the national government and the state governments, both of whose powers rest on written constitutions and both of which can act directly on individuals. This governmental system ensures cooperation and conflict within and between levels of government. The relationship between federalism and the First Amendment has three important dimensions.The first centers on the political theory of the founders and their original intent as reflected in the design of the relationship between the national and state governments and in the ratification and amendment processes they created at the Constitutional Convention of 1787. The second dimension is the political development of the national government and the establishment of a nation-led intergovernmental partnership with subsequent interpretation of national policy authority under the First Amendment.The third dimension is the political development of the state governments under a nation-led intergovernmental partnership with subsequent interpretation of national policy authority under the First Amendment and concurrent state constitutional guarantees of freedom of speech, religion, press, and assembly. The founders were divided on whether there should be a bill of rights. In fact, the Constitutional Convention of 1787 completed its work without including any such explication of rights, though delegates had considered and subsequently rejected the enumeration of rights. According to historian Gordon Wood (1969), delegate “George Mason, almost as an afterthought in the last days of the convention, brought the issue up, . . . [and subsequently] it was defeated by every state” (p. 536). Although the ratification debates produced a compromise between the leading Federalists such as James Madison and the Anti-Federalists, other Federalists such as Roger Sherman, the author of the Connecticut Compromise that created modern American federalism, remained opposed to
a bill of rights as unnecessary. Even after the Constitution was ratified and the first ten amendments were added, a natural rights understanding informed the founders’ views of the Constitution. As political scientist James Burnham (1959) observed,“These rights, in short, are limits, not powers” (p. 87). Thus the constitutional theory of the founders was premised upon limitations to the powers of the federal government as reflected in the Bill of Rights. Initially, the founders interpreted the First Amendment, and indeed the entire Bill of Rights, as limiting only the powers of the national government rather than those of the states. Indeed, it was not until the Supreme Court ruled in Gitlow v. New York (1925) that the Court began a systematic application of the Bill of Rights to the states and other subnational governments through a judicially constructed due process understanding of rights protected by the Fourteenth Amendment, which was ratified after the Civil War in 1868. But states had constitutions, statutes, and common law practices that predated the First Amendment and provided a broad area in which states could address policy in areas prohibited to the national government and could protect individual liberties from government interference. “The first constitutions represented only the initial phase in the development of civil rights in the United States,” remarked constitutional historian Willi Paul Adams (2001), “. . . [and] the codification and application of civil rights were part of a political process that had a promising beginning under the favorable conditions of the founding” (p. 144). In their 1776 constitutions, Virginia, Pennsylvania, Maryland, Delaware, and North Carolina all provided for enumerations of rights such as those found in the Bill of Rights.These rights-based protections were later included in the constitutional preambles of Vermont, Massachusetts, and New Hampshire, and in the constitutional provisions of New York, New Jersey, South Carolina, and Georgia. As political scientist George Anastaplo (1995) has noted, “The American people were already exercising [these rights] by 1789, whether or not their States had bills of rights or guarantees in them of freedom of speech or of the press. These were rights that were confirmed, not created, by the speech, press, assembly, and petition provisions of the First Amendment” (p. 53). As the Union grew during the two centuries after the founding, state constitutions increasingly included enumerations of rights. Even today, some states are more active than the national government in protecting individual rights. For example, at the national level the right to privacy is derived
Federalists from implications in the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role. Daniel J. Elazar (1987) and other federalism scholars have observed that the states serve as laboratories for policy experimentation and for addressing the often unique needs arising from local and regional diversity. Even after a century of nationalizing policy authority, the states play a significant, meaningful, and constitutionally guaranteed role in the intergovernmental policy process that both affirms and extends the rights and limitations in the First Amendment and Bill of Rights. See also Constitutional Convention of 1787; Gitlow v. New York (1925); Madison, James; Mason, George; Natural Rights; Privacy; State Constitutional Provisions on Expressive Rights; State Constitutional Provisions on Religion.
Michael W. Hail
furthe r reading Adams, Willi Paul. The First American Constitutions. Lanham, Md.: Rowman and Littlefield, 2001. Anastaplo, George. The Amendments to the Constitution: A Commentary. Baltimore, Md.: Johns Hopkins University Press, 1995. Burnham, James. Congress and the American Tradition.Washington, D.C.: Regnery Publishing, 1959. Elazar, Daniel J. Exploring Federalism. Tuscaloosa: University of Alabama Press, 1987. Marbach, Joseph R., Ellis Katz, and Troy E. Smith, eds. Federalism in America. Westport, Conn.: Greenwood Publishing, 2005. Wood, Gordon. The Creation of the American Republic, 1776–1787. New York: W. W. Norton and Co., 1969.
Federalists The name Federalists was adopted both by the supporters of ratification of the U.S. Constitution and by members of one of the nation’s first two political parties. In the clash in 1788 over ratification of the Constitution by nine or more state conventions, Federalist supporters battled for a strong union and the adoption of the Constitution, and Anti-Federalists fought against the creation of a stronger national government and sought to leave the Articles of Confederation, the predecessor of the Constitution, intact. The Federalists included big property owners in the North, conservative small farmers and businessmen, wealthy mer-
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chants, clergymen, judges, lawyers, and professionals. They favored weaker state governments, a strong centralized government, the indirect election of government officials, longer term limits for officeholders, and representative, rather than direct, democracy. Faced with forceful Anti-Federalist opposition to a strong national government, the Federalists published a series of eighty-five articles in New York City newspapers in which they advocated ratification of the Constitution. A compilation of these articles written by James Madison, Alexander Hamilton, and John Jay (under the pseudonym Publius), were published as The Federalist in 1788. Through these papers and other writings, the Federalists successfully articulated their position in favor of adoption of the Constitution. In light of charges that the Constitution created a strong national government, they were able to argue that the separation of powers among the three branches of government protected the rights of the people. Because the three branches were equal, none could assume control over the other.When challenged over the lack of individual liberties, the Federalists argued that the Constitution did not include a bill of rights because the new Constitution did not vest in the new government the authority to suppress individual liberties.The Federalists further argued that because it would be impossible to list all the rights afforded to Americans, it would be best to list none. In the end, however, to ensure adoption of the Constitution, the Federalists promised to add amendments specifically protecting individual liberties (Federalists such as James Madison ultimately agreed to support a bill of rights largely to head off the possibility of a second convention that might undo the work of the first).Thus upon ratification of the Constitution, Madison introduced twelve amendments during the First Congress in 1789. States ratified ten of these amendments, now designated as the Bill of Rights, in 1791. The first of these amendments contains guarantees of freedom of religion, speech, press, peaceable assembly, and petition and has also been interpreted to protect the right of association. Although the Bill of Rights enabled Federalists and AntiFederalists to reach a compromise that led to the adoption of the Constitution, this harmony did not extend into the presidency of George Washington; political divisions within the cabinet of the newly created government emerged in 1792 over national fiscal policy, splitting those who previously supported the Constitution into rival groups, some of whom allied with former Anti-Federalists.
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Federal Radio Commission
Those who supported Alexander Hamilton’s aggressive fiscal policies formed the Federalist Party, which later grew to support a strong national government, an expansive interpretation of congressional powers under the Constitution through the elastic clause, and a more mercantile economy. Their Democratic-Republican opponents, led by Thomas Jefferson and James Madison, tended to emphasize states’ rights and agrarianism. In 1798, during the administration of John Adams, the Federalists attempted to squelch dissent by adopting the Sedition Act, which restricted freedom of speech and the press, but opposition to this law helped Democratic-Republicans gain victory in the elections of 1800. Although the Federalist Party was strong in New England and the Northeast, it was left without a strong leader after the death of Alexander Hamilton and retirement of John Adams. Its increasingly aristocratic tendencies and its opposition to the War of 1812 helped to fuel its demise in 1816. See also Adams, John; Anti-Federalists; Bill of Rights; Constitutional Convention of 1787; Hamilton, Alexander; Jefferson, Thomas; Madison, James; Sedition Act of 1798.
Mitzi Ramos
furthe r reading Avalon Project at Yale University. The Federalist Papers. www.yale.edu/ lawweb/avalon/federal/fed.htm. Banner, James M. To the Hartford Convention: The Federalists and the Origins of Party Politics in Massachusetts, 1789–1815. New York: Knopf, 1970. Harding, Samuel Bannister. The Contest over the Ratification of the Federal Constitution in the State of Massachusetts. Cambridge, Mass.: Harvard University Press, 1896. White, Leonard D. Federalists: A Study in Administrative History. New York: Macmillan, 1948.
Federal Radio Commission The Federal Radio Commission (FRC), born out of the Radio Act of 1927, was conceived as a separate regulatory body for radio communications. Composed of five commissioners appointed by the president, the FRC was granted the authority to assign specific frequencies to broadcasters and to deny license applications when the radio spectrum had no room for additional broadcast stations.Thus the commission arguably illustrates how government intervention may sometimes be needed to enhance First Amendment freedoms. The Radio Act of 1912 was the first major legislation regulating radio enacted by Congress. Because commercial
radio broadcasting was still on the horizon, the act dealt specifically with shipboard and shore radio communications stations. It was not until after World War I that radio broadcasting started to flourish. By the early 1920s, hundreds of commercial radio broadcasting stations had begun to fill the amplitude modulation (AM) broadcast band. By the mid1920s, so many stations were operating on the AM band that cross-talk and interference were causing almost unbearable conditions for broadcasters and radio listeners alike. Although the Radio Act of 1912 had authorized the Department of Commerce to issue radio station and operator licenses, the federal courts had ruled several times that the secretary of commerce had no authority to stop issuing licenses once the AM band was full. Broadcasters petitioned the federal government to intervene and restore order. Congress responded to these demands with the Radio Act of 1927. President Calvin Coolidge appointed Rear Adm. W. H. G. Bullard as the Federal Radio Commission’s first chair. Bullard and fellow commissioners Eugene Sikes, O. H. Caldwell, Henry Bellows, and John Dillon set out to “try and bring order out of chaos” by reassigning the 732 broadcasting stations to specific frequencies. The commission sent comprehensive questionnaires to all broadcasters designed to elicit information, especially about their record of public service and their plans for future public service. It held public hearings to determine how best to eliminate station interference from other signals. The commission decided that each radio station would be separated by 10 kilocycles. The commission also granted temporary permits to all broadcasters who had been issued a license by the secretary of commerce under the Radio Act of 1912. In a few years, order had been restored to the AM spectrum.The commission created several classes of stations with varying levels of transmitter power. Some stations were restricted to low transmitter power and were licensed to share their frequencies with other broadcasters. Others were designated as daytime-only stations. And still others were allowed to broadcast alone on a frequency (clear channel) with high-power transmitters. The FRC was replaced by the Federal Communications Commission (FCC) with passage of the Communications Act of 1934.The FCC, unlike the FRC, was commissioned as an independent regulatory agency, with its jurisdiction extended to include long-distance telephone and all nongovernmental uses of the radio spectrum.
Federal Theatre Project
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See also Communications Act of 1934; Federal Communications Commission; Radio Act of 1912; Radio Act of 1927.
Roger Heinrich
furthe r reading Federal Radio Commission. The Annual Report of the Federal Radio Commission to the Congress of the United States. Washington, D.C., June 30, 1927. Overbeck, Wayne. Major Principles of Media Law. Belmont, Mass.: Thompson Wadsworth, 2005.
Federal Theatre Project The Federal Theatre Project (FTP) provided Depression-era families with inexpensive entertainment and out-of-work directors, actors, and writers with employment. It was established in August 1935 as one of five Federal One projects of the Works Progress Administration (WPA), which arose out of the New Deal. In 1938 the FTP came under investigation by the Dies Committee—later the House Un-American Activities Committee (HUAC)—for suspected communist infiltration.This investigation, coupled with various congressional protestations of FTP productions, led to cancellation of the project’s funding in 1939. Harry Hopkins, head of the WPA, had selected Vassar theatre professor Hallie Flanagan to serve as the first chair of the FTP. Hopkins declared that the FTP would commission productions that were “free, adult, and uncensored” (O’Connor and Brown 1978: 2). The goal was to create a noncommercial American theatre in the strictest sense—that is, the profits, Hopkins proclaimed, “won’t be money profits.” Acting on the utopian proclamations of both Hopkins and Flanagan, FTP directors initially approved for production all projects, regardless of their social or political content. A frequent FTP production was the “living newspaper,” designed by Flanagan. These productions were based on subjects literally clipped from newspapers, but despite their popularity among audiences, they drew criticism from Congress.The first censored FTP production was the 1936 play Ethiopia about that country’s struggle against Italian invaders. Triple-A Plowed Under, which detailed the Supreme Court’s declaration in United States v. Butler (1936) that the Agricultural Adjustment Act (AAA) was unconstitutional, also came under intense scrutiny. The Federal Theatre Veterans’ League, a watchdog group designed to combat radicals in the FTP, declared the production “unpatriotic” and threatened to have the cast and crew arrested. In 1937 “budget cuts” forced the cancellation of the con-
In the 1930s, Federal Theatre Project productions, while aiming to be uncensored and noncommercial, often proved to be controversial. One of these projects, “Triple-A Plowed Under,” advertised in the poster above, came under intense scrutiny for its portrayal of a Court ruling that declared the Agricultural Adjustment Act unconstitutional.
troversial musical The Cradle Will Rock. The production, about a mining company’s attempt to crush a labor union, garnered intense criticism—and subsequent censorship— from Congress. On July 26, 1938, Rep. J. Parnell Thomas, R-N.J., associated the FTP not only with communism but identified it as “one more link in the vast and unparalleled New Deal propaganda machine” (Mathews 1967: 199). Thomas pledged to have the FTP investigated as soon as the newly formed House Un-American Activities Committee began hearings. On December 6, 1938, Hallie Flanagan became the first person to testify before the Dies Committee.After an investigation, the Dies Committee came to the same conclusion as Thomas, and funding for the FTP ceased on June 20, 1939.
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Despite the historical turmoil surrounding the FTP, it served as a start for various later prominent American directors, producers, and actors such as actor John Houseman, producer and director Elia Kazan, playwright Arthur Miller, and actor and director Orson Welles. See also Communist Party of the United States; House UnAmerican Activities Committee.
Kane Madison Click
furthe r reading Bentley, E. Thirty Years of Treason: Excerpts from Hearings before the House Committee on Un-American Activities, 1938–1968. New York: Viking Press, 1971. Buttitta,T., and B.Witham. Uncle Sam Presents: A Memoir of the Federal Theatre, 1935–1939. Philadelphia: University of Pennsylvania Press, 1982. Flanagan, H. Arena: The History of the Federal Theatre. New York: Benjamin Blom, 1965. Goodman, W. The Committee: The Extraordinary Career of the House Committee on Un-American Activities. New York: Farrar, Straus and Giroux, 1968. Mathews, J. D. The Federal Theatre, 1935–1939: Plays, Relief, and Politics. Princeton, N.J.: Princeton University Press, 1967. O’Connor, J., and L. Brown. Free, Adult, Uncensored:The Living History of the Federal Theatre Project. Washington, D.C.: New Republic Books, 1978.
Federal Trade Commission In 1914 Congress created the Federal Trade Commission (FTC) to regulate monopolies, eliminate unfair competition, and prevent the use of unfair or deceptive business practices. Today, the FCC continues to promote consumer protection and an efficiently run market. Its regulatory hand reaches into many areas, implicating First Amendment free expression issues ranging from attorney advertising to telemarketing to the marketing of violent entertainment to children. The industrial revolution concentrated economic power, but the Justice Department proved relatively unsuccessful under the Sherman Antitrust Act of 1890 in curbing the growth of monopolies and regulating restraints to trade. These failures led to passage of the Federal Trade Commission Act in 1914. It created the Federal Trade Commission and charged it with enforcing free and fair competition in interstate commerce and protecting the public from deceptive advertising practices. The FTC is a bipartisan independent agency headed by five commissioners nominated by the president and confirmed by the U.S. Senate. Commissioners serve seven-year terms; one is designated as chair by the president. No more
than three commissioners may be from the same political party. The FTC is divided into the Bureau of Competition and the Bureau of Consumer Protection. Lack of congressional support and court decisions weakened the commission’s authority in its early years. However, passage of the 1938 Wheeler-Lea Amendment to the Federal Trade Commission Act strengthened the consumer protection side of its mandate.The commission was also reinvigorated after consumer advocate Ralph Nader issued a report in 1969 criticizing many of its policies and President Richard M. Nixon requested that a committee of the American Bar Association further study the commission. The committee’s recommendations were integrated into improving operations, and the FTC was reinvigorated with new consumer activists. The Magnuson-Moss Warranty– Federal Trade Commission Improvement Act of 1975 granted industry-wide rulemaking by the FTC the force of law. Although the agency lost power from the late 1970s through the 1980s during the Reagan administration, its image was reinvigorated during the 1990s. In one somewhat recent case, Federal Trade Commission v. Superior Court Trial Lawyers Assn. (1990), dealing with FTC regulation and the First Amendment, the FTC filed a complaint against the Superior Court Trial Lawyers Association (SCTLA) after a group of lawyers banded together to stop defending indigent defendants in the District of Columbia until they received higher compensation for their legal services. The District gave in to the lawyers’ demands, but the FTC accused them of conspiring to fix prices and instigate a boycott that violated the provisions of fair competition protected under the Federal Trade Commission Act. Although an administrative law judge dismissed the complaint, the FTC ruled that the boycott was illegal and initiated an agency order to prevent it from recurring in the future. In reversing an opinion by a federal court of appeals, the Supreme Court ultimately decided that the First Amendment did not preclude regulation of economic activities that had an indirect effect on speech. The FTC continues to enforce its mandate through investigations and cases. Agency research and complaints from citizens, interest groups, the media, and companies help to push issues of concern onto the commission’s agenda. One of the greatest challenges facing the agency has been the need to balance its regulation of false or misleading advertisements with the rights of free speech protected under the First Amendment.The commission maintains that the implementation of its consumer protection program has
Feiner v. New York (1951) complemented, rather than superseded, First Amendment commercial speech doctrine. Indeed, the FTC has enforced consumer rights in the areas of health and safety claims without banning commercial speech that may be plausibly true and constitutionally protected. See also Commercial Speech; Federal Trade Commission v. Superior Court Trial Lawyers Association (1990).
Daniel Baracskay
furthe r reading Cox, Edward F., Robert C. Sell, and John E. Schulz. The Nader Report on the Federal Trade Commission. New York: Richard W. Baron Publishing Co., 1969. Grieson, Ronald E. Antitrust and Regulation. Lexington, Mass.: Lexington Books, 1986. Handler, Milton. Antitrust in Perspective:The Complementary Roles of Rule and Discretion. New York: Columbia University Press, 1957. Herring, E. Pendleton. “Politics, Personalities, and the Federal Trade Commission I.” American Political Science Review 28 (1934): 1016–1029. Kaysen, Carl, and Donald F. Turner. Antitrust Policy: An Economic and Legal Analysis. Cambridge, Mass.: Harvard University Press, 1959. Kinter, Earl W. An Antitrust Primer. New York: Macmillan, 1964. Kottke, Frank. The Promotion of Price Competition Where Sellers Are Few. Lexington, Mass.: Lexington Books, 1978. Wagner, Susan. The Federal Trade Commission. New York: Praeger Publishers, 1971.
Federal Trade Commission v. Superior Court Trial Lawyers Association (1990) In Federal Trade Commission v. Superior Court Trial Lawyers Association, 493 U.S. 411 (1990), a unanimous Supreme Court held that the First Amendment freedom of speech clause does not extend to private lawyers boycotting an established practice of supplying the government with reduced-price legal services in order to increase their profits. The Federal Trade Commission (FTC) brought this lawsuit against the Superior Court Trial Lawyers Association (SCTLA) because collectively the District of Columbia’s defense attorneys decided to boycott the practice of providing reduced-fee legal services to indigent clients in the District, and the boycott quickly strained the justice system and the Public Defender Service. The SCTLA entered a counterpetition of certiorari to the Supreme Court, where the lawyers argued that the boycott was a form of free speech in which they were expressing dissatisfaction with a government policy. The FTC countered that the SCTLA violated antitrust laws, because the boycott was not a vehicle of free
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speech; rather, it was a way in which to increase individual monetary gain and profit. Justice John Paul Stevens, who wrote the Court’s majority opinion, defined the issue as “whether lawyers’ concerted conduct, which was defined as boycotting, violated [section] 5 of the Federal Trade Commission Act and, if so whether it was nevertheless protected by the First Amendment to the Constitution.”The Court disagreed. By a vote of 6-3, it ruled that the First Amendment offered no protection to individuals who decided to boycott a system of reduced-fee legal services to indigent clients for sheer monetary gain that violated established antitrust laws. Other provisions related to this question of constitutionality included the District of Columbia Criminal Justice Act and Section 1 of the Sherman Act. The Court also had to look to precedent set by United States v. O’Brien (1968) and NAACP v. Claiborne Hardware Co. (1982). See also NAACP v. Claiborne Hardware Co. (1982); Stevens, John Paul; United States v. O’Brien (1968).
Myra Enos with Walter Huber
furthe r reading Schauer, Frederick. “The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience.” Harvard Law Review 117 (2004): 1765–1809.
Feiner v. New York (1951) Many Supreme Court decisions, including Feiner v. New York, 240 U.S. 315 (1951), have addressed the issue of whether speech that incites a “breach of the peace” constitutes a categorical exception to the First Amendment.Taken together, these cases render unprotected those communications that threaten an immediate breach of the peace. In March 1949, Irving Feiner, a college student, addressed a crowd on a street corner in Syracuse, New York. He encouraged listeners to attend a meeting to be held later at a hotel, urged blacks to “rise up in arms and fight for equal rights,” and uttered “derogatory remarks concerning President [Harry] Truman” and other political officials. When the police arrived, members of the crowd remarked on the inability of the police to handle the crowd, and “at least one threatened violence” toward Feiner. Police asked Feiner three times to end his speech, but he refused to do so. After the third request, police arrested him. He was convicted for disorderly conduct, a misdemeanor, and sentenced to thirty days in the county jail.
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At trial, the judge concluded that “police officers were justified in taking action to prevent a breach of the peace.” And the U.S. Supreme Court ultimately upheld Feiner’s conviction. Chief Justice Frederick M. Vinson wrote the opinion for a five-justice majority, asserting that Feiner was not convicted for the content of his speech but for his conduct, which Chief Justice Vinson identified as “incitement to riot” and “refusal . . . to obey the police requests.” In his opinion, Vinson relied on Cantwell v. Connecticut (1940): “When clear and present danger of riot, disorder, interference with the traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.” Justices William O. Douglas and Hugo L. Black wrote passionate dissents. Both justices argued that the evidence failed to demonstrate that a breach of the peace was imminent. Justice Black complained that the police officers’“duty was to protect petitioner’s right to talk, even to the extent of arresting the man who threatened to interfere. Instead, they shirked that duty and acted only to suppress the right to speak.” Justice Douglas feared that Feiner would invite law enforcement officials to “become the new censors of speech.” The clash between the majority and dissenting opinions in this case mirrored a debate on the scope of free expression under way in the United States. In Chaplinsky v. New Hampshire (1942), the Court unanimously affirmed that certain categories of speech constitute exceptions to the First Amendment. “‘Fighting words’—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”—constitute one categorical exception. When the majority categorized Feiner’s words and actions as a breach of the peace, they located his speech beyond the ambit of the First Amendment. However, when police repress speech to prevent violent retaliation from audiences, the law imposes a “heckler’s veto” upon communicators. In Feiner, Justices Douglas and Black offered a detailed rationale for the claim that the courts have a responsibility to protect speakers from hostile audiences. Douglas had authored the majority opinion in Terminiello v. Chicago (1949), in which the Court had overturned a disorderly conduct arrest of a priest whose speech to a sympathetic audience had stirred the passions of a crowd outside. See also Breach of the Peace Laws; Cantwell v. Connecticut (1940); Chaplinsky v. New Hampshire (1942); Fighting Words; Heckler’s Veto;Terminiello v. Chicago (1949).
Richard Parker
furthe r reading Caine, Burton. “The Trouble with ‘Fighting Words’: Chaplinsky v. New Hampshire Is a Threat to First Amendment Values and Should Be Overruled.” Marquette Law Review 88 (2004): 441–562. Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 2d ed. New York: Aspen Law and Business, 2002. Friedlieb, Linda. “The Epitome of an Insult: A Constitutional Approach to Designated Fighting Words.” University of Chicago Law Review 72 (2005): 385–415. Haiman, Franklyn S. Speech and Law in a Free Society. Chicago: University of Chicago Press, 1981.
Feminist Theory Feminist theory has at times challenged traditional First Amendment doctrine by emphasizing theories of equality over free expression. Feminist theory is not readily categorized as a single branch of political thought.Although writings that could be characterized as “feminist” or embodying the perspectives and experiences of women have appeared throughout time, the history of Western feminist theory usually begins with the works of Mary Wollstonecraft (1759–1797), one of the first feminist writers in the liberal tradition.The most familiar works continue in that liberal tradition, arguing that women should enjoy the same political and economic rights as men, including rights to speech, religion, bodily autonomy, and political expression. Feminist theory grew significantly in the 1970s and 1980s, with a surge in scholarly attention to the role of gender in shaping every aspect of the human experience. During this period, feminist radicalism gained scholarly prominence, with particular emphasis on the work of feminist legal scholar Catharine MacKinnon. MacKinnon adopted an “anti-subordination” approach to theory, contending that those laws, policies, and practices that subordinated women needed to be eliminated. In contrast to liberal feminism, which sought to bring women into a position of equality with men within the existing legal framework, MacKinnon’s work rejected the existing framework as hopelessly representative of the male norm. Her jurisprudence focused on results rather than process and on ending the subordination of women (and other marginalized groups such as homosexual men and the transgendered) to men. MacKinnon authored ground-breaking work on how sexuality-reinforced male domination and sexual harassment were a form of sexism. This work influenced the current legal understanding of hostile and intimidating environments.
Fighting Words MacKinnon’s collaborative work with Andrea Dworkin on an aspect of this problem—pornography—resulted in an intense debate among feminists about the role of freedom of speech in reinforcing women’s subordination and the shortcomings of First Amendment jurisprudence on obscenity in curtailing the very real harms of pornography. MacKinnon and Dworkin argued that pornography contains a powerful political message of male dominance, and that it, by objectifying women and eroticizing their subordination, perpetuates real harm against women. Not only does it encourage rape by implying that women enjoy forcible sex, but it also conveys the message that every woman, regardless of her abilities or role in society, is a sexual object designed primarily for the pleasure and use of men. In short, the argument is that pornography dehumanizes women and that its pervasiveness in society makes it impossible for women to combat patriarchy or fight subordination. MacKinnon and Dworkin drafted an ordinance designed to restrict pornography not as obscenity, but on the grounds that it reinforced the subordination of women and encouraged violence against them. To proponents of the radical feminist view on pornography, the argument that the material might have some other value was irrelevant, because the harm to over half the population outweighed other considerations. The city of Indianapolis adopted the ordinance, which was promptly challenged. Feminists weighed in on both sides, with many supporting the position advocated by civil liberties groups that the speech right should take precedence, even if that speech conveyed a profoundly sexist message. The challenge, American Booksellers Assn. v. Hudnut, was heard by the Seventh Circuit Court of Appeals in 1985.The court held that the ordinance was unconstitutional, because it proscribed speech that would not be considered “obscene” under the three-pronged test established in Miller v. California (1973). In fact, MacKinnon and Dworkin took issue with obscenity law, their primary argument being that pornography did serve an underlying social and political purpose: to reinforce patriarchal control of women. Because they argued that the speech was, indeed, political, and because the ordinance quite openly restricted the speech based on its objectionable content, the ordinance clearly ran afoul of the Miller test and First Amendment jurisprudence generally. The Miller test only removed “prurient” speech from First Amendment protection, and thus acknowledgment that the Indianapolis ordinance sought to ban a particular type of political speech ensured that it would be overturned.
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However, MacKinnon and Dworkin were attempting to reconceptualize legal theory, not to craft an ordinance that would meet the requirements of the Miller test. Feminists take a variety of positions on the role of pornography in American society and on the theories advanced by MacKinnon and Dworkin. Some of the more extreme claims—that all heterosexual sex is rape because women cannot provide meaningful consent in the context of a patriarchal society—are jarring to mainstream heterosexual feminists. Some of them claim that the theories portray women as perpetual victims and fail to recognize the many gains realized by liberal feminists, working with the existing legal system. Most mainstream feminists take positions consistent with conventional liberal principles—that the speech must be permitted, however deplorable its content. See also American Booksellers Association v. Hudnut (7th Cir. 1985); Dworkin,Andrea; MacKinnon, Catharine; Miller v. California (1973); Obscenity and Pornography; Sexual Harassment Laws.
Sara L Zeigler
furthe r reading Cornell, Drucilla, ed. Feminism and Pornography. New York: Oxford University Press, 2000. MacKinnon, Catharine A. “Prostitution and Civil Rights.” Michigan Journal of Gender and Law 13 (1993). MacKinnon, Catharine A., and Andrea Dworkin, eds. The Pornography Civil Rights Hearings. Cambridge, Mass.: Harvard University Press, 1998.
Fighting Words The fighting words doctrine allows government to limit speech when it is likely to incite immediate violence or retaliation by the recipients of the words.Although this doctrine remains a notable exception to speech protected by the First Amendment, the Supreme Court has limited the scope of this doctrine when governments seek to restrict free speech. The doctrine was developed in Chaplinsky v. New Hampshire (1942), when a unanimous Supreme Court issued a categorical exception to the First Amendment’s freedom of speech clause. In this case, Walter Chaplinsky, a Jehovah’s Witness who was distributing religious pamphlets, was instructed to cease by a city marshal.After Chaplinsky verbally denounced the marshal, police arrested him for violating a state law against name calling in public or offensive speech. Noting that previous decisions have sought a balance between freedom of speech and public order, Justice Francis
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W. Murphy, writing for a unanimous court, held that Chaplinsky’s speech was outside the bounds of First Amendment protection. When faced with “the lewd and obscene, the profane, the libelous, and insulting or ‘fighting’ words”—categories of speech that failed to possess any social value or contributed to the expression of ideas—government could restrict its expression to prevent disruptions. After Chaplinsky, the Supreme Court elaborated on the fighting words doctrine. In Terminiello v. Chicago (1949), the Court narrowed the fighting words doctrine to speech that would “produce a clear and present danger of a serious intolerable evil that rises above mere inconvenience or annoyance.” In this ruling, the Court added context, along with attention to the content of the speech, to determine when the words uttered fall into constitutional protection or government limitation. The Court has upheld convictions under the “breach of the peace” idea—such as Feiner v. New York (1951) in which speech was not protected when there was a clear and present danger—while overturning convictions under this charge when government actors appeared to be criminalizing the peaceful expression of unpopular views—such as Edwards v. South Carolina (1963). Two cases focused on the latter aspect of the fighting words doctrine. In Street v. New York (1969), the Supreme Court relied on the First Amendment to overturn the conviction of Sidney Street, who, upon hearing of the assassination of civil rights activist James Meredith, burned a U.S. flag and was arrested and convicted for violating a New York law that made it a misdemeanor to “publicly mutilate, deface, defile, defy, trample upon, or cast contempt upon an American flag either by words or act.” The Court observed that while “it is conceivable that some listeners might have been moved to retaliate upon hearing appellant’s disrespectful words, we cannot say that appellant’s remarks were so inherently inflammatory as to come within that small class of ‘fighting words.’ ” Again, in Cohen v. California (1971) the Court held that a man who wore in a courthouse a leather jacket imprinted with the words “Fuck the Draft” could not be convicted for disturbing the peace.The Court thus subjected prosecutions using the fighting words doctrine to the test constructed in Brandenburg v. Ohio (1969), which required “imminent lawless action and is likely to incite or produce such action.” Subsequent Supreme Court cases have further refined the fighting words doctrine and its uses by governments. For example, in Texas v. Johnson (1989) the Court held that burn-
ing the U.S. flag to express displeasure with government policies was constitutional and could not be subjected to the fighting words doctrine: “No reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the federal government as a direct personal insult or an invitation to exchange fisticuffs.” In R. A. V. v. St. Paul (1992), the Court held that even though St. Paul sought to use the fighting words doctrine to prevent cross burnings, the ordinance was unconstitutional because it did not subject other forms of speech or expression to the same standard. Some critics of the Court have argued that its continued narrowing of the fighting words doctrine since Chaplinsky has left the doctrine hollow. However, government officials continually raise the fighting words doctrine to restrict certain types of speech—from threatening language directed at police officers to protests at military funerals. See also Brandenburg v. Ohio (1969); Chaplinsky v. New Hampshire (1942); Cohen v. California (1971); Edwards v. South Carolina (1963); Feiner v. New York (1951); R.A.V. v. St. Paul (1992); Street v. New York (1969); Terminiello v. Chicago (1949); Texas v. Johnson (1989).
J. Michael Bitzer
furthe r reading Kalven, Harry, Jr. A Worthy Tradition: Freedom of Speech in America. New York: Harper and Row, 1988. “Note: The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment.” Harvard Law Review 93 (1993): 1129–1146.
Film Despite movie mogul Samuel Goldwyn’s well-known declaration that “messages are for Western Union,” Hollywood has produced many films that deal with issues of political and social significance. Although producers make movies primarily to entertain audiences and make money, some films do contain political messages and may even influence the political opinions of the people who watch them. Hollywood films have addressed several topics related to the First Amendment, including freedom of religion, freedom of speech, and freedom of the press. Hollywood frequently tackles religious topics. Some deal explicitly with freedom of religion, and many others deal with religion more broadly. One of the preeminent films in the former category is Inherit the Wind (1960), which dramatizes (or more arguably overdramatizes) the 1925 Scopes
Film monkey trial, concerning a Tennessee law banning the teaching of evolution in public schools. Sergeant York (1941) recounts how the World War I hero Alvin C.York reconciled his pacifist religious views with his nation’s call to arms. Other films addressing freedom of religion include The Work and the Glory: American Zion (2005), which tells the story of the Mormons’ search for religious freedom through migration to the American West; The Believer (2001), an account of a Jewish man who struggles with his faith; School Prayer: A Community at War (1999), a television documentary that follows a Mississippi parent’s efforts to have Bible study removed from her children’s school; and The Handmaid’s Tale (1990), which explores how every facet of people’s lives, including their sexual and reproductive activities, might be controlled under a theocracy. Although obviously not set in the United States, The Ten Commandments (1956) also relates a story of religious freedom. A number of movies have dealt with Jesus Christ and his followers. Mel Gibson’s Passion of the Christ (2004) sparked considerable discussion because of its graphic depiction of Jesus’ last hours. Other films featuring Jesus include The Last Temptation of Christ (1988), which stirred controversy over its unconventional portrait of Jesus, Jesus Christ Superstar (1973), and The Greatest Story Ever Told (1965).“Christ figures,” characters reminiscent of Jesus, have been featured in a range of movies, including The Day the Earth Stood Still (1951), Cool Hand Luke (1967), The Shawshank Redemption (1994), and Superman Returns (2006).A variety of movies—among them Keeping the Faith (2000), Brighton Beach Memoirs (1986), Yentl (1983), and The Chosen (1981)—explore Jewish life and culture in the United States. Another part of the First Amendment, freedom of speech, has been examined in several movies. The People v. Larry Flynt (1996) explains how the pornographer named Larry Flynt came to be a defender of free speech and press, including a depiction of his celebrated triumph before the Supreme Court in Hustler Magazine v. Falwell (1988). The documentary Inside Deep Throat (2005) examines free speech, governmental censorship, and other issues surrounding the 1972 pornographic movie Deep Throat, which became the most profitable film of all time. Heart of the Beholder (2005) tells the story of a video rental store owner who battled censorship. Good Morning,Vietnam (1987) deals with a military disc jockey who battles his superiors over the content of his radio show. Talk Radio (1987) focuses on a radio talk show host abrasively using his freedom to express himself.
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Many movies feature candidates and others freely exercising political speech. All the King’s Men (1949 and 2006) has as a premise how effective political oratory can lead to political power. Malcolm X (1992) presents some of the civil rights leader’s fiery rhetoric. The classic Mr. Smith Goes to Washington (1939) glorifies the use of the filibuster, a legislative tactic relying on the Senate’s tradition of unlimited speech. In The American President (1995), a chief executive uses speech making to pursue his political goals. In a climatic scene, President Shepherd discusses the challenges of freedom of speech: “You want free speech? Let’s see you acknowledge a man whose words make your blood boil who is standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.” The War Room (1993), a documentary about the 1992 presidential election, provides a glimpse into the effective oratory of Bill Clinton as a Democratic candidate. Political speech, however, is not unfettered. The Candidate (1972) depicts how modern campaigns seek to package office seekers, and in doing so control what they say and how they say it. Silver City (2004) shows a grammatically challenged candidate who relies heavily on television advertising. From the late 1940s to the early 1960s, Hollywood studios blacklisted, that is, refused to employ, persons who had allegedly or actually expressed support for communism or attended meetings of ”subversive” organizations. A number of movies, including The Front (1976), Guilty by Suspicion (1991), Rock the Cradle (1999), and The Majestic (2001), deal with blacklisting. Hollywood has produced quite a few movies celebrating freedom of the press and the political power wielded by the media. Films focusing on newspapers and the reporters who work for them include The Front Page (1931), Deadline USA (1952), and The Paper (1994). Citizen Kane (1941)—often ranked by film scholars as the greatest American movie— presents a fictionalized version of the life of newspaper magnate William Randolph Hearst. Two reporters for the Washington Post are lionized in All the President’s Men (1976), which recounts how the duo helped uncover the Watergate scandal. Conversely, Absence of Malice (1982) tells the story of the problems caused when a newspaper gets a story wrong, and Shattered Glass (2003) concerns a real-life reporter who fabricated parts of his stories. In Meet John Doe (1941), a newspaper seeking to boost its circulation inadvertently helps spark a political movement. Reporters also play important political roles in Foreign Correspondent (1940), His Girl Friday (1940), and L.A. Confidential (1997).
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Film has also explored television’s role in free speech. Good Night, and Good Luck (2005) exalts famed journalist Edward R. Murrow, who used his CBS news program to take on Sen. Joseph McCarthy in 1954. In Medium Cool (1968), a fictional television journalist interacts with real people in Chicago at the time of the tumultuous 1968 Democratic National Convention. Network (1976) shows a television network capitalizing on an anchor’s on-air ravings to attract more viewers. Broadcast News (1987) explores the business and personal pressures of the television news business. In The Insider (1999), a producer for the CBS show 60 Minutes battles corporate bosses who want to kill a story for business reasons. Outfoxed: Rupert Murdoch’s War on Journalism (2003), a documentary, charges that the Fox News Channel has a conservative bias. Numerous cases before the Supreme Court have affirmed that First Amendment protections cover movies as well as printed materials. In Burstyn v.Wilson (1952), the Court first ruled that film constituted a form of expression entitled to First Amendment protection. In that decision, the justices ruled that the First Amendment prohibited the censoring of the movie The Miracle as sacrilegious. Rulings in Paris Adult Theatre I v. Slaton (1973) and other cases have determined that like distributors of such materials, those who distribute movies may be subject to laws regulating obscenity and pornography under the tests established in Miller v. California (1973). See also Blasphemy; Burstyn v.Wilson (1952);The Last Temptation of Christ; Miller v. California (1973); Paris Adult Theatre I v. Slaton (1973); Scopes Monkey Trial.
Mark Byrnes
furthe r reading Carnes, Mark C., ed. Past Imperfect: History According to the Movies. New York: Henry Holt, 1996. Christensen,Terry. Reel Politics: American Political Movies from Birth of a Nation to Platoon. New York: Blackwell, 1987. Christensen,Terry, and Peter J. Haas. Projecting Politics: Political Messages in American Films. Armonk, N.Y.: M. E. Sharpe, 2005. Combs, James E. American Political Movies: An Annotated Filmography of Feature Films. New York: Garland, 1990. Crowdus, Gary, ed. The Political Companion to American Film. Chicago: Lake View Press, 1994. Gianos, Phillip L. Politics and Politicians in American Film. Westport, Conn.: Praeger, 1998. Giglio, Ernest. Here’s Looking at You: Hollywood, Film, and Politics. New York: Peter Lang, 2000. Stone, Bryan P. Faith and Film: Theological Themes at the Cinema. St. Louis: Chalice Press, 2000.
Filthy Words See Carlin, George
First Amendment Center The First Amendment Center, a nonprofit, nonpartisan organization, seeks to preserve and protect First Amendment freedoms through information and education. It provides a forum for dialogue on a range of issues, including the textual freedoms of speech, press, religion, assembly, and petition. The center was founded in December 1991 by John Seigenthaler Sr., a journalist and former Justice Department official under President John F. Kennedy and a longtime advocate of First Amendment rights. In founding the center, Seigenthaler sought to promote appreciation and understanding of the values that are vital to a democratic society. Located on the grounds of Vanderbilt University in Nashville,Tennessee, the First Amendment Center is funded by the Freedom Forum, an international organization devoted to free press and free spirit for all people.A second branch of the center operates in Arlington, Virginia, just outside Washington, D.C. The First Amendment Center does not provide legal representation, fund litigation, file amicus briefs, or engage in lobbying. However, it does provide expert testimony to members of Congress and other government officials, and center staff participate in nonpartisan educational events about the First Amendment. Since 1997, the center has released an annual State of the First Amendment survey to examine public attitudes toward the freedoms of speech, press, assembly, religion, and petition. The center largely depends on its Web site to communicate up-to-date news about the First Amendment. Research articles on a range of First Amendment–related topics, including the campaign finance reform debate, can also be downloaded at no charge. In 2002 the center released a report on comedy that disclosed that 40 percent of Americans believe that the government should ban tasteless comedy routines, and a majority approved of outlawing jokes that offend racial or religious groups. A 2005 report on flag desecration discussed the difficulties of amending the Constitution to ban flag burning.The center also sponsors “Freedom Sings,” created in 2005 by Ken Paulson, former First Amendment Center executive director and current editor of USA Today. “Freedom Sings” uses multimedia to tell the story of three centuries of banned or censored music in America.
First National Bank of Boston v. Bellotti (1978) See also Paulson, Ken; Policinski, Gene; Seigenthaler, John, Sr.
Caryn E. Neumann
furthe r reading First Amendment Center. www.firstamendmentcenter.org.
First Amendment Lawyers Association The First Amendment Lawyers Association (FALA) is an Illinois-based association of attorneys devoted to the First Amendment. Formed in the late 1960s, the group primarily defends clients in the adult entertainment industry against obscenity, zoning, licensing, and other government regulations. FALA, which has more than 180 members, meets twice a year to discuss a variety of current issues in First Amendment law. FALA regularly files amicus briefs in First Amendment cases before the Supreme Court involving adult entertainment. Such cases have included City of Erie v. Pap’s A.M. (2000); City of Los Angeles v. Alameda Books (2002); and City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004). Former and current FALA members include some of the nation’s finest First Amendment lawyers: Paul J. Cambria Jr., Stanley Fleishman, Elmer Gertz,Wayne B. Giampietro, H. Louis Sirkin, and John Weston. See also City of Erie v. Pap’s A.M. (2000); City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004); City of Los Angeles v. Alameda Books (2002); Fleishman, Stanley; Sirkin, H. Louis.
David L. Hudson Jr.
furthe r reading First Amendment Lawyers Association. www.firstamendment lawyers.org.
First Amendment Project The First Amendment Project is an Oakland, California–based nonprofit public interest law firm that advocates in behalf of free expression values. Founded in 1992, the organization litigates on a variety of First Amendment issues, including SLAPP suits, art censorship, open records, and Internet speech restrictions. The First Amendment Project has achieved many free expression victories through filing lawsuits and amicus briefs in important First Amendment cases. For example, the First Amendment Project successfully challenged in Brown v.
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California Department of Transportation (9th Cir. 2003) a California policy that restricted the display of flags over highways shortly after the al-Qaida attacks on the United States on September 11, 2001. It filed amicus briefs in In re George T. (2004), in which the California Supreme Court ruled that the First Amendment protected a student from criminal charges for writing dark poetry, and in American Amusement Machine Association v. Kendrick (7th Cir. 2001), in which the Seventh Circuit Court of Appeals invalidated an Indianapolis ordinance restricting minors’ access to violent video games. Despite its small staff, the First Amendment Project continues to fight vigorously in behalf of free expression values. It is led by senior counsel and founder James Wheaton and executive director David Greene. See also Art Censorship; SLAPP Suits;Video Games.
David L. Hudson Jr.
furthe r reading First Amendment Project. www.thefirstamendment.org.
First National Bank of Boston v. Bellotti (1978) In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Supreme Court ruled that a Massachusetts restriction on political contributions by corporations violated the First Amendment and was thus unconstitutional. Massachusetts had enacted a statute that prevented business corporations from making contributions or expenditures “for the purposes of influencing or affecting the vote on any question submitted to the voters” except those “materially affecting the property or assets of the corporation.” The statute defined “materially affecting” to exclude questions that solely concerned the rate of taxation within the state. Several plaintiffs, including the First National Bank of Boston, wished to spend money to challenge a proposed constitutional amendment that would have permitted the Massachusetts legislature to change the personal income tax to take a higher percentage of the income of higher wage earners.When the attorney general of the state threatened to enforce the statute against the plaintiffs, they brought a declaratory action challenging the constitutionality of the provision. Following a decision by a single justice of the Supreme Judicial Court of Massachusetts, the full court
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reviewed and upheld the statute. The U.S. Supreme Court reversed, 5-4, holding that the Massachusetts law violated the First Amendment. In the opinion for the majority, Justice Lewis F. Powell Jr. observed that “in cases where corporate speech has been denied the shelter of the First Amendment, there is no suggestion that the reason was because a corporation rather than an individual or association was involved.” Powell was particularly displeased with the complete ban on corporate speech directed at measures considering the state rate of taxation. Furthermore, he was concerned that the Massachusetts statute treated small and medium-size corporations as equivalent to “great multi-national enterprises.” Powell noted that a statute imposing such a burdensome restriction on First Amendment speech rights could survive only if supported by a compelling government interest as well as a mechanism narrowly tailored to further that interest. He reviewed the state’s two proffered interests and found them to be wanting. First, the state argued the statute was designed to encourage individual citizens to maintain an active role in the electoral process. Second, it claimed an interest in protecting shareholders whose views differed from that of management. Observing that it had previously justified significant regulation of the electoral process, the Court responded to the first interest by observing that Massachusetts had offered no finding supporting a link between corporate participation and the denigration of the electoral process. Moreover, voters ultimately rejected the constitutional amendment “even in the absence of the corporate spending.” In short, on the first proffered interest, the Court found the distinction between candidate support and referendum support sufficiently large to justify differential constitutional treatment. As for the second interest of protecting shareholders, the Court found the statute could not be narrowly tailored because it was both underinclusive and overinclusive. Powell believed the statute was underinclusive because it banned corporate support of ballot measures while still allowing corporations and their agents to engage in lobbying activity.The statute was overinclusive because it precluded corporations from opposing a ballot initiative even when “its shareholders unanimously authorized the contribution or expenditure.” Chief Justice Warren E. Burger wrote a concurring opinion. Justice Byron R. White wrote a dissenting opinion, joined by Justices William J. Brennan Jr. and Thurgood Marshall. Justice William H. Rehnquist wrote a separate dissent.
See also Austin v. Michigan Chamber of Commerce (1990); Campaign Regulation; Federal Election Commission v. Massachusetts Citizens for Life (1986).
Daniel M. Katz
furthe r reading Winkler, Adam. “Beyond Bellotti.” Loyola Law Review 32 (1999): 133–220.
Fiske v. Kansas (1927) In Fiske v. Kansas, 274 U.S. 380 (1927), the Supreme Court overturned a conviction obtained under the Kansas Criminal Syndicalism Act on the ground that application of the law violated the due process clause of the Fourteenth Amendment, which applied First Amendment freedom of speech to the states.The Kansas law had made it a crime to advocate crime or acts of violence to effect industrial or political revolution. After distributing literature for the Industrial Workers of the World (IWW), Harold B. Fiske was convicted in state court on evidence introduced from that organization’s preamble, which pointed to differences between the working and employing classes and said that the struggle would persist until the workers took over production and abolished the wage system. Fiske acknowledged his membership in the IWW, but said he believed it sought to achieve its objectives through peaceful means.The Kansas courts allowed jurors to draw their own conclusions about the meaning of the preamble and to question Fiske’s veracity. Justice Edward Terry Sanford wrote the Court’s unanimous opinion, which was the first “to reverse a conviction for unlawful advocacy on first amendment grounds” (Redish 1982: 1171). Sanford said that the state had not introduced evidence to show that the IWW advocated unlawful actions. He therefore overturned the conviction as “an arbitrary and unreasonable exercise of the police power of the State” and distinguished this illegal conviction from those that the Court had upheld in Gitlow v. New York (1925) and in two companion cases, Burns v. United States (1927) and Whitney v. California (1927). More than forty years later, in Brandenburg v. Ohio (1969), the Court overturned criminal syndicalism acts directed to speech that was unlikely to cause imminent lawless action. See also Brandenburg v. Ohio (1969); Burns v. United States (1927); Criminal Syndicalism Laws; Gitlow v. New York (1925); Whitney v. California (1927).
John R.Vile
Flag Desecration furthe r reading Redish, Martin H. “Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger.” California Law Review 70 (1982): 1159–1200.
Flag Desecration Because the American flag is arguably the most sacred U.S. symbol, flag desecration remains one of the nation’s most controversial and polarizing issues. Several times during the twentieth century, the Supreme Court handed down decisions on flag desecration. In forty-eight states, it is currently a crime. Concerns about the flag generally fall into three distinct periods. In the years prior to and during World War I, states began to adopt flag desecration laws.The World War II era saw many states adopting flag salute laws. In the years since the Vietnam War, Congress and the Supreme Court have once again been grappling with the issue. The first Supreme Court case dealing with flag desecration was Halter v. Nebraska (1907). Affirming that state governments had the authority to ban desecration of the flag, the Court unanimously upheld the conviction of a company that had printed the American flag on a beer bottle. Writing the opinion for the Court, Justice John Marshall Harlan I stated:“To every true American the flag is the symbol of the Nation’s power, the emblem of freedom in its truest, best sense.” In 1966, after hearing that civil rights leader James Meredith had been shot in Mississippi, Sidney Street took his own flag into the street in New York City and set it on fire. To those passing by he said, “If they can do this to James Meredith, we don’t need a flag.” Street was fined $100, but the fine was promptly suspended.As a matter of principle, he filed suit, and when Street v. New York (1969) reached the Supreme Court, the Court, in a 5-4 vote, reversed the conviction, stating that Street could not be punished for speaking defiantly or with contemptuous words about the flag.The Court did not decide whether it would have been constitutional to convict Street for actually burning the flag, because it could not separate this issue from the words he uttered. Five years later in Spence v. Washington (1974), the Court reversed the conviction of a college student in a Washington state case who hung a flag upside down with a peace symbol, made of removable tape, attached.The student was prosecuted under an improper use statute.The Court ruled that this symbolic speech was protected against government interference.
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The late 1980s and early 1990s brought a flurry of action on flag desecration. During the Republican National Convention in Dallas in 1984, Gregory Lee Johnson participated in a political demonstration in front of Dallas City Hall. During the demonstration, he doused an American flag with kerosene and set it on fire.While the flag was burning, protestors chanted “America the red, white, and blue, we spit on you.” Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. In Texas v. Johnson (1989), the Supreme Court held 5-4 that Johnson’s burning of the flag was protected expression under the First Amendment. President George H. W. Bush and members of Congress were outraged at the Court’s decision. The Senate passed a resolution 97-3 expressing profound disappointment that the Court protected this reprehensible conduct, and both houses of Congress held hearings to consider statutory and constitutional responses to the Court’s ruling. In 1989 Congress adopted the Flag Protection Act. Once the law took effect, protestors burned American flags in Seattle and Washington, D.C., protesting the act as well as the government’s foreign and domestic policies. The protestors were arrested and convicted, and their appeals to the Supreme Court were expedited under terms of the new law. In United States v. Eichman (1990), the Court, once again by a 5-4 vote, held that burning the flag was allowable expressive conduct. As in Texas v. Johnson, the majority opinion affirmed that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” After the decision in Eichman, Congress once again considered a proposed constitutional amendment to protect the American flag. In every Congress since 1995, the House of Representatives, when controlled by Republicans, has proposed such an amendment by the necessary two-thirds majority, but each time the amendment has fallen short in the Senate, which is less sympathetic to amendments in general.The most recent proposal was in 2006; the amendment passed the House by a vote of 286-130, but failed by one vote, 66-34, in the Senate. Proponents of an amendment believe that the United States should be able to preserve the flag as a symbol of national unity. Opponents fear ratification of an amendment that would be the first to modify the protections of the First Amendment. With such continuing close votes, the issue is likely to remain controversial in the near future.
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Flag Protection Acts of 1968 and 1989
See also Constitutional Amending Process; Flag Protection Acts of 1968 and 1989; Halter v. Nebraska (1907); Spence v. Washington (1974); Street v. New York (1969); Symbolic Speech; United States v. Eichman (1990).
Hana M. Ryman and J. Mark Alcorn
furthe r reading Corn-Revere, Robert. “Implementing a Flag-Desecration Amendment to the U.S. Constitution:An End to the Controversy . . . or a New Beginning?” First Amendment Center, July 2005. www.first amendmentcenter.org/about.aspx?id=15510. Goldstein, Robert J. Burning the Flag: The Great 1989–1990 American Flag Desecration Controversy. Kent, Ohio: Kent State University Press, 1995. ———. Flag Burning and Free Speech. Lawrence: University Press of Kansas, 2000. Vile, John R. Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002. 2d ed. Santa Barbara, Calif.: ABC-CLIO, 2003.
Flag Protection Acts of 1968 and 1989 In response to protests against the Vietnam War that were accompanied by desecration of the American flag, the Ninetieth Congress enacted the Flag Protection Act of 1968. Not only did this act nationalize a 1947 law prohibiting desecration of the U.S. flag in the District of Columbia, it also specified that “[w]hoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year.” During the next two decades, many critics of the act sought to overturn it on the grounds that it was inconsistent with the First Amendment’s freedom of speech. Although challenges persisted, the lower courts continued to uphold the constitutionality of the statute, and the Supreme Court declined to review these rulings. However, after twenty years of tension over the symbolic importance of the U.S. flag and an individual’s freedom of speech to desecrate the flag in protest, the Court agreed to hear the case of Texas v. Johnson 397 (1989). In a 5-4 decision, the Court upheld flag burning as an act of protected speech under the First Amendment.The Court’s decision reviewed a Texas state flag descecration statute rather than the federal law. In response to this ruling, the 101st Congress passed the Flag Protection Act of 1989 giving Congress the right to enact statutes criminalizing the burning or desecration of the flag in public protest. However, the act was challenged in United States v. Eichman (1990). Again in a 5-4 decision, the
Supreme Court struck down the 1989 act on the grounds that the government’s interest in preserving the flag as a symbol did not outweigh an individual’s First Amendment right to desecrate the flag in protest. Although the First Amendment continues to protect freedom of speech, the interpretation of this freedom relentlessly fuels much debate, and efforts are still under way in Congress to criminalize flag burning, possibly through constitutional amendment. See also Symbolic Speech;Texas v. Johnson (1989); United States v. Eichman (1990).
Mitzi Ramos
furthe r reading Library of Congress, Congressional Research Service. “Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional.” 2005. www.fas .org/sgp/crs/misc/95-709.pdf. ushistory.org.“The Betsy Ross Homepage Resources: Flag Timeline,” 2006. www.ushistory.org/betsy/flagfact.html.
Flast v. Cohen (1968) In Flast v. Cohen, 392 U.S. 83 (1968), the Supreme Court allowed taxpayers standing to sue within limited parameters, if a logical link exists between the taxpayers’ status and the type of enactment being attacked and if the taxpayers can show a link between the expenditure of funds and the specific violation of a constitutional limitation on the power of Congress. In this case, the taxpayers challenged congressional actions based on the establishment clause of the First Amendment. The ruling does not apply to general regulatory legislation. Florence Flast and a group of New York taxpayers alleged that enforcement of the Elementary and Secondary Education Act of 1965 and its expenditure of funds for textbooks, instructional tools, and transportation for religious schools violated the free exercise and establishment clauses. They filed a complaint against Secretary of Health, Education and Welfare Wilbur H. Cohen and other officials in the Lyndon B. Johnson administration. The plaintiffs asked the district court to issue an injunction preventing enforcement of the law in New York and to rule on its constitutionality, but a three-judge panel for the Southern District of New York ruled that the plaintiffs lacked standing. The panel cited the case of Frothingham v. Mellon (1923), in which Frothingham sued the U.S. govern-
Fleishman, Stanley ment, asserting that her tax money was being used to fund a grant program that sought to reduce maternal and infant mortality. Moreover, she maintained that the program fell under the reserved powers of the states and that Congress had increased her taxes and deprived her of her property without due process in violation of the Fifth Amendment. The Supreme Court ruled that Frothingham had no standing to sue, because her tax liability in the program was “comparatively minute and indeterminable.” The practical intent of the decision was to prevent wholesale taxpayer suits involving minute amounts of money unless plaintiffs could show a significant effect on their own individual tax bills. The plaintiffs in Flast v. Cohen were attempting to prevent the use of their tax money to fund religious or sectarian instruction. Chief Justice Earl Warren identified two issues before the Court.The first was a technical challenge by the government alleging that the three-judge panel and the subsequent appeal were defective.The Court disagreed.The second issue involved the standing of the plaintiffs and the justiciability of their claim. Warren ruled that Frothingham was based on a general interpretation of the general welfare clause. Flast, however, was based on a specific challenge to Congress’s actions under the First Amendment freedom of religion clauses. The powers to raise and spend money can be challenged by taxpayers if they allege that money spent will favor a specific religion or religion in general. Justices Potter Stewart, Abe Fortas, and William O. Douglas concurred. Justice Douglas, sensing a contradiction between the decision in Frothingham and that in Flast, stated that all bars to taxpayer suits should be rescinded and that Frothingham should be overturned. He pointed out that taxpayers could help to limit the overreaching power of government. Justice John Marshall Harlan II dissented, claiming that taxpayers would have no individual stake in the outcome of the case. Later the same year, the Court in Board of Education v. Allen (1968) upheld a New York law that allowed textbooks purchased with public funds to be loaned to students at parochial or sectarian schools in New York. More recently, in Hein v. Freedom from Religion Foundation (2007), the Court refused to extend the Flast precedent.
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furthe r reading Staudt, Nancy C. “Taxpayers in Court: A Systematic Study of a (Misunderstood) Standing Doctrine.” Emory Law Journal 52 (2003): 771–846.
Fleishman, Stanley Stanley Fleishman (1920–1999) was a leading First Amendment attorney who appeared before the Supreme Court to argue several obscenity cases. He managed to carve out a successful legal career despite the crippling effects of polio that left him disabled from an early age. Fleishman reached the highest echelons of his profession, arguing cases before the Supreme Court while supported by his crutches. Born in the Bronx in New York City, Fleishman graduated from Columbia Law School in 1944 and then moved to Los Angeles two years later. Among the many important First Amendment cases he argued before the high court were Alberts v. California (1957), the companion case to Roth v. United States (1957); Smith v. California (1959); A Quantity of Books v. Kansas (1964); United States v. Thirty-seven Photographs (1971); Blount v. Rizzi (1971); Kaplan v. California (1973); Hamling v. United States (1974); Hicks v. Miranda (1975); and United States v. X-Citement Video, Inc. (1994). His most important First Amendment case was arguably Smith v. California, which established that booksellers could not be held strictly liable for the contents of every book on their shelves. Writing for the Court, Justice William J. Brennan Jr. reasoned that if the Court imposed such a requirement, then “the bookseller’s burden would become the public’s burden, for by restricting him the public access to reading matter would be restricted.” Fleishman also took part in the California Supreme Court decision Zeitlin v. Arnebergh (1963), which determined that Henry Miller’s novel Tropic of Cancer was not obscene under California law. And he represented the Pussycat Theatre, which was charged with obscenity for showing the film Deep Throat. For his commitment to the First Amendment, Fleishman received the William O. Douglas Memorial Award and the Hugh Hefner First Amendment Award for Lifetime Achievement.
See also Aid to Parochial Schools; Board of Education v. Allen (1968); Hein v. Freedom from Religion Foundation (2007);Warren, Earl.
See also Deep Throat; Obscenity and Pornography; Smith v. California (1959).
James R. Belpedio
David L. Hudson Jr.
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furthe r reading Oliver, Myrna. “Attorney Stanley Fleishman Dies; First Amendment Champion Defended Writers, the Disabled and Pornographers.” Los Angeles Times, September 24, 1999, A3. Tarlow, Barry. “Reflections on the Passing of a True Champion.” Champion Magazine, December 1999. www.criminaljustice.org/ public.nsf/ChampionArticles/99dec07?OpenDocument. Thomas, Kevin. “Censorship: Is Sky Limit for Blue Material?” Los Angeles Times, December 15, 1968, Q1.
Florida Bar v. Went for It, Inc. (1995) In a 5-4 decision, the Supreme Court in Florida Bar v.Went for It, Inc., 515 U.S. 618 (1995), established that states may impose time-limit bans on direct mail attorney solicitation letters to protect the privacy rights of victims and the reputation of the bar. In 1987 the Florida Bar began a two-year study of the public’s perception of attorney advertising.The study report was filled with anecdotal evidence of the public’s distaste for lawyers’ solicitations. Based on the study, the Florida Supreme Court amended its rules to impose a ban on lawyers sending letters to victims or their family members within thirty days of an accident or disaster. A lawyer referral service,Went for It, Inc., and its attorney-owner Stewart McHenry (who had to be replaced in the litigation after disbarment for other matters) challenged the thirty-day ban on First Amendment grounds. In support, the plaintiffs cited the U.S. Supreme Court’s 1988 decision in Shapero v. Kentucky Bar Association in which the high court distinguished solicitation letters from the face-to-face solicitation prohibited in Ohralik v. Ohio State Bar Association (1978). A federal magistrate recommended that summary judgment be granted to the Florida Bar, but a federal district court declined to follow the recommendation and instead ruled in favor of the plaintiffs on their First Amendment claims.A three-judge panel of the Eleventh Circuit Court of Appeals affirmed.The Florida Bar appealed to the Supreme Court, which upheld the thirty-day ban. Writing for the majority, Justice Sandra Day O’Connor analyzed the case under the Court’s test for evaluated restrictions on commercial speech established in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980). Under the Central Hudson test, the government can restrict advertising (commercial speech) that concerns an illegal product or service or that is deceptive. If the speech concerns lawful activity and is not misleading, the government
must establish a substantial state interest and show that its regulation directly and materially advances its interest and is narrowly drawn. Applying Central Hudson, O’Connor accepted two state interests as substantial: the privacy rights of accident victims and their families and the reputational interests of the bar. She relied on the Florida Bar’s 106-page summary of its two-year study in determining that the thirty-day ban directly advanced these interests. “The anecdotal record mustered by the Bar is noteworthy for its breadth and detail,” she wrote. O’Connor also determined that the thirty-day ban was narrowly drawn, distinguishing it from a complete ban on solicitation letters altogether. Justice Anthony M. Kennedy wrote for the Court’s four dissenters, criticizing the majority for prohibiting attorneys from communicating to persons who may be in dire need of legal assistance. He pointed out that there was no comparable thirty-day ban on insurance adjusters, who may convince accident victims to sign away important legal rights. Kennedy also questioned whether the bar’s study satisfied the Central Hudson requirement of direct and material advancement: “Our cases require something more than a few pages of self-serving and unsupported statements by the State to demonstrate that a regulation directly and materially advances the elimination of a real harm when the State seeks to suppress truthful and nondeceptive speech.” After this decision, many state supreme courts imposed similar thirty-day bans on attorney solicitation letters. See also Attorney Advertising; Central Hudson Gas and Electric Corp. v. Public Service Commission (1980).; Kennedy, Anthony M.; O’Connor, Sandra Day; Ohralik v. Ohio State Bar Association (1978); Shapero v. Kentucky Bar Association (1988).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Solicitation Letters: Offensive or Informative?” Vanderbilt Lawyer 27 (1997): 22–25. Kennedy, Jack W., Jr. “The Widespread Embrace of the Waiting Period Upheld in Florida Bar v. Went For It, Inc.: Toward a Nationwide Thirty-Day Wait for Justice.” Tulane Law Review 75 (2001): 777–809. Phillips, John. “Six Years after Florida Bar v. Went For It, Inc.: The Continual Erosion of First Amendment Rights.” Georgetown Journal of Legal Ethics 14 (2000): 197–215.
Florida Star v. B.J.F. (1989) In Florida Star v. B.J.F., 491 U.S. 524 (1989), the Supreme Court held that the First Amendment precluded a news-
Flower v. United States (1972) paper from being held civilly liable under state tort law for publishing the name of a rape victim.The decision was similar to that in Cox Broadcasting Corp. v. Cohn (1975). The Florida Star published a rape victim’s full name in the “Police Reports” section of its October 24, 1983, edition. In doing so, the newspaper violated both its own internal policy and a Florida law that forbade the dissemination of a sexual assault victim’s identity through “an instrument of mass communication.” B.J.F., the woman whose identity was disseminated, won a $75,000 jury award over the newspaper’s defense that a judgment against it for publishing truthful, lawfully obtained information on a newsworthy event violated the First Amendment. B.J.F. prevailed at the trial and appellate levels, and the Florida Supreme Court denied review.The U.S. Supreme Court reversed in a 6-3 vote. In the opinion for the Court, Justice Thurgood Marshall wrote that absent a “state interest of the highest order,” the newspaper could not be punished for the publication of lawfully obtained truthful information, a principle first been set forth in Smith v. Daily Mail Publishing Co. (1979). There, the Court held that the First Amendment protected two newspapers from indictment for publishing, in violation of state law, the name of a juvenile offender when the newspapers obtained the name from witnesses and state officials. Applying this principle, the Court found that, because the newspaper had obtained B.J.F.’s name from a police report left in the pressroom of the Sheriff ’s Department, the truthful information on a newsworthy event had been obtained lawfully. The Court did not consider protection of a rape victim’s identity to be a “state interest of the highest order,” and it found the statute that the newspaper violated to be underinclusive because it punished instruments of mass communication—but no other entity—for disseminating a rape victim’s identity. It also questioned the fairness of the strict liability standard of the Florida law for disclosure of a victim’s identity and expressed concern that affirming the judgment would beget media self-censorship. Marshall stressed that the holding was limited, leaving open the possibility that a state interest could be identified to meet the “highest order” threshold, thereby subjecting a newspaper to a “narrowly tailored” punishment for publishing truthful information. Justice Antonin Scalia concurred, asserting that no statute that imposes on the media a greater obligation than it imposes on society as a whole could address a state interest of the “highest order.” Justice Byron R. White, joined by Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor, dissented, taking issue with the majority opin-
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ion’s “myopic” view of Florida law.They argued for a broader analysis, with more emphasis on Florida tort law instead of simply looking to the statute deemed underinclusive by the Court. Justice White also disputed that the newspaper obtained B.J.F.’s name lawfully because signs in the pressroom of the Sheriff ’s Department publicized the ban on publication of rape victims’ names, and the newspaper reporter admitted that she knew dissemination was prohibited. See also Cox Broadcasting Corp. v. Cohn (1975); Privacy; Smith v. Daily Mail Publishing Co. (1979).
James T. Gibson
furthe r reading McNulty, Patrick J. “The Public Disclosure of Private Facts: There Is Life after Florida Star.” Drake Law Review 50 (2001): 93–158. Perry, Linda M.“When Identities Are Wrongfully Disclosed: How the Florida Star v. B.J.F. Has Changed Privacy Protection.” University of Florida Journal of Law and Public Policy 3 (1990): 101–135.
Flower v. United States (1972) In a per curiam decision in Flower v. United States, 407 U.S. 197 (1972), rendered without oral arguments, the Supreme Court overturned the conviction of John Thomas Flower of the American Friends Service Committee for distributing leaflets at Fort Sam Houston after officials had barred him from the base. The majority reversed the conviction on the grounds that the base commander had not restricted general access to the base, and that there was no sentry or guard posts on the busy street that passed through it: “Under the circumstances the military has abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue.The base commandant can no more order petitioner off this public street because he was distributing leaflets than could the city police order any leafleteer off any public street,” reasoned the Court, citing Lovell v. City of Griffin (1938) and Schneider v. State (1939). The case contained a brief notation of Justice Harry A. Blackmun’s dissent on the basis that he would hear arguments on the merits. Justice William H. Rehnquist wrote a longer dissent in which Chief Justice Warren E. Burger joined. Rehnquist pointed out that the commander could not have subjectively intended to open his base to leafleting because he had already warned Flower against so doing. Rehnquist further doubted that opening a base to traffic necessarily opened it up to leafleting as well. He observed
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that Adderly v. Florida (1966) had allowed even civilian authorities to “draw reasonable distinctions based on the purpose for which public buildings and grounds are used, in according the right to exercise First Amendment freedoms in such buildings and on such grounds.” Rehnquist opposed presenting commanders with the “Hobson’s choice” of accommodating residents of the base only by giving up control over such activities. See also Adderly v. Florida (1966); American Friends Service Committee; Lovell v. City of Griffin (1938); Military Personnel, Rights of; Rehnquist,William H.; Schneider v. State (1939).
John R.Vile
furthe r reading Carr, John A. “Free Speech in the Military Community: Striking a Balance between Personal Rights and Military Necessity.” Air Force Law Review 45 (1998): 303–368.
Flynt, Larry Larry Claxton Flynt Jr. (1942– ), publisher of the pornographic magazine Hustler, has engaged in various legal battles to protect free speech rights. Flynt was born in Magoffin County, Kentucky, an impoverished area deep in coal country.There, he had an unsettled childhood; his father, an alcoholic bootlegger, separated from his wife in 1953.To enter the army, Flynt lied about his age. Shortly after his release, he enlisted in the navy, where he became a radar operator. By twenty-two, he had retired as a sailor, had been twice divorced, and was working as a dishwasher. He opened a bar in Dayton, Ohio, in 1968. By 1973 Flynt had a chain of eight Hustler Clubs, where patrons watched women in bikinis dance in cages. In July 1974, he began publishing his trademark publication, Hustler, which was followed by Beaver Hunt and Barely Legal. Sexually more explicit than Playboy, Hustler featured gynecological photographs, as well as pictures of naked women trussed like turkeys and a girl being fed headfirst into a mincer. Flynt viewed such images as parody that qualified as protected speech, although he admittedly had little interest in the principles of the First Amendment before prosecutors began to bring obscenity charges against him, initiating Flynt’s ongoing battle to test the nation’s obscenity laws. In his first major trial in Cincinnati in 1977, Flynt was championed by celebrities who took out an advertisement in the New York Times that likened his situation to that of a Soviet dissident. He was fighting another charge in a
Publisher Larry Flynt poses with two of his publications, Hustler and Chic, in New York City on January 5, 1977. He described the pornography charges that he faced at that time as “very serious questions on the constitutional right of freedom of the press.”
Georgia courthouse in 1978 when he was ambushed and shot, allegedly for publishing explicit photographs of a mixed-race couple. One bullet shattered Flynt’s spine and left him in constant pain. Flynt, who proudly refers to himself as a “smut peddler,” has spent millions on legal fees in the decades he has run Hustler. His most famous legal case involved Jerry Falwell, founder of the right-wing group Moral Majority. In 1983 Hustler ran a liquor advertisement parody suggesting that Falwell had lost his virginity to his mother in an outhouse. Falwell sued, saying he suffered emotional distress. In Hustler Magazine v. Falwell (1988), the Supreme Court invalidated a lower court’s $200,000 damage award and ruled that a public figure cannot recover damages stemming from a satirical attack. The decision demonstrated that the adult entertain-
Folsom v. Marsh (C.C.D. Mass. 1841) ment industry is frequently in the vanguard of free speech court battles that affect the wider culture. Flynt has also spent much of his time and fortune on exposing hypocrisy among the guardians of public morals. During the period leading up to the 1998 impeachment attempt against President Bill Clinton for having an extramarital affair with a White House intern, Flynt offered $1 million to women who would testify to sexual encounters with members of Congress. This tactic eventually brought about the downfall of Robert L. Livingston, a Republican representative from Louisiana and Speaker-elect of the House of Representatives, who confessed to adulterous affairs and resigned from the House. More recently, in 2004, Flynt unsuccessfully challenged the Department of Defense’s policy on media access to combat troops (Flynt v. Rumsfeld). Flynt became a cultural icon of sorts after the release in 1996 of the popular movie The People v. Larry Flynt, starring Woody Harrelson as the famous pornographer. See also Hustler Magazine v. Falwell (1988); Obscenity and Pornography.
Caryn E. Neumann
furthe r reading Flynt, Larry, and Kenneth Ross. An Unseemly Man: My Life as Pornographer, Pundit, and Social Outcast. New York:Trafalgar Square, 1997. Smolla, Rodney A. Jerry Falwell v. Larry Flynt:The First Amendment on Trial. Chicago: University Press of Illinois, 1990.
Follett v. Town of McCormick (1944) In Follett v. Town of McCormick, 321 U.S. 573 (1944), the Supreme Court voted 6-3 to invalidate a tax of $1.00 a day or $15.00 a year imposed by the town of McCormick, South Carolina, on a resident Jehovah’s Witness selling religious publications door to door. In doing so, the Court used the First and Fourteenth Amendments to extend earlier rulings in Jones v. City of Opelika (1943) and Murdock v. Pennsylvania (1943) that had also struck down license taxes on colporteurs. South Carolina had attempted to distinguish Follett from the earlier decisions by arguing that they were limited to nonresident itinerant preachers and by arguing that the appellant’s sales were more commercial in nature, because they were his sole source of livelihood.The Court, however, rejected both arguments. Justice William O. Douglas, writing for the majority, found that McCormick’s ordinance was an
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improper license tax and pointed out that whatever regulations towns might put on mere commercial speech, the books Follett was selling were clearly religious in nature. Douglas asserted that the religion clause protected the orthodox and the unorthodox, believers with lots of money and those without.The license tax in this case was as odious as the one that Louisiana had attempted to apply in Grosjean v. American Press (1936). In a concurring opinion, Justice Stanley F. Reed noted that he had not agreed with the Court’s earlier decisions in this area, but thought they demanded a similar outcome. In another concurrence, Justice Francis W. Murphy denied charges by dissenters that the decision extended a “subsidy” to religion. The dissenters, Justice Owen J. Roberts, joined by Justices Felix Frankfurter and Robert H. Jackson, portrayed the law as a nondiscriminatory revenue measure, which applied equally to all street vendors.To exempt Follett from such a tax was to subsidize him. If exemptions were to be granted on the basis of religion, they would have to extend equally to other exercises of freedom of the speech and press. See also Commercial Speech; Door-to-Door Solicitation; Grosjean v. American Press Co. (1936); Jehovah’s Witnesses; Jones v. City of Opelika (1942) (1943); Licensing Laws; Murdock v. Pennsylvania (1943).
John R.Vile
furthe r reading Peters, Shawn Francis. Religious Persecution and the Dawn of the Rights Revolution. Lawrence: University Press of Kansas, 2000.
Folsom v. Marsh (C.C.D. Mass. 1841) Although Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass.1841), did not specifically reference the First Amendment, it upheld an injunction against the publication of a book on the life of George Washington after Supreme Court justice Joseph Story, riding circuit in Massachusetts, decided that the book’s publication of letters from previous volumes did not constitute “fair use” and thus violated copyright. The decision illustrates the degree to which early cases dealing with copyright relied on judge-made law. The book at issue was a two-volume, 856-page work entitled Life of Washington, compiled by Rev. Charles W. Upham. Within this work, 353 pages had been published earlier in the twelve-volume Writings of President Washington,
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compiled and edited by Jared Sparks. Although Story relied in his opinion in part on the Copyright Act of 1831, he chiefly cited past cases, many of which were from Great Britain. Story decided that the authors of letters generally owned them. In this case, President Washington had specifically bequeathed his letters to his nephew Justice Bushrod Washington, who had worked with a publisher on the original twelve volumes. Although Congress had subsequently purchased the letters, Story did not believe that the purchase eliminated their original copyright protection. After all, without such protection the labors of those who had originally organized and published the materials could be undercut by competitors willing and able to cherry-pick the letters and publish them in cheaper form. Story argued that fair use could not simply be ascertained by “quantity” but also had to consider “value.” Although Story did not believe that the publisher of the second work had acted from “bad intentions,” he believed the publisher had clearly invaded the original publisher’s work: “if the defendants may take three hundred and nineteen letters, included in the plaintiffs’ copyright, and exclusively belonging to them, there is no reason why another bookseller may not take other five hundred letters, and a third, one thousand letters, and so on, and thereby the plaintiffs’ copyright be totally destroyed.” Even though he regretted that his ruling was interfering with a publication designed for school libraries, Story said he had no choice but to do his duty and to confirm a perpetual injunction “restraining the defendants, their agents, servants and salesmen from farther printing, publishing, selling, or disposing of any copy or copies of the work complained of ” and directing a special master to settle any profits that the defendant had gained. Copyright and fair use scholar L. Ray Patterson (1998) has criticized this case, but it was one of those cited by the Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) in deciding a far more recent fair use controversy. See also Campbell v.Acuff-Rose Music, Inc. (1994); Copyright; Fair Use; Story, Joseph.
John R.Vile
furthe r reading Patterson, L. Ray.“The Worst Intellectual Property Case Ever Written: Folsom v. Marsh and Its Legacy.” Journal of Intellectual Property Law 4 (1998): 431–452.
Food and Drug Administration The Food and Drug Administration (FDA), one of the nation’s oldest consumer protection agencies, was created by the Food and Drug Act of 1909. Since the late 1990s, the FDA’s regulatory authority has been at the center of several Supreme Court cases revolving around the First Amendment protection of commercial speech. The Food and Drug Act of 1909 prohibited interstate commerce in misbranded or adulterated foods, drinks, and drugs. Of its many amendments, some involved product labeling and advertising. In 1938 Congress repealed parts of the 1909 act and enacted the Food, Drug and Cosmetic Act, which, in part, granted the Federal Trade Commission (FTC) oversight of advertising associated with products regulated by the FDA with the exception of that for prescription drugs.The act also forbade false therapeutic claims for drugs. In 1962 Congress passed the Kefauver-Harris Amendments to the 1938 act, which transferred the regulation of prescription drug advertising from the FTC to the FDA and required drug manufacturers to show that their drugs were safe by securing premarketing approval from the FDA. The Food and Drug Administration Modernization Act of 1997 established procedures by which drug and medical device manufacturers may disseminate information about “offlabel” uses for their products. Because the Food and Drug Act and its progeny addressed product labeling and advertising, the FDA became a party to legal disputes over the First Amendment’s protection of commercial speech.As defined by the Supreme Court in 1942 in Valentine v. Chrestensen, commercial speech is expression involving the economic interests of the speaker and its audience. In Valentine, the Court ruled that the First Amendment did not protect purely commercial advertising. But during the 1970s, the Court began to extend some protection to commercial speech, but less than it was giving to political speech. The First and Fourteenth Amendments protect truthful and informative commercial speech, but government can regulate misleading and deceptive advertising. In 1980 in Central Hudson Gas and Electric Corp. v. Public Service Commission, the Court developed a four-part test to determine when commercial speech is protected. In a series of cases beginning in the late 1990s, the federal courts, applying the four-part Central Hudson test, struck down several FDA regulations on the advertising of tobacco products, compounded drugs, “off-label” uses of approved
Foreign Languages, Right to Learn and Teach drugs and medical devices, and content labels on dietary supplements.The courts also articulated the scope of the FDA’s regulatory authority and interpreted the constitutionality of the Food and Drug Administration Modernization Act under the First Amendment’s commercial speech doctrine. In Thompson v. Western States Medical Center (2002), the Court, by a 5-4 vote, struck down the Food and Drug Administration Modernization Act’s prohibitions on soliciting prescriptions for, and advertising of, compounded drugs as a violation of its commercial speech doctrine. Justice Sandra Day O’Connor wrote the majority opinion, in which Justices Antonin Scalia, Anthony M. Kennedy, David H. Souter, and Clarence Thomas joined. Justice Stephen G. Breyer wrote a dissenting opinion in which Chief Justice William H. Rehnquist and Justices John Paul Stevens and Ruth Bader Ginsburg joined.The case was decided on April 29, and on May 16 the FDA issued a “Request for Comments on First Amendment Issues, soliciting opinions as to whether its regulatory policies were adequate in light of this ruling.” See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Federal Trade Commission; Thompson v. Western States Medical Center (2002); Valentine v. Chrestensen (1942).
Judith Haydel
furthe r reading Hudson, David L., Jr. “FDA Labeling Overview.” First Amendment Center. www.firstamendmentcenter.org/speech/advertising/topic .aspx?topic=fda_regulations. “Request for Comments on First Amendment Issues.” Federal Register 67 (May 16, 2002): 44942. Swann, John P. “History of the FDA.” www.fda.gov/oc/history/ historyoffda/default.htm.
Foreign Languages, Right to Learn and Teach In a series of cases from 1923 to 1927, the Supreme Court held that the Constitution protects the right to learn and teach foreign languages. Although the Court initially found this to be a substantive due process right implicit in the Fourteenth Amendment, later courts have also attached this right to the First Amendment. During World War I, a wave of nativism spread across the United States, aimed particularly at German Americans.This nativism was further exacerbated by the Bolshevik Revolution in Russia in 1917. To promote a common cul-
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ture and language, over half the states passed laws prohibiting the teaching of foreign languages. For example, a Nebraska statute barred the teaching of languages other than English in any public or private school until “after a pupil shall have attained and successfully passed the eighth grade.” Several court challenges arose from these laws. The first to reach the Supreme Court, Meyer v. Nebraska (1923), involved a teacher at a Lutheran school who was fined $25 for offering German instruction. Justice James C. McReynolds, writing for the Court, struck down the Nebraska law for violating the liberty guaranteed by the due process clause of the Fourteenth Amendment. According to McReynolds, the “American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted.” The Court declared the law unconstitutional because it affected both the rights of parents to direct the education of their children and the rights of teachers: “Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of the parents to engage him so to instruct their children, we think, are within the liberty of the [Fourteenth] Amendment.” In Bartels v. Iowa (1923), the Supreme Court struck down similar statutes in Iowa and Ohio. Four years later, the Court was confronted with a regulation in the federal territory of Hawaii that required any school that taught in languages other than English and Hawaiian to pay for special permits and fees. The regulation also directed the times of foreign language instruction and designated the textbooks that could be used. In Farrington v. Tokushige (1927), the Court held that this regulation violated the due process clause of the Fifth Amendment. Justice McReynolds, again writing for the Court, characterized the law as infringing on the right to learn foreign languages. The Supreme Court subsequently reasoned that the right to teach and learn foreign languages is a penumbral right protected by the First Amendment. According to Justice William O. Douglas in Griswold v. Connecticut (1965), Meyer represented a First Amendment right to study foreign languages. Douglas noted that without penumbral rights such as this, the explicit First Amendment rights of free speech and press “would be less secure.” Conversely, the Ninth Circuit Court of Appeals used Meyer to invalidate Arizona’s Englishonly requirement under the First Amendment in Yniguez v. Arizonans for Official English (1995), although the Supreme Court reversed this decision on other grounds in 1997.
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See also English-Only Laws; Griswold v. Connecticut (1965); Meyer v. Nebraska (1923); Students, Rights of;Teachers, Rights of.
Eric Kasper
furthe r reading Lawrence, Susan E. “Substantive Due Process and Parental Rights: From Meyer v. Nebraska to Troxel v. Granville.” Journal of Law and Family Studies 8 (2006): 71–116. O’Brien, Kenneth B., Jr., “Education, Americanization, and the Supreme Court: The 1920’s.” American Quarterly 13 (1961): 161–171. Ross, William G. “A Judicial Janus: Meyer v. Nebraska in Historical Perspective.” University of Cincinnati Law Review 57 (1988): 125–204. Wong, Cecilia. “Language Is Speech: The Illegitimacy of Official English after Yniguez v. Arizonans for Official English.” UC Davis Law Review 30 (1996): 277–310.
Forer, Joseph Joseph Forer (1911–1986), a civil liberties attorney, achieved prominence by challenging the constitutionality of federal laws used to target and punish suspected members of the Communist Party. Born in Trenton, New Jersey, Forer obtained his undergraduate degree from Rutgers University and his law degree from the University of Pennsylvania. In the 1930s, he became an attorney with the National Labor Relations Board. During World War II, he worked in the federal government for the Office of Price Administration. In 1946 Forer entered private practice with attorney David Rein. He remained at Forer and Rein until his retirement in the late 1970s. Along the way, he was a founder of the National Lawyers Guild. Among the many cases Forer argued before the Supreme Court were several involving First Amendment freedoms: Kimm v. Rosenberg (1960), Communist Party of the United States v. Subversive Activities Control Board (1961), and Aptheker v. Secretary of State (1964). He prevailed before the high court in Watts v. United States (1969), even though the Court did not conduct oral arguments. In Watts, the Court determined that true threats were not protected by the First Amendment, but ruled that Forer’s client, Robert Watts, engaged in crude political hyperbole rather than a true threat. See also Aptheker v. Secretary of State (1964); Communist Party of the United States v. Subversive Activities Control Board (1961); Rein, David;Watts v. United States (1969).
David L. Hudson Jr.
furthe r reading Pearson, Richard.“Joseph Forer, Lawyer Famed for Rights Cases, Dies at 75.” Washington Post, June 23, 1986, B4.
Forsyth County, Georgia v. Nationalist Movement (1992) In Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992), the Supreme Court established limits for city permitting schemes in ruling that a county’s ordinance violated the First Amendment. In 1987 after a large and expensive civil rights march, Forsyth County, Georgia, officials passed an ordinance that allowed its administrator to vary the costs of obtaining a permit based on the expenses the county might incur in maintaining public order. In January 1989, the Nationalist Movement, a white supremacy group, planned to march in opposition to a federal holiday for Rev. Martin Luther King Jr. When the county administrator announced the cost of the permit for the march, the Nationalist Movement refused to pay it and challenged its constitutionality.A federal district court upheld the ordinance, but the Eleventh Circuit Court of Appeals reversed, reasoning that the ordinance unconstitutionally limited speech in a public forum. On appeal, the Supreme Court ruled 5-4 that the ordinance violated the First Amendment. Justice Harry A. Blackmun, who authored the majority opinion, noted that the ordinance vested unbridled discretion in the hands of the county administrator of how much to charge for police protection. Blackmun relied on a number of Court precedents, including Freedman v. Maryland (1965), which established that city permitting and licensing schemes must provide sufficiently clear standards and not give government officials unbridled discretion. Blackmun also determined that the ordinance was fatally flawed because it allowed city officials to charge more for a permit based on their assessment of whether a group’s speech would engender a hostile response. “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob,” he wrote. Chief Justice William H. Rehnquist, who wrote for the four dissenters, contended that the issue before the Court was whether cities could charge permit applicants more than a nominal fee for speech in a public forum. He said the Court’s decision in Cox v. New Hampshire (1941) authorized such a result. Rehnquist criticized the majority for “reaching out” and deciding other constitutional issues surrounding
Fortas, Abe the permitting scheme that had not been addressed by the lower courts. See also Blackmun, Harry A.; Cox v. New Hampshire (1941); Freedman v. Maryland (1965); Rehnquist,William H.
David L. Hudson Jr.
furthe r reading O’Neill, Kevin Francis. “Disentangling the Law of Public Protests.” Loyola Law Review 45 (1999): 411–526.
Fort Wayne Books, Inc. v. Indiana (1989) In Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), the Supreme Court unanimously agreed that an Indiana provision allowing pretrial seizure of allegedly obscene material imposed an impermissible prior restraint. Prejudgment provisions of Indiana’s Racketeer Influenced and Corrupt Organizations (RICO) law allowed for temporary restraining orders, seizures, and padlocking orders. Authorities had used the statute to seize materials from Fort Wayne Books and another adult bookstore, whose owners then filed suit. The case prompted four opinions from the Court. In evaluating the case’s competing constitutional interests, the Court observed that Marcus v. Search Warrant (1961) and its progeny require “rigorous procedural safeguards . . . before expressive materials can be seized as ‘obscene.’ ” Although the Fourth Amendment generally allows contraband and evidence of crimes to be “seized on probable cause,” a different standard applies when First Amendment material is involved. Critical to Justice Byron R. White’s decision was that “[h]ere there was not—and has not been—any determination that the seized items were ‘obscene’ or that a RICO violation has occurred.” In addition, because “the petition for seizure and hearing [on the predicate crimes] were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, the order for seizure recited no more than probable cause in that respect.” With this understanding, as Justice White observed, “mere probable cause” that a violation had occurred was not adequate to remove books or films from circulation. Fort Wayne Books highlights the distinction between prior restraint and a subsequent criminal penalty (for example, forfeiture). In cases leading up to Fort Wayne Books, such as Arcara v. Cloud Books, Inc. (1986), and in cases following the
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decision, such as Alexander v. United States (1993), the Court determined that criminal penalties shutting down adult entertainment businesses did not create an impermissible chilling effect. See also Alexander v. United States (1993); Arcara v. Cloud Books, Inc. (1986); Obscenity and Pornography; Prior Restraint; RICO Laws.
Cary Wiggins
furthe r reading Melnick,Andrew J.“A ‘Peep’ at RICO: Fort Wayne Books, Inc. v. Indiana and the Application of Anti-Racketeering Statutes to Obscenity Violations.” Boston University Law Review 69 (1989): 389–434.
Fortas, Abe Abe Fortas (1910–1982) served on the Supreme Court from 1965 to 1969, when he resigned in the midst of controversy. He authored several important First Amendment opinions. Fortas, who was born in Memphis, Tennessee, graduated from Southwestern College (now Rhodes College) and Yale Law School, where he edited the law journal. During the New Deal, he served in various executive branch positions. Meanwhile, he became friends with a young congressman from Texas named Lyndon B. Johnson. In 1946 Fortas joined with two other well-known New Deal figures, Thurman Arnold and Paul Porter, to establish what would become one of Washington’s most prestigious corporate law firms, Arnold, Fortas, and Porter.Although the firm gained most of its revenue from representing large corporations, Fortas also won acclaim for championing civil liberties and the rights of the individual. Indeed, in 1962, prior to his appointment to the Supreme Court, Fortas was chosen by the Court to represent Clarence Earl Gideon, an indigent Florida prisoner who had been convicted without the benefit of counsel. In what became the landmark case of Gideon v.Wainwright (1963), the Court ruled that states had to provide counsel for indigents accused of felonies. In July 1965, President Lyndon Johnson nominated Fortas to the seat on the Supreme Court vacated by Justice Arthur J. Goldberg, who resigned to serve as ambassador to the United Nations.The Senate confirmed Fortas’s appointment on August 11, 1965. After a short but distinguished tenure, Fortas resigned from the Court on May 14, 1969, under a cloud of controversy that had actually begun to form the previous year. In 1968 President Johnson had nominated Fortas to replace Chief Justice Earl Warren, but sena-
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tors concerned about Fortas’s financial dealings blocked his confirmation with a filibuster, and later he withdrew his nomination. Justice Fortas’s most famous and influential First Amendment decision was Tinker v. Des Moines Independent Community School District (1969). In Tinker, a school district suspended public high school students for wearing black armbands protesting the U.S. involvement in the Vietnam War. The students sued, claiming that the First Amendment protected their right to express their political dissent by wearing the armbands.Writing for a seven-member majority, Fortas proclaimed, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court likened the case to, among others, the substantive due process case of Pierce v. Society of Sisters (1925), which found a ban on teaching a foreign language unconstitutional, and West Virginia State Board of Education v. Barnette (1943), which held that students could not be forced to recite the Pledge of Allegiance. The Court concluded that to be punishable, behavior directly implicating First Amendment rights, such as wearing armbands, must foster disorder or disturbance in the school. Because “only a few of the 18,000 students in the school system wore the black armbands” and there was no evidence that classes were actually disrupted, the school could not meet the high standard justifying punishment of the students. Justice Fortas also authored a key decision in Epperson v. Arkansas (1968), in which the Court struck down a statute banning the teaching of evolution.The Court rested its decision on the grounds of neutrality in religion, but also emphasized the “fundamental values of freedom of speech and inquiry and of belief.” In Street v. New York (1969), involving desecration of the U.S. flag, Fortas joined Chief Justice Earl Warren’s dissent. The majority had focused on the man’s speech—not his treatment of the flag itself. The dissenters reasoned that bans on flag burning should, by and large, be constitutional. Similarly, Fortas dissented from the majority opinion on libel in Time, Inc. v. Hill (1967). See also Epperson v. Arkansas (1968); Street v. New York (1969); Time, Inc. v. Hill (1967); Tinker v. Des Moines Independent Community School District (1969);Warren, Earl.
David Asp
furthe r reading Federal Judiciary Center. “Abe Fortas.” www.fjc.gov/public/home .nsf/hisj.
Kalman, Laura. Abe Fortas: A Biography. New Haven, Conn.: Yale University Press, 1990. Murphy, Bruce Allen. Fortas: The Rise and Ruin of a Supreme Court Justice. New York:William Morrow, 1998.
Fortune Telling Any number of municipalities have sought to limit fortune telling, clairvoyance, palmistry, and related activities, contending that such practices amount to attempts to defraud unsuspecting consumers. Fortune-telling practitioners counter, however, that such prohibitions violate their First Amendment free expression rights. They argue that these content-based ordinances cannot withstand constitutional scrutiny. For years, the courts gave government officials a wide degree of deference in this area. In Davis v. Ohio (1928), the Ohio Supreme Court upheld a state law regulating fortune telling. Responding to a free speech defense, the court replied that “liberty of speech is not license to speak anything that one pleases freed from all criminal or civil responsibility.”The court also refused to recognize any religious-based defense, citing the U.S. Supreme Court’s polygamy decision Reynolds v. United States (1879) for the principle that “a party’s religious belief cannot be accepted as a justification for his committing an overt act made criminal by the law of the land.” The U.S. Supreme Court declined to review Davis. Still other courts reasoned that cities could limit fortune telling, because even if such activities constituted expression, it amounted to no more than commercial speech, which did not receive First Amendment protection at all until the mid-1970s. In recent years, the courts have viewed restrictions on fortune telling with great skepticism.These courts recognize that the laws restrict speech based on content and must survive strict scrutiny. In Argello v. City of Lincoln (1998), the Eighth Circuit Court of Appeals struck down Lincoln, Nebraska’s fortune-telling ban, finding that the city failed to show any compelling interest in its law.“Government is not free to declare certain beliefs—for example, that someone can see into the future—forbidden,” the court wrote. “Citizens are at liberty to believe that the earth is flat, that magic is real, and that some people are prophets.”The Eighth Circuit rejected the notion that fortune telling represented commercial speech, which does no more than propose a commercial transaction. “The speech itself, fortunetelling, is not commercial simply because someone pays for it,” the court wrote.“The speech covered by the ordinance . . . does
44 Liquormart, Inc. v. Rhode Island (1996) not simply propose a commercial transaction. Rather, it is the transaction.” Similarly, in Rushman v. City of Milwaukee (1997), a federal district court in Wisconsin invalidated a Milwaukee ordinance banning fortune telling. “Telling fortunes or giving advice based on astrology (without more) is speech-for-profit, not commercial speech,” the court wrote. “If the City could ban any statement or belief debunked by science, the First Amendment would be a cruel hoax, more worthy of Orwell’s double-thinking Oceania than the United States of America.” Despite this strong body of precedent, some jurisdictions continue to impose restrictions on fortune telling. For example, in May 2007 the Livingston Parish Council in Livingston, Louisiana, voted unanimously to ban fortune-telling. First Amendment commentator Gene Policinski has written that fortune-tellers, astrologers, and the like “ought not to have government looking over their shoulders” because “education, not regulation, would seem a better way of dealing with the future of star-driven prognostication or colored bits of paper that purport to predict.” See also Commercial Speech; Content Based.
David L. Hudson Jr.
furthe r reading Policinski, Gene. “Second Sight Deserves First Amendment Protection.” First Amendment Center, May 20, 2007. www.first amendmentcenter.org/commentary.aspx?id=18573. Sarno, Gregory G. Annotation, “Regulation of Clairvoyance, Fortunetelling and the Like.” American Law Reports 3rd 766 (1979).
44 Liquormart, Inc. v. Rhode Island (1996) In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), the Supreme Court struck down, as a violation of the First Amendment’s free speech clause, a state law prohibiting the advertising of alcohol prices. The decision continued the Court’s recent move toward providing commercial speech First Amendment protection, unless such communication is fraudulent or illegal. The Court has historically extended less protection to commercial speech than to political speech. Commercial speech has been viewed as of lesser importance and subject to numerous restrictions in order to prevent fraud. With its ruling in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), however, the Court began extending First Amendment protection to commercial
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speech. It ruled that speakers and advertisers have a right to speak and that listeners and consumers have a right to hear or receive information. Four years later, the Court in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980) proposed a four-part test to determine when regulation of commercial speech is permitted. First, a court must decide whether the expression is fraudulent or illegal. If it is neither, then the court must ask whether the asserted government interest is substantial. If both questions are answered affirmatively, the court must determine whether the regulation directly advances the government interest asserted and whether it is more extensive than is necessary to serve that interest. If the regulation is tailored narrowly to secure the interest, then the regulation of the commercial speech will be upheld. The Court applied this four-part Central Hudson test to 44 Liquormart. At issue in this case was a Rhode Island statute prohibiting the advertising of liquor prices. Claiming that the ban violated its First Amendment rights, 44 Liquormart sought a declaratory judgment.The state justified its ban by asserting that the prohibition on advertising furthered the compelling government interest of promoting temperance. The Court disagreed. Justice John Paul Stevens applied the four-part Central Hudson test for the Court. As in Virginia State Board of Pharmacy, Stevens and the Court stated that the right of consumers to receive truthful product information about prices was protected speech. He also acknowledged that the state interest in temperance was substantial and that the ban on advertising liquor prices did advance that interest. Stevens argued, however, that the state interest in promoting temperance was not drawn narrowly enough to prevent consumers from receiving lawful and truthful information about prices. Moreover, Rhode Island had failed to show that the advertising ban would significantly reduce alcohol consumption and that this total ban was more extensive than necessary to secure the state’s goal. In a concurring opinion, Justice Clarence Thomas reasoned that truthful, nonmisleading commercial speech should be accorded the same level of First Amendment protection as political speech. See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Stevens, John Paul;Thomas, Clarence; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976).
David Schultz
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furthe r reading Kozinski, Alex, and Stuart Banner. “Who’s Afraid of Commercial Speech?” Virginia Law Review 76 (1990): 627–653. Shiner, Roger A. Freedom of Commercial Expression. Oxford: Oxford University Press, 2003. Skilken, Melissa S. “This Ban’s for You: 44 Liquormart, Inc. v. Rhode Island.” University of Cincinnati Law Review 65 (1997): 1387–1422.
Foundation for Individual Rights in Education The Foundation for Individual Rights in Education (FIRE) is a Philadelphia-based nonprofit organization that aims to protect students’ First Amendment rights at U.S. colleges and universities. Although FIRE is broadly concerned with rights, it especially targets campus speech codes that prohibit certain kinds of language. Because these codes are often tied to “political correctness,” and because FIRE has more recently begun defending the rights of religious practitioners, some observers consider it to be a conservative organization. FIRE also has actively campaigned and litigated against free speech zones on college and university campuses. FIRE was founded in 1999 by Alan Charles Kors, a professor of history at the University of Pennsylvania, and Boston defense attorney Harvey A. Silverglate. The organization arose from Kors’s stint as a faculty adviser to Penn student Eden Jacobowitz when in 1993 Jacobowitz responded to a loud sorority event outside his dormitory window by calling a group of African American women “water buffalo.” Although the university charged him with racist hate speech under President Sheldon Hackney’s campus speech code, Jacobowitz and Kors argued that “water buffalo” had no history as a racial epithet. The national media reported on the story, and the charges against Jacobowitz were dropped when he agreed to apologize for “rudeness.” Kors’s experience left him not only opposed to speech codes, but also concerned about improper judicial procedures and unaccountable institutional structures at U.S. universities. In a 1998 book that included a detailed account of the Jacobowitz incident, Kors and Silverglate decried this “shadow university” of disciplinary systems that failed to respect the liberty of students. A year later, they founded FIRE to educate about and advocate for student liberty. FIRE runs two major programs. The Individual Rights Defense Program defends students and campus groups against violations of their First Amendment rights, typically in response to complaints filed by these students or their professors. The Individual Rights Education Program pro-
vides guides, both in print and online, to student rights.The education program also calls attention to rights violations through an online database of colleges and their “speech code ratings”; a “red light” code, for example, indicates that the university has at least one policy that restricts freedom of speech. Sourcewatch, the Web site of the Center for Media and Democracy, groups FIRE with other conservative organizations (such as David Horowitz’s Center for the Study of Popular Culture) that seek to end a perceived liberal bias in academia. FIRE has received support from many major conservative funders, including the Scaife, Olin, and Bradley Foundations, and prominent conservatives, such as Christina Hoff Summers, sit on its board of advisers. In recent years, the organization has taken on some high-profile cases for conservative students, including supporting an anti-abortion group at the University of Washington Law School and criticizing a University of California, Berkeley, instructor of Palestinian politics who apparently discouraged “conservative thinkers” in his syllabus. A 2005 response from FIRE to accusations of bias, written by program officer Charles Mitchell, noted that the board of advisers also included members of the American Civil Liberties Union, and that FIRE defended First Amendment rights regardless of political orientation. Mitchell pointed to a letter sent by FIRE to the University of Colorado in behalf of controversial professor Ward Churchill, who was fired by the university in 2007, and mentioned other instances in which the foundation defended professors for critical remarks after the terrorist attacks of September 11, 2001. See also Academic Bill of Rights; Campus Speech Codes; Free Speech Zones; Political Correctness; Students, Rights of.
Richard J. Meagher Jr.
furthe r reading Foundation for Individual Rights in Education. www.fire.org. French, David, Greg Lukianoff, and Harvey Silverglate. FIRE’s Guide to Free Speech on Campus. Philadelphia: Foundation for Individual Rights in Education, 2005. Kors, Alan Charles, and Harvey A. Silverglate. The Shadow University: The Betrayal of Liberty on America’s Campuses. New York: HarperCollins, 1998. Mitchell, Charles. “Article’s Depiction of FIRE Is Inaccurate,” October 31, 2005. www.prwatch.org/prwissues/2005Q3/saf.html# comment-499. Sourcewatch.org. “Foundation for Individual Rights in Education.” www.sourcewatch.org/index.php?title=Foundation_for_Individual _Rights_in_Education.
Four Freedoms
Four Freedoms President Franklin D. Roosevelt, in his annual address to Congress on January 6, 1941, articulated what became known as the Four Freedoms, two of which relate to the First Amendment: freedom of speech and expression, freedom to worship God in one’s own way, freedom from want, and freedom from fear. Roosevelt, a Democrat and the former governor of New York, was the only president to serve more than two terms in office. First elected to office when he defeated Herbert Hoover in 1932, Roosevelt inaugurated an ambitious series of government programs, known collectively as the New Deal, to raise the nation out of the Great Depression, which had begun with the crash of the stock market in 1929. In Europe, the depression further compounded the economic dislocations produced by World War I and led to the rise of communism in Russia, Nazism in Germany, and fascism in Italy. Asia also witnessed the rise of Japanese militarism. By the beginning of Roosevelt’s third term in 1941, Germany had overrun most of Europe, and Japan was advancing through China.Yet, the United States retained its largely isolationist stance, which Roosevelt addressed in his January speech. Perceiving the desperate needs of Great Britain and other nations struggling against dictatorships, Roosevelt proposed increasing the production of armaments and sending them to foreign democracies through a lendlease program. In his attempt to rouse the nation from its isolationism, Roosevelt observed, “As men do not live by bread alone, they do not fight by armaments alone.” He argued that “the preservation of civil liberties for all” was essential. Indeed, the nation should seek “a world founded upon four essential human freedoms,” which he then delineated. “This is no vision of a distant millennium,” Roosevelt asserted. “It is a definite basis for a kind of world attainable in our own time and generation.” Roosevelt’s speech is significant in its linkage of traditional political rights to national security and economic prosperity (in his successful 1944 campaign he proposed an Economic Bill of Rights). Moreover, echoing the Declaration of Independence, Roosevelt affirmed that the rights Americans sought were fundamental human rights that should be available to all people everywhere. In time, the nation’s entry into World War II after the Japanese attacks on the U.S. military base in Pearl Harbor, Hawaii, was tied to the fight for democracy and human rights both at home and
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abroad. Famed artist Norman Rockwell even depicted the Four Freedoms in February and March 1943 issues of the Saturday Evening Post. His paintings were used successfully to raise money for war bonds. Although it forcefully detained Japanese Americans in camps during World War II and continued its own policies of racial segregation during and in the immediate aftermath of the war, the United States portrayed itself as the defender of human rights during this conflict in which it was strategically allied with the Soviet Union against Adolf Hitler’s Germany. After the war, Roosevelt’s vision of international human rights and international security was furthered with the founding of the United Nations in 1945. Rights, including those in the First Amendment, were incorporated into international documents, including the Universal Declaration of Human Rights. In the cold war period that followed, the United States continued to portray itself as the defender of human rights when it attempted to contain the Soviet Union and its allies. During the cold war, Americans often contrasted their own widespread belief in God and religious freedom with official Soviet atheism and persecution of religion. But at times they proved willing to sacrifice freedoms of speech and expression in what they considered to be a death struggle with communists at home and abroad—examples were the vigorous congressional investigations pursued, the requirements for loyalty oaths, and the restrictions imposed on the Communist Party of the United States during the cold war. Interestingly, Roosevelt may have inadvertently paved the way for these events when he suggested in his 1941 speech that the “first phase of the invasion of this Hemisphere would not be the landing of regular troops” but the occupation of “necessary strategic points . . . by secret agents and their dupes,” great numbers of whom he thought were already in the United States and Latin America. See also Communist Party of the United States; Declaration of Independence; McCarthyism; Red Scare;World War II.
John R.Vile
furthe r reading “Our Documents: Four Freedoms.” Franklin D. Roosevelt Presidential Library and Museum. www.fdrlibrary.marist.edu/od4frees.html. Pederson,William D.“Four Freedoms.” Encyclopedia of Civil Liberties in America, ed. David Schultz and John R.Vile, 2:393–394. Armonk, N.Y.: Sharpe Reference, 2005.
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Fowle, Daniel Daniel Fowle (1715–1787), a printer, played an important part in highlighting freedom of the press in the colonial period prior to adoption of the First Amendment. Fowle was arrested at his home in 1754 on suspicion of having published a pamphlet, The Monster of Monsters, which he admitted to selling and which satirized members of the colonial legislature for taxing rum. Unbowed by his five-day imprisonment, Fowle subsequently recounted his ordeal in another pamphlet, A Total Eclipse of Liberty, and then fled to Hampshire where he founded the New Hampshire Gazette. Meanwhile Fowle lost a suit against the Massachusetts government for his imprisonment.After he was sued by the state for court costs, the Massachusetts General Court overturned the costs and ordered that the colony pay damages for his suffering. At a time when the English and colonists were likely to equate representative assemblies with the people, Fowle’s experience indicates that the identity was not complete. If the press was to be free, its members would have to be able to criticize the legislature. Fowle set an example that other publishers followed in their denunciations of the Stamp Act and other British taxes. See also Stamp Act.
John R.Vile
furthe r reading Martin, Robert W. T. The Free and Open Press: The Founding of American Democratic Press Liberty, 1640–1800. New York: New York University Press, 2001. Taxlitz, Andrew E. Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789–1868. New York: New York University Press, 2006.
Fowler v. Rhode Island (1953) In Fowler v. Rhode Island, 345 U.S. 67 (1953), the Supreme Court found that a municipal ordinance that prevented a minister affiliated with Jehovah’s Witnesses from conducting a religious service in a public park, but allowed other religious services to be held, violated the First and Fourteenth Amendments. The case was significant in defining the dynamic relationship between religion and government, touching on premises from the establishment and free exercise clauses of the First Amendment.The state must treat all religions equally; otherwise it violates the establishment
clause.The state also cannot determine what is appropriately labeled “religious” without risking violation of the free exercise clause. William B. Fowler, a minister, delivered a sermon entitled “The Pathway to Peace” to some 400 attendees, about 150 of whom were Jehovah’s Witnesses.The meeting in the park was informal and peaceful. Authorities charged Fowler with having violated a city ordinance requiring a permit to speak in a public park, and he was found guilty. Rhode Island’s Supreme Court affirmed his conviction. In arguments before the U.S. Supreme Court, Rhode Island relied on the decision in Davis v. Massachusetts (1897) to support its permit requirement. Justice William O. Douglas wrote the Court’s opinion, which he said was not directly related to the Davis decision as argued. Instead, the justices’ decision centered on the ground that other religious groups, such as Catholics and Protestants, were given full rein to hold religious services and other devotionals in public parks. The Court reasoned that discrimination against one religious group revealed the state’s preferences and thus violated the establishment clause of the First Amendment. The ordinance was treating religious services held by Jehovah’s Witnesses differently from those of other religions.The religious service was admittedly different in nature from those other religious groups, but the Court also maintained that it was not the job of the municipality to determine what religious practice for one group is or is not a religious service. The decision cited Niemotko v. Maryland (1951), which involved discrimination against Jehovah’s Witnesses in a similar circumstance. Justice Felix Frankfurter and Justice Robert H. Jackson concurred. Justice Frankfurter indicated that he was relying on the equal protection clause of the Fourteenth Amendment rather than on the First Amendment. See also Davis v. Massachusetts (1897); Douglas, William O.; Jehovah’s Witnesses; Niemotko v. Maryland (1951).
Kathryn Oates
furthe r reading Shuman, S. I. “Constitutional Law: Freedom of Assembly: Equal Protection of the Law.” Michigan Law Review 51 (1953): 1234–1236.
Fox v. Washington (1915) In Fox v. Washington, 236 U.S. 273 (1915), the Supreme Court upheld a Washington state statute that made it a crime
Frankfurter, Felix to publish materials “advocating, encouraging or inciting, or having a tendency to encourage or incite the commission of any crime, [or] breach of the peace.” The Court reached its decision by applying the bad tendency test. Jay Fox had published an article entitled “The Nude and the Prudes” on behalf of Home Colony anarchists, whom he described as “a community of free spirits, who came out into the woods to escape the polluted atmosphere of priestridden, conventional society.” Defending their right to bathe in the nude, he called for a boycott of those interfering with the colony’s freedom. In the opinion for the unanimous Court—issued before the Court recognized that the First Amendment limited state governments—Justice Oliver Wendell Holmes Jr. focused chiefly on issues of due process. He construed the Washington statute narrowly in order to limit only publications that encouraged actual breaches of the law and then argued that the case revolved only around this issue. Like contemporary advocates of judicial restraint, Holmes further clarified that the Court’s ruling did not address the “wisdom of the defendant, the prosecution, or the Act.” See also Bad Tendency Test; Holmes, Oliver Wendell, Jr.
John R.Vile
furthe r reading Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1977.
Fraenkel, Osmond Osmond Kessler Fraenkel (1888–1983) was one of the leading civil liberties attorneys of the twentieth century. Born in New York City, Fraenkel graduated from Columbia Law School in 1911 and in 1935 became cocounsel to the New York Civil Liberties Union. He gained national prominence in the 1930s when he defended two of the Scottsboro Boys in the appeals of their racially biased convictions in Alabama. Over a period of thirty years, Fraenkel argued fifteen cases before the Supreme Court, many of which raised First Amendment issues. Among the better known cases are De Jonge v. Oregon (1937), a landmark case in which the Court found that the First Amendment freedom of assembly extended to the states; Bridges v. California (1941), in which the Court invalidated the conviction of noted labor leader Harry Bridges, finding that his expression did not cause a clear and present danger to the
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administration of justice; and two of the four cases known collectively as Schneider v. State (1939), which invalidated city laws that limited the distribution of religious and political literature on city streets. Fraenkel became chief counsel to the American Civil Liberties Union in 1954, serving there for more than twenty years. He also authored numerous books on civil liberties, including For Free Speech (1936), Our Civil Liberties (1944), The Supreme Court and Civil Liberties: How the Court Has Protected the Bill of Rights (1960), and The Rights We Have: A Handbook of Civil Liberties (1975). See also Adler v. Board of Education (1952); American Civil Liberties Union; Bridges v. California (1941); De Jonge v. Oregon (1937); Jones v. City of Opelika (1942) (1943); Kunz v. New York (1951); Schneider v. New Jersey (1939).
David L. Hudson Jr.
furthe r reading Margolick, David. “Osmond K. Fraenkel Dies at 94; Former Counsel to the ACLU.” New York Times, May 17, 1983, B6.
Frankfurter, Felix Felix Frankfurter (1882–1965) championed civil rights during twenty-three years as a justice on the Supreme Court, but he frequently voted to limit civil liberties, believing that government had a duty to protect itself and the public from assault and that the Court should exercise judicial restraint to promote democratic processes. Born in Vienna, Austria, Frankfurter arrived in New York City with his family in 1894, knowing no English. They lived in a Jewish ghetto on the Lower East Side of Manhattan, where his father became a door-to-door salesman. Adapting quickly to his adopted nation and its language, Felix entered City College of New York in 1897 as part of a program that allowed him to finish high school and to earn a college degree. He graduated magna cum laude in 1902 and briefly attended New York Law School. He then transferred to Harvard University, became editor of the Harvard Law Review, and graduated at the top of his class in 1906. After a stint in private practice, Frankfurter became an assistant U.S. attorney in New York under Theodore Roosevelt appointee Henry L. Stimson. In 1911 Stimson was appointed secretary of war by President William Howard Taft; Frankfurter became counsel to the Bureau of Insular Affairs. In 1914 Frankfurter accepted a position teaching at Harvard Law School. Throughout his tenure at Harvard,
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Felix Frankfurter
Frankfurter was known nationally as the consummate teacher and scholar, an outspoken advocate of liberal causes, as well as a skilled participant in public affairs. President Woodrow Wilson appointed him as a judge advocate to investigate labor unrest, and then as counsel to the Mediation Commission. He also served as a Zionist delegate to the Versailles Peace Conference, and he urged Wilson to incorporate the Balfour Declaration into the treaty. In 1920 Frankfurter helped to organize the American Civil Liberties Union.Two years later, in 1922, he published, along with Roscoe Pound, Criminal Justice in Cleveland, a study of crime reporting in Cleveland newspapers.The study concluded that the recent crime wave in Cleveland was a fiction created by the press that resulted in inflated punishments and gross miscarriages of justice. His vigorous criticism of the conviction and 1927 execution of Nicola Sacco and Bartolomeo Vanzetti, the anarchists accused of bank robbery and murder in Braintree, Massachusetts, resulted in another book, The Case of Sacco and Vanzetti (1927). In all, Frankfurter
authored or edited twelve books and many scholarly articles for law journals, and he frequently contributed articles to the New Republic, which he helped to found. In his speeches and writings, Frankfurter remained a steady and passionate champion of the poor, the downtrodden, the persecuted, and the wrongly convicted. He was sometimes maligned as a “Red,” and on one occasion Harvard alumni demanded that he be fired. Frankfurter also conveyed an unshakeable love for his adopted country and its laws and institutions. He had a fine sense of the American democratic process that emphasized the supremacy of the legislature, and he held to a belief that appointed judges should not inject their personal viewpoints into law. He increasingly advocated that the will of the people be exercised through their elected legislatures and not by an appointed judiciary. Frankfurter influenced both his students and the government. He was a nationally recognized expert on labor law, constitutional law, and civil procedure. Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis relied on Frankfurter to appoint their law clerks, who usually were his top students. Many of them went on to serve important posts in the New Deal. He also regularly communicated with Justice Harlan Fiske Stone after President Calvin Coolidge appointed Stone to the Court in 1925. After Franklin D. Roosevelt’s election to the presidency in 1932, Frankfurter frequently visited the White House, where he became a valued adviser to New Deal programs. He enthusiastically supported the social and economic engineering of the programs Congress adopted, some of which he helped to formulate.When Justice Benjamin N. Cardozo died in 1938, FDR nominated Felix Frankfurter to replace him.The Senate confirmed his appointment on January 16, 1939, and he was sworn in on January 30. On the Court, Frankfurter initially voted to uphold the constitutionality of New Deal programs. He generally supported the civil rights of minorities, personally opposed the death penalty, and often voted to rein in the powers of the police. He became the most fervent proponent of judicial restraint, often lecturing in his opinions on the propriety of allowing the elected branches of government great leeway in their interpretations of the Constitution and frequently quoting Holmes and Brandeis in his opinions as a tribute to their judicial self-restraint. He also tended to sustain precedents as a matter of principle. In a notable majority opinion in Minersville School District v. Gobitis (1940), Frankfurter upheld the constitutionality of
Franklin, Benjamin a Pennsylvania law requiring schoolchildren to salute the American flag. In this case, the two Gobitis children, Jehovah’s Witnesses, were expelled from the public school in Minersville, Pennsylvania, for refusing to salute the flag as part of a daily school exercise. Jehovah’s Witnesses believed that such a gesture of respect for the flag was forbidden in the Bible. Frankfurter stressed that national unity promoted national security, that the court should avoid interfering with the legislative prerogative in passing such laws, and that the free exercise clause does not excuse people from complying with general laws of the state that do not aim to restrict religious beliefs, the “secular regulation” rule. After the Court’s ruling, violent incidents broke out across the nation targeting Jehovah’s Witnesses and their property. In Jones v. City of Opelika (1942), also a Witnesses case, Justices Hugo L. Black, William O. Douglas, and Francis W. Murphy stated in a dissent that Gobitis should be overturned. That change of sentiment led directly to West Virginia State Board of Education v. Barnette (1943), a similar flag salute case, in which the Court reversed Gobitis. Justice Robert H. Jackson’s classic 6-3 majority decision stressed that the government could not compel patriotism through a forced flag salute. Frankfurter felt compelled to justify his earlier opinion by writing a vigorous dissent that is now a classic in its own right. As a member of “the most vilified and persecuted minority in history,” he believed he was not “insensitive to the freedoms guaranteed by the Constitution,” but that “as a member of this court” he believed that he had no justification for injecting his personal opinions into the Constitution “no matter how deeply I may cherish them or how mischievous I may deem their disregard.” Frankfurter preferred to examine perceived violations of the due process clause of the Fourteenth Amendment on a case-by-case, or fundamental fairness, basis. By contrast, Justice Hugo Black and others advanced the idea of total incorporation—that is, applying all the provisions of the Bill of Rights, including those of the First Amendment, to the states by means of the due process clause of the Fourteenth Amendment. Frankfurter generally preferred to evade exercises of judicial review and to protect civil liberties through statutory construction rather than through constitutional interpretation. Frankfurter was not one of the great defenders of the First Amendment during his long tenure on the Court. For example, he wrote the Court’s majority opinion in Beauharnais v. Illinois (1952), which upheld an Illinois group libel law. Similarly, he wrote the Court’s majority opinion in
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Kingsley Books, Inc. v. Brown (1957), which upheld a New York law allowing city officials to seize material alleged to be obscene before a judicial hearing. The dissenters—which included free speech stalwarts William Douglas, Hugo Black and William J. Brennan Jr.—deplored the statute as a classic prior restraint. Although he was regarded as a liberal, Frankfurter is not easily categorized. Intensely loyal to his adopted country, he firmly believed that the elected representatives of the people should be as free as possible of judicial intervention. He was a brilliant scholar and an opinionated advocate of ideas, often appealing to his supporters and yet irritating to his adversaries. His public disagreements with Justices Black, Douglas, and Frederick M. Vinson at times caused tension on the Court. In an obscure admiralty case, Justices Owen J. Roberts and Frankfurter severely criticized Justice Harlan Fiske Stone for his tendency to overturn precedent, which to Frankfurter appeared “gloatingly to show up the unwisdom, if not the injustice, of our predecessors.” He believed that such a tendency would ultimately bring the Court and the law into disrepute. Eventually, Black and Frankfurter reconciled their differences. Douglas, however, never resolved his conflict with Frankfurter. Frankfurter resigned from the bench in 1962 after a severe stroke and died three years later. See also American Civil Liberties Union; Beauharnais v. Illinois (1952); Black, Hugo L.; Brandeis, Louis D.; Douglas, William O.; Holmes, Oliver Wendell, Jr.; Jones v. City of Opelika (1942) (1943); Kingsley Books, Inc. v. Brown (1957); Minersville School District v. Gobitis (1940); West Virginia State Board of Education v. Barnette (1943).
James R. Belpedio
furthe r reading Baker, Leonard. Brandeis and Frankfurter: A Dual Biography. New York: Harper and Row, 1984. Frankfurter, Felix. Felix Frankfurter Reminisces. Westport, Conn.: Greenwood Press, 1978. Reprint, New York: Reynal, 1960. Hirsch, H. N. The Enigma of Felix Frankfurter. New York: Basic Books, 1981. Murphy, Bruce Allen. The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices. New York: Oxford University Press, 1962.
Franklin, Benjamin Benjamin Franklin (1706–1790), printer, inventor, scientist, and statesman, occupies a distinguished place in U.S. history. He not only played an influential role in the Revolutionary War era and the fight for American independence, but also
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helped to shape the U.S. Constitution and vision for the new nation. He was a lifetime champion of First Amendment freedoms, particularly freedom of the press. Franklin was born in Boston, Massachusetts, to Josiah Franklin and Abiah Folger. He attended Boston Latin School, but did not graduate. His keen intellect grew through his intensive studying and reading. Franklin was apprenticed at an early age to his older brother James, who published the first independent newspaper in the colonies, the New England Courant. His apprenticeship ended abruptly at the age of seventeen when he moved to Philadelphia. Franklin’s knowledge of the printing business grew, and he bought and became the publisher of the Pennsylvania Gazette. He used the newspaper as a forum for political discourse in the city. Franklin’s professional interests were diverse. In 1731 he was one of several young men who began the first public library, located in Philadelphia. A prolific writer, he became known for Poor Richard’s Almanack (1733) and Father Abraham’s Sermon (1758). In 1743 he founded the American Philosophical Society. The source of many inventions, Franklin was best known for his famous kite-flying experiment that he conducted during a lightning storm. In the early 1740s, he developed a vision for The Academy and College of Philadelphia, which opened in 1755 and later merged with the University of the State of Pennsylvania to become the University of Pennsylvania. Franklin became involved in politics in the 1740s and 1750s. In addition to numerous political appointments, Franklin displayed his diplomatic brilliance when he was sent to Europe to advance colonial relations with Great Britain and France. After a five-year stay in London, he returned to the colonies in 1762 and developed a proposal for managing colonial relations with the Indians. The colonies then sent him back to Great Britain to protest the contentious Stamp Act of 1765 and Townshend Act of 1767. The Declaration of Independence, signed on July 4, 1776, was written primarily by Virginian Thomas Jefferson, with assistance from both Franklin and John Adams. Later, in the fight for American independence, Franklin was instrumental in securing financial aid and military backing from the French to help defeat the British.After Lord Cornwallis surrendered on behalf of the British army at Yorktown on October 17, 1781, Franklin, John Adams, and John Jay were sent to Europe to negotiate on behalf of the new nation. Franklin succeeded in pacifying all parties enough to sign the Treaty of Paris in 1783, which formally recognized America’s new status.
At the age of eighty-one, Franklin was the oldest delegate to attend the Constitutional Convention of 1787. His was a conciliatory voice that was at least in part responsible for hammering out the landmark “Great Compromise,” which solidified elements of both the Virginia and New Jersey Plans by granting representation on the basis of population (sought by the large states) in the House of Representation and equal representation (advocated by the small states) in the Senate. Franklin also gave an influential speech at the end of the Convention, later republished during the ratification debates, urging delegates to accept the document as the best that a collective body was likely able to craft. Franklin’s reputation as a champion of U.S. independence and as a statesman is paralleled only by that of George Washington. In addition to championing freedom of the press (Franklin was the first to publish Cato’s “Essay on Free Speech” in 1722 after his brother was imprisoned for criticizing the Massachusetts government), Franklin vigorously supported the rights of religious freedom, speech, and assembly that were ultimately incorporated into the First Amendment. Franklin viewed the flow of ideas through such freedoms as essential to democracy, and he practiced these rights through numerous literary endeavors and ownership of the Pennsylvania Gazette. Franklin viewed free expression as the principal antagonist of tyrannical regimes. He also defended religious toleration and freedom. He vested authority in the actions of man rather than in an absolute religious doctrine. Franklin eventually became a staunch abolitionist in the fight to free slaves. He was the oldest signer of both the Declaration of Independence and the U.S. Constitution, bringing not only seasoned intellect to the creation of these documents, but also insight and patriotism. See also Constitutional Convention of 1787; Declaration of Independence; Jefferson,Thomas; Stamp Act.
Daniel Baracskay
furthe r reading Aldridge, Alfred Owen. Benjamin Franklin: Philosopher and Man. Philadelphia: J. B. Lippincott Co., 1965. ———. Franklin and His French Contemporaries. New York: New York University Press, 1957. Bogen, David S. “The Origins of Freedom of Speech and Press.” Maryland Law Review 42 (1983): 429–464. Bruce, William Cabell. Benjamin Franklin, Self-Revealed: A Biographical and Critical Study Based Mainly on His Own Writings. 3d ed. New York: G. P. Putnam’s Sons, 1942. Buxbaum, Melvin H. Critical Essays on Benjamin Franklin. Boston: G. K. Hall and Co., 1987.
Freedman v. Maryland (1965) Fleming,Thomas. Benjamin Franklin:A Biography in His Own Words.Vol. 1. New York: Newsweek, 1972. Isaacson,Walter. Benjamin Franklin:An American Life. New York: Simon and Schuster, 2003. Seavey, Ormond. Becoming Benjamin Franklin:The Autobiography and the Life. University Park: Pennsylvania State University Press, 1988. Van Doren, Carl. Benjamin Franklin. New York:Viking Press, 1938. Waldman, Steven Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America. New York: Random House; 2008.
Frazee v. Illinois Department of Employment Security (1989) The Supreme Court decision in Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989), established that a worker could not be denied unemployment for refusing to work on Sunday for religious reasons. The Illinois Department of Employment Security denied unemployment benefits to William Frazee, a Christian, because he refused an offer from Kelly Services for a temporary position that would have required him to work on Sunday. An administrative review board, the Illinois circuit court, and the state appellate court all affirmed the initial decision.The Supreme Court unanimously disagreed. Justice Byron R.White, in the opinion for the Court, reasoned that the free exercise clause of the First Amendment protected Frazee’s refusal to work on Sunday and that he was therefore entitled to unemployment benefits. Frazee did not claim to be a member of a particular religious denomination that taught this tenet; instead, he maintained that it was his personal conviction that he could not work on Sunday.This factor set the decision apart from Sherbert v. Verner (1963), Thomas v. Review Board of Indiana Employment Security Division (1981), and Hobbie v. Unemployment Appeals Commission of Florida (1987), because in these cases the appellants were relying specifically on religious doctrine. The Supreme Court determined that religious belief need not be part of established religious doctrine to be considered under the free exercise clause. Instead, free exercise is based on “sincerely held religious belief,” which the Court found to exist in Frazee’s case. The Court also pointed out that the state had no compelling interest that would override this free exercise claim. The concept of “compelling interest” is one the Court used frequently in assessing the outcome of a free exercise case. See also Compelling State Interest; Hobbie v. Unemployment Appeals Commission of Florida (1987); Sherbert v. Verner (1963);
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Thomas v. Review Board of Indiana Employment Security Division (1981);White, Byron R.
Kathryn Oates
furthe r reading Hentoff, Nat. “A Matter of Personal Belief.” Washington Post, January 14, 1989, A23. Miller, Robert, and Ronald Flowers. Toward Benevolent Neutrality: Church, State, and the Supreme Court. Vol. 2, 5th ed. Waco, Tex.: Baylor University Press, 1996.
Freedman v. Maryland (1965) The Supreme Court unanimously ruled in Freedman v. Maryland, 380 U.S. 51 (1965), that the prior restraint carried out under Maryland’s motion picture censorship statute since 1916 unduly restricted the First Amendment rights of film distributors and exhibitors.The reverse burden of proof that government censorship laws placed on film distributors created unacceptable delays that might have a chilling effect on speech. Film censorship statutes that came and went between 1907 and 1981 in seven states and dozens of municipalities were based on prior restraint—that is, they required that movies be examined before they could be shown. Licenses were denied to movies found to be obscene, sacrilegious, indecent, inhuman, immoral, or likely to incite criminal activity. Distributors refused licenses had only one recourse: to bring suit against the censors. In the first challenge to movie censorship to reach the Supreme Court—Mutual Film Corp. v. Industrial Commission of Ohio (1915)—the Court upheld the authority of government to deny the screening of any film not approved by a board of censors.The Court based its reasoning on the belief that films carried an inherent “capacity for evil.” Thirtyseven years later, in Burstyn v.Wilson (1952), the Court overturned Mutual Film and brought movies under the free speech protection of the First Amendment.Yet the Court did allow prior restraint of movies to continue under “narrowly drawn” statutes. Over the next seven years, film censors lost six more cases. Then, in 1961 in Times Film Co. v. City of Chicago, the Court reversed direction, finding that film censorship did not violate the First Amendment. When Baltimore theater owner Ronald Freedman and the Times Film Company decided to test the constitutionality of Maryland’s prior restraint in 1962, only Kansas, New York, Maryland,Virginia, and a few cities continued to censor films. To force the issue in Maryland, Freedman refused
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to submit to censors Revenge at Daybreak, an unobjectionable French film about the 1916 Irish revolution. Attorneys Richard Whiteford and Felix Bilgrey argued for Freedman that Maryland’s licensing procedure restrained not only obscenity, but also expression that the First Amendment protected. They argued as well that the Maryland statute was overbroad, imposed a tax on the right of communication, and allowed indefinite delay. (It took Freedman two years to reach the Supreme Court.) In the opinion for the Court, Justice William J. Brennan Jr. tried to balance the right of free expression against the state’s power to protect public morality and the Court’s belief that movies were different from other means of communication. In doing so, he established two procedural safeguards. First, the burden of proof shifted to the censors who had to either quickly issue a license or go to court to demonstrate why a film was not protected by the First Amendment. Second, a censorship statute had to provide for “prompt” judicial review. Today, the so-called Freedman factors still play a significant role in First Amendment jurisprudence. Although the Court had not declared prior restraint of movies unconstitutional, the new restrictions prompted the remaining censoring states, except one, to cease censorship within two years. Maryland redrafted its statute to conform to the Freedman guidelines and continued censoring movies until 1981. See also Burstyn v. Wilson (1952); Chilling Effect; Mutual Film Corp. v. Industrial Commission of Ohio (1915); Prior Restraint; Times Film Co. v. City of Chicago (1961).
Laura Wittern-Keller
furthe r reading Carmen, Ira H. Movies, Censorship and the Law. Ann Arbor: University of Michigan Press, 1966. de Grazia, Edward, and Roger K. Newman. Banned Films: Movies, Censors and the First Amendment. New York: R. R. Bowker and Co., 1982. Hasl, Rudolph G. “Constitutional Law—Procedural Safeguards Necessary for Valid Prior Restraint of Motion Pictures.” Saint Louis University Law Journal 10 (1965): 142–147. Randall, Richard S. Censorship of the Movies: The Social and Political Control of a Mass Medium. Madison: University of Wisconsin Press, 1968. Verani, John R.“Motion Picture Censorship and the Doctrine of Prior Restraint.” Houston Law Review 3 (1965): 11–57.
Freedom of Access to Clinic Entrances Act of 1994 The Freedom of Access to Clinic Entrances Act of 1994 makes it a federal crime to physically obstruct the entrance to a clinic or to use force, the threat of force, or physical obstruction, such as a sit-in, to interfere with, injure, or intimidate clinic workers or women seeking abortions or other reproductive health services. Some observers see the act as a way in which women can secure abortions without fear of harassment, but the opponents of abortion view it as violating their First Amendment free speech rights. After its enactment by Congress, President Bill Clinton signed the Freedom of Access to Clinic Entrances Act into law. Fines for violent offenders for their first offense can be as high as $100,000, with prison sentences of one year. Repeat violent offenders can receive up to three years in prison and fines of up to $250,000. If the protest resulted in an injury to clinic staff or a patient, the prison sentence can go as high as ten years. In the case of first-time convictions of protestors who engage in nonviolent physical obstruction, such as sit-ins or blockades, FACE allows judges to impose fines of up to $10,000 and six-month prison terms. Second convictions for these kinds of offenses are punishable by up to eighteen months in jail and fines of up to $25,000. The individuals harmed by the protest activities may also sue the protestors for civil damages. Congress adopted FACE in reaction to the increasing number of blockades of abortion clinics by anti-abortion groups and the inability or unwillingness of local law enforcement officials to protect the clinics from intimidation and violence.The law was introduced in Congress after the Supreme Court ruled in Bray v. Alexandria Women’s Health Clinic (1993) that federal court judges were not permitted to invoke a Reconstruction-era civil rights law, the 1871 Ku Klux Klan Act, against the harassment and protest activities that frequently occurred outside abortion clinic entrances. The KKK Act prohibited conspiracies by persons seeking to deprive “any persons or class of persons” of equal rights. In the 6-3 Bray decision announced by Justice Antonin Scalia, the Court held that women seeking abortions were not within the class of people intended to be protected by the law, and the Court barred federal court judges from invoking the act to enjoin protest activity aimed at abortion clinics. Reacting in part to the Bray decision, as well as to the growing violence of anti-abortion protestors, Charles E.
Freedom of Information Act of 1966 Schumer, D-N.Y., and Constance Morella, R-Md., introduced FACE in the House of Representatives in February 1993. Congressional support was also spurred by the March 1993 shooting death of a Florida physician, Dr. David Gunn, and the wounding of another doctor in Wichita, Kansas, by anti-abortion activists. Numerous lower federal courts have upheld FACE from First Amendment challenges filed by anti-abortion protestors. The cases include Terry v. Reno (D.D.C. 1996); United States v.Weslin (2d Cir. 1998); and United States v. Dinwiddie (8th Cir. 1996). See also Abortion Protests; Bray v. Alexandria Women’s Health Clinic (1993); Feminist Theory; Free Speech Zones.
Susan Gluck Mezey
furthe r reading Feldt, Gloria. The War on Choice. New York: Bantam Dell, 2004. Garrow, David J. “Abortion before and after Roe v.Wade: A Historical Perspective.” Albany Law Review 62 (1999): 33–52. Hagan, Melanie C. “The Freedom of Access to Clinic Entrances Act and the Nuremberg Files Web Site: Is the Site Properly Prohibited or Protected Speech?” Hastings Law Journal 51 (2000): 411–444. Mezey, Susan Gluck. Elusive Equality:Women’s Rights, Public Policy, and the Law. Boulder, Colo.: Lynne Rienner, 2003. O’Connor, Karen. No Neutral Ground? Abortion Politics in an Age of Absolutes. Boulder, Colo.:Westview Press, 1996.
Freedom of Information Act of 1966 The First Amendment protects freedom of speech and press, but how can the citizenry hold a government or its members accountable for its actions if those actions take place behind closed doors? In 1966 Congress adopted the Freedom of Information Act (FOIA), acting on the principle that government should be transparent to the governed. In a democratic system, citizens have the right to hold government accountable for its actions by exercising First Amendment freedoms, by means of the election process, and by use of the court system to review legislative and executive actions. FOIA establishes that records of the federal government agencies are accessible to the public.The act had little strength when it was initially passed, but in 1974 Congress strengthened it in the wake of the Watergate scandal, when citizens felt distrustful of government actions behind closed doors. The act was amended again in 1986 and 1996. The 1996 amendments, collectively known as E-FOIA, made provision for electronic publication and review of some materials.
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Disclosure and Enforcement Provisions FOIA has three disclosure provisions. First, section 552(a)(1) specifies what kinds of information government agencies must publish in the Federal Register. Among them are the organization and function of the agency, the rules of the agency, and statements of agency policy.This information is vital to understanding an agency’s authority and actions. Second, section 552(a)(2) specifies the classes of information held by an agency that must be made available for public inspection and copying.These classes include final opinions in the adjudication of cases; statements of policy and interpretations adopted by the agency not published in the Federal Register; and instructions to administrative staff, including staff manuals.This section also requires that records released pursuant to section 552(a)(3) be made available for public inspection and copying if those records are “likely to become the subject of subsequent requests for substantially the same records.” The third disclosure requirement is arguably the heart of FOIA. Section 552(a)(3) requires that an agency “upon any request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records available to any person.” FOIA requires in section 552(a)(4)(A) that each federal agency promulgate regulations on the assessment of fees for information released under the act. Critics of the fee provision in FOIA frequently argue that charging a fee inhibits the average citizen from requesting information. Critics also argue that the fees charged by some agencies are unreasonable, an argument partly supported by the different fee schedules used by different agencies. Proponents argue that agencies need to charge fees to allow them to recoup some of the costs of gathering and duplicating the records requested and to prevent frivolous requests that would only waste time and resources. FOIA addresses the potential problem of unreasonable copying fees, specifying that the fees be reasonable, fitting the circumstance. In addition, federal agencies are instructed to furnish documents “without any charge or at a charge reduced . . . if disclosure of the information is in the public interest.”Agencies are not to collect fees before the release of records, unless the individual requestor previously failed to pay fees or the agency anticipates the fee will exceed $250. The question remains, however, as to whether fees per se have a chilling effect on public participation by means of
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FOIA records requests, and, if so, whether the taxpayers should absorb such fees. Should an agency deny an individual’s request for records or simply fail to release them, the requestor may file an administrative appeal with the agency explaining why the records should be released. If the records are still withheld, the requestor, pursuant to section 552(a)(4)(B), may file a complaint against the agency in a federal district court.The requestor may choose to file in the district of residence, the district of principal place of business, the district in which the requested records are located, or in the District of Columbia. Each and any of these courts, upon a properly filed complaint, is given jurisdiction under FOIA to enjoin the agency from withholding the records and to order the records produced if the court finds that the records are being withheld improperly. Section 552(a)(4)(E) instructs federal agencies that the court may also assess the requestor’s legal fees against the federal agency if the withholding of records is found to have been improper.
Exceptions and Notable Cases Some matters are exempted from the requirements of FOIA for policy reasons. Personnel and medical files are exempted from disclosure to protect the privacy of the individuals who are the subjects of such files. Trade secrets revealed to the agency confidentially are exempted in order to protect the financial interest of the person who has voluntarily disclosed the information to the agency. Records specifically exempted from disclosure by another statute are an exception as well. Courts have held that these exceptions and six others, set out in Section 552(b), should be narrowly construed in favor of the party requesting records. However, most of the litigation surrounding FOIA has dealt with instances in which an agency used one of the nine exceptions as grounds not to release records. In 1972 the Supreme Court opined in Branzburg v. Hayes that the First Amendment right to freedom of the press would be “eviscerated” without some form of protection for gathering information from government sources. Nevertheless, the Court has not always ruled on the side of public disclosure. For example, in United States Department of State v. Ray (1991), the State Department refused to release notes by personnel on the treatment of Haitian refugees who had been involuntarily returned to Haiti. The request was made by an immigration attorney who wanted the notes and the names of the returnees in order to make the case that these individuals were subject to political persecution
and so they could be interviewed by human rights activists. In Ray, the Court held that State could withhold the requested information to protect the privacy interests of the returnees. Release of their identities “would not shed any additional light on the Government’s conduct of its obligations,” the Court stated. Thus the returnees’ own privacy rights were used to prevent an attorney from helping them to make a case for asylum. By contrast, in United States Department of the Interior v. Klamath Water Users Protective Association (2001) the Court demonstrated that it would not automatically rubber-stamp a claim of exemption. In this case, the Department of the Interior argued that records exchanged between the department and various Indian tribes on disputed water rights should be considered privileged intra-agency memoranda. The department argued that within its role as trustee to the tribes, the tribes were more like government consultants than private entities. The Court rejected this argument and ordered the requested records produced, citing the fact that the tribes had their own interests distinct from those of the department and at times at odds with those of the department. Perhaps most notably, in United States Department of Justice v. Landano (1993) the Court held that the Federal Bureau of Investigation (FBI) does not have a blanket FOIA exemption for law enforcement records to prevent disclosing the identity of FBI informants. Instead, the Court ruled, the FBI must present the rationale, on a case-by-case basis, for why an informant’s identity must not be disclosed. In the majority opinion, Justice Sandra Day O’Connor stated,“Although we recognize that confidentiality often will be important to the FBI’s investigative efforts, we cannot say that the government’s sweeping presumption comports with common sense and probability.” Rather, she maintained, the agency must be able to demonstrate that it was reasonable to infer under the circumstances that the information had been provided with an expectation of confidentiality. Indeed, each of the exemptions listed in FOIA has been questioned by the courts, and most remain, at least to some degree, open to interpretation. Such ambiguity is perhaps inevitable in view of the broad range of federal agencies and the information they may be requested to produce. It must be acknowledged, however, that FOIA, notwithstanding any ambiguity that still exists in its interpretation, has made great strides in opening the actions of federal agencies to the scrutiny of the citizenry.
Free Flow of Information Act See also Branzburg v. Hayes (1972); O’Connor, Sandra Day; Privacy.
Brandi M. Snow
furthe r reading Branscomb, Anne. Who Owns Information? From Privacy to Public Access. New York: Basic Books, 2005. Moore, Adam D. Information Ethics: Privacy, Property, and Power. Seattle: University of Washington Press, 2005. Sankey, Michael L. Public Records Online:The National Guide to Private and Government Online Sources of Public Records. Tempe, Ariz.: Facts on Demand Press, 2004. Susman, Thomas M. Business Uses of the Freedom of Information Act. Washington, D.C.: Bureau of National Affairs, 2004. Theoharis,Athan. A Culture of Secrecy:The Government Versus the People’s Right to Know. Lawrence: University Press of Kansas, 1998.
Freedom to Display the American Flag Act of 2006 The Freedom to Display the American Flag Act of 2006, signed by President George W. Bush, prohibits associationgoverned communities from preventing its members from displaying the U.S. flag. The Community Associations Institute estimates that 57 million Americans were living in 286,000 association-governed communities in 2006 (Tompkins 2006).These private organizations serve some of the same functions as governments. In response to efforts by some condominium, cooperative, and residential real estate management associations to regulate the display of American flags in neighborhoods, Congress—which so far has been unable to muster sufficient majorities for a constitutional amendment prohibiting flag desecration—unanimously adopted this law. It prohibits any such associations from adopting any policy “that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.” Section 4 of the law maintains provisions related “to the proper display or use of the flag” as well as “any reasonable restriction pertaining to the time, place, or manner of displaying the flag.”This provision leaves open the possibility that associations could still impose reasonable time, place, and manner restrictions on flags, such as regulations on the height of flagpoles and the size of flags. See also Flag Desecration;Time, Place, and Manner Restrictions.
John R.Vile
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furthe r reading Associated Press.“Bush Signs Bill on Flag Display.” New York Times, July 25, 2006, A16. Tompkins,Al.“Friday Edition:The Right to Fly a Flag.” Poynteronline, June 29, 2006. www.poynter.org/column.asp?id=2&aid=103844.
Free Expression Network The Free Expression Network (FEN) is an alliance of organizations seeking to protect “the First Amendment right of free expression and the values it represents” and to oppose “governmental efforts to suppress constitutionally protected speech.” Launched in the early 1990s, the group has advocated against the Communications Decency Act, music censorship, and government secrecy. FEN members meet four times a year to discuss pressing First Amendment concerns and strategies for battling censorship. Led by the National Coalition Against Censorship, other member organizations are the American Booksellers Foundation for Free Expression, American Civil Liberties Union, American Library Association, Americans United for the Separation of Church and State, Electronic Frontier Foundation, Electronic Privacy Information Center, First Amendment Project, Media Law Resource Center, Student Press Law Center, and Thomas Jefferson Center for the Protection of Free Expression. FEN members have access to a discussion list that features many leading First Amendment experts on a variety of free expression and censorship-related topics. See also American Booksellers Foundation for Free Expression; American Civil Liberties Union; American Library Association; Americans United for the Separation of Church and State; Electronic Frontier Foundation; Electronic Privacy Information Center; First Amendment Project; Media Law Resource Center; National Coalition Against Censorship; Student Press Law Center; Thomas Jefferson Center for the Protection of Free Expression.
David L. Hudson Jr.
furthe r reading Free Expression Network Clearinghouse. www.freeexpression.org/ index.htm. National Coalition Against Censorship. www.ncac.org/about/ programs.cfm.
Free Flow of Information Act The Free Flow of Information Act and similar proposed measures would create a federal shield law, similar to those in about thirty states, that would protect reporters from
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punishment for refusing to disclose their confidential sources in any federal criminal or civil case, unless those authorities meet strict criteria. The Free Flow of Information Act, which has been regularly introduced in Congress since 2005, is largely a response to the Supreme Court decision in Branzburg v. Hayes (1972) and accompanying cases. These cases decided that reporters were not entitled to special exemption from testifying before grand juries about information they had received from confidential informants. The 2007 version of the bill, cosponsored in the House by Rick Boucher, D-Va., and Mike Pence, R-Ind., was passed on October 16 by a vote of 398-21 and sent to the Senate. Despite support from Senators Richard G. Lugar, R-Ind., Patrick J. Leahy, D-Vt., and Arlen Specter, R-Pa., it stalled in the second chamber, in part because of opposition by the Department of Justice and a threatened veto by President George W. Bush, who was concerned in part about its possible impact on the war on terrorism. The Senate version of the bill would prevent federal entities from compelling journalists to provide information uncovered as part of their work unless such entities have “exhausted all reasonable alternative sources” and unless the government can show that significant criminal activity has occurred and that the information about this activity or its perpetrator is essential, such as in cases involving terrorism, death, or bodily harm. The law further seeks to ensure that information solicited by the government will “not be overbroad, unreasonable, or oppressive” and that it will “be narrowly tailored in subject matter and period of time covered so as to avoid compelling production of peripheral, nonessential, or speculative information.”The law, which applies to “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain” might provide some protection to bloggers. Supporters of the bills point to some high-profile federal cases in which news reporters were faced with the decision of revealing their sources or going to jail. Indeed, supporters of shield laws maintain that for reporters to transmit accurate information to the public, they must be able to search freely for information without the threat that the government will force them to reveal confidential sources, thereby making those sources less likely to share information.
Opponents argue that the First Amendment does not entitle members of the press to special privileges against disclosure that do not apply to other citizens. See also Branzburg v. Hayes (1972); Reporters’ Privilege; Shield Laws.
Upohar Haroon
furthe r reading Anderson, Nate. “House Passes Federal Journalist Shield, Includes Bloggers.” October 16, 2007. http://arstechnica.com/news.ars/ post/20071016-house-passes-federal-journalist-shield-includes -bloggers.html. Leahy, Patrick. “Leahy, Specter Urge Senate Action on Media Shield Bill.” March 6, 2008. http://leahy.senate.gov/press/200803/ 030608e.html. Library of Congress. “Free Flow of Information Act of 2007.” http://thomas.loc.gov/cgi-bin/query/D?c110:4:./temp/~c110 XnOrM.
Free Speech League The Free Speech League was the first organization in U.S. history to commit itself to free expression, no matter the subject or viewpoint. Leaders of the league, which was organized in 1902 largely to respond to legislation designed to limit anarchism, included Edward Bond Foote and Edwin Cox Walker of the Manhattan Liberal Club, which initially called for such a league; journalist Leonard Abbott, the league’s president; attorney Theodore Schroeder, the league’s secretary and primary leader; attorney Gilbert Roe, who often argued its cases in court; and muckraking journalist Lincoln Steffens, who served on its board of directors. Prominent clients included anarchist Emma Goldman, birth control advocate Margaret Sanger, journalist Max Eastman, and the Industrial Workers of the World. Many of its members cut their teeth defending individuals who had been accused of obscenity under the Comstock Act, or those, including advocates of sexual freedom, whose beliefs were believed to be heretical. First Amendment historian David M. Rabban (1992) associates the league with “libertarian radicalism,” and he traces much of its history through articles in Lucifer: The Light-Bearer, a journal of sex reform begun in the 1880s. Rabban argues that although Roger N. Baldwin, founder of the American Civil Liberties Union (ACLU), and others learned from the league, it actually took a far broader view of the First Amendment than did the ACLU. According to
Free Speech Zones Rabban (1992), its clients included “religious speakers as well as freethinkers, reformist as well as radical unions, and various nonpolitical speakers such as an attorney disbarred for criticizing a judge, and a man convicted for distributing pamphlets opposing compulsory vaccination” (p. 88). The rise of the ACLU, with its narrower focus on political speech, largely marked the increasing marginalization of the Free Speech League. See also American Civil Liberties Union; Anarchy Statutes; Baldwin, Roger; Comstock Act of 1873; Goldman, Emma.
John R.Vile
furthe r reading Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997. ———. “The Free Speech League, the ACLU, and Changing Conceptions of Free Speech in American History.” Stanford Law Review 45 (1992): 47–114.
Free Speech Zones Free speech zones refer to areas on college campuses and at certain public events, such as political conventions, specifically designated for protestors and demonstrators to exercise their right to freedom of speech. Free speech zones, which first appeared in the context of college and university campuses, became a widespread phenomenon in the 1980s and 1990s. They generally limit protest activity to one or more designated areas on a campus, restricting such activity in all other areas. University officials claim free speech zones are necessary to prevent disruption of classes and that the policies are content-neutral time, place, and manner restrictions. To pass constitutional muster, such regulations (1) must be content neutral; (2) must be “narrowly tailored to serve a significant governmental interest”; and (3) must “leave open ample alternative channels for communication of the information.” Free speech zone policies, like any other time, place, and manner restriction, are not content neutral if school officials have “unbridled discretion” to enforce them, because such discretion allows officials to inject viewpoint-based factors into the process. School officials often argue that their campuses are limited public fora as opposed to traditional public fora, and so they are allowed to place more restrictions on speech. Although a campus’s classification depends on the facts of each case, the Supreme Court did generally recognize in
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Widmar v.Vincent (1981) “that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” Many First Amendment advocacy groups, such as the Foundation for Individual Rights in Education (FIRE), believe free speech zones on campuses are unconstitutional, and several groups, as well as university students themselves, have challenged free speech zone policies both in and out of court with mostly successful results. In 2000 the New Mexico chapter of the American Civil Liberties Union (ACLU) and two New Mexico State University students filed suit, challenging that school’s free speech zone policy. The university settled out of court and revised its policy, so that all outdoor areas generally accessible to the public can be used for petitioning, protesting, and related activities. In June 2002, students and faculty at West Virginia University filed suit against that school, alleging that its free speech zone policy, which designated seven small areas making up less than 5 percent of the total campus as free speech zones, was unconstitutional. By December 2002, the university had abandoned the policy. In June 2006, the University of Nevada at Reno changed its free speech policy after student activists, aided by the ACLU of Nevada and FIRE, challenged the policy. FIRE has helped students challenge similar policies at other schools, including Shippensburg University in Pennsylvania, Citrus Community College in California, and Texas Tech. Students have succeeded in the courts as well, even though the general public does not necessarily have the same rights students enjoy on their campuses. In Khademi v. South Orange County Community College District (C.D. Cal. 2002), a federal district court held that several provisions of the school’s free speech zone policy were content based and could not survive strict scrutiny. In Pro-Life Cougars v. University of Houston (S.D.Tex. 2003), another federal district court held that the section of the campus at issue was a public forum and that the university’s policy was not narrowly tailored to serve a compelling government interest. In Roberts v. Haragan (N.D.Tex. 2004), a court struck Texas Tech’s speech code as being unconstitutionally overbroad. Both the Fourth Circuit (American Civil Liberties Union v. Mote [4th Cir. 2005]) and Ninth Circuit (Orin v. Barclay [9th Cir. 2001]) have upheld campus free speech restrictions as they apply to the general public and not to the schools’ students. Designated free speech zones are also becoming commonplace at certain public events, particularly those attended by high-ranking government officials, because of security concerns. At the 2000 Democratic National Convention
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held at the Staples Center in Los Angeles, police set up a “secured zone,” which could be entered only by those with an actual convention ticket, and a “demonstration zone,” which was the only place protestors were allowed to demonstrate. Several groups of protestors filed for a preliminary injunction in federal court, which it granted.The court held that the secured zone comprised sidewalks and streets, which constituted a traditional public forum. The court further held that the planned regulation was not narrowly tailored and did not provide adequate alternative means of communication, because at all times it kept demonstrators too far away from their intended audience—convention attendees. The court significantly noted that “banning speech is an unacceptable means of planning for potential misconduct.” Since the terrorist attacks of September 11, 2001, however, creating secured zones and denying demonstrators’ permits are becoming increasingly common, and the courts are more likely to allow them, especially in areas with a heightened security risk. In United for Peace and Justice v. City of New York (S.D.N.Y. 2003), a federal district court held that the city permissibly banned marches past the United Nations, an area of the city that posed a high security risk. The First Circuit Court of Appeals recognized such security concerns when it denied a preliminary injunction to demonstrators challenging the proposed “demonstration zone” near the 2004 Democratic National Convention in Boston. In Bl(a)ck Tea Society v. City of Boston (1st Cir. 2004), the court held that alternative channels for communication were available in the vicinity of the Fleet Center and throughout Boston. In an almost regretful concurrence in Bl(a)ck Tea Society, Judge Kermit V. Lipez voiced what is undoubtedly on the minds of many judges who must consider such cases: “The risks of violence and the dire consequences of that violence seem more probable and more substantial than they were before 9/11.When judges are asked to assess these risks in the First Amendment balance, we must candidly acknowledge that they may weigh more than they once did.” Despite security concerns, the George W. Bush administration’s regular use of the Secret Service to quarantine protestors—particularly those who disagreed with Bush—drew criticism from both sides of the aisle. The ACLU filed a nationwide suit on behalf of protestors who had been forced into “free-speech zones,” but the complaint was dismissed because “the plaintiffs’ claims [were] too amorphous to be justiciable at this point in time.” Protestors in Florida filed a similar case, which was dismissed on similar grounds. The jurisprudence on free speech zones, in the university setting
and elsewhere, continues to evolve and will undoubtedly remain part of the heated debate over the need for security and the need to protect civil liberties. See also American Civil Liberties Union; Content Neutral; Foundation for Individual Rights in Education; Public Forum Doctrine; Time, Place, and Manner Restrictions; Widmar v. Vincent (1981).
Emilie Kraft
furthe r reading American Civil Liberties Union.“Secret Service Ordered Local Police to Restrict Anti-Bush Protestors at Rallies, ACLU Charges in Unprecedented Nationwide Lawsuit.” www.aclu.org/freespeech/ protest/11423prs20030923.html. Bovard, James. “Free-Speech Zone”: The Administration Quarantines Dissent.” American Conservative, December 15, 2003. www.amcon mag.com/12_15_03/feature.html. Davis, Thomas J. “Assessing Constitutional Challenges to University Free Speech Zones under Public Forum Doctrine.” Indiana Law Journal 79 (2004). Foundation for Individual Rights in Education. “Issues: Free Speech.” www.thefire.org/index.php/topic/11. Hightower, Jim. “Bush Zones Go National.” The Nation, August 16, 2004. www.thenation.com/doc/20040816/hightower. Hilden, Julie. “The Constitutionality of Police-Imposed ‘Free-Speech Zones.’ ” www.cnn.com/2004/LAW/08/04/hilden.freespeech/ index.html. Hudson, David L., Jr.“Free Speech on Public College Campuses: Free Speech Zones.” First Amendment Center. www.firstamendment center.org/speech/pubcollege/topic.aspx?topic=free-speech_ zones. Nanes, Susan Rachel. “The Constitutional Infringement Zone”: Protest Pens and Demonstration Zones at the 2004 National Political Conventions.” Louisiana Law Review 66 (2005). Suplina, Nick. “Crowd Control: The Troubling Mix of First Amendment Law, Political Demonstrations, and Terrorism.” George Washington Law Review (2005).
Freund, Paul Paul Abraham Freund (1908–1992), a law professor at Harvard University, was one of the most respected constitutional scholars of the twentieth century. Born in St. Louis, Missouri, Freund earned a bachelor’s degree from Washington University in 1928 and a bachelor of law degree from Harvard in 1931 and doctorate in law from Harvard in 1932. He began his legal career with a stint as law clerk to Supreme Court justice Louis D. Brandeis, leaving in 1933 to serve in the federal Reconstruction Finance Corporation. In 1935 Freund joined the U.S. Solicitor General’s Office. He advocated interpreting the Constitution to give Congress more freedom to experiment
Friendly, Fred with measures to end the Great Depression and provide a safety net against economic setbacks. In 1939 Freund joined the faculty of Harvard Law School as a lecturer who specialized in conflict of laws and constitutional law. A year later, he became a professor and held three endowed chairs successively. Considered by his colleagues to be one of the most respected professors at Harvard Law School, Freund viewed law as akin to art in that both had imperfections. He advised observers of the Court to appreciate the complexities of judging before leveling criticism. In his teachings, he emphasized balance and justice. Freund played a critical part in the movement to better protect the individual liberties of speech and press. Meanwhile, he authored On Understanding the Supreme Court (1949) and On Law and Justice (1968). He also for a time served as editor-in-chief of the multivolume History of the Supreme Court. In 1962 Freund made President John F. Kennedy’s list of possible Court nominees. He retired in 1976. See also Brandeis, Louis D.
Caryn E. Neumann
furthe r reading Pace, Eric. “Paul A. Freund, Authority on Constitution, Dies at 83.” New York Times, February 6, 1992, 22.
Friedman v. Rogers (1979) In Friedman v. Rogers, 440 U.S. 1 (1979), the Supreme Court upheld, against a First Amendment challenge, a Texas law that prohibited optometrists from advertising under a trade name. It also ruled that the Texas Optometry Act did not violate the equal protection clause of the Fourteenth Amendment by requiring a majority of licensed optometrists on the state’s Optometry Board to be members of the state optometric association and treating optometrists differently from ophthalmologists. Justice Lewis F. Powell Jr. wrote the opinion for the 7-2 Court, which overturned a federal district court opinion. Powell argued that the lower court had misinterpreted the Court’s commercial speech decisions in Bates v. State Bar of Arizona (1977) and Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976). Although those rulings had expanded protection for commercial speech, especially speech related to prices, they did not eliminate all commercial regulations, especially those related to “false, deceptive, and misleading commercial speech.”
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In addressing the advertising of trade names, Powell observed that such names had “no intrinsic meaning,” but acquired “meaning over a period of time by associations formed in the minds of the public between the name and some standard of price or quality.” Moreover,“there is a significant possibility that trade names will be used to mislead the public.” Powell cited numerous examples of such deception, drawing in part from decisions by Texas courts. He noted that in some cases owners of many businesses had used different names to suggest competition that did not exist among them. Justice Harry A. Blackmun concurred in the equal protection argument, but he dissented on the First Amendment issue. He argued that the majority decision “overestimates the potential for deception” and “underestimates” its “harmful impact.” He observed that the practice of optometry is legal, and that the Court had essentially permitted a ban on truthful information. Blackmun, the author of the Court’s opinions in Bates and Virginia State Board of Pharmacy, saw advantages for the general public in the standardization of service that was provided by trade names. He thought that any deception resulted not from use of the trade name itself but “in the failure simultaneously to disclose the name of the optometrist.” He believed that this remedy would trammel far less on freedom of speech and was far more consistent with the First Amendment than the “highly paternalistic” approach that the majority had taken. See also Bates v. State Bar of Arizona (1977); Blackmun, Harry A.; Commercial Speech; Powell, Lewis F., Jr.; Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976).
John R.Vile
furthe r reading Lowenstein, Daniel Hays. “Symposium: Commercial Speech and the First Amendment: ‘Too Much Puff ’: Persuasion, Paternalism, and Commercial Speech.” University of Cincinnati Law Review 56 (1988): 1205–1249.
Friendly, Fred Fred W. Friendly (1915–1998), an early innovator of broadcast journalism, was known in his later years for his seminars on the media and pressing contemporary public issues and for his writings on the First Amendment. A close collaborator of broadcaster Edward R. Murrow, Friendly has been overshadowed by his iconic colleague. Friendly is sometimes even confused—inaccurately—with the Murrow “Boys”—
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that is, the two “generations” of talented CBS journalists Murrow recruited to cover World War II. Notwithstanding Fred Friendly’s relatively low profile, he has a towering reputation, in his own right, for journalistic integrity. Friendly was born Ferdinand Friendly Wachenheimer in New York City.The producer at his first job, at radio station WEAN in Providence, Rhode Island, gave him the moniker Fred Friendly. Friendly began broadcasting in 1937, a daily program he created called Footprints in the Sands of Time. Likely the first radio documentary—precursor to the television documentary format he and Murrow later invented— Footprints employed clips of historical figures to tell their biographies. Friendly’s library of almost a thousand biographies led to his initial collaboration with Murrow, a series of historical phonograph records called I Can Hear It Now for Columbia Records. Beginning in 1950, Friendly and Murrow worked together at CBS for eleven fruitful years. It is not hyperbole to say that the two of them invented broadcast news. I Can Hear It Now evolved into the radio program Hear It Now, and then into See It Now. This trailblazing television news program aired from November 1951 until July 1958. Although best known for unmasking Sen. Joseph R. McCarthy during the height of cold war red scare hysteria (1948–1955), See It Now also was notable for its technical inventiveness, such as split-screen interviews and remote feeds, and for its engaging content, which brought faraway places and newsmakers into American homes. Friendly’s tenure at CBS lasted five years longer than Murrow’s, but they both left to protest the increasing commercialization of the medium. Famously, Friendly resigned in 1966 as president of CBS News to protest the network’s decision to rerun an episode of I Love Lucy instead of broadcasting the Senate Foreign Relations Committee hearings into the U.S. involvement in Vietnam. As he observed the following year,“Television makes so much at its worst that it can’t afford to do its best.” After leaving CBS, Friendly began a second successful career as a journalism professor and seminar leader. His first job after leaving CBS was to work with Ford Foundation president McGeorge Bundy to formulate early plans for the birth of the Public Broadcasting System (PBS). Friendly continued this work after his appointment as Edward R. Murrow Professor of Broadcast Journalism at Columbia University. Friendly’s contributions to PBS included content. Born of his interactions with Columbia students, his Media and Society Seminars brought together public figures,
journalists, law professors, and judges on-camera.They were given a hypothetical situation “so agonizing that they can escape only by thinking,” as Friendly described the Socraticlike exchanges. After his death in 1998, the gatherings were renamed the Fred Friendly Seminars. Friendly authored several books on First Amendment issues, including The Good Guys, the Bad Guys and the First Amendment: Free Speech versus Fairness in Broadcasting (1976), which dealt with the fairness doctrine, and Minnesota Rag: The Dramatic Story of the Landmark Supreme Court Case That Gave New Meaning to Freedom of the Press (1982), which examined press freedom. See also Fairness Doctrine; McCarthyism; Near v. Minnesota (1931); Public Television.
James C. Foster
furthe r reading Cloud, Stanley, and Lynne Olson. The Murrow Boys: Pioneers on the Frontlines of Broadcast Journalism. Boston: Houghton Mifflin, 1996. Friendly, Fred W. Due to Circumstances beyond Our Control. . . . New York: Vintage Press, 1968.
Frisby v. Schultz (1988) In Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court voted 6-3 to uphold a city ordinance that banned picketing in residential neighborhoods. Brookside,Wisconsin, had enacted an ordinance that prohibited picketing “before or about any residence or dwelling.” It did so in response to disruptive tactics used by members of the anti-abortion movement who objected to the abortion practice of Dr. Benjamin Victoria. Demonstrators picketed Victoria’s home for months in 1985. During this time, the doctor and his family also received death threats.The lower federal courts ruled that the ordinance was too broad and could be interpreted as banning all picketing in residential neighborhoods. They concluded that residential neighborhoods were a public forum from which the city could not bar all picketing. In a subsequent appeal, the Supreme Court disagreed and reversed. Writing for the majority, Justice Sandra Day O’Connor interpreted the phrase “before or about any residence or dwelling” as applying to a single residence or dwelling. O’Connor did not accept the lower courts’ reading of the ordinance as overly broad. In fact, she held that the ordinance did not prohibit picketers from alternative free speech activities such as distributing pamphlets in the com-
Frohwerk v. United States (1919) munity, mailing information to residents of the neighborhood, and going door-to-door to talk with residents about the issue. O’Connor also interpreted the ordinance as permitting picketers to march through residential areas and assemble in public streets so long as they did not congregate around one particular house. She argued that governments had the authority to protect unwilling listeners from unwanted speech when in the privacy of their homes and thus ensure residential tranquility. In this case, Justice O’Connor argued, the picketers were not simply trying to express their views to the public; rather, they were trying to intrude on the doctor’s privacy and pressure him to stop performing abortions. In summary, the majority ruled that the ordinance was narrowly tailored to target picketing that intruded upon individual residential privacy and therefore was constitutional. Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, dissented, believing that the ordinance restricted too much expression and that the majority “condone[d] a law that suppresses substantially more speech than is necessary.” Justice John Paul Stevens also wrote a dissent, reasoning that the law was overbroad and would suppress even friendly messages such as “GET WELL CHARLIE—OUR TEAM NEEDS YOU!” Anti-abortion advocates argue that the Frisby decision disrespected the free speech rights of anti-abortion protestors and that the kind of quiet, peaceful protest involved in this case did not intrude on residential privacy. Others see the Frisby ruling as a reasonable time, place, and manner restriction on the exercise of free speech. In the 1990s, those on the fringe of the anti-abortion movement murdered three doctors and four workers at abortion clinics, convincing many observers that the picketing restrictions on antiabortion demonstrators were justified. See also Abortion Protests; O’Connor, Sandra Day; Protests in Neighborhoods.
Ruth Ann Strickland
furthe r reading Arizmendi, Sylvia. “Residential Picketing: Will the Public Forum Follow Us Home?” Howard Law Journal 37 (1994): 495–576. Couch, Angela Christina. “Wanted: Privacy Protection for Doctors Who Perform Abortions.” American University Journal of Gender and the Law 4 (1996): 361–414. Landwehr, Hazel A. “Unfriendly Persuasion: Enjoining Residential Picketing.” Duke Law Journal 43 (1993): 148–187. McWhirter, Darien A. Freedom of Speech, Press, and Assembly. Phoenix, Ariz.: Oryx Press, 1994.
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Rigby, Robert E., Jr. “Balancing Free Speech in a Public Forum vs. Residential Privacy: Frisby v. Schultz.” New England Law Review 24 (1990): 889–915. Schweber, Howard. Speech, Conduct, and the First Amendment. New York: Peter Lang, 2003. Wardle, Lynn D. “The Quandary of Pro-Life Free Speech: A Lesson from the Abolitionists.” Albany Law Review 62 (1999): 853–966.
Frohwerk v. United States (1919) In Frohwerk v. United States, 249 U.S. 204 (1919), decided on the same day as Debs v. United States, the Supreme Court affirmed the conviction of a political dissident for articles he had published criticizing American participation in World War I. At the same time, the Court affirmed that individuals do not lose their rights to criticize governmental policies even during a time of war. Jacob Frohwerk was convicted of conspiring to violate provisions of the Espionage Act of 1917 by writing articles published in the Missouri newspaper Staats Zeitung opposing U.S. involvement in World War I. He also was convicted of eleven counts of using the content of these publications in “attempts to cause disloyalty, mutiny, and refusal of duty” in the U.S. military. Frohwerk appealed his conviction to the Supreme Court, which expressed some dissatisfaction over the absence of a proper bill of exceptions specifically listing his objections or exceptions to the trial judge’s rulings. (There had been some controversy over whether the judge had had the power to reject a petition for continuance, order the defendant to enter a not guilty plea, and begin the trial when he did.) Writing for the Court, Justice Oliver Wendell Holmes Jr. acknowledged that there was no evidence, unlike in Schenck v. United States (1919), that Frohwerk had specifically directed his criticisms of the war to draftees, but also observed that “so far as the language of the articles goes there is not much to choose between expressions to be found in them and those before us in Schenck v. United States.” Holmes used Frohwerk to expand upon the clear and present danger test, which he had recently announced in Schenck and on which Frohwerk’s conviction was upheld. Holmes was especially mindful of the assertion in Schenck that “[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.” Holmes’s expansion in Frohwerk elaborated on the scope of wartime limitations on free expression.After summarizing Frohwerk’s
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comments critical of U.S. wartime policies, Holmes wrote, “It may be that all this might be said or written even in time of war in circumstances that would not make it a crime.We do not lose our right to condemn either measures or men because the country is at war.” This assertion represents an important addendum to the original explication of the clear and present danger test in that it specifies that even during war, courts should regard criticism of government policies and officials as protected speech. See also Bad Tendency Test; Clear and Present Danger Test; Debs v. United States (1919); Espionage Act of 1917; Schenck v. United States (1919).
furthe r reading
Richard Parker
Blanchard, Margaret A. Revolutionary Sparks: Freedom of Expression in Modern America. New York: Oxford University Press, 1992. Chafee, Zechariah, Jr. Free Speech in the United States. New York: Atheneum, 1969. White, G. Edward. “The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America.” Michigan Law Review 95 (1996): 299–392.
Funeral Protests Funeral protest laws have cropped up across the country in recent years in response to the picketing activities of the Westboro Baptist Church, founded by former attorney Fred Phelps. Members of the Kansas-based entity believe that U.S. soldiers are dying in the Iraq War because the United States does not condemn homosexuality. The group pickets the funerals of slain soldiers, bearing repugnant messages such as “God Hates Fags,” “No Fags in Heaven,” and “Fags Are Worthy of Death.” Legislators across the country responded to the protests, which have been conducted in more than forty states, by passing laws that seek to prohibit such protests during the hour before and after a funeral procession. Many of the laws also impose a distance requirement—often three hundred feet—on such protests. Supporters of the legislation contend the measures are an appropriate way to protect the privacy rights of the deceased’s family. Opponents counter that the legislation was passed to suppress the free expression rights of an unpopular group. The first funeral protest law was passed in 1992. Phelps successfully challenged part of the Kansas Funeral Picketing Act of 1992 in Phelps v. Hamilton (10th Cir. 1997), provoking the Kansas legislature to clarify the time periods in which such protests were prohibited. For its part, Congress
passed the Respect for America’s Fallen Heroes Act and the Respect for the Funerals of America’s Fallen Heroes Act, which President George W. Bush signed in May 2006 and December 2006, respectively. The Respect for America’s Fallen Heroes Act prohibits funeral protests during one hour before and after a funeral under the control of Arlington National Cemetery. It also prohibits such activity within three hundred feet of a cemetery. The Respect for the Funerals of America’s Fallen Heroes Act applies to military funerals that are not under the control of Arlington National Cemetery or the National Cemetery Association. It imposes a similar time and distance ban. Similar measures have been introduced in more than forty states, with at least thirty-eight states enacting such measures. Lawsuits have arisen over these laws in at least four states—Kentucky, Missouri, Ohio, and Kansas, which adopted a tougher law. In McQueary v. Stumbo (E.D. Ky. 2006), a federal district court issued a preliminary injunction against enforcement of the Kentucky law on First Amendment grounds.The court found that the statute was content neutral, but was not narrowly tailored: “The provisions at issue in this case burden substantially more speech than is necessary to prevent interferences with a funeral or to protect funeral attendees from unwanted, obtrusive communications that are otherwise impractical to avoid.” However, a federal district court in Missouri upheld a similar measure in Phelps-Roper v. Nixon (C.D. Mo. 2007), a First Amendment suit filed by Westboro Baptist Church’s attorney, Shirley Phelps-Roper, the daughter of Fred Phelps. The court determined that the protestors had “alternative channels” to communicate their messages. However, on appeal the Eighth Circuit Court of Appeals granted PhelpsRoper a preliminary injunction in December 2007. The appeals court reasoned that Phelps-Roper “presents a viable argument that those who protest or picket at or near a military funeral wish to reach an audience which can only be addressed at such occasion and to convey to and through such an audience a particular message.” Further litigation will determine the fate of funeral protest legislation. In a related matter, in 2007 a federal jury imposed nearly $11 million in damages against the Phelpses in a suit brought by the father of a man killed in the Iraq war whose funeral was protested by Westboro Baptist Church. Albert Snyder sued the Phelpses for intentional infliction of emotional distress, invasion of privacy, and civil conspiracy. In February 2008, the district court reduced the amount to $5 million. The case is on appeal.
FW/PBS, Inc. v. City of Dallas (1990) See also Content Based; Content Neutral; Picketing.
David L. Hudson Jr.
furthe r reading Collins, Ronald K. L., and David L. Hudson Jr. “A Funeral for Free Speech?” First Amendment Center Online, April 17, 2006. www.firstamendmentcenter.org/analysis.aspx?id=16775. Originally published in Legal Times, April 17, 2006. Hudson, David L., Jr. “Funeral Protests: An Overview.” First Amendment Center. www.firstamendmentcenter.org/Assembly/topic .aspx?topic=funeral_protests.
FW/PBS, Inc. v. City of Dallas (1990) In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), six members of the Supreme Court agreed that a Dallas licensing scheme regulating sexually oriented businesses imposed a prior restraint that lacked adequate procedural safeguards as required by the decision in Freedman v. Maryland (1965).The scheme was thus facially unconstitutional. Delivering the majority opinion, Justice Sandra Day O’Connor observed that licensing schemes like Dallas’s require two of Freedman’s three safeguards: (1) any restraint prior to judicial review may be imposed only for a specified brief period during which the status quo must be maintained, and (2) expeditious judicial review of that decision must be available. Justice William J. Brennan Jr., joined by two of his colleagues, concurred in the judgment, but wrote separately because he would have required Freedman’s third safeguard as well—that the city bear the burden of going to court on the license application denial, and that it bear the burden of proof once in court. Justice Byron R.White, joined by Chief Justice William H. Rehnquist, and Justice Antonin Scalia each wrote dissents, arguing that Freedman’s procedural safeguards were not applicable to Dallas’s scheme. FW/PBS followed a series of cases examining the two “evils that will not be tolerated” in prior restraint schemes: (1) “unbridled discretion in the hands of a government official” and (2) unreasonable delay. FW/PBS’s ordinance required the police chief to approve issuance of the license within thirty days of “receipt of the application,” but it also required certain inspections (such as building and health) before the license could be issued. Because no time limits were set for completing these inspections and because no license could be issued without inspection approvals, the deadline was illusory.
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Justice O’Connor did not require the third Freedman safeguard. She held that Dallas’s licensing scheme did not “present the grave ‘dangers of a censorship system’ ” for two reasons. First, under Dallas’s ordinance the city could not exercise discretion “by passing judgment on the content of any protected speech.” Instead, the city reviewed the applicant’s general qualifications, “a ministerial action that is not presumptively invalid.” Second, unlike movie distributors, Dallas license applicants “had more at stake” and thus had “every incentive . . . to pursue the license denial through court.” Scalia, in his dissent, urged another means of addressing legislation affecting sexually oriented businesses.The means, he stated, “consists of recognizing that a business devoted to the sale of highly explicit sexual material can be found to be engaged in the marketing of obscenity, even though each book or film it sells might, in isolation, be considered merely pornographic and not obscene.” The plurality, however, implicitly rejected this proposition. It observed that “[t]he core policy underlying Freedman is that the license for a First Amendment–protected business must be issued within a reasonable period of time” (emphasis added). One question that divided circuit courts after FW/PBS arose from Justice O’Connor’s statement that “there must be the possibility of prompt judicial review in the event that [a] license is erroneously denied.” Some courts believed that this statement required a prompt judicial determination, not mere access to judicial review; others concluded that “prompt judicial review” meant only prompt access to the courts. At least in Colorado, this question was resolved in City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004), in which the Supreme Court held that Colorado’s “ordinary court procedural rules and practices . . . provide reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm.” See also City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004); Freedman v. Maryland (1965); Licensing Laws; Obscenity and Pornography; O’Connor, Sandra Day; Prior Restraint; Southeastern Promotions, Ltd. v. Conrad (1975).
Cary Wiggins
furthe r reading Woods, Grace F. “Note: Constitutional Law: Procedural Safeguards Required in First Amendment Prior Restraint Context.” Florida Law Review 42 (1990): 399.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
Gag Orders Gag orders—issued by a court, government, or private entity—require an individual to refrain from making public comments. Typically, judges issue injunctions barring trial participants—including attorneys, litigants, and witnesses— from discussing trial-related material outside the courtroom. In general, courts have held that gagging people involved in trials is more acceptable than similar orders issued against the press. In Gentile v. State Bar of Nevada (1991), the Supreme Court held that attorneys who make out-of-court statements are not entitled to the same level of protection as the media. Gag orders on the press represent a form of prior restraint and are seldom upheld. The Supreme Court in Sheppard v. Maxwell (1966) ruled that defendants are entitled to impartial juries and that trial court judges should take strong measures to uphold the right to a fair trial. Judges interpreted Sheppard as an authorization to impose gag orders on trial participants, but some even began to place them on the media. The Court dispelled this latter notion, setting a high bar for such orders in Nebraska Press Association v. Stuart (1976). This case arose from the 1975 trial of Erwin Simants, who was charged with murdering six people. The county judge issued a gag order barring the media from reporting on Simants’s confession, statements he made to others, contents of notes he had written on the evening of the murders, as well as other potentially damaging information. The Supreme Court invalidated the judge’s order, ruling that media gag orders must meet a heavy burden and that courts must stringently demonstrate the need for them. Rather than issuing gag orders, courts should consider alternatives, such as change of
venue, trial postponement until public attention fades, rigorous voir dire (or jury selection procedures), and jury sequestration. Judges issue gag orders to ensure a fair trial, to facilitate efficient administration of justice, and to prevent prejudicial information from reaching the jury pool. If prosecutors use the press to broadcast inadmissible material in court to jurors, such as the administration of polygraph tests or results, then defendants may be denied their right to an impartial jury. Furthermore, proponents claim that the harm caused by such disclosures may hinder the fair administration of justice. Prejudicial press coverage of trials may even undermine public confidence in the judiciary and in jury verdicts. In the Oklahoma City bombing trial of Timothy McVeigh, Chief Judge Richard Matsch ordered all lawyers, law enforcement officials, and court personnel involved in the case to avoid making statements outside of the courtroom about the jury and the trial proceedings. Across appellate court jurisdictions, judges strike down as well as uphold gag orders, but most gag orders go unchallenged. Opponents of gag orders argue that judges should be subjected to strict standards before gagging trial participants. They also contend that judges frequently use gag orders without looking at viable alternatives and charge that many orders are too broad and should be limited to specific information; in addition, they hinder the newsgathering abilities of the press and restrict the flow of information to the public. In short, many civil libertarians and journalists see gag orders as a threat to the First Amendment guarantee of a free press, while judges see them as inherently necessary to maintain the integrity of the judicial process.
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See also Gentile v. State Bar of Nevada (1991); Nebraska Press Association v. Stuart (1976); Prior Restraint; Sheppard v. Maxwell (1966).
Ruth Ann Strickland
furthe r reading Alexander, S. L. Media and American Courts:A Reference Handbook. Santa Barbara, Calif.: ABC-CLIO, 2004. Bunker, Matthew D. Justice and the Media: Reconciling Fair Trials and a Free Press. Mahway, N.J.: Lawrence Erlbaum Associates, 1997. Sadler, Roger L. Electronic Media Law. Thousand Oaks, Calif.: Sage Publications, 2005. Swartz, Michael E. “Trial Participant Speech Restrictions: Gagging First Amendment Rights.” Columbia Law Review 90 (June 1990): 1411–1444. Uelmen, Gerald F. “Leaks, Gags and Shields: Taking Responsibility.” Santa Clara Law Review 37 (1997): 943–979.
Gag Rule in Congress In the 1830s and 1840s in the U.S. House of Representatives, former president John Quincy Adams led a eightyear struggle against southern-sponsored gag resolutions aimed at denying the presentation or discussion of antislavery petitions. Elected to Congress in 1831, Adams, though never an abolitionist, opposed the extension of slavery to the territories and presented a petition from twenty-two slaves in 1837 for emancipation. Irate southerners threatened to have him barred from Congress. Consistent with the provision in the First Amendment providing for the right of the people “to petition the Government for a redress of grievances,” the American Antislavery Society, founded in 1833, submitted petitions to Congress in favor of abolishing slavery in the District of Columbia and the new territories and protesting the admission of Texas, a slave territory, into the Union. In 1836 a resolution introduced by Henry Laurens Pinckney of South Carolina provided that such petitions be laid on the table and ignored. Northern Democrats, who regarded the petitions as inflammatory and threatening to the Union, supported Pinckney’s position and also argued that the petitions took too much of the lawmakers’ time. Adams had initially avoided the antislavery battles, but then decided to move to strike the offending gag rule at the beginning of each session, when the House adopted its rules of procedure. Adams saw himself as representing the nation, not just a party or a district. He tried in 1839 to introduce resolutions for constitutional amendments declaring that every child born in the United States after July 4, 1842, be
born free; that with the exception of Florida, no new state shall be admitted into the Union with slavery; and that neither slavery nor the slave trade should exist in the District of Columbia after July 4, 1845. Each year the number of antislavery petitions presented by Adams grew. Eventually he won support, primarily from Whigs, including Joshua Giddings of Ohio and William Slade of Vermont, but also from John P. Hale of New Hampshire, then a Democrat. In 1844, after northern Democratic support for the gag had diminished, Adams’s motion to repeal the standing twenty-first rule of the House carried by a vote of 108-80. See also Abolitionists and Free Speech; Congress; Constitutional Amending Process.
Martin Gruberg
furthe r reading Barnes, Gilbert H. The Antislavery Impulse, 1830–1844. New York: Harcourt, Brace and World, 1964. Clark, Bennett Champ. John Quincy Adams: “Old Man Eloquent.” Boston: Little, Brown, 1932. Miller,William Lee. Arguing about Slavery:The Great Battles in the United States Congress. New York: Knopf, 1996. Nagel, Paul C. John Quincy Adams: A Public Life, A Private Life. New York: Knopf, 1997. Parsons, Lynn Hudson. John Quincy Adams. Madison, Wis.: Madison House, 1998. Richards, Leonard L. Life and Times of Congressman John Quincy Adams. New York: Oxford University Press, 1986.
Gallagher v. Crown Kosher Super Market of Massachusetts (1961) The Supreme Court in Gallagher v. Crown Kosher Super Market of Massachusetts, 366 U.S. 617 (1961), found that a Sunday blue law did not violate the First Amendment free exercise clause or the due process or equal protection clauses of the Fourteenth Amendment. Originally enacted in 1653, the law at issue provided that “whoever, on the Lord’s day, keeps open his shop, warehouse or workhouse, or does any manner of labor, business or work, except those of necessity or charity, shall be punished by a fine of fifty dollars.” Although the law was amended several times, with exceptions made to affected businesses over the years, supermarkets were to remain closed on Sundays. One of the exceptions allowed kosher markets to open on Sunday mornings until 10:00. The Crown Kosher Super Market, which had opened in
Gallatin, Albert 1953, was the only kosher grocery in the area, catering to Jewish customers from Vermont and Connecticut. It closed at sundown on Fridays to observe the Jewish Sabbath and reopened on Sunday mornings, when it did one-third of its business. On May 2, May 30, and June 6, 1954, all Sundays, officers of the Springfield Police Department purchased items at the store and subsequently arrested owner Howard Chernock, who was convicted of violating the Sunday closing law. He was fined $15. In response, Chernock and other owners, plus three customers, filed suit against Raymond P. Gallagher, the Springfield police chief, in federal district court in Boston, arguing that the so-called Lord’s Day Statute violated the establishment clause of the First Amendment.They further alleged that the statute violated the equal protection clause of the Fourteenth Amendment because it harshly affected the proprietors and customers of a kosher establishment, thus singling out Orthodox Jews. Because Orthodox Jews are forbidden to labor between sundown Friday and sundown Saturday, the only time for the supermarket to operate would be Saturday after sundown until 10:00 a.m. on Sunday, which would be impractical. A three-judge panel of the district court voted 2-1 for Chernock and the other appellants, finding the state’s blue laws an “unbelievable hodgepodge” of restrictions and exceptions. Gallagher appealed to the Supreme Court, which reversed in a 7-2 decision. Chief Justice Earl Warren found that the Sunday closing law had, over the years, lost its original religious intent and that the state was within its police powers to declare a day of rest and tranquility from most commercial ventures.Warren further stated that a day of rest does not prevent any person freely to exercise religious beliefs even though the law made no exception for those who worshiped on a different sabbath. Justices William J. Brennan Jr. and Potter Stewart dissented, arguing that the law limited the free exercise of religion. Stewart wrote, “Massachusetts has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. This is a cruel choice . . . which no state may constitutionally demand.” Although the Court in Gallagher found no federal violation, the following year, the Commonwealth of Massachusetts amended the Sunday closing law. In succeeding years, Massachusetts and other states gradually repealed most of their Sunday closing laws through a combination of legislation, state court action, and voter initiative.
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See also Brennan, William J., Jr.; Stewart, Potter; Sunday Blue Laws;Warren, Earl.
James R. Belpedio
furthe r reading Joseph, Joel. Black Mondays: The Worst Decisions of the Supreme Court. Bethesda, Md.: National Press, 1987.
Gallatin, Albert Albert Gallatin, best known as President Thomas Jefferson’s secretary of the Treasury, opposed the U.S. Constitution because he feared the loss of individual freedoms under it. He remained concerned about civil liberties, including those in the First Amendment, once the Constitution was adopted. Born into a prominent family in Geneva, Switzerland, Gallatin lost his parents and his only sibling during childhood. He graduated from Geneva Academy in 1779 and emigrated to the United States in 1780, partly because he liked the new nation’s liberal political values. Gallatin first became active in U.S. politics in August 1788, when Pennsylvanians opposed to the proposed federal constitution met to argue against ratification. Conceding the need of a central government for protection from without and from within, Gallatin criticized the elements of the proposed document because he thought that it did not sufficiently protect individual liberty from concentrated power. He specifically wanted to limit the authority of the executive and judicial branches because they would be further from the people and, therefore, more susceptible to corruption and abuses. He wanted the House of Representatives to be large enough to repel special interests and to protect itself against the Senate. Gallatin served in the Pennsylvania state legislature from 1790 to 1792. He advocated a system of public education, but also displayed his lifelong interest in financial matters, supporting bills to abolish paper money, pay the public debt in specie, and establish a bank of Pennsylvania to help support business endeavors. Pennsylvanians elected him to the U.S. Senate in 1793, but Gallatin was denied his seat, ostensibly because he had not been a U.S. citizen for nine years. Evidence suggests that his anti-Federalist activities were also to blame. In 1794 the Whiskey Rebellion began in western Pennsylvania, and President George Washington moved quickly to put it down. Gallatin feared that the combination of a uniformed governmental presence along with the repression of public opinion could lead to dissolution of the
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Union. He also expressed concern that a vengeful military could turn on the citizenry. He argued that a free government should have authority that rests upon the consent of the people rather than force and oppression. Nevertheless, Gallatin urged the rebellious farmers to submit to government taxation. Gallatin continued his political career by serving in the U.S. House of Representatives from 1795 to 1801. In 1797 he became the leader of the Republican minority. He insisted that the Department of the Treasury be accountable to Congress and played an instrumental role in creating a standing committee on finance. Gallatin was among the Republicans who opposed the adoption of the Alien and Sedition Acts of 1798, the latter of which abridged freedom of speech and press. His skill at party organization helped Jefferson win the presidency, and in 1801 Jefferson appointed Gallatin to head the Treasury. Gallatin supported westward expansion and, pacific by nature, strongly encouraged the Louisiana Purchase as a means of avoiding war. He insisted that trial by jury, freedom of religion, and freedom of the press be established in the newly acquired territory. Gallatin spent twelve years at Treasury, a record that has yet to be surpassed. He concerned himself chiefly with balancing the budget and reducing the national debt. After Gallatin left the cabinet, President James Madison sent him to Russia, in 1813, to discuss the czar’s offer to mediate a settlement of the War of 1812. In 1814 he helped draft a peace treaty as a member of the U.S. Peace Commission at Ghent. Gallatin then served as U.S. envoy to France from 1816 to 1823 and to Great Britain from 1826 to 1827. He concluded his public service as president of the New York branch of the second Bank of the United States from 1831 to 1839. In retirement, Gallatin continued to show his concern for individual liberties. He opposed the U.S. takeover of Oregon and American involvement in Mexico in the 1840s as acts of aggression that threatened freedom. By the time of his death, Gallatin’s contemporaries ranked him only slightly below Washington, Jefferson, and Madison in service to his country.
Gandia v. Pettingill (1912) In Gandia v. Pettingill, 222 U.S. 452 (1912), the Supreme Court overturned the conviction of an individual convicted of libel in a case that would later serve as a precedent for modern doctrines seeking to protect First Amendment expressive rights by making libel judgments difficult to win. An individual in Puerto Rico had published a series of articles in a newspaper, La Correspondencia, alleging that N. B. K. Pettingill, while serving as a U.S. attorney for the territory, had carried on a private practice, which the newspaper described as a monstrous immorality and scandal. Pettingill sued for libel.The judge at his trial instructed the jury that the articles were “libelous per se” and that the jury’s only job was to determine damages. In the opinion for the Court overturning Gandia’s conviction, Justice Oliver Wendell Holmes Jr. noted that the facts alleged did not constitute a crime and that because the individual being criticized was “a public officer in whose course of action connected with his office the citizens of Porto Rico had a serious interest . . . anything bearing on such action was a legitimate subject of statement and comment,” at least in the absence of “express malice.” Making allowance “for the somewhat more exuberant expressions of meridianal [Holmes apparently meant meridional] speech,” Holmes did not believe that the jury would have convicted without the judge’s instructions. He observed that since the conduct alleged, although likely to meet with public disapprobation, was not illegal, the judge should have instructed the jury that “the plaintiff could not recover for it,” unless it showed actual malice.The Court later cited this precedent in Balzac v. People of Porto Rico (1922). In New York Times Co. v. Sullivan (1964), the Court further refined the standard for showing actual malice in the case of public officials. See also Actual Malice; Balzac v. People of Porto Rico (1922); Holmes, Oliver Wendell, Jr.; Libel and Slander; New York Times Co. v. Sullivan (1964).
John R.Vile See also Anti-Federalists; Jefferson,Thomas; Sedition Act of 1798; Washington, George.
Caryn E. Neumann
furthe r reading Ewing, Frank. America’s Forgotten Statesman: Albert Gallatin. New York: Vantage, 1959. Kuppenheimer, L. B. Albert Gallatin’s Vision of Democratic Stability. Westport, Conn.: Praeger, 1996.
furthe r reading Gibson, Michael T. “The Supreme Court and Freedom of Expression from 1791 to 1917.” Fordham Law Review 55 (1986): 263–333.
Gannett Co. v. DePasquale (1979) The Supreme Court ruled in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), that the Sixth Amendment right to a “pub-
Garbus, Martin lic trial” belongs to the defendant in a criminal case and does not guarantee the public or the press access to pretrial hearings or even to trials. The decision and the controversy it caused ironically set the stage for the ruling a year later in Richmond Newspapers, Inc. v. Virginia (1980) holding that the First Amendment creates a right of access for the press and public to criminal trials. Gannett involved the 1976 disappearance of Wayne Clapp while on a boat on Seneca Lake near Rochester, New York. The incident received substantial press coverage. Two men arrested and charged with his murder moved to suppress statements and other evidence prior to trial and asked the judge to bar the press and the public from the pretrial hearing. The trial judge closed the hearing, rejecting a subsequent complaint from a newspaper reporter whose paper was owned by Gannett. The highest state court, the New York Court of Appeals, upheld the closure. In a 5-4 vote, the Supreme Court affirmed, ruling that where a criminal defendant and prosecutor both favor closure of a pretrial proceeding, the Sixth Amendment does not create any public right to attend. Justice Potter Stewart’s opinion for the Court suffered from three problems that created confusion and ultimately led to its demise. First, Stewart did not limit his Sixth Amendment discussion to pretrial hearings and spoke more broadly of entire trials. Second, he stated that a pretrial closure does not violate the public’s or media’s First Amendment right, although this argument was not fully explained or developed.Third, three of the five justices in the majority—Chief Justice Warren E. Burger and Justices Lewis F. Powell Jr. and William H. Rehnquist— wrote concurring opinions differing from Stewart’s in the breadth and basis for the decision. Burger argued that the ruling covered pretrial proceedings only. Powell asserted that there is a First Amendment right of access. Rehnquist held that there is no right of access under any part of the Bill of Rights. Justice Harry A. Blackmun dissented, relying on the history of open trials to argue that the Sixth Amendment protects a right of access to trials and pretrial proceedings by the press and the public. The ruling led dozens of judges around the country to grant requests to close pretrial hearings and entire trials.The media outcry over this trend, in turn, led to the unusual spectacle of four justices—Chief Justice Burger and Justices Blackmun, Powell and John Paul Stevens— explaining or commenting off the bench during summer 1979 on the scope of the Gannett ruling and on the reaction
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to it.At the end of the summer, the Court granted review to the Richmond Newspapers case. See also Blackmun, Harry A.; Burger,Warren E.; Powell, Lewis F., Jr.; Rehnquist, William H.; Richmond Newspapers, Inc. v. Virginia (1980); Stevens, John Paul; Stewart, Potter.
Stephen Wermiel
furthe r reading Dienes, C.Thomas, Lee Levine, and Robert C. Lind. Newsgathering and the Law. 3d ed. Newark, N.J.: LexisNexis, 2005. “The Supreme Court 1978 Term Closure of Pretrial Proceedings.” Harvard Law Review 93 (1979). Weakland, Lewis F. “Confusion in the Courthouse:The Legacy of the Gannett and Richmond Newspapers Public Right of Access Cases.” Southern California Law Review 59 (1986): 603–639.
Garbus, Martin Regarded as one of the top First Amendment lawyer–litigators in the United States, Martin Garbus (1934– ) has participated in numerous cases involving libel and defamation as well as intellectual property and copyright. He has represented many celebrities and authors, including Lenny Bruce, John Cheever, Spike Lee, Nancy Reagan, and Daniel Ellsberg. He was a co-counsel in Jacobellis v. Ohio (1964), an obscenity case involving motion picture regulation. Born in Brooklyn, New York, Garbus was educated at Hunter College and earned a JD at New York University. He has taught at Yale and Columbia Universities and is a partner with Davis & Gilbert, in Manhattan. In 2007 Garbus gained national attention when he was retained by Don Imus, a controversial radio personality. Imus had been fired from CBS and MSNBC after making racially insensitive on-air comments about Rutgers University’s women’s basketball team. The wrongful termination case against CBS involved possible breach of contract rather than free speech or free press issues. Garbus has been critical of the Supreme Court’s approval of various faith-based initiatives promoted by George W. Bush’s administration. He thinks these initiatives impermissibly breach separation of church and state and thus violate the establishment clause of the First Amendment. Over the years Garbus has written several books, including The Next 25 Years: How the Supreme Court Will Make You Forget the Meaning of Words Like Privacy, Equality, and Freedom (2002) and Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way (with Stanley Cohen) (1998).
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Garcetti v. Ceballos (2006)
See also Bruce, Lenny; Ellsberg, Daniel; Faith-based Organizations and Government Aid; Jacobellis v. Ohio (1964).
John R.Vile
furthe r reading “Famed Attorney Martin Garbus Reveals the Horrors Ahead from a Winger Supreme Court.” Buzzflash.com. www.buzzflash.com/ articles/interviews/058. Fine, Jon. “Imus Hires a Legal Heavyweight.” Business Week, April 20, 2007.
Garcetti v. Ceballos (2006) The Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006), ruled that public employees do not have a First Amendment protection for speech issued as part of their official duties. California prosecutor Richard Ceballos alleged that his employer had retaliated against him after he criticized the handling of a search warrant affidavit that he believed contained untruthful statements by a sheriff ’s deputy. Ceballos claimed that his transfer to a less-desirable position and office location were a direct result of his critical speech in a memo, his testimony at a suppression hearing, and a public speech he delivered at a conference. A federal district court ruled that Ceballos had no First Amendment claim for speech delivered in the memo prepared as part of his routine job duties. A three-judge panel of the Ninth Circuit Court of Appeals reversed in Ceballos v. Garcetti (2004), determining that Ceballos’s memo concerning lack of veracity by law enforcement officials constituted speech on a matter of public concern within the meaning of Pickering v. Board Education (1968). The appeals court concluded that Ceballos’s free speech rights trumped the district attorney’s efficiency interests. The district attorney appealed to the Supreme Court, which reversed the Ninth Circuit in a 5-4 vote. Writing for the majority, Justice Anthony M. Kennedy ruled that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer each wrote dissenting opinions. Stevens criticized the majority’s decision as “misguided” and stated that “the notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.” Souter—joined by Justices Stevens
and Ruth Bader Ginsburg—reasoned that public employees retain First Amendment rights in their official workplace speech when the employee “speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it.” Souter warned that the majority’s decision may imperil “academic freedom in public colleges and universities, whose teachers necessarily speak and write pursuant to official duties.” Breyer wrote a narrower dissent, in which he focused on the “special constitutional obligations” imposed upon prosecutors who must disclose any exculpatory evidence to the defense.To Breyer, prosecutors such as Richard Ceballos need “augmented” First Amendment protection when they speak out regarding possible governmental abuse. See also Connick v. Myers (1983); Pickering v. Board of Education (1968); Public Employees.
David L. Hudson Jr.
furthe r reading Cooper, Kathryn B. “Garcetti v. Ceballos: The Dual Threshold Requirement Challenging Public Employee Free Speech.” Loyola Journal of Public International Law 8 (2006): 73–95. LaPilato, Krystal. “Garcetti v. Ceballos: Public Employees Lose First Amendment Protection for Speech within Their Job Duties.” Berkeley Journal of Employment and Labor Law 27 (2006): 537–544.
Garner v. Board of Public Works of Los Angeles (1951) In Garner v. Board of Public Works of Los Angeles, 341 U.S. 716 (1951), the Supreme Court upheld the constitutionality of an oath and an accompanying affidavit that the City of Los Angeles required of its employees against charges that it violated several constitutional provisions, including First Amendment protections of freedom of speech and association. The oath in question required that employees affirm that they did not then “advise, advocate or teach” or belong to organizations that taught the forceful overthrow of the U.S. government and that they had not for the last five years. Because the city had adopted a similar ordinance that applied five years previously, Justice Tom C. Clark, joined by four other justices, denied that the law was an ex post facto, or retroactive, criminal law. He argued that it was not a bill of attainder—a legislative, rather than a judicial punishment— because it related to professional standards of employment rather than being chiefly punitive in nature. Clark further
Garrison v. Louisiana (1964) saved the oath from impermissibly impinging on freedom of speech and association by reading it so that it only applied to knowing membership in subversive organizations. Four justices wrote separate dissents. Justice Felix Frankfurter’s partial dissent argued that there was inadequate justification for believing that employees knew when they refused to take the oath that it prescribed only knowing membership. Justice Harold H. Burton’s partial dissent focused on what he believed to be the improper retrospective application of the oath. Justice Hugo L. Black’s dissent highlighted his view that the decision conflicted with past judicial precedents, and Justice William O. Douglas argued that the case contradicted past precedents dealing with test oaths and constituted an ex post facto law as well as a bill of attainder. This Garner ruling resembled contemporary decisions in Adler v. Board of Education (1952) and Wieman v. Updegraff (1952) in upholding oaths only when it is clear that employees understand that they apply only to knowing membership in groups advocating violent overthrow of the government. See also Adler v. Board of Education (1952); Loyalty Oaths; Wieman v. Updegraff (1952).
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based his concurring opinion on the public interest in securing places of public accommodation against racial segregation. John Marshall Harlan II based his concurrence on First Amendment principles as illustrated in Cantwell v. Connecticut (1940), in which the Court had upheld the rights of Jehovah’s Witnesses to conduct door-to-door canvassing. The facts clearly indicated that the petitioners were engaged in expressive conduct that was just as protected as the display of a red flag in Stromberg v. California (1931). Louisiana had not drawn or applied its breach of the peace law narrowly so as only to apply it when it presented a clear and present danger; the law was too vague and uncertain in its application. See also Breach of the Peace Laws; Cantwell v. Connecticut (1940); Civil Rights Movement; Expressive Conduct; Harlan, John Marshall, II; Stromberg v. California (1931);Warren, Earl.
John R.Vile
furthe r reading Webster, McKenzie. “The Warren Court’s Struggle with the Sit-in Cases and the Constitutionality of Segregation in Places of Public Accommodation.” Journal of Law and Politics 17 (2001): 373–407.
Garrison v. Louisiana (1964)
John R.Vile
furthe r reading Greenberg, Milton. “Loyalty Oaths: An appraisal of the Legal Issues.” Journal of Politics 20 (1958): 487–514.
Garner v. Louisiana (1961) The unanimous Supreme Court decision in Garner v. Louisiana, 368 U.S. 157 (1961), voided the application of a Louisiana breach of the peace statute to peaceful sit-in demonstrations, such as those at department store lunch counters. It was the first case before the Court to deal with the constitutionality of regulations on sit-ins, an important method of protest during the civil rights movement of the 1950s and 1960s. Chief Justice Earl Warren’s opinion for the Court found the convictions to be so lacking in evidence as to have violated due process. He noted that Louisiana courts had limited previous applications of the law to cases that either involved loud or aggressive behavior or were likely to provoke violence. Here he saw no evidence that the demonstrators had engaged in such provocative behavior. In a concurring opinion, Justice Felix Frankfurter also failed to find such behavior criminal. William O. Douglas
By overturning the criminal defamation conviction of a Louisiana district attorney, the unanimous Supreme Court ruling in Garrison v. Louisiana, 379 U.S. 64 (1964), continued the refinement of libel laws begun in New York Times Co. v. Sullivan (1964). New Orleans Parish district attorney Jim Garrison had argued that the state had violated his right to freedom of speech when it convicted him of criminal libel. Garrison had been charged with libel for publicly stating that a large backlog of criminal cases was due to the inefficiency and laziness of eight state judges. He also said the judges were hampering his attempts to enforce vice laws. Garrison’s conviction was based on a Louisiana statute making it criminal libel to make malicious and false statements against public officials or to make malicious statements that are true and made with “hatred, ill will or enmity or a wanton desire to injure.” According to Justice William J. Brennan Jr., Louisiana’s criminal libel law was unconstitutional because it restricted the use of truth as a defense, and it did not require prosecutors to prove that the comments in question were made with what the Court had defined as actual malice in Sullivan. The majority ruling in Sullivan established that a comment exhibits actual malice only if it is made “with knowledge
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Gelling v.Texas (1952)
that it was false or with reckless disregard of whether it was false or not.” In Sullivan, decided eight and a half months before Garrison, the Court held that truth is an absolute defense against libel in civil court. Furthermore, the Court had decided that malicious statements made against public officials could be protected under the First and Fourteenth Amendments even if the statements were false and made with ill will. The Garrison decision, which overturned a state supreme court ruling, applied the newly determined guidelines for civil libel laws to laws pertaining to criminal libel. Brennan did not close the door on criminal libel altogether, stating that the use of “calculated falsehoods” might be a punishable libel in criminal court. “Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity,” he wrote. Brennan’s views on this aspect of the case were not shared by Justices William O. Douglas and Hugo L. Black. In concurring opinions, each argued that criminal libel laws could be used unconstitutionally to squelch open discussion on public matters. Black wrote “that under our Constitution there is absolutely no place in this country for the old, discredited English Star Chamber law of seditious criminal libel.” See also Actual Malice; Brennan, William J., Jr.; Criminal Defamation; Libel and Slander; New York Times Co. v. Sullivan (1964); Star Chamber.
Neil Ralston
furthe r reading Brenner, Susan W. “Complicit Publication: When Should the Dissemination of Ideas and Data Be Criminalized?” Albany Law Journal of Science and Technology 13 (2003) 273–429.
Gelling v. Texas (1952) The Supreme Court per curiam opinion in Gelling v. Texas, 343 U.S. 960 (1952), reversed a Texas court decision upholding the conviction of W. L. Gelling, who showed an unnamed motion picture after the Board of Censors of Marshall,Texas, prohibited it.The Court simply relied on its First Amendment precedents in Burstyn v.Wilson (1952) and Winters v. New York (1948). In a brief concurring opinion, Justice Felix Frankfurter said the law violated the due process clause of the
Fourteenth Amendment because of its “indefiniteness.” In a separate concurrence, Justice William O. Douglas further tied the actions of the Texas censors to the “evil of prior restraint,” which the Court had condemned in Near v. Minnesota (1931) and in Burstyn. See also Douglas,William O.; Frankfurter, Felix; Burstyn v.Wilson (1952); Near v. Minnesota (1931); Prior Restraint; Winters v. New York (1948).
John R.Vile
furthe r reading Tetford, Thomas L. Freedom of Speech in the United States. 3d ed. State College, Penn.: Strata Publishing, 1985.
General Media Communications v. Cohen (2d Cir. 1997) In General Media Communications v. Cohen, 131 F.3d 273 (2d Cir. 1997), a divided three-judge panel of the Second Circuit Court of Appeals voted 2-1 to reject a facial First Amendment challenge to the Military Honor and Decency Act of 1996, a federal law prohibiting the sale or rental of sexually explicit material at military bases and exchanges. General Media, the publisher of Penthouse magazine, had earlier contended in federal district court that the law violated the First Amendment.The government countered that the law was necessary to protect the military’s image of honor, professionalism, and proper decorum. Federal district court judge Shira Scheindlin agreed with the challengers in General Media Communications v. Perry (S.D.N.Y. 1997). She observed, “Society is better served by protecting our cherished right to free speech, even at the cost of tolerating speech that is outrageous, offensive and demeaning.” The government appealed to the Second Circuit.Writing for the majority, Judge José Cabranes stated that the law was “a reasonable means of promoting the government’s legitimate interest in protecting the military’s image and its core values.” He reasoned that “Congress has not banned sexually explicit magazines and videos, soldiers and sailors may still buy them elsewhere, receive them by mail, and read or watch them; Congress has decided only that the military itself will not be in the business of selling or renting those items to service members.” In dissent, Judge Fred Parker wrote, “When First Amendment protection bows to the military’s desire to suppress certain ideas without a clear and strong reason, desire to protect our liberties with a strong military
Gerende v. Board of Supervisors of Elections of Baltimore (1951) authority may end up eroding our liberty to speak freely and to be tolerated in doing so.” General Media appealed to the Supreme Court, which denied review in June 1998 in General Media Communications v. Perry. In 2002 the Ninth Circuit Court of Appeals rejected another First Amendment challenge to the Military Honor and Decency Act in PMG International Division v. Rumsfeld. See also Facial Challenges; Harmful to Minors Laws; Military Personnel, Rights of.
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Penthouse Publisher Sounds Off on Free Speech, Supreme Court.” First Amendment Center Online. www.firstamendmentcenter.org/news.aspx?id=8734. Shank, Ross G. “Speech, Service and Sex: The Limits of First Amendment Protection of Sexual Expression in the Military.” Vanderbilt Law Review 51 (1998): 1093–1146.
Gentile v. State Bar of Nevada (1991) In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), the Supreme Court struck down judicially imposed limits on attorney speech as too vague. Nevada Supreme Court Rule 177 placed limits on statements an attorney could make if he or she “knows or reasonably should know that it will have a substantial likelihood of materially prejudicing” the finder of fact. This case involved statements made at a press conference by Dominic Gentile, a Las Vegas–based criminal defense attorney, who had asserted his client’s innocence and said that the police were corrupt. Four justices joined Justice Anthony M. Kennedy’s opinion on the issue of vagueness, while four signed on to Chief Justice William H. Rehnquist’s opinion on the substantial likelihood of material prejudice test. Justice Sandra Day O’Connor cast the deciding vote on both issues. Kennedy and four justices found the Nevada rule void for vagueness. In specific, the safe harbor provision of the rule—which allowed attorneys to make certain classes of statements in spite of the rule’s prohibition—failed to provide adequate notice to Gentile that his statements were barred.The Court held that the rule’s use of such words as general and elaboration, both classic terms of degree, failed, in the language of Grayned v. City of Rockford (1972), to provide “fair notice to those to whom it is directed.” The Court also found that Gentile had made efforts to comply with the rule but still
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ran afoul of its strictures.The risk of discriminatory enforcement was enough to justify the Court’s finding even if petitioner could not make such a showing in this case. Rehnquist argued that the state supreme court’s standard that statements must cause a substantial likelihood of material prejudice was sufficient to protect Gentile’s interest. The chief justice borrowed from the clear and present danger test in deciding whether a state may prohibit media speech or publication about a pending trial.The Court held that when First Amendment rights are implicated, those interests must be balanced against the state’s legitimate interest in regulating the activity in question. It found that the substantial likelihood test fit this mold because it was designed to protect the integrity and fairness of the state judicial system and imposed only narrow and necessary limitations on lawyers’ speech. The justices in Gentile did not rule whether a standard lower than the substantial likelihood of material prejudice would satisfy constitutional muster. In 1999 the Fourth Circuit Court of Appeals ruled in In Re Morrissey that a reasonable likelihood of material prejudice standard did not violate the First Amendment. See also Gag Orders; Grayned v. City of Rockford (1972); Vagueness.
Alan Tauber
furthe r reading Kelly, Katrina M. “The Impartial Jury and Media Overload: Rethinking Attorney Speech Regulations in the 1990s.” Northern Illinois University Law Review 16 (1996): 483–505. Weisberg, Lynn.“On a Constitutional Collision Course:Attorney NoComment Rules and the Right of Access to Information.” Journal of Criminal Law and Criminology 83 (1992): 644.
Gerende v. Board of Supervisors of Elections of Baltimore (1951) The Supreme Court’s brief per curiam opinion in Gerende v. Board of Supervisors of Elections of Baltimore, 341 U.S. 56 (1951), upheld a Maryland requirement that all candidates seeking access to the ballot must file affidavits attesting that they were neither engaged in overthrowing the state or national government nor knowing members of any organization committed to such efforts. The Court accepted the loyalty oath against apparent overbreadth or vagueness challenges with the understanding, affirmed by the Maryland attorney general, that the oath only limited attempts to “overthrow the government by force
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or violence.” Justice Stanley F. Reed concurred in the result without a written opinion. Despite this precedent, Justice William O. Douglas wrote a decision for the Court in Whitehill v. Elkins (1967) overturning a similar oath for university employees in Maryland on the ground that it was unconstitutionally vague when read in conjunction with other provisions of state law. See also Loyalty Oaths; Overbreadth; Public Employees;Vagueness; Whitehill v. Elkins (1967).
John R.Vile
furthe r reading Currie, David P. “The Constitution in the Supreme Court, 1946–1953.” Emory Law Journal 37 (Spring 1988): 249–294.
Gertz v. Robert Welch, Inc. (1974) In Gertz v. Robert Welch, Inc. (1974), the Supreme Court ruled that the First Amendment does not require a private individual who is publicly libeled to meet the burden of proof articulated in New York Times Co. v. Sullivan (1964) in order to prevail in a defamation suit. In general, the First Amendment grants broad leeway to engage in matters of public debate, even if that discussion involves criticism of individuals. In some cases, this criticism may not be completely factually accurate, necessitating some rule to determine when or whether the commentary is actionable as defamation. In Sullivan, the Court devised the standard that public officials must show “actual malice” or that the individuals who criticized them knew the information alleged to be false and that they had acted with reckless disregard for the truth. The Court set a high standard of proof for public officials to promote the First Amendment goals of open, robust debate and to prevent minor factual inaccuracies from chilling criticism of the government. In addition to the standard set for public officials in Sullivan, the Court stated in Curtis Publishing Co. v. Butts (1967) that this burden of proof would also have to be met by public figures if they too wished to prevail in these types of suits. These cases left unresolved, however, what the First Amendment required concerning criticism of private individuals. In Rosenbloom v. Metromedia, Inc. (1971), a plurality of the Supreme Court appeared to extend the Sullivan standard to private individuals if the matter involved discussion of public interest.This was the issue again addressed in Gertz. Elmer Gertz had been hired as an attorney to represent a police officer, Ronald Nuccio, who was being sued because
he had shot and killed a youth. Robert Welch, a leader of the ultraconservative John Welch Society and publisher of the American Opinion magazine, ran an article asserting that the testimony against the officer was false and that the suit against him was a communist plot. The article described Gertz as a “Leninist” and a “Communist-fronter.” It also stated that Gertz had been an officer of the National Lawyers Guild, described as a communist organization that helped “plan the Communist attack on the Chicago police during the 1968 Democratic Convention.” Many of the statements were factually incorrect, and Welch had done little to verify the facts. Gertz sued Welch and his publication. The federal district and appellate courts applied the Sullivan standard, and Welch prevailed.The Supreme Court reversed. Writing for the Court, Justice Lewis F. Powell Jr. stated that Gertz was a private individual so Sullivan did not apply. According to the Court, although public officials had a variety of tools and resources available to combat falsehoods directed at them, private individuals were not similarly advantaged. Moreover, unlike public officials who should expect criticism, private individuals do not face this expectation. In short, the First Amendment does not protect defamers who libel private individuals, and the government has a legitimate interest in offering compensation via punitive damages to those whose reputation is hurt by falsehoods.The Court held that so long as states do not impose liability without fault, they should be free to set standards of proof for proving defamation against private individuals. In dissent, Justice William J. Brennan Jr. would have applied the Sullivan standard to private individuals much the same way he argued in Rosenbloom. For Brennan, the distinction of an individual as either a private or public figure was immaterial to the underlying First Amendment values that the Constitution sought to uphold when it came to public criticism and debate. Brennan saw no difference in the standard that should be afforded to public officials, who voluntarily enter the public forum, versus the one that should apply to private individuals. In both cases, as Brennan saw it, the First Amendment principles of free speech and freedom of the press should make it difficult to sue individuals for defamation if they engage in debate over matters of public importance. See also Brennan, William J., Jr.; Defamation; Libel and Slander; New York Times Co. v. Sullivan (1964); Powell, Lewis F., Jr.; Rosenbloom v. Metromedia, Inc. (1971).
David Schultz
Gibson v. Florida Legislative Investigation Committee (1963) furthe r reading Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech. New York: Clark Boardman Callaghan, 1996.
Gibbons v. District of Columbia (1886) A unanimous Supreme Court in Gibbons v. District of Columbia, 116 U.S. 404 (1886), affirmed that Congress could tax church property that had been “used to secure a rent or income, or for any business purpose.” It relied on the language of a congressional act of 1875 to do so. In the opinion for the Court, Justice Horace Gray did not object to the exemption of “church buildings, and grounds actually occupied by such buildings.” He reasoned that Congress could not only exempt houses of worship from taxation but also surrounding areas used “to admit light and air” or even to enhance their “beauty and attractiveness.” Without specifically mentioning the First Amendment, Gray affirmed that Congress could, like state legislatures, “wholly exempt certain classes of property from taxation, or may tax them at a lower rate than other property.” Chief Justice Warren E. Burger cited this precedent to support the decision allowing for modern property tax exemptions for churches and other charitable entities in Walz v. Tax Commission (1970). See also Taxation of Religious Entities; Walz v. Tax Commission (1970).
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Writing for the unanimous Court, Justice Hugo L. Black recognized that states had the power to restrict businesses from restraining trade, but also argued that such conduct was not immunized simply because it involved the exercise of peaceful First Amendment freedoms. He observed that the pickets could not be treated in isolation but with the recognition that their purpose was “to compel Empire to agree to stop selling ice to nonunion peddlers.” Black further observed,“It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.” He also attempted to square this ruling with earlier decisions relative to picketing in Thornhill v.Alabama (1940) and Carlson v. California (1940). Although Black agreed that the unions were attempting to influence the conduct of Empire in part through speaking and writing, he argued that “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced or carried out by means of language, either spoken, written, or printed.” Black believed Missouri had the right to decide on the wisdom of legislation against restraint of trade, and the courts should enforce it. See also Black, Hugo L.; Carlson v. California (1940); Picketing; Thornhill v. Alabama (1940).
John R.Vile
furthe r reading Beard, Brian. “Secondary Boycotts after DeBartolo: Has the Supreme Court Handed Unions a Powerful New Weapon?” Iowa Law Review 75 (1989): 217–234.
Zelinsky, Edward A. “Art Tax ‘Benefits’ for Religious Institutions Constitutionally Dependent on Benefits for Secular Entities?” Boston College Law Review 42 (2001): 805–841.
Gibson v. Florida Legislative Investigation Committee (1963)
Giboney v. Empire Storage and Ice Co. (1949)
In Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963), the Supreme Court held that the First Amendment rights of free speech and association protected organizations from having to divulge their membership to a legislative investigative committee when there was an insufficient record to demonstrate an association with communist activity. Theodore R. Gibson was the president of the Miami branch of the National Association for the Advancement of Colored People (NAACP) when the Florida state legislature ordered him to appear before one of its committees investigating the alleged communist infiltration of organizations
The Supreme Court decision in Giboney v. Empire Storage and Ice Co., 336 U.S. 490 (1949), upheld an injunction against peaceful picketing that a lower court had issued to members of a union in Kansas City, Missouri, after they had picketed a business that had continued to sell ice to nonunion ice peddlers.The pickets had reduced the company’s business by 85 percent, but had the business refused to sell to nonunion businesses, it could have been subject under state laws prohibiting restraint of trade to triple damages.
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active in the field of race relations. The legislature did not suggest that the Miami branch was a subversive organization or had been communist dominated or influenced. Rather, the purpose of Gibson’s testimony was to determine whether fourteen persons who had been identified as communists or members of communist-front or communistaffiliated organizations were members of the Miami NAACP. The primary evidence the committee relied upon to demonstrate a relationship between the NAACP and communist activities was tenuous hearsay testimony by two witnesses.When the committee scheduled Gibson to appear, it also ordered him to bring the organization’s membership records. Gibson argued that having to bring the records and answer questions concerning who belonged to the organization violated the associational right of NAACP members and prospective members, so he refused the request. A Florida state court adjudged him in contempt of the legislature, and the Florida Supreme Court affirmed. Writing for the 5-4 U.S. Supreme Court, Justice Arthur J. Goldberg pointed out that Gibson involved a conflict between individual rights of free speech and association and the governmental interest in conducting legislative investigations. He distinguished this case from Barenblatt v. United States (1959) by pointing out that Barenblatt had focused on membership in the Communist Party, whereas in Gibson there was no evidence to believe that the NAACP was subversive or communist dominated or influenced. Goldberg then declared that when the claim is made that a legislative investigation intrudes upon First and Fourteenth Amendment associational rights of individuals, the state must show convincingly a substantial relation between the information sought and the subject of investigation, which had to involve a compelling state interest. In this case, the state had failed to demonstrate a substantial relationship between the NAACP and communist infiltration of organizations trying to improve race relations. Justice Hugo L. Black concurred but believed that even unpopular groups, such as communists, had the right to associate. Justices John Marshall Harlan II and Byron R. White dissented separately, both expressing concern that the decision would weaken the government’s ability to investigate communist activities. See also Barenblatt v. United States (1959); Civil Rights Movement; Communist Party of the United States.
Tom McInnis
furthe r reading “Constitutional Law—State Legislature Committee—Must Show Substantial Relationship Between Information Sought and a Compelling State Interest—Gibson v. Florida Legislative Investigative Comm.” Albany Law Review 28 (1969): 153–156. Kalven, Harry, Jr. The Negro and the First Amendment. Chicago: University of Chicago Press, 1965. Lynch, Norman B. “Freedom of Association—Non-Disclosure of Membership Lists Protected from State Legislative Inquiry— Gibson v. Florida Legislative Investigation of Committee, 372 U.S. 539 (1963).” George Washington Law Review 32 (1963): 139–144. Urofsky, Melvin I., and Paul Finkelman. “A Nation in Turmoil.” In A March of Liberty: A Constitutional History of the United States. Vol. 2. New York: Oxford University Press, 2002.
Gilbert v. Minnesota (1920) The Supreme Court decision in Gilbert v. Minnesota, 254 U.S. 325 (1920), upheld a conviction for criticizing U.S. participation in World War I. Joseph Gilbert, born in England, persistently challenged the strict authority of his conservative, devout guardians and the stern discipline of school authorities. In 1883 Gilbert moved to the United States. He settled in Philadelphia, where he lived comfortably designing carpets, eventually operating his own business. Seeking new challenges, Gilbert decided to become a lawyer. In 1900, he was admitted to the Pennsylvania bar. Dissatisfied with his law practice, he and his wife moved to Seattle, where he became involved with the Socialist Party, published a socialist newspaper, and became a widely known supporter of radical causes throughout the western United States. In 1915 he assumed a leadership position with the Non-Partisan League of North Dakota, a farmers’ organization that advocated state ownership of banks, railroads, grain mills, warehouses, and elevators. In 1917, when the United States entered World War I, the Non-Partisan League voiced forceful opposition to its participation, especially the conscription of young men into the armed forces. Gilbert delivered a speech in August 1917 at a public meeting of the NPL in Red Wing, Minnesota, in which he said that “if they conscripted wealth like they conscripted men the war would not last 48 hours” and “if this is a great democracy, why should we not vote on the conscription of men?” He went on to state “we were stampeded into this war by newspaper rot to pull England’s chestnuts out of the fire!” Gilbert was arrested for violating the Minnesota sedition statute that made it illegal “to speak, or teach, by word of mouth opposition to the war, or to advocate against enlistment.” He was
Gillette v. United States (1971) tried, convicted, and sentenced to one year in the county jail and ordered to pay a $500 fine, plus court costs. Gilbert appealed to the Minnesota Supreme Court. He challenged whether Minnesota had the power to pass such a sedition law, contending that the statute was a violation of the U.S. Constitution in that every allegation in the indictment was under powers granted to Congress, not the states. Furthermore, he alleged that the statute in question was obnoxious to the “inherent right of free speech in criticizing the policies of the United States Government.” The Minnesota high court upheld the conviction. Gilbert appealed to the U.S. Supreme Court, which upheld the conviction and the Minnesota statute. For the majority, Justice Joseph McKenna wrote that assuming that the First Amendment’s free speech protection is applicable to the states, the states nevertheless have the right to make the national purpose their own in exerting police powers to prevent persons from obstructing national policies and to preserve the peace of the state. McKenna held that Gilbert’s speech had the purpose of assaulting the statute and justifying anarchy to benefit the enemies of the nation. Gilbert’s speech advocated a policy meant to counteract the law, which the speaker had no right to do. Chief Justice Edward D.White dissented, holding that the powers in the Minnesota statute were wholly those of Congress, not of the states. Justice Louis D. Brandeis also dissented, arguing that the Minnesota law outlawed beliefs, not actions, and that it would invade the private security of the family if it prevented a father from advising his son not to join the army for reasons of conscience or religion. He added that the statute deprived persons of rights guaranteed by the Constitution. In citing a long list of cases that showed the use of due process to protect property rights, he observed sarcastically, “I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property.” Here, as in later cases, Brandeis echoed McKenna’s statement in the majority opinion that advocated the inclusion of free speech—and thus its protection by the states—within the meaning of the word liberty regarding the Fourteenth Amendment’s due process clause. This approach would not be confirmed by the full court until Gitlow v. New York (1925). The decision in Gilbert as well as others from this era—including Schenck v. United States (1919) and Abrams v. United States (1919)—remain a clear sign that in flagrante bellum, any serious criticism of national policy would be beyond the protection of the Constitution.
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See also Abrams v. United States (1919); Brandeis, Louis D.; Gitlow v. New York (1925); Schenck v. United States (1919);World War I.
James R. Belpedio
furthe r reading Douthit, Davis. Nobody Owns Us: The Story of Joe Gilbert, Midwestern Rebel. Chicago: Cooperative League of the U.S.A., 1948. Stone, Geoffrey R. Perilous Times: Free Speech in Wartime. New York:W. W. Norton and Co., 2004.
Gillette v. United States (1971) The Supreme Court decision in Gillette v. United States, 401 U.S. 437 (1971), upheld a lower court ruling denying a draft exemption to a man who on the basis of humanist principles had refused to participate in the Vietnam War but who would have fought in a war of self defense. Eight justices considered the exemption denial to be a valid interpretation of the Military Selective Service Act of 1967 and as consistent with the religion clauses of the First Amendment. The Court took a similar position in the consolidated case Negre v. Larson, involving a Roman Catholic who had asked to leave military service after basic training because he had concluded that the Vietnam War was unjust.These decisions limited the ruling in Welsh v. United States (1970), which had extended the rights of conscientious objection to individuals whose opposition to war stemmed from moral and ethical beliefs that occupied a similar position to religious views. In the Court’s opinion for Gillette, Justice Thurgood Marshall observed that the selective service statute extended conscientious objector status only to those “conscientiously opposed to participation in war in any form.” Neither this language, nor the legislative history of the bill, nor past cases could justify exempting Gillette or Negre. Marshall argued that one of the central purposes of the First Amendment was that “of ensuring governmental neutrality in matters of religion.”Although expressing some discomfort with the wall of separation analogy, he also observed that the establishment clause was designed to ensure that laws were “secular in purpose, evenhanded in operation, and neutral in primary impact.” On its face, the law does not discriminate among religions. Moreover, Congress had legitimate reasons for distinguishing between those who opposed all wars and those who disfavored only some of them. Acceptance of the latter claim would lead to greater uncertainty and “erratic or even discriminatory decisionmaking in administrative practice.” These claims were enough to pass the establishment clause
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hurdle. In a similar manner, the free exercise clause was not designed to eliminate all “incidental burdens felt by persons in petitioners’ position.” In dissents to both cases, Justice William O. Douglas pointed to the sincerity of both litigants and thought that the law weighed too heavily on the right of conscience. See also Conscientious Objection to Military Service; Neutrality, Religion;Wall of Separation;Welsh v. United States (1970).
John R.Vile
furthe r reading Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. New York: Oxford University Press, 1994. Davis, Spencer E., Jr. “Constitutional Right or Legislative Grace? The Status of the Conscientious Objection Exemptions.” Florida State University Law Review 19 (1991): 191–206.
Ginsberg v. New York (1968) In Ginsberg v. New York, 390 U.S. 629 (1968), the Supreme Court upheld a harmful to minors, or “obscene as to minors,” law, affirming the illegality of giving persons under seventeen years of age access to expressions or depictions of nudity and sexual content for “monetary consideration.” NewYork Penal Law 484-h prohibited selling “knowingly . . . any picture . . . which depicts nudity . . . and which is harmful to minors” to persons under the age of seventeen. Judge Fuld of the Nassau County District Court had convicted Sam Ginsberg, who owned a small convenience store in Long Island, New York, where he sold “adult magazines” and was accused of selling them to a sixteen-year-old boy on two occasions.The judge found that the pictures in the magazines met the depiction of nudity established as harmful to minors in Bookcase, Inc. v. Broderick (N.Y. 1966). Ginsberg was also held accountable for the fact that he was aware of the boy’s age and of the magazines’ nudity and alleged obscene content and potential harmfulness. Although Ginsberg claimed that the state of New York did not have the power to limit the freedom of speech and press, he did not deny the harmfulness of obscenity to minors or the ability of the state to draw the line at seventeen. Ginsberg referred to several successful First Amendment challenges that had overturned a statute arguing that it violated freedom of speech: Meyer v. Nebraska (1923) struck down a statute “forbidding children to learn German”; Pierce v. Society of Sisters (1925) upheld the right of parents to send
children to private school; and West Virginia State Board of Education v. Barnette (1943) held that students could not be required to salute the American flag against their religious convictions. These cases did not, however, persuade the Court. Justice William J. Brennan Jr. countered with a number of cases that supported obscenity laws.These included the landmark decisions in Roth v. United States (1957), in which Brennan wrote that “obscenity is not within the area of protected speech or press”; Prince v. Massachusetts (1944), establishing that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults”; Memoirs v. Massachusetts (1966), establishing definitions and characteristics of obscenity and the ability of the legislature to adapt to circumstances and change these definitions; and Redrup v. New York (1967), establishing the presentation and sale of magazines depicting nudity to persons older than seventeen as lawful. Ginsberg’s impact is reflected in that nearly every state continues to have some form of harmful to minors law on its books. See also Brennan,William J., Jr.; Harmful to Minors Laws; Memoirs v. Massachusetts (1966); Obscenity and Pornography; Redrup v. New York (1967); Roth v. United States (1957).
Stephanie Kunze
furthe r reading Coulter, Ann H. “Restricting Adult Access to Material Obscene as to Juveniles.” Michigan Law Review 51 (1987): 1681–1698. Garfield, Alan E. “Protecting Children from Speech.” Florida Law Review 57 (2005): 565–651. Heins, Marjorie. Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth. New York: Hill and Wang, 2001. ———. Sex, Sin and Blasphemy. New York: New Press, 1993.
Ginsburg, Ruth Bader The second woman to serve on the Supreme Court, Ruth Bader Ginsburg (1933– ) has consistently interpreted the establishment clause of the First Amendment to provide for a high degree of separation of church and state. She has also been a steadfast opponent of gender bias throughout her career. Born in Brooklyn, New York, Ginsburg graduated from Cornell University in 1954. In 1959 she earned a law degree from Columbia University, where she finished first in her class. One of her professors recommended her for a clerkship with Justice Felix Frankfurter, who said he was not ready to hire a female law clerk.When gender bias denied her a pro-
Ginzburg v. United States (1966)
Ruth Bader Ginsburg
fessional job in private law practice, Ginsberg carved out a distinguished career as a law professor, first teaching at Rutgers University, from 1963 to 1972, and then at Columbia until 1980. During this time, she worked for the American Civil Liberties Union, arguing many gender discrimination cases before the Supreme Court. In 1980 President Jimmy Carter nominated her to the U.S. Court of Appeals for the District of Columbia, where she served until 1993, when President Bill Clinton nominated her to the Supreme Court.The Senate confirmed her by a vote of 96-3. Ginsberg has written several majority opinions in First Amendment cases. Among them are Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003), a decision about charitable solicitations; Eldred v. Ashcroft (2003), a ruling that extended copyright protection; Buckley v. American Constitutional Law Foundation (1999), a political speech case; and Ibanez v. Florida Department of Business and Professional Regulation (1994), a commercial speech decision.
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Ginsburg has frequently voted in a First Amendment– friendly manner in dissent. She and Justice John Paul Stevens were the only dissenters in Beard v. Banks (2006), where the Court majority rejected a prisoner’s claim that the prison’s ban on reading material violated the First Amendment. She also dissented in City of Erie v. Pap’s A.M. (2000), which ruled that an ordinance against nude dancing did not violate the principle of free expression. She joined Justice Anthony M. Kennedy’s potent dissent in an attorney advertising decision, Florida Bar v.Went for It, Inc. (1995). Ginsburg dissented from the majority opinion in Capitol Square Review and Advisory Board v. Pinette (1995), reversing a decision that had denied the Ku Klux Klan a permit to leave an unattended cross on the statehouse square in Columbus, Ohio. She wrote, “No human speaker was present to disassociate the religious symbol from the State. No other private display was in sight. No plainly visible sign informed the public that the cross belonged to the Klan and that Ohio’s government did not endorse the display’s message.” She dissented from the Court’s decision in Zelman v. Simmons-Harris (2002), when the majority upheld an Ohio school voucher law that provided tuition assistance for religious and nonreligious schools, and in Van Orden v. Perry (2005), when the majority upheld the constitutionality of a display of the Ten Commandments in a public park in Austin,Texas. In each of these cases, which featured multiple decisions, Ginsburg chose not to write separately. See also Beard v. Banks (2006); Buckley v.American Constitutional Law Foundation (1999); City of Erie v. Pap’s A.M. (2000); Eldred v. Ashcroft (2003); Florida Bar v. Went for It, Inc. (1995); Ibanez v. Florida Department of Business and Professional Regulation Board (1994); Illinois ex rel. Madigan v.Telemarketing Associates, Inc. (2003).
David L. Hudson Jr.
furthe r reading American Civil Liberties Union.“Tribute:The Legacy of Ruth Bader Ginsberg and WRP Staff.” www.aclu.org/womensrights/gen/ 24412pub20060307.html. Campbell, Amy Leigh. Raising the Bar: Ruth Bader Ginsburg and the ACLU’sWomen’s Rights Project. NewYork: Xlibris Corporation, 2004. Glenn, Richard A.“Ginsburg, Ruth Bader.” In Great American Lawyers: An Encyclopedia, ed. John R.Vile, 1: 284–291. Santa Barbara, Calif.: ABC-CLIO, 2001.
Ginzburg v. United States (1966) In the highly controversial decision in Ginzburg v. United States, 383 U.S. 463 (1966), the Supreme Court upheld the conviction of a publisher, Ralph Ginzburg, who had been
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Girouard v. United States (1946)
indicted for violating a federal obscenity statute. At issue were EROS, a hard-cover magazine; Liaison, a biweekly newsletter; and the Housewife’s Handbook on Selective Promiscuity, a short book. Apart from the sexually oriented content of the materials, the Court noted that they were “sold as stock in trade of the sordid business of pandering.” Nine years prior to Ginzburg, in Roth v. United States (1957), the Court had ruled that the First Amendment did not protect obscenity and had created a definitional standard. Writing for a five-justice majority, Justice William J. Brennan Jr. noted in Roth that the test for obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”Aside from a concurring opinion by Chief Justice Earl Warren, the Court did not consider the context in which the material was offered or advertised, but focused solely on its content. In Ginzburg, however, Brennan—speaking for himself, Chief Justice Warren and Justices Tom C. Clark, Abe Fortas, and Byron R. White—recognized that in “close” cases, where the content of the work in question was not dispositive, the Court should apply Warren’s suggestion in Roth and focus on “the conduct of the defendant” as much as on “the obscenity of a book or picture.” Continuing his analysis, Brennan noted that the publisher had sought mailing privileges from Pennsylvania for his magazines Blue Ball and Intercourse and having been rejected subsequently mailed them from Middlesex, New Jersey. Further, Brennan asserted, the publishing address and the advertising revealed “the leer of the sensualist.” Dissenting, Justice William O. Douglas questioned the Court’s reliance upon advertising, arguing that a book should “stand on its own.” He observed,“The advertisements of our best magazines are chock-full of thighs, ankles, calves, bosoms, eyes, and hair, to draw the potential buyer’s attention to lotions, tires, food, liquor, clothing, autos and even insurance policies.” Also dissenting, Justice Hugo L. Black agreed with Justice John Marshall Harlan II that the Court had effectively “rewritten the federal obscenity statute” to impose standards on Ginzburg that Congress had never contemplated. Justice Potter Stewart, also in dissent, added that the Court had denied Ginzburg his constitutional free speech protection not because of what he had written or published, but because it disapproved of his “sordid business,” a power “the Court does not possess.” The Court decided Ginzburg on the same day as its ruling in Memoirs v. Massachusetts and Mishkin v. New York. The
fourteen separate opinions these cases generated indicated the Court’s disarray over this thorny issue. Ginzburg was sentenced to five years in prison, principally because of the way he marketed his materials, not their content.The advertising test was never used again, as the Court later returned to its original focus on content and on a definitional standard in Miller v. California (1973). See also Brennan,William J., Jr.; Memoirs v. Massachusetts (1966); Miller v. California (1973); Mishkin v. New York (1966); Obscenity and Pornography; Roth v. United States (1957).
Kenneth F. Mott
furthe r reading Hixon, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996. Magrath, C. Peter. “The Obscenity Cases: Grapes of Roth.” Supreme Court Review (1966): 69–77.
Girouard v. United States (1946) In Girouard v. United States, 328 U.S. 61 (1946), the Supreme Court held that applicants for citizenship may not be required to swear under oath that they will bear arms in defense of the United States if they have religious objections to bearing arms in the military. James Girouard was a native of Canada and a Seventh-day Adventist. When he applied for U.S. citizenship, he refused to state that he would be willing to take up arms in defense of the country because his religious beliefs prevented him from bearing arms. He further explained, however, that he would be willing to work in the military in a noncombat role. Girouard was denied citizenship. In the opinion for the Court, Justice William O. Douglas explained that constitutional principles prevented Congress from requiring an applicant for citizenship to “forsake his religious scruples to become a citizen.” Finding inspiration in the First Amendment’s religion clauses, the religious test clause of Article 6, and equal protection values, Douglas disavowed prior cases that had held that Congress could require oaths to take up arms regardless of applicants’ religious motivations. Douglas wrote,“Devotion to one’s country can be as real and as enduring among non-combatants as among combatants.” Chief Justice Harlan Fiske Stone dissented, arguing that the Court’s prior decisions aligned with congressional intent to require oaths regardless of religious motivations. “It is not the function of this Court,” Stone
Gitlow v. New York (1925) wrote, “to disregard the will of Congress in the exercise of its constitutional power.” See also Conscientious Objection to Military Service; Douglas, William O.; Seventh-day Adventists; Stone, Harlan Fiske;Torcaso v. Watkins (1961);West Virginia State Board of Education v. Barnette (1943).
Winston E. Calvert
furthe r reading Calvert,Winston E.“Judicial Selection and the Religious Test Clause.” Washington University Law Quarterly 82 (2004): 1129–1147. O’Callaghan, Nora. “Lessons from Pharaoh and the Hebrew Midwives: Conscientious Objection to State Mandates as a Free Exercise Right.” Creighton Law Review 39 (2006): 561–639.
Gitlow v. New York (1925) In Gitlow v. New York, 268 U.S. 652 (1925), the Supreme Court voted 7-2 to uphold the constitutionality of New York’s Criminal Anarchy Statute of 1902, which prohibited advocating violent overthrow of the government. In doing so, however, the Court identified free speech and press as “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” The Gitlow decision marks the beginning of the incorporation doctrine, which extended the scope of speech rights and, later, most of the Bill of Rights. Gitlow fits into a sequence of World War I–era cases involving American socialists and communists who were convicted for speaking or publishing potentially incendiary ideas. Fears of growing socialist and union activities during the red scare prompted Congress and states to adopt restrictions on speech and press. Benjamin Gitlow, a socialist leader, was convicted under New York’s criminal anarchy law for publishing 16,000 copies of the Left-Wing Manifesto, which advocated “the proletariat revolution and the Communist reconstruction of society” through strikes and “revolutionary mass action.” Prior to Gitlow, the Court had upheld the constitutionality of the Espionage Act of 1917 and the Sedition Act of 1918 and had repeatedly rejected socialists’ free speech challenges against these laws, including in Schenck v. United States (1919), Debs v. United States (1919), and Abrams v. United States (1919). From this perspective, the Court’s rejection of Gitlow’s freedom of expression claim was generally consistent with its federal-level precedents. The Court upheld Gitlow’s conviction on the basis that governments may
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restrict or punish speech “containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means.” Viewed from another perspective, however, Gitlow represents a monumental shift in the Court’s approach to free speech and federalism. For nearly a century following Barron v. Baltimore (1833), the Court had treated the Bill of Rights, including the First Amendment, as applying only to the federal government. With Gitlow, the Court ruled that the Fourteenth Amendment’s guarantee that individuals cannot be ”deprived of liberty without due process of law” applies free speech and free press protections to the states.Through this so-called incorporation doctrine, the Court opened the door for the eventual case-by-case protection of nearly all other guarantees in the Bill of Rights under the Fourteenth Amendment’s due process clause. Thus, Gitlow helped initiate the modern constitutional law era, extending the reach of constitutional rights and placing new limits on states. Although some suggest that Chicago, B. and Q. R. Co. v. Chicago (1897) is the first appearance of the incorporation doctrine, the Court appears in that case to have relied entirely on an Illinois state statute providing for just compensation rather than on the Fifth Amendment’s just compensation requirement for property takings. Gitlow also offers competing interpretations of Justice Oliver Wendell Holmes Jr.’s clear and present danger test— set out in Schenck—which holds that government may restrict speech to prevent subversion or insurrection only when there exists a “clear and present danger” that speech “will bring about the substantive evils [the state] has a right to prevent.” Justice Edward Terry Sanford and the majority construed the test loosely. The Court admitted that Gitlow’s manifesto did not incite violence, but rejected his claim that speech should be punishable “only in circumstances where its exercise bears a causal relation with some substantive evil, consummated, attempted or likely.” Rather, Sanford wrote, “A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration.” Arguing that incendiary speech may be suppressed “preemptively,” Sanford asserted that governments cannot be required to wait until revolutionary publications “lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction” but can “suppress the threatened danger in its incipiency” or “extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration.”
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In dissent, Holmes, joined by Justice Louis D. Brandeis, insisted that Gitlow’s speech rights had been violated and that the clear and present danger test should be interpreted more stringently: “it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views.” It would take more than thirty years, however, for the Court to adopt a significantly more rigorous standard for evaluating restrictions on potentially incendiary speech in Brandenburg v. Ohio (1969). See also Abrams v. United States (1919); Anarchy Statutes; Bad Tendency Test; Barron v. Baltimore (1833); Brandenburg v. Ohio (1969); Clear and Present Danger Test; Debs v. United States (1919); Dennis v. United States (1951); Federalism; Holmes, Oliver Wendell, Jr.; Red Scare; Schenck v. United States (1919);Whitney v. California (1927);World War I.
Elizabeth Beaumont
furthe r reading Heberle, Klaus H. “From Gitlow to Near: Judicial ‘Amendment‘ by Absent-Minded Incrementalism.” Journal of Politics 34, no. 2 (May 1972): 458–483. Mackey,Thomas C.“ ’They Are Positively Dangerous Men’: The Lost Court Documents of Benjamin Gitlow and James Larkin before the New York City Magistrates’ Court, 1919.” New York University Law Review 69 (1994): 421–434. Redish, Martin H. “Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger.” California Law Review 70 (1982): 1159–1200. Rogat,Yosal, and James M. O’Fallon.“Mr. Justice Holmes:A Dissenting Opinion. The Speech Cases.” Stanford Law Review 36, no. 6 (July 1984): 1349–1406. Tanenbaum, Robert S. “Comment: Preaching Terror: Free Speech or Wartime Incitement?” American University Law Review 55 (2006): 785–819. White, G. Edward. “Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension.” California Law Review 80, no. 2 (March 1992): 391–467.
Givhan v. Western Line Consolidated School District (1979) The Supreme Court decision in Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), established the principle that public employees do not forfeit First Amendment protection simply because they communicate on matters of public concern privately to a superior. Bessie Burnham Givhan, an African American public school teacher in Mississippi, worked for a junior high school integrated in the 1970–1971 school year. She
believed that the school with more black students was not receiving adequate school supplies compared to the schools with more white students. She complained about this discrimination to her principal. After her contract failed to be renewed, Givhan sued, alleging racial discrimination and a violation of her First Amendment right to free speech. A federal district court ruled in favor of Givhan on her First Amendment claim, but the Fifth Circuit Court of Appeals reversed. The circuit court determined that Givhan had no First Amendment protection because she had communicated her views privately rather than publicly. The Supreme Court unanimously reversed. In the opinion for the Court, Justice William H. Rehnquist wrote that it did not “support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.”The Court remanded the case to the lower courts to determine whether the school district could establish, under Mt. Healthy City School District Board of Education v. Doyle (1977), whether it would have terminated Givhan even if she did not engage in constitutionally protected speech. On remand, the district court ruled that the school district’s reasons for terminating Givhan were pretextual. It awarded her damages, attorney fees, and reinstatement. Givhan returned to the school and worked there for several years. The Supreme Court cited Givhan repeatedly in Garcetti v. Ceballos (2006), a case involving public employee free speech. Although it referenced Givhan for the principle that “employees in some cases may receive First Amendment protection for expressions made at work,” it ruled that public employees sometimes do not retain First Amendment protection for purely job-related expression. See also Garcetti v. Ceballos (2006); Mount Healthy City School District Board of Education v. Doyle (1977); Public Employees; Rehnquist,William H.
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr., “Teacher Taught Miss. Schools a Free-speech Lesson.” First Amendment Center Online, June 8, 2006. www.firstamendmentcenter.org/analysis.aspx?id=16992. ———. Balancing Act: Public Employees and Free Speech. Nashville, Tenn.: Freedom Forum, 2002. O’Neil, Robert M. The Rights of Public Employees: The Basic ACLU Guide to the Rights of Public Employees. 2d ed. Carbondale: Southern Illinois Press, 1994.
Globe Newspaper Co. v. Superior Court (1982)
Glickman v. Wileman Brothers and Elliott, Inc. (1997) The Supreme Court decision in Glickman v.Wileman Brothers and Elliott, Inc., 521 U.S. 457 (1997), held that an assessment imposed by the secretary of agriculture on California tree fruit producers and handlers for the cost of the generic advertising of nectarines, plums, and peaches did not abridge their First Amendment freedom of speech. In the opinion for the Court, Justice John Paul Stevens observed that the provisions for generic advertising were part of the Agricultural Marketing Agreement Act of 1937, which had provided a comprehensive approach to maintaining “orderly marketing conditions and fair prices for agricultural commodities.” In striking down this advertising, the Ninth Circuit Court of Appeals had relied chiefly on statements in Abood v. Detroit Board of Education (1977) relative to compelled speech and had applied the tests for the regulation of commercial speech established in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980).The latter required that the government show that it had a substantial interest in such regulation, that regulations used the most effective means, and that regulations were narrowly tailored to their objectives. Stevens did not believe that these tests applied because the regulations at issue were largely “a question of economic policy for Congress and the Executive to resolve.” Stevens asserted that the regulations in this instance neither imposed a “restraint on the freedom of any producer to communicate any message to any audience” nor compelled anyone “to engage in any actual or symbolic speech” nor compelled “the producers to endorse or to finance any political or ideological views.” He observed that even producers who would prefer to advertise their own brands did not disagree with the advertisers’ message about the value of California fruits. Stevens did not think the First Amendment had ever “been construed to require heightened scrutiny of any financial burden that has the incidental effect of constraining the size of a firm’s advertising budget.” He further denied that precedents on compelled speech required a different result, since the law did not require respondents to speak but merely required them to “make contributions for advertising.” Justice David H. Souter authored a dissent joined by Chief Justice William H. Rehnquist, Justice Antonin Scalia, and (in large part) Justice Clarence Thomas. Souter thought
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that the Court should apply the Central Hudson test and that the advertising scheme should therefore be voided. Souter concluded that “laws requiring an individual to engage in or pay for expressive activities are reviewed under the same standard that applies to laws prohibiting one from engaging in or paying for such activities.” He could further find little rhyme or reason in the advertising scheme as it applied to California fruits. In a separate dissent,Thomas continued to express his disagreement with “the Central Hudson balancing test and the discounted weight given to commercial speech generally.” Because he did not think the advertising at issue could pass even what he considered to be the watered down Central Hudson test, he was confident that it could not meet higher First Amendment standards. Putting this case in the context of others with which he disagreed, he wrote that the court was faced with the situation that either “(1) paying for advertising is not speech at all, while such activities as draft card burning, flag burning, armband wearing, public sleeping, and nude dancing are, or (2) compelling payment for third party communication does not implicate speech, and thus the Government would be free to force payments for a whole variety of expressive conduct that it could not restrict.” He observed, “In either case, surely we have lost our way.” See also Abood v. Detroit Board of Education (1977); Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Compelled Speech; Souter, David H.; Stevens, John Paul;Thomas, Clarence.
John R.Vile
furthe r reading Schoen, Edward J., Margaret M. Hogan, and Joseph S. Falchek. “United Foods and Wileman Bros.: Protection against Compelled Commercial Speech—Now You See It, Now You Don’t.” American Business Law Journal 39 (Spring 2002): 467–520.
Globe Newspaper Co. v. Superior Court (1982) In Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), the Supreme Court established that the First Amendment guarantees the “presumptive” right of the public and press to attend criminal trial proceedings. The Globe had challenged a Massachusetts state statute requiring the closure of criminal trials involving sexual offenses against minors. Earlier, in Richmond Newspapers, Inc. v.Virginia (1980), the Supreme Court had ruled that the pub-
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lic had a qualified First Amendment right to attend criminal trials. Chief Justice Warren E. Burger, in a plurality opinion, had suggested that access to criminal trials receives protection because of the “unbroken, uncontradicted history” of access to such proceedings in the United States. In a concurrence, Justice William J. Brennan Jr. had outlined a two-part test to determine which government activities presumptively should be open: first, courts should consider history; second, courts should assess the instrumental value of public access to particular government activities. Globe raised questions about the meaning and reach of the Richmond decision. The Court’s decision in Globe, for which Brennan wrote the opinion, adopted the two-part test that Brennan had developed in Richmond. Applying the test, the Court deemed Massachusetts’s statute presumptively invalid because “the criminal trial historically has been open to the press and general public,” and “access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole.” The Court also applied strict scrutiny and found that although the state’s interest in protecting minors was compelling, it had not narrowly tailored its statute to meet that interest. Instead of a blanket closure rule, state courts could assess the need for closure on a case-by-case basis. Justice Sandra Day O’Connor concurred, stressing that “neither Richmond Newspapers nor [Globe] . . . carr[ies] any implications outside the context of criminal trials.” Burger, joined by Justice William H. Rehnquist, dissented. They argued that there is a “long history of exclusion of the public from trials involving sexual assaults, particularly those against minors,” and that the majority should have assessed this particular tradition as opposed to considering the general tradition of open criminal trials. They also criticized Brennan’s use of strict scrutiny, arguing that a lesser level of scrutiny should apply in this case and that the state could easily overcome such lesser scrutiny. See also Access to Courtrooms; Brennan,William J., Jr.; Richmond Newspapers, Inc. v.Virginia (1980).
Heidi Kitrosser
furthe r reading Cerruti, Eugene. “ ‘Dancing in the Courthouse’: The First Amendment Right of Access Opens a New Round.” University of Richmond Law Review 29 (1995): 237–326. Kitrosser, Heidi. “Secrecy in the Immigration Courts and Beyond: Considering the Right to Know in the Administrative State.” Harvard Civil Rights-Civil Liberties Law Review 39 (2004): 95–148.
Goldberg, Arthur J. Arthur J. Goldberg (1908–1990) served on the Supreme Court from 1962 to 1965, providing a consistent vote for the protection of individual rights, including First Amendment freedoms. Justice William H. Rehnquist wrote upon Goldberg’s death in 1990 that he “contributed far more to the jurisprudence of the Supreme Court than one would think possible in so brief a period of service” (Rehnquist 1990: 809). Goldberg is best known for his work in the public and private sectors in the labor law arena. Born in Chicago, Goldberg earned his law degree from Northwestern University Law School, finishing first in his class. He then practiced labor law in Chicago. Professor David Sebenne said of him, “From the late 40’s through 1960 Goldberg played an important part in all of the major developments that took place in the American labor movement” (Berendt et al. 1999: 684). In 1948 Goldberg became general counsel for the United Steelworkers and general counsel for the Congress of Industrial Organizations. He regularly argued cases before the Supreme Court in these capacities. President John F. Kennedy appointed Goldberg secretary of labor in 1961 and a year later nominated him to the Court to replace the retiring Felix Frankfurter. Goldberg left the Court in 1965 after President Lyndon B. Johnson urged him to replace Adlai Stevenson as U.S. ambassador to the United Nations. After resigning in 1968 as ambassador, Goldberg returned to private practice, first in Chicago and then in Washington, D.C. His practice included Supreme Court advocacy, as he argued before the high court in the famous baseball free-agency case Flood v. Kuhn (1972), in which the Court ruled that baseball was exempt from federal antitrust laws. Though perhaps best known for his concurring opinion emphasizing the Ninth Amendment in Griswold v. Connecticut (1965), involving privacy and birth control, Goldberg in addition wrote a few important First Amendment opinions. He authored the Court’s majority opinions in Cox v. Louisiana (1965), in which the Court (in two separate opinions) reversed the convictions of civil rights leader Ben Elton Cox for disturbing the peace, obstructing public passages, and picketing before a courthouse. Goldberg wrote that upholding these convictions “would allow persons to be punished merely for peacefully expressing unpopular views.” Goldberg also wrote a concurring opinion in New York Times Co. v. Sullivan (1964), the landmark libel decision in
Goldman, Emma which he argued for even greater protection for the press from libel suits than that set out in Justice William J. Brennan Jr.’s majority opinion. Goldberg, joined by Justice William O. Douglas, advocated absolute protection for criticism of public officials rather than the actual malice standard used by Brennan. He wrote, “In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses.” See also Actual Malice; Civil Rights Movement; Cox v. Louisiana (1965); Libel and Slander; New York Times Co. v. Sullivan (1964).
David L. Hudson Jr.
furthe r reading Berendt, Gerald, et al. “Lecture: Arthur J. Goldberg’s Legacies to American Labor Relations.” John Marshall Law Review 32 (1999): 667–723. Hudson, David L., Jr. “Ben Elton Cox: Civil Rights Leader to High Court Litigant.” First Amendment Center Online, January 16, 2007. www.firstamendmentcenter.org/analysis.aspx?id=18004. Rehnquist, William H. “In Memoriam: Arthur J. Goldberg, 1908–1990.” Northwestern University Law Review 84 (1990): 808–809.
Goldman v. Weinberger (1986) In Goldman v.Weinberger, 475 U.S. 503 (1986), the Supreme Court ruled that the U.S. armed forces did not violate military personnel’s First Amendment rights by prohibiting soldiers from wearing religious apparel. S. Simcha Goldman—an Orthodox Jew, an ordained rabbi, and a captain in the U.S. Air Force—also worked as a clinical psychologist at the mental health clinic on his base. Goldman wore a yarmulke in accordance with Orthodox Jewish doctrine that males keep their heads covered at all times. In 1981 Goldman was informed that the yarmulke violated Air Force Regulation (AFR) 35-10, a dress code that prohibits the wearing of headgear “except by armed security police in the performance of their duties.” Goldman disobeyed the regulation, received a letter of reprimand, and was warned that failure to obey AFR 35-10 could subject him to court martial. Goldman then sued Secretary of Defense Caspar W. Weinberger, claiming that the military’s regulation prohibiting him from wearing his yarmulke violated his First Amendment rights to free exercise of religion. The government countered that “uniform dress and appearance standards serve the military’s interest in maintaining
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discipline, morale, and esprit de corps” and that AFR 35-10’s enforcement “is a necessary means to the undeniably critical ends of molding soldiers into an effective fighting force.” The government also noted that if it granted a religious exception in Goldman’s case, service members of other faiths might begin requesting exemptions involving more obtrusive headgear. In a 5-4 opinion written by Justice William H. Rehnquist, the Court held that “when evaluating whether military needs justify a particular restriction on religiously-motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” The dissenting justices argued that the air force’s justifications for the prohibition were unpersuasive and that the compelling state interest test—enunciated in Sherbert v.Verner (1963) for adjudicating First Amendment cases—required the Court to find for Goldman. In 1987 Congress effectively overruled Goldman when it passed the Religious Apparel Amendment, permitting members of the armed forces “to wear an item of religious apparel while in uniform” if that item is “neat and conservative” and does not ”interfere with the performance of military duties.” Subsequent debate centered on whether Goldman represented a repudiation of the compelling interest test. While many argued that the military context made Goldman a unique case, others viewed it as a substantial departure from the Sherbert standard that signified a shift in the Court’s free exercise jurisprudence in Employment Division, Department of Human Resources of Oregon v. Smith (1990) and subsequent cases. See also Compelling State Interest; Employment Division, Department of Human Resources of Oregon v. Smith (1990); Rehnquist,William H.; Sherbert v.Verner (1963).
Brett Curry
furthe r reading Hudson, David L., Jr.“Rabbi Reflects on Role in Military ReligiousFreedom Case.” First Amendment Center, January 27, 2005. www.firstamendmentcenter.org/analysis.aspx?id=14756. Sugin, Linda. “First Amendment Rights of Military Personnel: Denying Rights to Those Who Defend Them.” New York University Law Review 62 (1987): 855–890.
Goldman, Emma Emma Goldman (1869–1940), a Russian-born anarchist, socialist, and feminist, was a thorn in the side of mainstream
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American society in the early part of the twentieth century. She traveled constantly, delivering vitriolic speeches, lecturing, picketing, marching, and demonstrating for First Amendment rights. She advocated free speech, free love, birth control, women’s equality, and the right of labor to organize. She fought against anti-syndicalism laws, the military draft, and American intervention in the Russian Revolution. Throughout her childhood in tsarist Russia and eastern Europe, Goldman witnessed anti-Semitic atrocities and maltreatment of peasants. Escaping an arranged marriage, she immigrated to the United States in 1885, a young woman imbued with anti-tsarist radicalism. Finding much in the United States that disappointed her sense of justice for the disadvantaged, she began a lifetime of revolutionary activities that frequently ended with her arrest. Goldman was at times an editor and a contributor to Mother Earth, an anarchist publication active from 1906 until it was suppressed in 1917 under the Espionage Act, which made it a criminal offense to criticize the U.S. government. She was one of the defendants in the landmark case Abrams v. United States (1919). She wrote several books, including Anarchism and Other Essays (1910) and Living My Life (1931). Although most of Goldman’s arrests, usually under state anti-syndicalism laws, did not result in her being incarcerated, she spent considerable time in prison. She was convicted and sentenced to one year in prison for inciting a riot in New York City following an 1893 speech to a mass demonstration of unemployed women at Union Square. She urged her audience:“If they do not give you work, demand bread. If they deny you both, take bread.” In September 1901 police authorities claimed that President William McKinley’s assassin, Leon Czolgosz, had been inspired by one of Goldman’s lectures. Goldman was arrested in Chicago and interrogated but released. Frequently subjected to official harassment, she was arrested in January 1903 for being a “suspicious” person. Four years later she was arrested for making “incendiary” speeches, a charge that did not get past the grand jury. In 1916 Goldman was convicted of violating a New York law that forbade lecturing on forbidden medical questions (birth control). She paid a fine and continued to lecture on the subject. Later that year she was arrested again, found guilty, and sentenced to fifteen days in jail when she refused to pay another fine. Goldman’s fight against the Selective Service Act enacted by Congress in 1917 got her in serious trouble with federal authorities. Speaking against the military draft in New York,
In 1919 Russian-born feminist and anarchist Emma Goldman was deported from the United States following Congress’s enactment of the Anti-Anarchist Act, which permitted the deportation of aliens.
she stated, “We believe in violence and we will use violence.” Arrested, along with fellow anarchist Alexander Berkman in New York less than a month after the enactment of the act, the two were found guilty of conspiracy against the draft and received the maximum two-year sentence and a $10,000 fine. After she was convicted, the postal authorities denied Mother Earth second-class mailing privileges. While Goldman was in prison, Congress enacted the AntiAnarchist Act, which permitted the deportation of aliens. Soon afterward, Goldman was served with a warrant for her arrest and deportation. In December 1919 Goldman, along with Berkman and 247 other anarchists, set sail for the Soviet Union. In 1921, disenchanted with the Soviet Union, she became a British citizen through marriage and later wrote a memoir of her Soviet experience called My Disillusionment in Russia. In 1934 Goldman was granted a U.S. visa to make a nonpo-
Gompers v. Buck’s Stove and Range Co. (1911) litical speaking tour. When the Spanish Civil War began in 1936, she wrote on behalf of an anarcho-syndicalist group. Goldman died in Canada. See also Abrams v. United States (1919); Anarchy Statutes; Birth Control; Criminal Syndicalism Laws; Espionage Act of 1917;World War I.
Clyde E.Willis
furthe r reading Falk, Candace. Love, Anarchy, and Emma Goldman. New Brunswick: Rutgers University Press, 1990. The Emma Goldman Papers. University of California, Berkeley. http://sunsite.berkeley.edu/Goldman.
Goldstein, Alvin Alvin Goldstein (1936– ), an outspoken publisher of pornography and advocate of free speech, for many years published Screw, a porn magazine, and hosted a raunchy latenight cable television program, Midnight Blue. He has engaged in several First Amendment battles in the courts. Born in New York City, Goldstein held numerous jobs, among them working as a cab driver and press photographer for Pakistan International Airlines. He also worked for magazines, including Hush Hush News and the National Mirror. His national notoriety began when he began publishing Screw in 1968. Since then Goldstein has faced obscenity charges on multiple occasions for material in the magazine. One of the best known cases is People v. Heller (S.D.N.Y. 1973), in which the New York Court of Appeals examined whether its state obscenity law was unconstitutionally vague. He has also taken on cable television companies over their scrambling policies. In Goldstein v. Manhattan Cable Television, Inc. (1995), a federal court in New York examined Goldstein’s claim that the censoring of Midnight Blue as indecent programming violated the First Amendment. In 2007 Goldstein announced his candidacy for president of the United States in the 2008 election, with such slogans as “Vote for Al, he likes it on top.” See also Flynt, Larry; Obscenity and Pornography;Vagueness.
David L. Hudson Jr.
furthe r reading Goldstein, Al, and Josh Alan Friedman. I Goldstein: My Screwed Life. New York:Thunder’s Mouth Press, 2006. Heller, Steven.“My Dirty Life and Times.” New York Times, November 19, 2006, 18.
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Goldstein, Thomas C. Thomas C. Goldstein (1970– ), a leading Supreme Court litigator, is a partner at Akin Gump Strauss Hauer & Feld, in Washington, D.C., where he is co-head of the firm’s Supreme Court practice. He has argued more than fifteen cases before the high court, including some First Amendment cases. He is also an adjunct faculty member at Stanford Law School. Born in Princeton, New Jersey, Goldstein earned an undergraduate degree from the University of North Carolina in 1992 and a law degree from American University in 1995. After clerking for Judge Patricia Wald of the Circuit Court for the District of Columbia, he worked for two law firms before founding his own, Goldstein & Howe, with his wife, Amy Howe, in 1999. While at Goldstein & Howe, he created a popular blog on the Supreme Court, SCOTUSblog (www.scotusblog.com). Goldstein delivered oral arguments in Los Angeles Police Department v. United Reporting Publishing Co. (1999) and Bartnicki v. Vopper (2001). United Reporting involved a California law limiting access to arrest records. Bartnicki v. Vopper concerned a clash between privacy interests and First Amendment rights involving the publication of a cell phone conversation illegally intercepted by an unknown third party. He participated in two other First Amendment decisions: Nike v. Kasky (2003), a commercial speech decision, and Johanns v. Livestock Marketing Association (2005), which examined the application of the government speech doctrine. See also Bartnicki v. Vopper (2001); Commercial Speech; Government Speech Doctrine; Johanns v. Livestock Marketing Association (2005); Los Angeles Police Department v. United Reporting Publishing Co. (1999); Nike v. Kasky (2003).
David L. Hudson Jr.
furthe r reading Boog, Jason. “Thomas C. Goldstein, 34.” National Law Journal, May 9, 2005. www.law.com/jsp/law/LawArticleFriendly.jsp?id=11151975 16606.
Gompers v. Buck’s Stove and Range Co. (1911) In Gompers v. Buck’s Stove and Range Co., 221 U.S. 418 (1911), the Supreme Court rejected the claim that the First Amendment rights to speech and the press protect individuals who violate injunctions against labor activities, whether
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spoken or written, and upheld the authority of courts to issue contempt citations against the violators. However, the Court overruled the specific injunction against Samuel Gompers and his colleagues John Mitchell and Frank Morrison on the grounds that the lower courts had not properly distinguished criminal from civil contempt. Gompers and co-plaintiffs were members and associates of the American Federation of Labor, who had declared a boycott against Buck’s Stove and Range Company. The company had responded by accusing them, both through their boycott and publications, of entering into a conspiracy to restrain trade. Writing for a unanimous Court, Justice Joseph R. Lamar observed that boycotts could cause “irreparable damage to the business or property of the complainant.” Despite claims by Gompers and his colleagues that their actions were protected by the First Amendment, Lamar recognized that “the strong current of authority is that the publication and use of letters, circulars and printed matter may constitute a means whereby a boycott is unlawfully continued, and their use for such purpose may amount to a violation of the order of injunction.” Although workers had the right to associate together, they had the responsibility “to protect the one against the many as well as the many against the one.” Lamar noted that words like unfair or expressions like “We don’t patronize” constituted “verbal acts,” which were equally subject to injunction as other actions. Lamar thought, however, that the lower courts had unconstitutionally issued a criminal contempt in a civil suit. The jail sentences issued by the lower court had been designed to punish rather than to provide relief, and yet the suit had been made in the name of the affected company rather than under the authority of the state. Moreover, the court had accepted a lesser standard of proof appropriate to civil rather than criminal cases, and not accorded the defendants the protection against self-incrimination. Lamar overturned the lower court decision without prejudice against its right to renew the contempt in a criminal case. See also Boycotts.
John R.Vile
furthe r reading Kersch, Ken I. “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech.” University of Pennsylvania Journal of Constitutional Law 8 (2006): 255–297.
Gonzales v. O Centro Espírita Beneficente União Do Vegetal (2006) In Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418 (2006), the Supreme Court unanimously upheld the sacramental use of a hallucinogenic substance under the First Amendment free exercise clause. Hoasca, a tea containing a hallucinogen, is taken during religious ceremonies by members of the União Do Vegetal (UDV), a church from Brazil with about 130 members in the United States. The case pitted the Religious Freedom Restoration Act of 1993 (RFRA) against the Controlled Substances Act. Congress had passed RFRA in response to Employment Division, Department of Human Resources of Oregon v. Smith (1990), in which the Court rejected its own “compelling interest” test enunciated in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) for free exercise cases. Congress passed RFRA to restore the Sherbert test, which states that the government could only interfere with a person’s free exercise of religion if it could demonstrate a compelling interest for doing so. Congress instructed the federal government to resume use of the compelling interest test after the Supreme Court struck down the portion of RFRA mandating the same standard for state government in City of Boerne v. Flores (1997). Writing for a unanimous Court, Chief Justice John G. Roberts Jr. rejected all three of the government’s reasons for attempting to prohibit the sacramental tea: the health of UDV members, the fear that hoasca would be diverted from sacramental use to recreational use, and the requirements of the United Nations Convention on Psychotropic Substances, to which the United States is a signatory. Applying the compelling interest test as required by RFRA, the Court concluded that denial of access to hoasca placed a substantial burden on the practice of the UDV religion and that the government had not demonstrated a sufficiently compelling reason to interfere with the UDV’s religious freedom on the basis of health or recreational concerns. Roberts argued that RFRA places in the courts’ hands the task of determining when exceptions to laws are warranted. He noted that the Controlled Substances Act in fact provided for waivers and that an exception was already in place for religious use of peyote by “every recognized Indian Tribe.” Roberts noted that while the UN Convention did
Gooding v.Wilson (1972) apply to hoasca, this in itself did not represent a compelling interest for rejecting a UDV exception, observing that such difficulties were among the reasons the Court had rejected the compelling interest standard in Smith in the first place. Amicus briefs in support of the UDV were filed by both liberal and conservative religious advocacy groups, and the UDV victory was hailed as a vindication for the compelling interest standard. See also City of Boerne v. Flores (1997); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Religious Freedom Restoration Act of 1993; Sherbert v.Verner (1963); Wisconsin v.Yoder (1972).
Jane G. Rainey
furthe r reading Epps, Garrett. To an Unknown God: Religious Freedom on Trial. New York: St. Martin’s Press, 2001. Leaming, Jeremy. “Invitation to Tea.” Church and State, April 2006, 12–13.
Goodale, James C. James C. Goodale (1933– ), a prominent First Amendment attorney, is best known for leading the New York Times in its successful litigation in the Pentagon Papers case, New York Times Co. v. United States (1971), which culminated in the newspaper’s victory. As general counsel for the Times, Goodale challenged the advice of the paper’s outside law firm to drop the case, urged it to fight the government’s injunction against publication of the Pentagon Papers, and put together a defense team for the newspaper. Since then, Goodale has continued his defense of First Amendment freedoms as a lawyer, columnist, television producer, and law professor. Born in Cambridge, Massachusetts, Goodale earned an undergraduate degree from Yale University in 1955 and a JD from the University of Chicago three years later. He is a partner in New York City’s Debevoise & Plimpton, where he and his firm have represented many news organizations. He has taught at several universities, including Fordham University, where he teaches a course titled Old Media, New Media, the Internet, and the First Amendment. He has passed along his knowledge of First Amendment law to other lawyers through a course on communications law that he teaches at the Practicing Law Institute. He has written extensively on the Pentagon Papers and has a television program called “Digital Age.”
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Goodale, a strong advocate of reporters’ privilege, has engaged in law suits that have prompted the adoption of state shield laws. In addition to serving on the boards of a number of organizations devoted to journalistic rights, he once chaired the Committee to Protect Journalists. One of his current concerns is the effects of media concentration on First Amendment freedoms. See also New York Times Co. v. United States (1971); Pentagon Papers; Prior Restraint; Reporters’ Privilege; Shield Laws; Vietnam War.
John R.Vile
furthe r reading “Interview, James Goodale.” Frontline. www.pbs.org/wgbh/pages/ frontline/smoke/interviews/goodale.html.
Gooding v. Wilson (1972) In Gooding v. Wilson, 405 U.S. 518 (1972), the Supreme Court limited the scope of the “fighting words” exception to the First Amendment and enhanced the long-term development of the overbreadth doctrine—the notion that statutes and regulations must be sufficiently precise in order to avoid regulating protected as well as unprotected speech. When Johnny C. Wilson, an anti-war activist, was taken into custody for interfering with military recruitment, he threatened to kill arresting officers. He was charged under a Georgia statute that outlawed “opprobrious words or abusive language tending to cause a breach of the peace.” The Supreme Court first identified fighting words as a categorical exception to the First Amendment in Chaplinsky v. New Hampshire (1942). A unanimous Court held that words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace” constituted unprotected expression. Writing for the majority in Gooding, Justice William J. Brennan Jr. invalidated the Georgia statute, interpreting Chaplinsky to apply only to language that had “a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” The Court analyzed the history of Georgia’s application of the statute and concluded that it had been invoked repeatedly to punish the use of communications that were “not ‘fighting words’ as Chaplinsky defines them.” Thus, the Court concluded that the statute was overbroad because it was “susceptible of application to protected expression.” The Court reached this conclusion despite the fact that Wilson’s words would
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likely have been punishable under a more narrowly drawn statute drafted in conformance to the requirements of Chaplinsky. The Court’s decision in effect limited the application of the “fighting words” exception.When classifying expression as fighting words, courts would look at a communication’s tendency to produce an immediate and violent reaction rather than the offensiveness of the language used. The Court’s decision also apparently induced, albeit unintentionally, a dramatic shift in interpretation of the overbreadth doctrine. Chief Justice Warren Earl Burger and Justice Harry A. Blackmun wrote scathing dissents, chastising the Court for declaring unconstitutional a statute that “has little potential for application outside the realm of ‘fighting words.’ ” One year later, in Broadrick v. Oklahoma (1973), the Court substantially limited the scope of its authority to overturn statutes, requiring that in future cases “the overbreadth of the statute must not only be real but substantial as well” to justify invalidation.The relative infrequency of contemporary applications of the overbreadth doctrine is thus indirectly but clearly traceable to the majority opinion in Gooding. See also Brennan, William J., Jr.; Broadrick v. Oklahoma (1973); Burger, Warren E.; Chaplinsky v. New Hampshire (1942); Fighting Words; Overbreadth.
Richard Parker
furthe r reading Caine, Burton. “The Trouble with ‘Fighting Words’: Chaplinsky v. New Hampshire Is a Threat to First Amendment Values and Should be Overruled.” Marquette Law Review 88 (2004): 441–562. Friedlieb, Linda. “The Epitome of an Insult: A Constitutional Approach to Designated Fighting Words.” University of Chicago Law Review 72 (2005): 385–415.
Good News Club v. Milford Central School (2001) In Good News Club v. Milford Central School, 533 U.S. 98 (2001), the Supreme Court decided that a school district cannot prohibit the First Amendment free speech rights of groups seeking access to a school district’s limited public forum. The Court ruled that Milford Central School had violated the free speech rights of the Good News Club, a private nondenominational Christian organization, by prohibiting it from holding weekly after-school religious meetings on school grounds. The Court also ruled that allowing
the club access to school facilities would not violate the First Amendment’s establishment clause. Milford Central School has a community use policy that allows district residents to use the school for “instruction in any branch of education, learning or the arts” and for various social, recreational, and entertainment events provided they be “nonexclusive” and open to the public. The Good News Club had requested access to the school’s cafeteria for Bible lessons and memorizing scripture. Milford rejected the club’s request on the grounds that the policy prohibits use of school facilities for “religious purposes.” The club filed suit in federal district court alleging the district’s policy violated its free speech rights under the First Amendment. The district court sided with Milford, noting that Milford created a limited public forum and could prohibit subject matter that was “decidedly religious in nature.” A divided Second Circuit Court of Appeals panel affirmed, holding that the school’s policy was a form of constitutional subject discrimination and not unconstitutional viewpoint discrimination. Writing for the 6-3 majority and applying the logic of Lamb’s Chapel v. Center Moriches Union Free School District (1993) and Rosenberger v. Rector and Visitors of the University of Virginia (1995), Justice Clarence Thomas declared the school district’s policy as applied to Good News Club constituted impermissible viewpoint discrimination.Thomas noted that because the district allowed for groups to use school facilities for character or moral development, it could not deny a group access simply because the group sought character development in children through the person of Jesus Christ. The Court also found the district’s establishment clause argument lacking.While Milford maintained it was protecting impressionable schoolchildren from religious indoctrination, the Court declared the relevant community would be the parents who had to give permission for their children to attend the after-school meetings. In a dissent joined by Justices David H. Souter and Ruth Bader Ginsburg, Justice John Paul Stevens reasoned that Milford was not attempting to exclude all religious points of view but only religious speech that was “worshipful” or “proselytizing.” Souter argued that the lower courts were correct in understanding that the club’s program was more than just religious discussion but was, in fact,“an evangelical service of worship calling children to commit themselves in an act of Christian conversion” and, therefore, violated the establishment clause. Souter did not think that appeals for religious conversion, which were appropriate for houses of worship, belonged on public school grounds.
Gore,Tipper See also Lamb’s Chapel v. Center Moriches Union Free School District (1993); Public Forum Doctrine; Rosenberger v. Rector and Visitors of the University of Virginia (1995);Thomas, Clarence.
Kyle L. Kreider
furthe r reading Mangrum, Richard C. “Good News Club v. Milford Central School: Teaching Morality from a Religious Perspective on School Premises after School Hours.” Creighton Law Review 35 (2002): 1023–1074. McCarthy, Martha. “Religious Influences in Public Schools: The Winding Path towards Accommodation.” St. Louis University Public Law Review 23 (2004): 565–596.
Gore, Tipper Mary Elizabeth Aitcheson Gore (1948– ), known since childhood by her nickname “Tipper,” led a successful fight to have parental warning labels affixed to record albums that contained sexually explicit lyrics, portrayed excessive violence, or glorified drugs. She co-founded a group that campaigned to provide information about explicit material in music videos, television shows, and videos. Critics saw Gore’s actions as overt violations of the free speech guaranteed in the First Amendment and mockingly referred to the labels as “Tipper Stickers.” Gore, wife of former vice president Al Gore, said she supports the First Amendment and opposes censorship for adults. She explained her position in Raising PG Kids in An X-Rated Society (1987), insisting that the goal of record labeling was to provide parents and communities with information about what children were listening to and not to interfere with the creative process or with First Amendment rights of recording artists. Tipper Gore was born in Arlington,Virginia. She met Al Gore at a high school graduation dance and later followed him to Boston, where he attended Harvard University. She earned a BA in psychology at Boston College in 1970.The couple married that same year. She earned an MA in psychology from George Peabody College in 1975, while serving as a freelance photographer for the Nashville Tennessean. She shelved plans to be a child psychologist when her husband was elected to the U.S. House of Representatives in 1976. As a congressional wife, she became an active member of the Congressional Wives Task Force, which she chaired in 1978 and 1979, and which studied the effects of media violence on children. Gore’s involvement in the task force led her, in 1985, to join with other prominent Washington wives to found the Parents Music Resource Center (PMRC).Their chief target
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was explicit material that was accessible to children. Gore had become personally aware of the availability of “porn rock” when her eleven-year-old daughter, Karenna, bought Prince’s Purple Rain because she liked the song “Let’s Go Crazy.” When mother and daughter listened to another song on the album, “Darling Nikki,” which described a girl masturbating with a magazine in a hotel lobby, Gore was astounded. Her concerns were largely based on her background as a psychologist who was aware of children’s vulnerability to media influences. Many viewed PMRC as another attack on liberalism and the First Amendment. Throughout the 1980s President Ronald Reagan’s administration had campaigned to rid the country of material classified as offensive. That effort led to attacks on the National Endowment for the Arts, public book burnings, and censorship of a wide range of tapes, CDs, and music videos. A plethora of task forces, conferences, and activities were launched to implement Reagan’s positions. PMRC was instrumental in influencing the Recording Industry Association of America (RIAA) to require warning labels on tapes and CDs containing explicit lyrics. (Explicit lyrics may refer to sexual activity, including deviant practices such as incest and rape, or to material that describes or encourages suicide, murder, illegal drug use, or alcohol abuse.) Artists ranging from hard rocker Frank Zappa to folk artist John Denver campaigned against the labels. In 1990 RIAA replaced the initial labels with stickers reading, “Parental Advisory—Explicit Lyrics.” Currently, about a third of all record companies employ the labeling system. Recording artists were concerned that the labeling system would cause radio stations to refrain from playing their music and that stores would refuse to sell their material. Some artists released cleaned-up versions of albums simultaneously with those containing explicit lyrics. Some stores, including J. C. Penney,Wal-Mart, Kmart, Camelot, and Disc Jockey, opted not to sell labeled versions. A number of states passed legislation banning the sale of stickered material to anyone under the age of seventeen. Despite Gore’s repeated assurance that she wanted only to provide information about explicit lyrics and had no desire to ban albums, critics viewed her as a self-appointed censor. They criticized her and the PMRC for issuing the “Filthy Fifteen,” a list of artists whose works regularly included explicitly sexual or violent material. Artists on the list included AC/DC, Black Sabbath, Def Leppard, Sheena Easton, Judas Priest, Cyndi Lauper, Madonna, the Mary Jane
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Girls, Merrcyful Fate, Motley Crue, Prince, Twisted Sister, Vanity,Venom, and W.A.S.P. In response to the labeling system, Frank Zappa added a label to his own albums, assuring purchasers that listening to his music would not cause them to end up with the guy with the horns and pointed tail. In songs such as “Rapist (Tipper Gore Mix)” by the Flying Medallions and “PRMC Sucks” by the Gang Green, Gore and PMRC became the target of derogatory music by the very artists they sought to monitor. When Al Gore was elected as Bill Clinton’s vice president in 1992 and 1996,Tipper Gore launched a campaign to promote the concerns of the mentally ill and was active in efforts to help the homeless and to improve education. She resigned from PMRC, which had lost its momentum as more strident groups took up the cause. During her husband’s presidential campaign in 2000, she moderated her stand on explicit material to keep from alienating the music industry. Critics claim that the labeling system has been ineffective. It is left to individual record companies to determine which materials are labeled explicit, and the result is that labeling is chiefly confined to rock, rap, and hip hop. In 2001 the Federal Trade Commission reported that 90 percent of teenagers under seventeen who tried to buy a stickered CD were successful. Although the number had dropped to 83 percent by 2004, such easy access challenges the effectiveness of the system. The ongoing technological explosion has also undermined the viability of music labeling. Many minors have unlimited access to explicit material through cable and satellite television, DVDs, videos, video games, the Internet, file sharing, I-Pods, and MP3 players. See also Censorship; Music Censorship; Obscenity and Pornography.
Elizabeth R. Purdy
furthe r reading Berlant, Lauren. “Live Sex Acts.” Feminist Studies 21 (Summer 1995): 379–404. Blecha, Peter. Taboo Tunes: A History of Bands and Censored Songs. San Francisco: Backbeat Books, 2004. Du Noyer, Paul. The Story of Rock ‘n’ Roll: The Year-by-Year Illustrated Chronicle. New York: Carlton Books, 1995. Martino, Steven C., et al. “Exposure to Degrading versus Nondegrading Music Lyrics and Sexual Behavior among Youth.” Pediatrics 118 (August 2006): e430–e441. Nuzum, Eric. Parental Advisory: Music Censorship in America. New York: Perennial, 2000.
Recording Industry Association of America. “Parental Advisory.” www.riaa.com/issues/parents/advisory.asp.
Government Funding and Free Speech In appropriating money, governments sometimes attempt to limit the speech of those that they are funding.The Supreme Court has generally supported such restrictions on government funding even when those restrictions may stop or have a chilling effect on the free speech rights of government employees, including artists, writers, and scholars. Rust v. Sullivan (1991) dealt with government funding of family planning services.The Court ruled, 5-4, that a prohibition on the use of federal funds under the Title X program for abortion counseling by doctors and other health care professionals was constitutional and did not violate the First or the Fifth Amendment.Title X fund recipients alleged that the regulation “impermissibly [imposed] viewpoint-discriminatory conditions on Government subsidies.” But Chief Justice William H. Rehnquist concluded that the government was making a valid value judgment and simply choosing to fund one program (family planning with no abortion counseling) instead of another. Because doctors and other staff members may use abortion-related speech when such speech is kept separate from Title X–funded activities, the regulation cannot “be held to unconstitutionally condition the receipt of a benefit . . . on the relinquishment of a constitutional right.” In considering the Fifth Amendment concern that the regulation limited women’s right to choose abortion, Rehnquist concluded that women could still obtain abortion counseling through other services. In National Endowment for the Arts v. Finley (1998), the Court again found that the government had wide latitude in determining how its money would be spent in cases where funding was linked to speech. Finley dealt with a change in the government’s funding procedures for grants provided through the National Endowment for the Arts (NEA). After the NEA funded the display of controversial photographs, Congress amended the 1990 funding bill for the NEA to require it to take into account “general standards of decency and respect for the diverse beliefs and values of the American public” when making grant determinations. Justice Sandra Day O’Connor wrote the majority opinion, determining that the amendment was facially valid in that it was neither a violation of the First Amendment nor overly vague.
Government Funding and Free Speech O’Connor found that the decency and respect clause did not unconstitutionally interfere with free speech for a variety of reasons. First, Congress required only that the NEA take decency and respect into consideration; it did not absolutely exclude from funding any project found to be indecent. Furthermore, given the NEA’s limited resources, all of its decisions are necessarily made on subjective grounds, and it is appropriate for decency and respect to be one of many grounds to be considered in making a funding decision. Moreover, Congress has wide latitude in setting spending priorities. Finally, O’Connor ruled that the statute was not overly vague, since, in context, the government was acting through the NEA as a “patron rather than [a] sovereign.” Because the statute is not a criminal or regulatory statute, and because the government is already making subjective decisions in dispensing grant money, she found the statute’s vagueness acceptable. In United States v. American Library Association (2003), the Court upheld a provision in the Children’s Internet Protection Act of 2000 (CIPA) that required a library to filter out Internet material that may be objectionable for children, if the library used federal funds to purchase computers and Internet access. Justice Rehnquist, joined by Justices O’Connor, Antonin Scalia, and Clarence Thomas, concluded that filtering software does not inappropriately infringe upon the First Amendment rights of library patrons or induce libraries to act unconstitutionally.The majority ruled that Internet access is not a public forum and that use of filtering software is analogous to librarians selecting books to put on the shelves. The Court did not find an unconstitutional condition on government funding in this case. Citing Rust v. Sullivan, Rehnquist said that Congress was not denying anyone benefits but “simply insisting that public funds be spent for the purpose for which they are authorized.” In concurrence, Justice Anthony M. Kennedy argued that as long as librarians were willing and able to unblock specific sites at the request of users, the filtering requirement of CIPA was appropriate. In a separate concurrence, Justice Stephen G. Breyer, arguing for the use of a balancing test using “heightened” scrutiny, wrote that patrons would be insufficiently burdened by the filters to outweigh the benefits. Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg dissented. Stevens argued that placing filters on all library computers was an overly broad restriction on adult access to protected speech. Less restrictive means to protect children were available.The three dissenting justices saw the law as unconstitutional because it conditions gov-
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ernment spending on the restriction of significant fundamental rights. Souter, also in dissent, believed that the law would deny adults access to a substantial amount of material harmful to children, but lawful for adult examination, and a substantial quantity of text and pictures harmful to no one. Court majorities have recognized some limits to the conditions the government can place on the distribution of funds. In Legal Services Corp. v. Velazquez (2001), the Court dealt with the Legal Services Corporation Act of 1974 (LSCA), which funded free legal assistance to individuals seeking welfare benefits. The LSCA prohibited any organization receiving these funds from pursuing cases that challenge existing welfare law, even if such issues arose after a case was in progress. Justice Kennedy wrote the 5-4 opinion that struck down this funding requirement. Kennedy distinguished Velazquez from Rust, writing that while Rust dealt with what was essentially government speech disseminated through private actors, Velazquez dealt instead with legal efforts to facilitate private speech itself. By limiting how lawyers may try cases under the funding scheme, the LSCA distorted the legal system, cutting off avenues of judicial oversight and review of congressional legislation. Kennedy thought the laws impermissibly sought “to insulate the Government’s laws from judicial inquiry.” Finally, unlike in Rust, clients likely would have nowhere to turn for further legal counsel since their attorneys would have to drop their cases if challenges to welfare law arose. These cases fall under the doctrine of unconstitutional conditions (also known as the doctrine of conditional spending). In each of these cases the Court had to balance the government’s interest in ensuring that funds were spent according to the will of Congress with any First Amendment rights that individuals implementing aid programs and aid recipients might have.The absence of an affirmative right for individuals to receive government aid has been central to this doctrine and these cases. See also Children’s Internet Protection Act of 2000; Government Speech Doctrine; Legal Services Corp. v.Velazquez (2001); National Endowment for the Arts v. Finley (1998); Rust v. Sullivan (1991); Unconstitutional Conditions; United States v. American Library Association (2003);Vagueness.
Ronald Kahn
furthe r reading BeVier, Lillian R. “United States v. American Library Association: Whither First Amendment Doctrine.” Supreme Court Review (2004): 163–195.
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Government Speech Doctrine
Bezanson, Randall P., and William G. Buss. “The Many Faces of Government Speech.” Iowa Law Review 86 (2001): 1877–1512. Kegan, Elena. “The Changing Faces of First Amendment Neutrality.” Supreme Court Review (1992): 29–77. Redish, Martin H., and Daryl I. Kessler. “Government Subsidies and Free Expression.” Minnesota Law Review 80 (1996): 543–594.
Government Speech Doctrine Under the government speech doctrine, the government has its own rights as speaker, immune from free speech challenges. It can assert its own ideas and messages without being subject to First Amendment claims of viewpoint discrimination. The Supreme Court has employed the doctrine to reject First Amendment–based challenges to government programs. For example, the high court ruled in Rust v. Sullivan (1991) that the government could prohibit doctors who receive federal funds for federal health family planning services from discussing abortion with their patients. Chief Justice William H. Rehnquist concluded that “The Government can . . . selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way.” More recently, the Court ruled, in Johanns v. Livestock Marketing Association (2005), that the government could require beef producers to contribute monies to support a generic advertising program for beef because “the government sets the overall message to be communicated and approves every word that is disseminated.” In other cases the Court has rejected application of the doctrine. In Legal Services Corp. v.Velazquez (2001), the Court invalidated a federal law prohibiting attorneys who receive federal monies under a legal services plan from challenging existing welfare laws. The Court wrote that the legal services “program was designed to facilitate private speech, not to promote a governmental message.” Much difficulty exists in determining whether speech is properly classified as government speech or as private speech. For example, lower courts are divided on whether a specialty license plate program that allows certain groups to disseminate messages such as “Choose Life” should be considered government speech immune from First Amendment scrutiny or a mixed form of private and government speech that fails the First Amendment principle of viewpoint neutrality. The contours of the government speech doctrine have not been delineated with much precision. Justice David H. Souter expressed this point in his dissent in Johanns, when he
wrote, “The government-speech doctrine is relatively new, and correspondingly imprecise.” The doctrine also has its share of critics. Legal commentators Randall Bezanson and William Buss explain that “viewing government as a First Amendment right holder is not supported by, and is inconsistent with, the text of the First Amendment and the purposes underlying the text” (p. 1508). See also Johanns v. Livestock Marketing Association (2005); Legal Services Corp. v. Velazquez (2001); Rust v. Sullivan (1991); Viewpoint Discrimination.
David L. Hudson Jr.
furthe r reading Bezanson, Randall P., and William G. Buss. “The Many Faces of Government Speech.” Iowa Law Review 86 (2001): 1377–1511. Hayes, Mia Guizzetti. “First Amendment Values at Serious Risk: The Government Speech Doctrine after Johanns v. Livestock Marketing Ass’n.” Catholic University Law Review 55 (2006): 795–830.
Graduation Speech Controversies Supreme Court decisions have interpreted the establishment clause of the First Amendment not only to prohibit public prayers in public schools during school hours but also to exclude them from important school-sponsored functions. The Court has also ruled on other free speech concerns in schools. In Lee v. Weisman (1992), the Court ruled that a junior high school could not invite a member of the clergy to deliver invocations or benedictions at a graduation without unduly coercing those in attendance to be subjected to religious exercises of which they might not approve.The Court further extended this prohibition to student-led prayers at high school football games, in Santa Fe Independent School District v. Doe (2000). Other Supreme Court decisions have established that students possess free speech rights in school but that these rights are more limited there than in other settings.While Tinker v. Des Moines Independent Community School District (1969) recognized that high school and junior high school students had the right to wear black armbands to school to protest the Vietnam War, the Court indicated, in Bethel School District No. 403 v. Fraser (1986), that schools could censor a student’s sexually oriented speech that was to be given before a school assembly. Similarly, in Hazelwood School District v. Kuhlmeier (1988), the Court upheld censorship of a school newspaper
Grand Rapids School District v. Ball (1985) that would have been considered unconstitutional in other contexts. It is not altogether clear how such varied precedents apply to students’ graduation speeches. The Ninth Circuit Court of Appeals, in Cole v. Oroville Union High School District (9th Cir. 2000), upheld a decision by high school officials in Oroville, California, rejecting a proposed student prayer and a proposed student speech at graduation ceremonies. The reasoning behind the court’s decision was that both the prayer and the speech were attempts to proselytize that would involve the school in violations of the establishment clause by making it appear that the school was endorsing the students’ religious views.The school district was following its established policy of clearing all such speeches with the principal beforehand. This Ninth Circuit Court came to a similar decision in Lassonde v. Pleasanton Unified School District (9th Cir. 2003). In that case, the principal had previewed the speech of a graduating high school valedictorian and concluded that the speech was proselytizing. The principal gave permission for the student to deliver a modified version of the speech and to distribute copies of his uncensored speech outside the graduation site.The court ruled that the principal’s censorship of the oral speech was appropriate: it avoided the appearance of the school’s sponsorship of such activities as well as the coercive effect on listeners who did not share the speaker’s religious beliefs. The court rejected the idea that the Supreme Court’s decision in Good News Club v. Milford Central School (2001), which had opened a school to access by religious groups, compelled a different result.The judge observed that “[t]he graduation ceremony was a school-sponsored function that all graduating seniors could be expected to attend” and that “consideration of coercive pressure and perceptions of endorsement” were thus “in the forefront.”The court did not think the school was obliged to let the students speak and post disclaimers as to the content of the speech. Another circuit court decision, however, clouds the picture. In Adler v. Duval County School Board (11th Cir. 2001), the Eleventh Circuit Court of Appeals upheld a procedure whereby a county in Florida allowed students to decide whether an opening speech and prayer would be given at the graduation ceremony, and it allowed the students chosen to deliver the words to do so without any prior censorship.This case has special significance because it came after the court reconsidered its original verdict in light of the Supreme Court decision in Santa Fe v. Doe. Noteworthy, too, is that the judges on the circuit court split, with some judges viewing
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the school’s real purpose as the impermissible objective of promoting prayers, such as those the Court had invalidated in Lee v. Weisman. Such split decisions make it likely that the Supreme Court will revisit this issue in the near future. See also Bethel School District No. 403 v. Fraser (1986); Coercion Test; Endorsement Test; Good News Club v. Milford Central School (2001); Hazelwood School District v. Kuhlmeier (1988); Lee v. Weisman (1992); Prayer at Public School Events; Santa Fe Independent School District v. Doe (2000); Tinker v. Des Moines Independent Community School District (1969).
John R.Vile
furthe r reading Brownstein, Alan E.“Prayer and Religious Expression at High School Graduations: Constitutional Etiquette in a Pluralistic Society.” Nexus, A Journal of Opinion 5 (2000): 61–80. Keiner, Christian M.“Preaching from the State’s Podium:What Speech Is Proselytizing Prohibited by the Establishment Clause?” Brigham Young University Journal of Public Law 21 (2007): 83–107. Vile, John R. “Religious Expression in High School Valedictory Addresses: Guidry v. Calcasieu Parish School Board.” Education Law Reporter 53 (1989): 1051–1065.
Grand Rapids School District v. Ball (1985) In Grand Rapids School District v. Ball, 473 U.S. 373 (1985), the Supreme Court struck down two government education programs that employed parochial school teachers and facilities. Although the instruction provided under the program was nonreligious, the Court was concerned that the instruction would appear to be a form of governmental endorsement of religion prohibited under First Amendment establishment clause precedents. The case involved two programs that the school district of Grand Rapids, Michigan, had implemented.The first was a community education program that offered a variety of after-school courses such as chess, home economics, and nature appreciation.The program employed parochial school teachers and used both public and religious school facilities. The second, and more controversial, part of the case was the shared time program, which offered secular classes to parochial schoolchildren in parochial school facilities leased by the state. The classes were conducted during regular school hours and were taught by public school teachers. To determine whether the programs in Ball were constitutional, the Court employed the three-pronged Lemon test. First articulated in Lemon v. Kurtzman (1971), the test
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Gravity of the Evil Test
required that the programs at issue have a secular purpose, have neither the principal or primary effect of advancing nor inhibiting religion, and not foster excessive government entanglement with religion. Writing for the majority, Justice William J. Brennan Jr. in Ball reasoned that while the programs had a secular purpose, they had the impermissible effect of religious indoctrination. The Court struck down the community education scheme by a vote of 7-2. Brennan explained that “there is a substantial risk that, overtly or subtly, the religious message [the teachers] are expected to convey during the regular school day will infuse the supposedly secular classes they teach after school.” The justices also narrowly invalidated the shared time program by a vote of 5-4. Brennan reasoned that participating teachers “may become involved in intentionally or inadvertently inculcating particular religious tenets or beliefs,” the mere presence of public teachers on parochial school grounds symbolized “the ‘concert or union or dependency’ of church and state” particularly among “children in their formative years,” and the program financed religious indoctrination by subsidizing “the primary religious mission of the institution affected.” The Court announced its decision in Ball the same day as Aguilar v. Felton (1985), in which the Court invalidated a New York City shared time program that differed from the one in Ball by providing a monitoring system to prevent indoctrination. In Aguilar, however, the Court said that the monitoring scheme violated Lemon’s third prong by fostering an excessive entanglement between church and state. In response to the separationist decisions in both Ball and Aguilar, the city of New York revised its program and provided their instructors with “mobile instructional units,” which they parked in public areas near religious schools. Between 1986 and 1993, the city estimated that it spent over $100 million to run the van program. The separationist outcome in Ball was short-lived, at least with respect to using parochial school classrooms—so-called shared time programs—as the Court reversed course in Agostini v. Felton (1997) and allowed public school teachers to offer publicly funded, special education classes in religious schools. In effect, Agostini overturned the Ball and Aguilar precedents. See also Agostini v. Felton (1997);Aguilar v. Felton (1985);Aid to Parochial Schools; Brennan,William J., Jr.; Lemon Test.
Artemus Ward
furthe r reading Alley, Robert S. The Constitution and Religion: Leading Supreme Court Cases on Church and State. Amherst, N.Y.: Prometheus Books, 1999. Goldman, Roger, and David Gallen. Justice William J. Brennan, Jr.: Freedom First. New York: Carroll and Graf Publishers, Inc., 1994.
Gravity of the Evil Test The gravity of the evil test is a refinement of Justice Oliver Wendell Holmes’s clear and present danger test for determining when the First Amendment right of free speech may be subject to criminal prosecution. Judge Learned Hand, in United States. v. Dennis (2d Cir. 1950), originally crafted the new test in a federal appellate decision examining the prosecution of officers of the Communist Party of the United States for espousing the revolutionary overthrow of the government. Chief Justice Frederick M.Vinson’s plurality opinion adopted the test in the Supreme Court’s own decision on appeal in Dennis v. United States (1951). Under the clear and present danger standard, regulation of speech is possible where “the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” But the requirement that a danger be present, often defined to mean imminent, rendered awkward Cold War–era prosecutions under the Smith Act of 1940, since few if any Communist sympathizers were advocating imminent violence. Judge Hand’s refinement directs courts to ask “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Judge Hand is famed for bringing economic thinking such as cost-benefit analysis into the process of legal reasoning.The almost algebraic quality of his analysis in Dennis reflects that approach—gravity multiplied by probability yields a given quantum of danger. Mathematically, even a small probability could justify suppression of speech, if the supposed harm is grave enough. Free speech advocates had considered Hand a judicial hero in light of opinions such as that in Masses Publishing Co. v. Patten (S.D.N.Y. 1917). Nevertheless, in the immediate postwar period, Hand thought it reasonable to believe the Communist Party was a “conspiracy [which] create[d] a danger of the utmost gravity and of enough probability to justify its suppression.” The Supreme Court agreed. Justice William O. Douglas, reflecting the opinion of most civil libertarians, later complained that Hand’s new test was
Grayned v. City of Rockford (1972) “distorting the ‘clear and present danger’ test beyond recognition,” and that in Dennis and elsewhere, “the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous.” The gravity of the evil test—or the not improbable test— has occasionally been referenced in subsequent years, including in the Supreme Court case of Nebraska Press Association v. Stuart (1976). However, both the clear and present danger test and its grave though improbable variant have been replaced by the standard established in Brandenburg v. Ohio (1969), under which speech can be criminalized only upon a showing that it constituted intentional advocacy of imminent and likely lawlessness. See also Brandenburg v. Ohio (1969); Clear and Present Danger Test; Dennis v. United States (1951); Hand, Learned; Holmes, Oliver Wendell, Jr.; Incitement; Nebraska Press Association v. Stuart (1976); Schenck v. United States (1919); Smith Act of 1940.
Ronald Steiner
furthe r reading Gunther, Gerald. Learned Hand: The Man and the Judge. New York: Knopf, 1994. Schwartz, Bernard.“Holmes versus Hand: Clear and Present Danger or Advocacy of Unlawful Action?” Supreme Court Review (1994): 209–245. Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W. W. Norton and Co., 2004.
Grayned v. City of Rockford (1972) In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Supreme Court ruled that a city’s anti-picketing ordinance was overbroad and violated the Fourteenth Amendment’s equal protection clause, but the Court upheld the anti-noise ordinance, finding that it was narrowly tailored to meet the city’s compelling interest in having undisrupted schools and therefore did not violate First and Fourteenth Amendment protections of freedom of speech. The case addressed the constitutionality of two ordinances. One prohibited picketing within 100 feet of a school, except for peaceful picketing of any school involved in a labor dispute. Another prohibited a person, while on grounds adjacent to a school in session, from willfully making a noise or diversion that disturbs or tends to disturb the peace or good order of the school session.
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The Court ruled, 8-1 per Justice Thurgood Marshall, and consistent with the Court’s companion decision in Police Department of Chicago v. Mosley, that Rockford’s anti-picketing ordinance violated the Fourteenth Amendment’s equal protection clause but decided that the anti-noise ordinance was neither too vague nor unconstitutionally overbroad.The Court thus struck down Richard Grayned’s conviction for participation in a demonstration in front of the West Senior High School in Rockford, Illinois, while overturning his conviction under the noise ordinance. In determining if the anti-noise ordinance was too vague, the Court held that laws must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he or she may act accordingly. According to the Court, vague laws work three evils on people: they may trap the innocent by not providing fair warning; they may lead to arbitrary and discriminatory enforcement; and they may operate “to inhibit the exercise” of First Amendment freedoms.The Court found that a person of ordinary intelligence could ascertain what conduct was forbidden, and therefore the ordinance was not void for vagueness. The Court then noted that even a precise enactment can be overbroad if, in its reach, “it prohibits constitutionally protected conduct.” The crucial question is “whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.” Applying the strict scrutiny test the Court had applied in Tinker v. Des Moines Independent Community School District (1969), Marshall held that the anti-noise ordinance was narrowly tailored to meet the city’s compelling interest in having undisrupted schools.The Court relied heavily on the fact that the statute required the noise actually to disrupt or be on the brink of disrupting the normal school session. Justice William O. Douglas dissented as to the anti-noise ordinance on the grounds that Grayned himself did not make any noise but rather marched peacefully. The noise, according to Douglas, was generated by the police who attempted to break up the march. See also Douglas, William O.; Marshall, Thurgood; Police Department of Chicago v. Mosley (1972); Tinker v. Des Moines Independent Community School District (1969);Vagueness.
Alan Tauber
furthe r reading Goldsmith, Andrew E. “The Void-for-Vagueness Doctrine in the Supreme Court, Revisited.” American Journal of Criminal Law 30 (2003): 279–313.
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Greater New Orleans Broadcasting Association v. United States (1999)
Isserles, Marc E.“Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement.” American University Law Review 48 (1998).
Greater New Orleans Broadcasting Association v. United States (1999) In Greater New Orleans Broadcasting Association v. United States, 527 U.S. 173 (1999), a unanimous Supreme Court continued its trend of providing strong protection for commercial speech by striking down 18 U.S.C. 1304, a federal law prohibiting broadcasting advertisements for gambling casinos, as a violation of the First Amendment. Gambling has a long and checkered history in Louisiana. The infamous Louisiana Lottery, which operated in the years after the Civil War, was one of the alleged evils that prompted Congress to enact a law suppressing the interstate sale of lottery tickets. The Supreme Court upheld the act in Champion v. Ames (1903). That did not stop Louisiana. In addition to gambling casinos, betting on horse racing, craps, poker, and cockfighting were some other types of gambling long familiar to Louisiana residents. In the 1950s and 1960s, illegal gambling casinos in Jefferson and St. Bernard parishes (counties) in southeast Louisiana became a public scandal. Governor Edwin Edwards convinced the state legislature to legalize riverboat casinos in the city of New Orleans and in Jefferson and St. Bernard parishes as a means of revitalizing the state’s economy. Not long after the riverboats began operating, the Federal Communications Commission (FCC) threatened to sanction the Greater New Orleans Broadcasting Association, a nonprofit trade association of radio and television broadcasters in the New Orleans area, for advertising private casino gambling in Louisiana in violation of Congress’s authority to forbid such broadcasting under 18 U.S.C. section 1304 and the FCC’s authority to regulate them. The issue arose because the broadcast signals carried not only to Mississippi, which allowed casino gambling, but also to parts of Texas and Arkansas, which did not. The Greater New Orleans Broadcasting Association filed suit in the federal district court against the United States and the FCC, arguing that its advertisements were commercial speech protected by the First Amendment. Using the four-part test in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), both the district court and the Fifth Circuit Court of Appeals sustained the restrictions. By the time the case reached the Supreme Court, the Court had ruled in 44 Liquormart, Inc. v. Rhode Island (1996)
that advertising liquor prices was protected as commercial speech. It remanded the Louisiana case to the lower courts in light of that ruling, but the lower courts sustained the restrictions. When the case again reached the Supreme Court, the Court ruled that 18 U.S.C. Sec. 1304 failed to meet the Central Hudson test because it was irreconcilably confusing, prohibiting advertising for some forms of gambling but not others, and because it regulated truthful speech about lawful conduct.The case is among those that repudiated an earlier Supreme Court decision in Posadas de Puerto Rico Associates v.Tourism Company of Puerto Rico (1986). See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Federal Communications Commission; 44 Liquormart, Inc. v. Rhode Island (1996); Posadas de Puerto Rico Associates v.Tourism Company of Puerto Rico (1986).
Judith Haydel
furthe r reading Bridges, Tyler. Bad Bet on the Bayou:The Rise of Gambling in Louisiana and the Fall of Governor Edwin Edwards. NewYork: Farrar, Straus and Giroux, 2002. Brody, Steven G., and Bruce E. H. Johnson. Advertising and Commercial Speech: A First Amendment Guide. 2d ed. New York: Practicing Law Institute, 2004.
Greenbelt Cooperative Publishing Association v. Bresler (1970) In Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970), the Supreme Court held that rhetorical hyperbole is not actionable as defamation where a reasonable reader, in light of a statement’s full context, would not understand the intended meaning of a phrase to be a literal accusation. Like other decisions from the Court expanding on New York Times Co. v. Sullivan (1964), Bresler imposes First Amendment free speech and free press limitations on common-law defamation actions. Plaintiffs must prove several elements for a defamation claim, including that a challenged statement is “defamatory”—that it harms one’s reputation or holds the person up to scorn, derision, or ridicule. States have well-developed bodies of case law on what types of statements are defamatory; all jurisdictions regard the accusation that a person has committed a crime as defamatory. In Greenbelt, a weekly newspaper republished statements made at a public meeting that characterized real estate developer Charles Bresler’s negotiations with public officials over a land sale as “black-
Greer v. Spock (1976) mail.” Alleging that the paper accused him of blackmail, Bresler sued for libel in Maryland state court. He won damages, which were upheld on appeal by the Maryland Court of Appeals. The Supreme Court reversed the lower court’s ruling because the word blackmail was not used literally.The Court concluded that even careless readers must have perceived that “the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.” As such, the use of the word blackmail in this context “was not slander when spoken, and not libel when reported.” The decision set the Court down the road toward Milkovich v. Lorain Journal Co. (1990), which found that defamation liability is improper “for statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.” By drawing the reasonable meaning of a challenged statement from the entire publication, the Court in Bresler highlighted the importance of context in determining defamatory meaning. Justice Byron R.White concurred in reversal, but would have done so on the basis of improper jury instructions. He would have deferred to a jury conclusion as to the meaning of blackmail. Justice Hugo L. Black, who favored more expansive protection for the press than afforded under Sullivan, also concurred and was joined by Justice William O. Douglas. See also Libel and Slander; Milkovich v. Lorain Journal Co. (1990); New York Times Co. v. Sullivan (1964).
Chad R. Bowman
furthe r reading Dienes,Thomas, and Lee Levine.“Implied Libel, Defamatory Meaning and the State of Mind:The Promise of New York Times v. Sullivan.” Iowa Law Review 78 (1993): 237–325. Fulcher, Eric Scott.“Rhetorical Hyperbole and the Reasonable Person Standard: Drawing the Line between Figurative Expression and Actual Defamation.” Georgia Law Review 38 (2004): 717–767.
Green River Ordinances Local ordinances that prohibit individuals from engaging in door-to-door sales or solicitations unless the residents have given their consent are known as Green River ordinances. They are named for Green River,Wyoming, which, in 1931, was the first town to adopt an ordinance banning door-todoor solicitation. Many other jurisdictions subsequently adopted similar ordinances.Although such laws may conflict
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with rights of free speech and the free exercise of religion, the Green River ordinance was not initially challenged on First Amendment grounds. The townspeople in Green River, many of whom worked nightshifts on the railroads, favored the act as a way to reduce the number of door-to-door solicitations they were receiving, often at times when they were trying to sleep.The Tenth Circuit Court of Appeals, in Town of Green River v. Fuller Brush Co. (10th Cir. 1933), upheld the regulation as a legitimate application of state police powers that did not improperly affect interstate commerce. Although the case was not appealed to the Supreme Court, the Court later upheld a similar law in Breard v. Alexandria (1951). Breard came at a time, however, when courts were offering limited protection to commercial speech under their interpretations of the First Amendment.A host of other decisions, for example, Martin v. City of Struthers (1943), which invalidated the application of an ordinance to Jehovah’s Witnesses selling literature door to door, suggest that such ordinances are invalid if they are applied to religious, political, or other noncommercial solicitations. See also Breard v.Alexandria (1951); Commercial Speech; Door-toDoor Solicitation; Martin v. City of Struthers (1943).
John R.Vile
furthe r reading Grubb, Marna. “Railroad Workers Demand Protection of Their Daytime Sleep.” City of Green River, Wyoming. www.cityof greenriver.org/aboutus/grord.htm. Municipal Research and Services Center of Washington. “About Regulation of Peddlers and Solicitors—Court Decisions.” www.mrsc.org/Subjects/Legal/nuisances/nu-pedIntro.aspx.
Greer v. Spock (1976) In Greer v. Spock, 424 U.S. 828 (1976), the Supreme Court decided that, despite First Amendment protections, areas on military bases generally open to the public were not necessarily open to civilians seeking to distribute political literature or engage in political forums. In the years before the ruling, the federal government had exercised complete authority over the Fort Dix military base in addition to the county and state roads that ran through it. With some minor exceptions, civilians were permitted freely to tour the unrestricted portions of the base, but speeches and demonstrations of a politically oriented nature were not permitted under regulations strongly enforced by base
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authorities. Fort Dix Regulation 210-26, adopted by the base in 1968, provided that “demonstrations . . . and similar activities are prohibited and will not be conducted on the Fort Dix Military Reservation.” Regulation 210-27 (1970) stated that the “distribution or posting of any publication . . . prepared by any person . . . or agency . . . is prohibited on the Fort Dix Military Reservation without prior written approval of the Adjutant General.” In 1972 several small-party presidential candidates, including anti-war protestor and People’s Party candidate Dr. Benjamin Spock, collectively wrote a request to thencommanding officer Major General Bert A. David, declaring their intention to distribute campaign literature and hold a meeting focusing on election issues. David rejected their request, relying on Regulations 210-26 and 210-27. The respondents sued, claiming that the regulations were in conflict with First Amendment protections for open speech in a public forum.The case, initially argued as Spock v. David, was appealed to the Supreme Court as Greer v. Spock, as the replacement for the retired base commander appealed the lower court’s decision upholding Spock’s claim. The Court held that allowing civilians on a federally owned property, particularly a military base, did not automatically provide a sphere of activity for anyone wishing to open a political forum.The Court further noted that soldiers were wholly free to attend and engage in political activities as off-duty citizens but that the military was insulated from the partisan nature of politics in general. This, as the Court rationalized, was consistent with the tradition of a neutral military establishment implied by the Constitution. The Court also overturned the lower court’s reliance on Flower v. United States (1972) and the perception that this precedent allowed for the broad interpretation that all federally owned properties open to the public are subject to political activity. This case fits within traditional Supreme Court opinions that have usually upheld military regulations when they conflict with individual expression. See also Flower v. United States (1972); Military Personnel, Rights of; Public Forum Doctrine;Vietnam War.
Matthew Harris with Walter Huber
furthe r reading Carr, John A. “Free Speech in the Military Community: Striking a Balance between Personal Rights and Military Necessity.” The Air Force Law Review 45 (1998): 303–368. Maizel, Chapin Donna. “Does an Open House Turn a Military Installation into a Public Forum? United States v. Albertini and the First Amendment.” The Army Lawyer (August 1986): 11–19.
Gregory v. City of Chicago (1969) In Gregory v. City of Chicago, 394 U.S. 111 (1969), the Supreme Court unanimously upheld the First Amendment rights of peaceful civil rights protestors over the overzealous actions of police attempting to quell anticipated civil disorder. Comedian and political activist Dick Gregory and his group had become disenchanted with the slow pace of desegregation in Chicago public schools.They called for the removal of Superintendent Benjamin Willis and prodded Chicago mayor Richard J. Daley to facilitate this process. On August 2, 1965, the group conducted a three-and-a-halfhour march from the Loop District to the South Side neighborhood where the mayor lived. They were escorted by more than forty police officers and an assistant city attorney. Gregory stated the group’s mission unequivocally: “First we will go over to the snake pit [city hall]. When we leave there, we will go to the snake’s house [the mayor’s home]. Then, we will continue to go to the mayor’s home until he fires Ben Willis.” By the time the group reached the mayor’s neighborhood, the crowd of spectators began to grow unruly, spewing racial epithets and hailing eggs and rocks at the demonstrators. By 9:30 at night the police felt that they could no longer contain the onlookers and asked Gregory and his group to leave the scene. When they refused they were arrested and later convicted on charges of disorderly conduct.The Illinois Supreme Court affirmed the charges. Appearing before the Supreme Court, the petitioners contested the denial of their First Amendment rights to assemble peacefully in public and petition the government for redress of grievances. They argued that disruptive bystanders in effect had exercised a “heckler’s veto” by provoking violence, prompting the police action against those assembling peacefully. The city argued that it had the right to stop the demonstration to prevent a riot, and the arrest was warranted because the petitioners disobeyed a police order to disperse. Writing for a unanimous Court, Chief Justice Earl Warren called this a “simple case,” considering the petitioners’ march was “peaceful and orderly” and therefore worthy of First Amendment protection. The charges of disorderly conduct were misapplied and stood in violation of due process per Thompson v. City of Louisville (1960). Warren argued that the “petitioners were charged and convicted for holding a demonstration, not for a refusal to obey a police officer.”
Griswold v. Connecticut (1965) Concurring with the judgment, Justice Hugo L. Black criticized the disorderly conduct law itself, labeling it a “meat-ax ordinance” because it prohibited many lawful and constitutional activities. It was neither “narrowly drawn” to regulate demonstrations and marches, nor did it set forth time, place, and manner restrictions. Black observed that the police officers had applied the law hypocritically since they had found no unlawful conduct by the demonstrators along the entire five-mile march. See also Breach of the Peace Laws; Heckler’s Veto;Warren, Earl.
Shawn Healy
furthe r reading Howard, Robert. “Court Upholds Dick Gregory’s ‘65 Conviction.” Chicago Tribune, January 20, 1968.
Grimm v. United States (1895) In Grimm v. United States, 156 U.S. 604 (1895), the Supreme Court upheld on statutory grounds a conviction for using the mail to convey information about where to purchase pornographic pictures. Despite the obvious implications for freedom of expression, the Court did not specifically mention the First Amendment in its opinion. William Grimm had been indicted under an 1888 revision of the Comstock Act of 1873. Using an assumed name, a postal inspector had written to Grimm, a photographer and owner of an art studio, for lewd pictures, and he had responded by affirming that he had such pictures for sale. His case is one of what Jack B. Harrison (1993) calls the Decoy Letters Cases. The others are Goode v. United States (1895), Andrew v. United States (1896), Rosen v. United States (1896), and Price v. United States (1897). Writing for a unanimous court, Justice David J. Brewer noted that the law did not penalize “the possession of obscene, lewd, or lascivious pictures” and that the letter Grimm had mailed was not itself obscene. He rejected Grimm’s argument that the indictment should have described the obscene materials in greater detail. He observed that even in cases where the offense is that of sending obscene materials through the mail, the Court had ruled that “it is unnecessary to spread the obscene matter in all its filthiness upon the record; it is enough to so far describe it that its obnoxious character may be discerned.” Brewer further denied that Grimm had been entrapped. Although Robert W. McAffee, the person who had written
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to Grimm under assumed names, was a post office inspector and an agent of the Western Society for the Suppression of Vice, his purpose had not been “to induce or solicit the commission of a crime” but “to ascertain whether the defendant was engaged in an unlawful business.” Brewer cited precedents related to illegal gaming and the purchase of lottery tickets to buttress his arguments. He concluded that the defendant violated the law when “he placed letters in the post-office which conveyed information as to whether obscene matter could be obtained” regardless of the recipient. By contrast, in Jacobson v. United States (1992), the Supreme Court ruled that the government had entrapped a defendant to whom it sent repeated mailings advertising materials whose purchase would violate the Child Protection Act of 1984. United States v.Williams (2008) addresses a similar issue, albeit involving charges of “pandering” of child pornography on the Internet. See also Comstock Act of 1873; Mail; Obscenity and Pornography; Rosen v. United States (1896).
John R.Vile
furthe r reading Blanchard, Margaret A., and John E. Semonche. “Anthony Comstock and His Adversaries: The Mixed Legacy of This Battle for Free Speech.” Communication Law and Policy 11 (2006): 317–366. Harrison, Jack B. “Case Note: The Government as Pornographer: Government Sting Operations and Entrapment.” University of Cincinnati Law Review 61 (1993): 1067–1096.
Griswold v. Connecticut (1965) In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court invalidated a Connecticut law that made it a crime to use birth control devices or to advise anyone about their use. Relying in part on penumbras from the First Amendment, this landmark decision elaborated the right to privacy that subsequently became the basis for the Court’s abortion decision in Roe v.Wade (1973). The law in question was a holdover from the Comstock era, but Connecticut chose to apply it in the case of Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and the group’s licensed physician, Dr. C. Lee Buxton, who had prescribed birth control devices to married women. Writing for the majority, Justice William O. Douglas began with a review of cases, many of them highlighting that the First Amendment protected such collateral rights as the
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Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Cornelia Jahncke, president of the Planned Parenthood League of Connecticut, celebrate the Supreme Court’s decision in Griswold v. Connecticut (1965), invalidating the state’s anticontraception law.
right of association, the right to educate one’s children, as well as “the right to read . . . and freedom of inquiry, freedom of thought, and freedom to teach.” Of note, he cited Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and NAACP v. Alabama (1958) in suggesting “that specific guarantees in the Bill of Rights have penumbras [shadows], formed by emanations from these guarantees that help give them life and substance.” Douglas proceeded to link the First Amendment rights to provisions in the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to formulate a right of privacy adequate to protect married couples preferring to use birth control. In concurring opinions, Justice Arthur J. Goldberg relied on the Ninth Amendment and its idea of “unenumerated” rights, and Justice John Marshall Harlan II relied on the due process clause of the Fourteenth Amendment to establish a right to privacy. Justice Byron R.White also focused on the role of due process in protecting marital privacy. In his dissent, Justice Hugo L. Black classified Connecticut’s law as “offensive” but constitutional. He argued that a violation of the First Amendment would have occurred if Connecticut had convicted the doctor simply for conveying advice about contraceptives. He, however, distinguished speech from conduct, stating,“Merely because some speech was used in carrying on that conduct . . . we are not in my view justified in holding that the First Amendment
prohibits the State to punish their conduct.” He further asserted that the right of privacy required an involvement of courts to enforce natural law that was at odds with their constitutional mandate.Also in dissent, Justice Potter Stewart stated that the Connecticut statute was “an uncommonly silly law” but could find nothing in the First Amendment or other constitutional provisions to invalidate it. See also Black, Hugo L.; Comstock Act of 1873; Douglas,William O.; Meyer v. Nebraska (1923); NAACP v. Alabama (1958); Pierce v. Society of Sisters (1925); Privacy.
John R.Vile
furthe r reading Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v.Wade. New York: Macmillan Publishing Co., 1994. Johnson, John W. Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy. Lawrence: University Press of Kansas, 2005.
Griswold, Erwin As solicitor general of the United States, Erwin Nathaniel Griswold (1904–1994) argued unsuccessfully, in New York Times Co. v. United States (1971), that the publication of the Pentagon Papers threatened the security of the United States and that security concerns outweighed the constitutional
Grosjean v. American Press Co. (1936) rights of a free press. As solicitor general, Griswold also argued the reportorial privilege case of United States v. Caldwell, one of several cases collectively consolidated and known as Branzburg v. Hayes (1972). Griswold was born in East Cleveland, Ohio. After graduating from Harvard Law School in 1928, he worked in the Office of the Solicitor General of the United States as a staff attorney. From 1929 to 1934 he was a special assistant to the attorney general. He then taught at Harvard Law School, where he was dean from 1946 to 1967. In 1967 President Lyndon B. Johnson appointed him to serve as solicitor general. Richard M. Nixon asked him to remain in this position after he became president in 1969. In 1971 the New York Times began to publish sections of a top-secret Defense Department study known as the Pentagon Papers, which Daniel Ellsberg, one of its authors, had leaked to the press.The study, comprising 4,000 pages of documents and 3,000 pages of analysis, disclosed America’s political and military involvement in Vietnam from 1945 to 1967. The documents detailed air strikes over Laos, raids along the border of North Vietnam, and offensive military actions taken before government leaders had informed the American public of their actions. All of this had transpired while President Johnson’s administration was promising not to expand America’s involvement in the Vietnam War. In response to the publication of the Pentagon Papers by the New York Times, President Nixon and his attorney general, John Mitchell, obtained a court order requiring the newspaper to discontinue publication of the report. The Washington Post, which also had received a copy of the study, began to publish the documents, and it too received an injunction requiring it to cease publication of the Pentagon Papers. Both newspapers appealed, and the Supreme Court decided to hear both cases under New York Times Co. v. United States. In his defense of the federal government, Griswold argued that continued publication of the documents would cause a “grave and immediate danger to the security of the United States.” In a 6-3 ruling in the case, the Supreme Court found that the injunctions imposed on the newspapers infringed on the First Amendment right to a free press, because the government had not overcome the “heavy presumption against” prior restraint of the press. After resigning as solicitor general in 1973, Griswold joined a Washington, D.C., law firm. While in private practice he wrote an op-ed article for the Washington Post, acknowledging that the release of the Pentagon Papers had
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not threatened the government and asserting that the public should view government demands for secrecy skeptically. See also Branzburg v. Hayes (1972); Ellsberg, Daniel; New York Times Co. v. United States (1971); Nixon, Richard M.; Pentagon Papers; Prior Restraint; Reporters’ Privilege; Shield Laws;Vietnam War.
Gene C. Gerard
furthe r reading Pruitt, Lisa.“Griswold, Erwin Nathaniel.” In Great American Lawyers:An Encyclopedia, ed. John R. Vile, 1:302–310. Santa Barbara, Calif.: ABC-CLIO, 2001. Rudenstine, David. The Day the Presses Stopped:A History of the Pentagon Papers Case. Berkeley: University of California Press, 1998.
Grosjean v. American Press Co. (1936) In Grosjean v. American Press Co., 297 U.S. 233 (1936), citing the free press clause of the First Amendment, the Supreme Court invalidated a Louisiana law that imposed a 2 percent tax on the gross receipts of newspapers with circulations of more than 20,000 copies per week. The law had been adopted in 1934, under the influence of Sen. Huey Long, a former governor who maintained control over the legislature after being elected as a U.S. senator in 1932.Thirteen papers qualified for the tax, and twelve of them charged that it was largely intended to punish the students at Louisiana State University, whose newspaper had published editorials criticizing Long. Earlier, in Near v. Minnesota (1931), the Supreme Court had ruled that the due process clause of the Fourteenth Amendment incorporated the liberty of the press as outlined in the First Amendment. In Grosjean, the Court found the Louisiana law also violated the Fourteenth Amendment. Writing for a unanimous Court, Justice George Sutherland classified the tax as a “license tax.”As such, it served to curtail advertising from revenue and to restrict circulation. He traced such taxes from John Milton’s 1644 “Appeal for the Liberty of Unlicensed Printing,” through a century of opposition to a parliamentary tax adopted in 1712 during the reign of Queen Anne, and then to the American colonists’ opposition to the Stamp Act of 1765 and to opposition in Massachusetts to a 1785 stamp tax on newspapers and magazines. He concluded that “the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists” or embodied within the First Amendment.
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Although Near had focused on the strong presumption against prior restraint, Grosjean emphasized other dimensions in the protection of freedom of the press. Sutherland agreed that newspapers should not be “immune from any of the ordinary forms of taxation for support of the government”—a position the Court later affirmed in Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983)—but he then concluded that the tax in this case interfered with the role of the press “as a vital source of public information.” Sutherland further observed that Louisiana’s tax was the only one of its kind in U.S. history to be enacted. In conference, the justices had apparently initially decided to resolve this case on free exercise grounds, but a proposed concurrence by Benjamin N. Cardozo had steered the Court in the direction of due process instead (Cortner 1996: 165). Arguing at the end of the opinion that this reliance made it unnecessary to examine the equal protection aspects of the case, Sutherland observed that the “form” of the tax was suspicious in that it was not measured by the volume of advertisements but by “the extent of the circulation of the publication in which the advertisements are carried.” See also Milton, John; Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983); Near v. Minnesota (1931); Prior Restraint; Stamp Act.
John R.Vile
furthe r reading Cortner, Richard. The Kingfish and the Constitution: Huey Long, the First Amendment, and the Emergence of Modern Press Freedom in America. Westport, Conn.: Greenwood, 1996.
Group Libel Since the early twentieth century, the concept of group libel has coexisted uneasily with the First Amendment’s overarching emphasis on individual speech rights.The idea that it is socially desirable to minimize defamation of an entire group of people has effectively taken a back seat to the preservation of the individual right of self-expression. The American law of libel is rooted in English common law, particularly its ban on seditious libel. In England, criticism of the monarch and the monarch’s government was a crime, as was speech (oral or published) whose purpose was to foment discontent and discord among the people. By stamping out defamation of particular groups, the government could simultaneously maintain order and uphold polit-
ical loyalties. The American Revolution conferred a new sense of legitimacy on political protest and engendered a broader tolerance for libelous speech. Prosecutions of criminal libel dropped off considerably after independence, and President John Adams’s reinvigoration of seditious libel in the Sedition Act of 1798 confined him to one term. Throughout the nineteenth century, the smaller or narrower the subject of the defamation, the easier it was for individuals to win civil libel cases. Still, there were significant obstacles to winning such suits. Members of a defamed group were generally denied standing to sue on behalf of the group, and members of racial or religious groups almost never succeeded in establishing their right to sue.The law of individual libel required that the defamer had caused pecuniary damage to individuals, making it difficult for anyone to prove that language that defamed a group also caused legally recognizable harm to an individual. The most important factor in changing the legal landscape of group libel was the sharp rise in Jewish immigration to the United States between 1880 and 1920. Jews were denied welcome at hotels, resorts, public accommodations, and schools; exacerbating that insult, resort owners began openly advertising their policies in order to attract elite guests. In 1907 a hotel in Atlantic City, New Jersey, declined accommodations to a prominent American Jewish woman. She complained to Louis Marshall, a lawyer and president of the American Jewish Committee. Marshall drafted a law that barred the printed advertising of discrimination in public accommodations on the basis of race, color, or creed. Enacted in 1913, this statute did not require hoteliers to rent rooms to all comers but prohibited the publication and dissemination of statements that advocated discriminatory exclusion. By 1930 seven states had adopted versions of the New York statute, making group rights a nascent category in First Amendment law. Throughout the 1930s the laws remained untested in the courts. Marshall apparently preferred to field inquiries from resort owners about the legalities of their advertisements than to file lawsuits. A famous libel lawsuit brought by Aaron Sapiro, a lawyer, against Henry Ford in 1927 over anti-Semitic articles in Ford’s Dearborn Independent and a book entitled The International Jew demonstrated that group libel remained an ineffective basis for damage claims. Still, Ford’s apology to “Jews everywhere” implicitly recognized the symbolic power of group libel. After World War II and the Holocaust, American courts showed some willingness to tolerate restrictions on speech.
Grove Press v. Maryland State Board of Censors (1971) In Beauharnais v. Illinois (1952), the Supreme Court upheld the conviction, under an Illinois group libel statute, of an individual who circulated a petition protesting the incursion of blacks into white neighborhoods. The Court has treated that precedent with tepid enthusiasm ever since, giving speech expressing racial hatred essentially the same protection as “other speech that causes ordinary offense or anger.” No broad conception of group rights emerged in libel cases against newspapers (New York Times Co. v. Sullivan [1964]); cases striking down municipal hate speech regulations (R.A.V. v. St. Paul [1992]); or cases challenging campus hate speech codes. A notable exception occurred in Virginia v. Black (2003), when the Court held that cross burnings done with the intent to intimidate were not protected speech because they are universally understood as an attack upon an entire race. Nevertheless, group libel remains a fringe category in U.S. law.
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publish Tropic of Cancer despite the ban and to pay all legal expenses.The book, released in 1961, became a bestseller and was quickly a target of state and local censors. By the time the Supreme Court decided Grove Press, the book had been involved in nearly 100 court cases. Grove Press argued a proposition before the Court first advanced by Harry Kalven Jr. of the University of Chicago Law School. Kalven offered that the ambiguities of the obscenity test in Roth v. United States (1957) could be invalidated if the Supreme Court were to establish as obscene only those sexually explicit communications “utterly without redeeming social value.” This phrase made its way into Justice William J. Brennan Jr.’s Jacobellis opinion, which the attorney for Grove Press heralded as “revolutionary doctrine.”The narrow majority willing to accept the case (four justices would have denied certiorari) believed that The Tropic of Cancer did have literary merits that separated it from other materials that had been deemed to be obscene.
See also Adams, John; Beauharnais v. Illinois (1952); Criminal Defamation; Cross Burning; Judaism; Libel and Slander; New York Times Co. v. Sullivan (1964); R.A.V. v. St. Paul (1992); Sedition Act of 1798; Seditious Libel;Virginia v. Black (2003).
See also Grove Press v. Maryland State Board of Censors (1971); Jacobellis v. Ohio (1964); Kalven, Harry, Jr.; Obscenity and Pornography; Roth v. United States (1957).
Victoria Saker Woeste
Roy B. Flemming
furthe r reading Riesman, David. “Democracy and Defamation: Control of Group Libel.” Columbia Law Review 42 (1942): 727–780. Rosenberg, Norman L. Protecting the Best Men:An Interpretive History of the Law of Libel. Chapel Hill: University of North Carolina Press, 1986. Schultz, Evan P. “Group Rights, American Jews, and the Failure of Group Libel Laws, 1913–1952.” Brooklyn Law Review 66 (2000): 71–145. Sunstein, Cass R. Democracy and the Problem of Free Speech. New York: Free Press, 1993. Walker, Samuel. Hate Speech: The History of an American Controversy. Lincoln: University of Nebraska Press, 1994.
Grove Press v. Gerstein (1964) In Grove Press v. Gerstein, 378 U.S. 577 (1964), the Supreme Court rejected a Dade County, Florida, ban of Henry Miller’s Tropic of Cancer, one of the most censored books in history. The Court handed down Grove Press in a singleparagraph per curiam opinion decided in tandem with Jacobellis v. Ohio, having decided both by a 5-4 vote and by the same reasoning. Grove Press, founded in 1949 and specializing in sexually explicit and politically controversial books, had offered to
furthe r reading Kincaid, Larry, and Grove Koger. “Tropic of Cancer and the Censors: A Case Study and Bibliographic Guide to the Literature.” Reference Services Review 25 (1997): 31–38, 46. Rembar, Charles. The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill. New York: Random House, 1968.
Grove Press v. Maryland State Board of Censors (1971) In Grove Press v. Maryland State Board of Censors, 401 U.S. 480 (1971), the Supreme Court let stand an appeals court decision banning the film I Am Curious (Yellow) on the grounds of obscenity. Obscene material is not protected by the First Amendment. I Am Curious (Yellow), made by Swedish director Vilgot Sjornan in 1967, contained full nudity and explicit sexual scenes.Although the film was wildly popular with European critics and viewers, in the United States the public was divided between those who found it obscene and offensive and others who considered it monumental and revolutionary. According to the Maryland State Board of Censors, a film had to meet three criteria to be considered obscene: the main theme had to be entirely sexually based, the material
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had to be offensive to the general public because of the sexual content, and it had to have no social importance or relevance. Grove Press, a publisher of politically controversial and sexually explicit literary works and distributor of foreign films, challenged Maryland officials’ decision to ban the film. Grove Press was no stranger to high-profile censorship battles, having published Henry Miller’s Tropic of Cancer and won a narrow decision preventing censorship of this book in Grove Press v. Gerstein (1964). With Justice William O. Douglas not participating, the Supreme Court split evenly, 4-4, with half the justices voting to uphold the Maryland ban and half holding that the state could not prohibit the film from being shown to consenting adults. Because of the tie vote, the lower court’s ban remained in place by default. The portion of Maryland’s obscenity guidelines concerning social importance or relevance particularly divided the justices and created dissenting opinions. Some thought the film contained socially and politically relevant themes regarding the effect a young girl can have on her society by questioning and challenging social norms; others, however, thought the film had no merit whatsoever. I Am Curious (Yellow) eventually opened the doors for more sexually explicit films to be shown, and made, in the United States. The Court established criteria for judging such films and other productions in Miller v. California (1973) and Paris Adult Theatre I v. Slaton (1973). See also Grove Press v. Gerstein (1964); Miller v. California (1973); Obscenity and Pornography; Paris Adult Theatre I v. Slaton (1973).
Kimberly Marks with Walter Huber
furthe r reading De Grazia, Edward. Girls Lean Back Everywhere. New York: Vintage Books, 1993. Sjoman, Vilgot. “I Am Curious (Yellow)”: The Complete Scenario of the Film by Vilgot Sjoman. New York: Grove Press, 1968.
government’s asserted national security interests and the New York Times’s First Amendment rights. This important ruling, which was upheld by the Supreme Court in New York Times Co. v. United States (1971), established a high bar against prior restraints even in the face of national security claims. A native of New York City, Gurfein earned an undergraduate degree from Columbia College in 1926 and a law degree from Harvard in 1930. After serving as a law clerk to Judge Julian Mack of the Seventh Circuit Court of Appeals, he worked as an assistant U.S. attorney for the Southern District of New York for two years. He then worked in private practice before serving as deputy assistant district attorney for New York County. He served in the U.S. Army as a lieutenant colonel during World War II and, in 1945, assisted Supreme Court justice Robert Jackson at the Nuremberg trials before returning to private practice in New York City. In June 1971, a month after Gurfein was confirmed as a federal district court judge, the New York Times began printing what became known as the Pentagon Papers, a set of secret documents about the government’s involvement in Vietnam. On June 15 Gurfein granted a temporary restraining order halting publication, but on June 19 he denied the government’s request for a preliminary injunction. He wrote in oft-cited language: “The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.” Despite the ruling, President Richard M. Nixon nominated Gurfein to the Second Circuit Court of Appeals in 1974. The Senate confirmed him, and he served as a judge in this court until his death. See also Abrams, Floyd; New York Times Co. v. United States (1971); Nixon, Richard M.; Pentagon Papers; Prior Restraint.
David L. Hudson Jr.
Gurfein, Murray Irwin
furthe r reading
Murray Irwin Gurfein (1907–1979), a distinguished lawyer and federal jurist, was best known for his ruling as a district court judge in the Pentagon Papers case, a clash between the
Abrams, Floyd. Speaking Freely:Trials of the First Amendment. New York: Viking Press, 2005. Oakes, James L.“Judge Gurfein and the Pentagon Papers.” Cardozo Law Review 2 (1980) 5–14.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
H
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 REDRESS OF GRIEVANCES.
Hague v. Committee for Industrial Organization (1939) In Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), the Supreme Court ruled that banning a group of citizens from holding political meetings in a public place violated the group’s freedom to assemble under the First Amendment. The case helped set the precedent for what is now known as the public forum doctrine, a tool used by courts to determine the constitutionality of speech restrictions implemented on government property, when it secured the right of access to public places for citizens engaging in free speech and free assembly. The issue in Hague was whether a Jersey City ordinance prohibiting a group of citizens from meeting in a public place to discuss and distribute literature relating to the National Labor Relations Act without a permit violated the First and Fourteenth Amendments. Mayor Frank Hague referred to the group as “communist” and a danger to the city. The Committee for Industrial Organization (CIO), with support from the American Civil Liberties Union, sought an injunction against Hague claiming a denial of First Amendment rights. The lower federal courts ruled in favor of the CIO, and Hague appealed to the Supreme Court. The Supreme Court upheld the lower court’s decision, but the justices disagreed on the reasoning. Justice Owen Roberts, writing for the Court, invoked the privileges and immunities clause of the Fourteenth Amendment to argue against state abridgement of the rights of assembly and petition. He reasoned that streets, parks, and public places belong to citizens and must be protected as public forums. While
expression in public ideas may be regulated in a nondiscriminatory manner, expression cannot be prohibited.“The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” Justice Harlan Fiske Stone, concurring, found that the due process clause of the Fourteenth Amendment provided this protection and thus aliens as well as citizens could claim the rights of assembly and petition. Consistent with subsequent Court decisions in Cox v. New Hampshire (1941) and Edwards v. South Carolina (1963), Stone argued that the due process clause effectively incorporated the rights of assembly and petition, as well as freedoms of speech and press, of the First Amendment. This decision marked the first time that the Court used the First Amendment to protect labor organizations. It also curtailed arbitrary regulations by local officials and overturned the precedent that held that government ownership of land such as streets and parks gave public officials the same authority over public space as private landlords have over their private property. As a result, public officials could not issue complete denials of access to public spaces. Thus, this case was a significant source for the public forum doctrine. See also Cox v. New Hampshire (1941); Edwards v. South Carolina (1963); Public Forum Doctrine.
Lynne Chandler Garcia
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furthe r reading Kaplan, Benjamin. “The Great Civil Rights Case of Hague v. CIO: Notes of a Survivor.” Suffolk University Law Review 25 (1991). “3000 Veterans Back Hague Fight on C.I.O.” New York Times, December 29, 1937.
Haig v. Agee (1981) In Haig v. Agee, 453 U.S. 280 (1981), the Supreme Court ruled that the executive branch’s power to revoke passports in matters of national security is a matter of discretionary authority to which the courts should defer, even in cases where individuals might be claiming that their right to travel was tied to their exercise of First Amendment freedoms. The case raises and answers questions regarding revocation of the right to travel in order to prevent speech deemed harmful to national security. The Court’s ruling is seen by some as conflating issues of speech and conduct under the guise of protecting vital national interests. Philip Agee, an American citizen and former CIA agent, vowed “to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating.” He traveled to various countries, collected information from former contacts, and subsequently disclosed the identities of agents and front organizations, flouting secrecy agreements he had signed as a CIA employee. In 1979 the secretary of state revoked Agee’s passport because his “activities abroad are causing or likely to cause serious damage to the national security or the foreign policy” of the United States. Agee filed suit claiming that the secretary of state had exceeded his authority under the Passport Act of 1926 when identifying grounds for passport revocation, that Congress had not authorized the regulation, and that the regulation was overbroad. He also claimed that the revocation of his passport violated his Fifth Amendment right to travel and his First Amendment right to criticize government policies. Both the district court and the court of appeals ruled in Agee’s favor. Neither thought that law granted the secretary of state the discretion that he had exercised. Chief Justice Warren E. Burger wrote the 7-2 majority opinion for the Supreme Court overturning the lower courts’ rulings.The majority held that the executive branch has the discretionary authority to revoke passports and that the courts, like Congress, should defer to the executive. Justice William J. Brennan Jr. dissented because of concerns that the unrestrained exercise of discretionary authority
could punish citizens who merely criticized U.S. foreign policy. Burger replied:“The mere fact that Agee also engaged in criticism of the government does not render his conduct beyond the reach of the law.” Burger further argued that “no governmental interest is more compelling than the security of the nation.” In support of this claim, he cited language in Snepp v. United States (1980), highlighting the government’s “compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” See also Brennan,William J., Jr.; Burger,Warren E.; Snepp v. United States (1980).
Richard Parker
furthe r reading Bullock, Joan R. M. “National Security Interests vs. the First Amendment: Haig v. Agee.” Toledo Law Review 13 (1982): 1437–1467. Volokh, Eugene. “Crime-Facilitating Speech.” Stanford Law Review 57 (2005): 1085–1222.
Hair The rock musical Hair, which opened on Broadway in 1968, after premiering off Broadway the previous year, was a harbinger of the changes taking place in American culture.The production included nudity, obscene language, and attacks on the Vietnam War. The First Amendment issues that it raised sent two cases to the Supreme Court. The Broadway success of Hair, which won the 1969 Tony awards for best musical and best production of a musical, led to the creation of other companies to perform the show. A proposed 1970 Boston production led to a battle over censorship when the official city censor raised concerns that it might offend Bostonians. The Supreme Judicial Court of Massachusetts ruled that the production could proceed only if the actors were clothed and did not simulate sex.The producers of the play filed a lawsuit in federal district court, contending a violation of their First Amendment rights.The district court issued an injunction, prohibiting the district attorney from shutting down the musical.The district attorney appealed to the Supreme Court, which voted 4-4 in P.B.I.C., Inc. v. Byrne (1970) to deny a stay of this injunction. A few years later Hair played a return engagement at the Supreme Court. In Southeastern Promotions, Ltd. v. Conrad (1975), the Court rejected the denial by a municipal board
Hair Length and Style in Chattanooga, Tennessee, of the use of a city facility for a production of Hair. The Court’s opinion, written by Justice Harry A. Blackmun, found that the municipal rejection constituted an unconstitutional prior restraint. See also Censorship; Obscenity and Pornography; Prior Restraint; Southeastern Promotions, Ltd. v. Conrad (1975).
Howard Leib
furthe r reading “Gerald Berlin and Defending Hair: An Overview of the Boston Hair Case.” www.orlok.com/hair/holding/articles/HairArticles/Boston Berlin.html. Livingston, Guy. “Hub Hair May Reopen Tonight (Wed) Unless Supreme Court Judge Steps In.” Variety, May 13, 1970.
Hair Length and Style Generally employers may set standards for their employees’ personal appearance, including their hair length and style, if the regulations are related to legitimate business or governmental objectives. Employers, school officials, and prison administrators have given a number of reasons for regulations determining hair length and hair styles; among them are identification, safety, hygiene, and appropriateness. Nevertheless, such regulations have led to First Amendment battles, with litigants in several cases challenging these policies for being discriminatory or for violating individuals’ rights to freedom of expression or the free exercise of religion. In Kelley v. Johnson (1976), the Supreme Court addressed the constitutionality of grooming codes in a police department. The Court held that hair grooming requirements were legitimate ways of helping to make police officers more easily identifiable to the general public and of helping to maintain esprit de corps within the police force. No absolute First Amendment protections apply to one’s choice of personal appearance, including hair length and style. The lower courts are divided on whether elementary or secondary school students receive constitutional protection for their hair length and style as symbolic speech. The Seventh Circuit Court of Appeals was receptive to the claim of male high school students contesting regulations regarding hair length in Arnold v. Carpenter (7th Cir. 1972), while the Fifth Circuit rejected a similar claim in Karr v. Schmidt (5th Cir. 1972). Some courts have determined that the regulation of hair styles is a First Amendment free expression issue. In 1999, after a suburban school in Richmond,
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Virginia, sent an eighth-grade girl home because of her pink hair and long dress, her parents threatened a federal lawsuit. When the American Civil Liberties Union intervened, the school backed down and did not enforce its grooming regulations. Schools must give a compelling reason, such as interference with an educational function, for regulating personal appearance. Other challenges in federal courts argued that hair regulations infringe upon the First Amendment right to free exercise of religion. Courts have ruled that correctional officers may be subject to hair grooming policies if the state justifies its regulations with compelling interests such as safety, discipline, and esprit de corps and if the regulations do not substantially infringe upon an employee’s religious beliefs. Prisoners have also challenged hair grooming policies as impediments to the free exercise of religion. Prison officials, however, have claimed that hair grooming policies are necessary for hygiene, for identification of prisoners, and for prison security, in that some hairstyles might conceal weapons and contraband. Generally the courts have held that if a grooming regulation is related to a legitimate interest, such as prison security, and does not deprive inmates of all ways of expressing their religious beliefs, the regulation is valid. However, prison officials are held to a higher standard when the inmate challenges a prison’s grooming policy under the Religious Freedom Restoration Act of 1993 or the Religious Land Use and Institutionalized Persons Act of 2000. The Ninth Circuit Court of Appeals, in Warsoldier v. Woodford (9th Cir. 2005), issued a preliminary injunction shielding a Native American, whose religious beliefs prohibited him from cutting his hair except for the death of a close relative, against a prison regulation prohibiting hair of more than three inches in length. Some jurisdictions have enacted laws prohibiting appearance discrimination.Washington, D.C., prohibits discrimination on the basis of an individual’s outward bodily appearance, which could include hairstyle. Santa Cruz, California, passed a similar statute forbidding discrimination based on physical characteristics. In Madison, Wisconsin, a statute gives protected class status to physical appearance, including hairstyle, except when it may conflict with a reasonable business objective. Laws such as these indicate changing public attitudes toward state regulation of personal appearance. See also Kelley v. Johnson (1976); Prisons; Students, Rights of.
Ruth Ann Strickland
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Gamez, Higinio. “Son, Get a Haircut or Leave My School? Hair Length Restrictions for Male Students Upheld by Texas Supreme Court in Barber v. Colorado Independent School District.” Thurgood Marshall Law Review 21 (Spring 1996): 185–209. Rasnic, Carol Daugherty. “Pornographic Movies, Obscene Books, Fighting Words, and Pink-Haired Students: Constitutional Freedom of Expression and Some Comparisons with Irish Constitutional Law.” Seton Hall Constitutional Journal 11 (Spring 2001): 375–428. Schneider, Mara R. “Splitting Hairs: Why Courts Uphold Prison Grooming Policies and Why They Should Not.” Michigan Journal of Race and Law 9 (Spring 2004): 503–541. Waldman, Joshua. “Symbolic Speech and Social Meaning.” Columbia Law Review 97 (October 1997): 1844–1894.
Goldstein, Robert Justin. Burning the Flag: The Great 1989–1990 American Flag Desecration Controversy. Kent, Ohio: Kent State University Press, 1996.
Halter v. Nebraska (1907) Written at a time before First Amendment protections of freedom of speech were applied to the states, the Supreme Court decision in Halter v. Nebraska, 205 U.S. 34 (1907), upheld a Nebraska state law that punished an individual for printing the American flag on a bottle of beer. Litigants had challenged Nebraska’s law, which made it a misdemeanor to use the flag for advertising purposes, as an improper concern for the state and as discrimination, since it permitted the printing of flags in noncommercial contexts. Writing both prior to the application of the First Amendment to the states and to the development of protections for commercial speech, Justice John Marshall Harlan I decided that the state law in question did not conflict with any existing federal laws, and states had the right to legislate on the subject as a means of maintaining the flag “as an emblem of National power and National honor.” Arguing that if some could use the flag to advertise, then all might be able to do so, Harlan did not think it was discriminatory to bar all businesses alike from such usages. Modern cases involving flag desecration have focused on political protest rather than on advertising. The modern Supreme Court has respectively struck down the application of both state and federal flag desecration laws in cases involving flag-burning as a form of political protest in Texas v. Johnson (1989) and United States v. Eichman (1990). See also Commercial Speech; Flag Desecration; Harlan, John Marshall, I; Texas v. Johnson (1989); United States v. Eichman (1990).
John R.Vile
Hamilton v. Regents of the University of California (1934) In Hamilton v. Regents of the University of California, 293 U.S. 245 (1934), the Supreme Court upheld the right of states to require university students to receive military training. This was the first Court decision to declare that the free exercise clause of the First Amendment applied to state as well as to the federal government. The case arose when students who were members of the Methodist Episcopal Church and the Epworth League and their parents objected to a California law requiring that all students who attended the University of California had to receive instruction and discipline in military tactics. Writing for the majority, Justice Pierce Butler said that the state requirement did not interfere either with the students’ privileges and immunities as U.S. citizens or with their Fourteenth Amendment due process rights. Although the latter clause undoubtedly protected “the right to entertain the beliefs, to adhere to the principles and to teach the doctrines” that led them to object to military training, he did not think that the regulation impinged on such rights. Butler observed that United States v. Schwimmer (1929) and United States v. Macintosh (1931) had decided that the United States could deny citizenship to individuals who opposed bearing arms.Although he acknowledged that Congress had recognized the rights of conscientious objectors, he argued that such rights originated in these acts rather than being mandated by the Constitution. The fact that the University of California’s tuition was lower than at other schools was irrelevant. No one compelled students to attend, and if they wanted to attend, they needed to abide by the rules. Concurring, Justice Benjamin N. Cardozo noted that the Fourteenth Amendment applied the First Amendment guarantee of religious liberty to the states. He did not think the University of California requirements interfered with freedom of religion and as incorporated in such cases as Davis v. Beason (1890), especially since the policy did not require anyone to bear actual arms.The policy might be “unwise or illiberal or unfair,” but he observed that this did not make it unconstitutional: “Neither directly nor indirectly is government establishing a state religion when it insists upon such
Hamilton, Alexander training.” He noted that were the Court to recognize a right not to participate in such training, this might lead others to refuse to pay taxes to further war:“The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government.” See also Cardozo, Benjamin N.; Conscientious Objection to Military Service; Davis v. Beason (1890); Federalism; United States v. Macintosh (1931); United States v. Schwimmer (1929).
John R.Vile
furthe r reading Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2003.
Hamilton, Alexander Alexander Hamilton (1755–1804), a lawyer, statesman, and founder of the Federalist Party, is remembered for his role in the formation and ratification of the Constitution, for his broad interpretations of federal power, and for the expansive economic programs (which included the establishment of a national bank) that he implemented as secretary of the Treasury under President George Washington. Hamilton and James Madison were the leading contributors to The Federalist Papers, a series of articles that argued for adoption of the federal Constitution. Hoping to forestall ratification of the new Constitution, Hamilton had used these essays to argue that a bill of rights, including protections of freedom of speech and press, was unnecessary, since the new Constitution was not vesting the federal government with power over these rights. Hamilton’s initial opposition to adoption of the Bill of Rights and subsequent support of the Alien and Sedition Acts of 1798 have sometimes overshadowed his life-long concern with the individual liberties guaranteed by the First Amendment. Although Hamilton was critical of some aspects of the Alien and Sedition laws, he supported their general principles and urged vigorous enforcement of them. Born in the West Indies, Hamilton moved to the North American colonies in 1772. He studied at King’s College (now Columbia University) in New York and served as a captain in the Revolutionary War, becoming an aide to Washington. Although he fought the British during the Revolution, after the war he defended the rights of Tories against loyalty tests and property confiscations. He warned that the modern trend toward liberty could be reversed if the
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United States became politically intolerant. This danger seemed remote until the French Revolution introduced novel forms of both political and religious intolerance. Political opportunism no doubt played a role in their thinking, but during the “quasi-war” with France, 1798–1800, Hamilton and other Federalists saw the military and ideological threats from the world’s only other large republic as substantial enough to require the enactment of a sedition law. Hamilton’s most extensive discussion of seditious libel is found in People v. Croswell (N.Y. 1804), in which Hamilton appeared before the Supreme Court of New York arguing for the defendant, Harry Croswell. Croswell had been charged with criminal libel for his role in the publication of charges that Thomas Jefferson, then vice president, had paid James Callender to print stories maligning Washington as a traitor and John Adams as a “hoary headed incendiary.” Croswell’s prosecution was part of a Republican effort to rein in Federalist critics. Elevating the case into one of seditious libel, Hamilton made three arguments to refute the widely held views that the common law did not admit truth as a defense and limited juries to deciding on the fact of publication. First, the true common law of England and New York understood liberty of the press as “the right to publish with impunity Truth with good motives for justifiable ends though reflecting on Govt. Magistracy or Individuals.” Second, the true common law gave juries the right to determine the facts, including the questions of truth and intent, and to apply the law in light of the facts. Hamilton argued that the alternative view arose from a line of decisions originating in the Star Chamber, “a tyrannical and polluted source.” Hamilton’s last argument rested on political theory rather than precedent. The right to speak the truth with good motives about public officials is essential in the American system. “It is essential to say not only that the measure is bad and deleterious, but to hold up to the people who is the author, that, in our free and elective government, he may be removed from the seat of power. If this not be done, then in vain will the voice of the people be raised against the inroads of tyranny.” Hamilton did not go as far as Madison in wanting to do away with seditious libel entirely. He defined libel as a “slanderous or ridiculous writing, picture or sign, with a mischievous or malicious intent towards government, magistrates or individuals.” Hamilton thought it necessary to protect public officials from libel so as to preserve the confidence in government necessary for its effectiveness. Furthermore,“the spirit of abuse and calumny . . . the pest of society” if
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unchecked would “put the best and the worst on the same level” thereby depriving voters of the ability to make an informed choice. Hamilton failed to convince the court regarding the “true” common law of libel and lost the Croswell case. But his position became almost immediately the law of New York and later, in 1821, part of its constitution. The Hamiltonian principle of press liberty was adopted by some twenty-four other states and remained influential until the 1960s, when it was further liberalized by the Supreme Court decision in New York Times Co. v. Sullivan (1964). Despite his brilliant career, Hamilton’s life was cut short by a duel with Aaron Burr in 1804. Ironically, the bad blood between them stemmed in part from Hamilton’s decision to support Jefferson over Burr, when the two tied in the presidential election of 1800. See also Hay, George; Jefferson,Thomas; Madison, James; New York Times Co. v. Sullivan (1964); People v. Croswell (N.Y. 1804); Sedition Act of 1798; Seditious Libel.
Peter McNamara
furthe r reading Chernow, Ron. Alexander Hamilton. New York: Penguin, 2004. Meyerson, Michael I. Liberty’s Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World. New York: Basic Books, 2008. Smith, James Morton. Freedom’s Fetters:The Alien and Sedition Laws and American Civil Liberties. Ithaca: Cornell University Press, 1956. Walling, Karl. Republican Empire: Alexander Hamilton on War and Free Government. Lawrence: University Press of Kansas, 1999.
Hamling v. United States (1974) In Hamling v. United States, 418 U.S. 87 (1974), the Supreme Court upheld the conviction of several individuals, including William L. Hamling, for their role in distributing advertisements of the book The Illustrated Presidential Report of the Commission on Obscenity and Pornography. The decision afforded defendants less leeway to challenge convictions based on jury instructions regarding community standards and allowed convictions for obscenity under the First Amendment, provided defendants know the general content and character of the material. Hamling and others had mailed brochures advertising the book with depictions of individuals engaged in a variety of sexual acts including masturbation and various forms of sodomy. A jury had found the pictures to be obscene. A federal district court found the defendants guilty on twelve counts in December 1971, and the Ninth Circuit
Court of Appeals affirmed in June 1973. The Court of Appeals reviewed the convictions after the Supreme Court’s intervening decision in Miller v. California (1973) and again affirmed the convictions. On appeal, the Supreme Court affirmed by a narrow 5-4 vote.Writing for the majority, Justice William H. Rehnquist rejected the defendants’ arguments that their convictions should be invalidated because they were convicted under obscenity standards issued before the Miller obscenity decision. Instead, the defendants were convicted under the older standard articulated in Memoirs v. Massachusetts (1966). However, Rehnquist pointed out that the Miller standard actually made it easier for prosecutors to establish obscenity than the previous Memoirs test. Rehnquist also rejected the defendants’ arguments that they could not be convicted unless the prosecution introduced expert testimony as to the obscenity of the advertisement in question.They argued that their convictions should be set aside because the trial judge instructed the jury that they could judge the advertisement under a national standard of obscenity, a concept that the Court rejected in Miller in favor of local standards. Rehnquist wrote that the Court’s holding in Miller that “California could constitutionally proscribe obscenity in terms of a ‘statewide’ standard did not mean that any such precise geographic area is required as a matter of constitutional law.” He reasoned that the jury instructions with reference to “the nation as a whole” did not materially prejudice the defendants in this case. The defendants also argued that they could not be convicted unless the prosecution showed that they knew the material in question was legally obscene. Rehnquist noted that it was “constitutionally sufficient that the defendant knew about the contents . . . the character and nature of the materials” he distributed. Rehnquist wrote, “To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law.” Justice William O. Douglas dissented, pointing out that the advertisement in question only provided visual summaries of the content of the national presidential report on obscenity.“If officials may constitutionally report on obscenity, I see nothing in the First Amendment that allows us to bar the use of a glossary factually to illustrate what the report discusses,” he wrote. Also dissenting were Justices William J. Brennan Jr., Potter Stewart, and Thurgood Marshall. Brennan reiterated his dissenting view in Paris Adult Theatre I v. Slaton (1973) that
Hand, Learned obscenity laws by their nature were too vague to satisfy constitutional standards. He argued that the defendants’ due process rights were violated by the trial judge’s refusal to allow them to offer evidence of local community standards: “To affirm their convictions without affording them opportunity to try the case on the ‘local’ standards basis is a clear denial of due process.” See also Brennan,William J., Jr.; Community Standards; Douglas, William O.; Memoirs v. Massachusetts (1966); Miller v. California (1973); Obscenity and Pornography; Paris Adult Theatre I v. Slaton (1973); Rehnquist,William H.
David L. Hudson Jr.
furthe r reading Clark, Joseph T.“The ‘Community Standard’ in the Trial of Obscenity Cases—A Mandate for Empirical Evidence in Search of the Truth.” Ohio Northern University Law Review 20 (1993): 13–56.
Hand, Learned Billings Learned Hand (1872–1961), who served as a federal district and appellate judge for more than fifty years, had enormous influence on the understanding of the law in the United States and, specifically, of the First Amendment. Even though he was never appointed to the Supreme Court, Hand gained wide acclaim, in large part from writing features for popular magazines, including Life and Reader’s Digest, as well as for important legal decisions and writings. Legal giants, among them Justice Oliver Wendell Holmes Jr., were impressed by his skill, both legal and linguistic. After graduating from Harvard Law School in 1896, Hand returned to Albany, New York, his hometown. He joined a small law firm there but later moved to New York City to practice law. Disenchanted with private practice, he joined the local Republican Party club in an attempt to obtain a federal judgeship. In 1909 President William Howard Taft appointed him as a federal district judge. In 1927 Hand was appointed to the Second Circuit Court of Appeals. He was twice considered for a seat on the Supreme Court. Hand’s most influential opinion as a district judge was in Masses Publishing Co. v. Patten (S.D.N.Y. 1917), in which he ruled against a New York City postmaster and decided that use of the Espionage Act of 1917 to prevent political dissent violated the First Amendment’s protection of free speech. His opinion was later reversed. In 1934, as a judge on the federal court of appeals, Hand ruled that James Joyce’s novel Ulysses was not obscene and could be published in the
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United States.The Ulysses decision was an important precedent in censorship law. Hand’s most famous ruling as an appeals judge was United States v. Dennis (2d Cir. 1950), which the Supreme Court affirmed in Dennis v. United States (1951), upholding the convictions of Eugene Dennis and other founders of the Communist Party of the United States under the Smith Act of 1940.The Smith Act, the first peacetime sedition act since 1789, made it a criminal offense to advocate or teach the doctrine of the violent overthrow of the government. Printing, publishing, or distributing materials advocating revolutionary violence or organizing a group that advocated the violent overthrowing of the government was illegal. Hand ruled that the Smith Act was a legitimate use of congressional power. Some argue in that in Dennis he unduly disregarded the clear and present danger test. In this decision, he noted that the test was dependent upon the “gravity of the evil, discounted by its improbability.” But, he argued, this equation was “a choice between conflicting interests” and was a choice generally best left to the legislature. Indeed, only in those times when “Congress, thinking it impractical to deal with [the choice between repression and evil] specifically, makes the courts its surrogate, the choices so delegated must be treated as questions of law.” In other words, Hand advocated judicial restraint. Because of his views toward judicial restraint, Hand was often at odds with the Supreme Court’s expansive rulings related to individual rights under Chief Justice Earl Warren. In “The Guardians,” the final lecture in the Oliver Wendell Holmes lecture series on the Bill of Rights (1958), Hand outlined his reasons for not agreeing with the Warren Court’s view that individual freedoms, such as the First Amendment’s protections of free exercise of religion and freedom of the press, should be considered in a preferred position. Hand conceded that those arguing that the freedom of speech should be considered a preferred freedom worthy of increased protections have a better argument because of the hostility of the majority toward minority dissidents. But Hand also believed the legislature was more likely to tread on this freedom than were the courts, making judicial review an important protection against incursion of minority rights. Although an advocate of judicial restraint, Hand also believed in the protections afforded by the Constitution. In “A Plea for the Open Mind and Free Discussion,” an address published in The Spirit of Liberty (1959), Hand passionately pleaded for rational reactions to dangers. He stated,“Risk for
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risk, for myself I had rather take my chance that some traitors will escape detection than spread . . . a spirit of general suspicion and distrust. . . .The mutual confidence on which all else depends can be maintained only by an open mind and a brave reliance upon free discussion.” See also Clear and Present Danger Test; Dennis v. United States (1951); Gravity of the Evil Test; Preferred Position Doctrine; Smith Act of 1940; Ulysses.
Tobias Gibson
furthe r reading Griffith, Kathryn. Judge Learned Hand and the Role of the Federal Judiciary. Norman: University of Oklahoma Press, 1973. McWhirter, Darien A. The Legal 100: A Ranking of the Individuals Who Have Most Influenced the Law. Secaucus, N.J.: Carol Publishing Group, 1998.
Hannegan v. Esquire (1946) In Hannegan v. Esquire, 327 U.S. 146 (1946), the Supreme Court overturned a decision by the postmaster general revoking the second-class-mail permit that his department had issued to Esquire magazine. The decision thus affirmed First Amendment rights of freedom of speech and press against administrative attempts at suppression. Robert Hannegan, the postmaster general, had sought to revoke the discount, second-class postage rate given to Esquire magazine. While the postmaster general was not claiming that Esquire was obscene, he believed it to be “morally improper and not for the public welfare and the public good.” Writing for the Court, Justice William O. Douglas noted that Congress classified mailable materials as second-class when they conveyed “information of a public character” or were “devoted to literature, the sciences, arts, or some special industry,” had “a legitimate list of subscribers,” and were not “designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates.” Douglas wrote that it was “abhorrent to our traditions” to think that the postmaster general had the power to decide on whether the contents of a magazine were “good” or “bad.” He found no such power under the original act from 1794 that granted special rates to periodicals or in the amended Classification Act of 1879.To grant the postmaster such power would be to grant him the power of censorship. Douglas argued that “Under our system of government there is an accommodation for the widest varieties of tastes
and ideas.” He further observed that “What seems to one to be trash may have for others fleeting or even enduring values.” In the Court’s view, the power to determine whether a periodical contained information of a public character did not also give the postmaster the “power to determine whether the contents meet some standard of the public good or welfare.” Concurring, Justice Felix Frankfurter argued that the materials in question fell under the scope of literature authorized for second-class status under existing laws. See also Censorship; Douglas,William O.; Frankfurter, Felix; Mail; Obscenity and Pornography.
John R.Vile
furthe r reading Casarez, Nicole B. “Public Forums, Selective Subsidies, and Shifting Standards of Viewpoint Discrimination.” Albany Law Review 64 (2000): 501–581.
Harisiades v. Shaughnessy (1952) In Harisiades v. Shaughnessy, 342 U.S. 580 (1952), the Supreme Court upheld a provision of the Alien Registration Act of 1940 requiring deportation of resident aliens who at the time of their entry or thereafter belong to organizations, in this case the Communist Party, that advocate the unlawful overthrow of the government. The Court decided that these deportations were not inconsistent with either the freedoms of speech or assembly guaranteed by the First Amendment rights or with other constitutional protections. Harisiades, who had been born in Greece, was joined by individuals born in Italy and Russia who challenged the legality of their deportation by Shaughnessy, a district director of immigration and naturalization. Writing the opinion for the Court, Justice Robert H. Jackson rejected claims that the deportation violated the due process clause of the Fifth Amendment, abridged First Amendment expressive freedoms, or was an unconstitutional ex post facto law. In addressing the first issue, Jackson stated that being a permanent resident does not confer a “vested right” on aliens equal to that of citizens. Legal alien residents are in America not by “right” but as “a matter of permission and tolerance.” International law permits deportation as a “weapon of defense and reprisal.” Moreover, this is a matter “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” In a concurrence, Justice Felix Frankfurter
Harlan, John Marshall, I pointed to the primary responsibility of Congress to deal with matters of naturalization. As to First Amendment freedoms of speech, press, and assembly, the Court had established in Dennis v. United States (1951) that none of these rights “include the practice or incitement of violence.” Moreover, the Court held that the law did not violate the ex post facto clause because it involved a civil rather than a criminal matter and was consistent with earlier laws on the subject. In dissent, Justice William O. Douglas argued that the law unfairly tainted people, not for past activities but for what their political views once were. He believed that they should have been given a hearing to show that they did not still hold the views attributed to them. See also Communist Party of the United States; Dennis v. United States (1951); Douglas,William O.; Jackson, Robert H.
John R.Vile
furthe r reading Cleveland, Sarah H. “Wartime Security and Constitutional Liberty: Hamdi Meets Youngstown: Justice Jackson’s Wartime Security Jurisprudence and the Detention of ‘Enemy Combatants.’” Albany Law Review 68 (2005): 1127–1144.
Harlan, John Marshall, I John Marshall Harlan (1833–1911), a lawyer and Supreme Court justice, over time transformed himself from being a slave holder and advocate of the institution to becoming a strong proponent of the Union and defender of First Amendment rights. Serving on the Court for thirty-four years, Harlan became a committed champion of civil rights for minorities (mostly in dissent). He was an early campaigner for the incorporation of the guarantees in the Bill of Rights (including those in the First Amendment) into the due process clause of the Fourteenth Amendment, where they would limit the states as well as the federal government. Harlan’s position on this matter became known as the doctrine of incorporation, a doctrine that became important in twentieth-century First Amendment and civil rights litigation. Harlan was born in Mercer County, Kentucky, and was named for the great chief justice John Marshall. His father, James, was a lawyer, Whig, and congressman. Harlan earned a bachelor’s degree from Centre College in Danville and spent two years at Transylvania University in Lexington before he finished his studies by reading law at his father’s
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law office. After passing the bar and beginning practice in 1853, he entered Whig Party politics. As the Whig Party disintegrated, Harlan underwent a series of political and philosophical changes. He briefly became a “Know Nothing,” in 1857, and was then a Constitutional Unionist in support of John Bell in the1860 election. During the Civil War (1861–1865), Harlan was a staunch Unionist. He joined the Union army and advanced to the rank of colonel before resigning his commission after his father’s death. Shortly after that, he was elected attorney general of Kentucky. He denounced President Abraham Lincoln’s Emancipation Proclamation, issued in 1863, as unconstitutional. He did not manumit his own slaves until the Thirteenth Amendment abolishing slavery forced his hand. He continued to defend slavery by strongly opposing the Fourteenth and Fifteenth Amendments, which extended the rights and privileges of full citizenship and the right to vote to freed slaves. He had voted for George McClellan, a Democrat, in the1864 election and became a Republican in 1868. In 1871 Harlan accomplished a spectacular reversal in his beliefs when he abruptly began supporting the Reconstruction amendments. He publicly renounced his former views on slavery and Reconstruction in his unsuccessful campaign for the governorship of Kentucky, running as a Republican. He was mentioned as a running mate with Ulysses S. Grant in the 1872 presidential election, and he helped elect Rutherford B. Hayes in 1876. Hayes, in turn, fulfilled Harlan’s lifelong dream by appointing him to the Supreme Court in 1877. Justice Harlan wrote 123 of his 891 written opinions in dissent, and some of those dissenting opinions have become the stuff of legend in American constitutional history, earning him the label “the Great Dissenter.” His was the lone dissent in United States v. Harris (1883), in which the Court ruled that the federal government could not prosecute Sheriff R. G. Harris and others for conspiring to lynch four black prisoners in Tennessee.The Court majority argued that the Fourteenth Amendment applied only to state action, not to the acts of individuals acting apart from the state. Later that year, Harlan wrote a notable dissent in the Civil Rights Cases (1883)—five separate cases brought by African Americans that were based on criminal actions defined in the Civil Rights Act of 1875. This congressional law outlawed acts of discrimination based on skin color or previous condition of servitude in public accommodations and transportation.The Court, in an 8-1 decision, with Justice Joseph
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Bradley announcing the majority opinion, adopted a narrow view of national power under the Reconstruction amendments and declared a portion of the law unconstitutional. The Fourteenth Amendment prohibits state acts of discrimination, said the Court, but the law erred when it outlawed private acts committed by private individuals and privately owned businesses that are not agents of the state.The Court further stated that outlawing private acts places the alleged victims in a special class singled out for special protections. Harlan, in his dissent, clung to Radical Republican tenets and argued that the victims were not asking for special privileges but were seeking equal treatment with the majority race. Allowing acts of discrimination by private individuals creates a badge of slavery that marks an identifiable minority as inferior and violates the Reconstruction amendments. In Plessy v. Ferguson (1896), the Court, in a 7-1 decision read by Justice Henry Billings Brown, continued its narrow interpretation of the Fourteenth Amendment by upholding a state law providing for racial segregation. Brown said the state could separate the races if the facilities were equal. In his most famous and eloquent dissent, Harlan held that “our Constitution is color-blind,” that “in this country there is no superior, dominant ruling class of citizens,” and that it is wrong to allow the states to “regulate the enjoyment of citizens’ civil rights solely on the basis of race.” Harlan predicted that the decision would plant the “seeds of race hate” into state law. Despite his protest, the Plessy decision further entrenched racial segregation into state law and established the separate but equal doctrine until the Court overturned it in Brown v. Board of Education (1954). Harlan was also the lone dissenter in Berea College v. Kentucky (1908), in which the Court ruled that a segregation law could be enforced by the state against a long-integrated college in Kentucky. Harlan joined the Court majority in Reynolds v. United States (1879) and in Davis v. Beason (1890), in supporting laws against polygamy in the U.S. territories.The Court did not believe that polygamists George Reynolds or Samuel Davis could use their free exercise rights under the First Amendment to evade laws relative to marriage. See also Black, Hugo L.; Davis v. Beason (1890); Harlan, John Marshall, II; Reynolds v. United States (1879).
James R. Belpedio
furthe r reading Abraham, Henry J. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. Lanham, Md.: Rowman and Littlefield, 1999.
Beth, Loren P. John Marshal Harlan: The Last Whig Justice. Lexington: University Press of Kentucky, 1992. Przybyszewski, Linda. The Republic according to John Marshal Harlan. Chapel Hill: University of North Carolina Press, 1999.
Harlan, John Marshall, II John Marshall Harlan II (1899–1971) served on the Supreme Court from 1955 to 1971. He was a principal architect of First Amendment jurisprudence in many areas, among them obscenity law, freedom of association, expressive conduct, and offensive speech. Born in Chicago, Harlan was named for his grandfather, John Marshall Harlan I, who also had served on the Supreme Court. He graduated from Princeton University in 1920, studied at Oxford, and earned a law degree from New York Law School in 1924. His career as an attorney in a prestigious Wall Street law firm was interrupted by service in World War II.Although he represented philosopher Bertrand Russell in a First Amendment case in which Russell had been barred from teaching at City College in New York because of his controversial views, he more commonly represented corporate clients. Harlan had served on the Second Circuit Court of Appeals for eight months when President Dwight D. Eisenhower appointed him to replace Justice Robert H. Jackson on the Supreme Court. Harlan believed strongly in the Constitution’s structural limitations, particularly the doctrines of federalism and separation of powers.Those principles, he wrote,“lie at the root of our constitutional system” and must be considered in interpreting the Bill of Rights.This belief in judicial restraint had a powerful effect on Harlan’s opinions, including his First Amendment jurisprudence. Harlan rejected the notion that the Fourteenth Amendment “incorporated” the Bill of Rights—including the First Amendment—to apply to the states. He did believe that the Fourteenth Amendment’s due process clause embraced the general principle of free speech, although he viewed Fourteenth Amendment constraints on the states to be less stringent than those that the First Amendment imposed on the federal government. Harlan’s federal-state distinction clearly manifested itself in his approach to obscenity law. In two companion cases, Roth v. United States (1957) and Alberts v. California (1957), Harlan was the only justice to vote to reverse federal convictions for mailing obscene materials in Roth, while upholding a California obscenity law in Alberts. Harlan reasoned that because the federal government had no explicit power to regulate sexual morality, it could use its postal power only
Harmful to Minors Laws to regulate “hard-core” pornography. In contrast, because the states bore “direct responsibility for the protection of the local moral fabric,” Harlan would have permitted state governments to regulate sexually explicit speech as long as they did not reach results “wholly out of step with current American standards.” Harlan reiterated and refined these views in many obscenity cases after Roth, including his majority opinion in Manual Enterprises v. Day (1962), ruling that a homoerotic magazine was not obscene, and a dissent in Memoirs v. Massachusetts (1966), where the Court ruled that a book by John Cleland was not obscene. He later referred to the “intractable obscenity problem” in Ginsberg v. New York (1968), where the Court upheld a conviction for pandering of obscenity. During the early part of his tenure on the Court in particular, Harlan was viewed as a “balancer” in First Amendment cases—especially regarding those involving communism—in contrast to the “absolutists,” such as Justices Hugo L. Black and William O. Douglas. Contemporary observers viewed Harlan’s balancing as less speech protective than Black’s absolutism. Two cases that exemplify this view are Barenblatt v. United States (1959), and Konigsberg v. State Bar (1961). In both cases, Harlan wrote for 5-4 majorities over bitter dissents from Justice Black. In balancing the government’s interests against an individual’s speech rights, Harlan concluded that the government had the right to inquire about an individual’s alleged Communist Party membership—in Barenblatt in the context of a House UnAmerican Activities Committee subcommittee hearing and in Konigsberg as a condition of state bar admission.This view of Harlan as a balancer who often deferred to the government’s interest against First Amendment rights was solidified with his last opinion on the Court, a dissent in the Pentagon Papers case. In that case, New York Times Co. v. United States (1971), Harlan would have deferred to the government, permitting it to enjoin—at least briefly—the publication of the Pentagon Papers. Notwithstanding Harlan’s reputation for deferring to the government in free speech cases, his legacy is far more complex, and he often wrote in defense of important First Amendment values. For example, he wrote the Court’s opinion holding that the government could not prohibit the abstract advocacy of violent overthrow of the government in Yates v. United States (1957), the first time the Court reversed the convictions of communists under the Smith Act of 1940. In NAACP v. Alabama (1958), he wrote the Court’s first opinion holding that freedom of association is part of the
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First Amendment. In Garner v. Louisiana (1961), he was the only justice to recognize that a sit-in by black patrons at a segregated lunch counter could be viewed as expressive conduct protected by the First Amendment. Finally, Harlan was adamant about protecting offensive speech when it implicated core First Amendment values. In Cohen v. California (1971), he reversed a criminal conviction of a man for wearing a jacket with the words “Fuck the Draft” written on it. Harlan’s opinion in Cohen, which contains the memorable line “one man’s vulgarity is another man’s lyric,” survives today as one of the most enduring statements of the fundamental First Amendment principle that any governmental attempt to sanitize or otherwise regulate public discourse is incompatible with a free society. See also Ad Hoc Balancing; Incorporation of the First Amendment to the States; Barenblatt v. United States (1959); Black, Hugo L.; Cohen v. California (1971); Garner v. Louisiana (1961); Harlan, John Marshall, I; Konigsberg v. State Bar (1961); Manual Enterprises v. Day (1962); Memoirs v. Massachusetts (1966); NAACP v. Alabama (1958); New York Times Co. v. United States (1971); Obscenity and Pornography; Roth v. United States (1957); Smith Act of 1940;Yates v. United States (1957).
Anuj C. Desai
furthe r reading Farber, Daniel A., and John E. Nowak. “Justice Harlan and the First Amendment.” Constitutional Commentary 2 (1985): 425–462. New York Law School Centennial Conference in Honor of Justice John Marshall Harlan New York Law School Law Review 36 (1991): 1–285. O’Neil, Robert M. “The Neglected First Amendment Jurisprudence of the Second Justice Harlan.” New York University Annual Survey of American Law 58 (2001): 57–66. Poe, Douglas A. “The Legal Philosophy of John Marshall Harlan: Freedom of Expression, Due Process, and Judicial Self-Restraint.” Vanderbilt Law Review 21 (1968): 659–696. Shapiro, David L., ed. The Evolution of a Judicial Philosophy: Selected Opinions and Papers of Justice John M. Harlan. Cambridge, Mass.: Harvard University Press, 1969. Yarbrough, Tinsley. John Marshall Harlan: Great Dissenter of the Warren Court. New York: Oxford University Press, 1992.
Harmful to Minors Laws Harmful to minors laws seek to protect minors, generally considered those seventeen and younger, from pornography, obscenity, and other material that may bring harm to them. These laws are based on the concept of variable obscenity— that is, material can be considered obscene when viewed by children and young people though not when viewed by adults. After many previous attempts, the Supreme Court
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The popularity of the Internet has caused difficulty in enforcing “harmful to minors” laws, which are designed to protect minors from obscenity.
established current standards for what is legally obscene in Miller v. California (1973 ), in which it reiterated that obscene material is not protected as free speech under the First Amendment. The Supreme Court approved of the concept of variable obscenity when it upheld a New York harmful to minors law in Ginsberg v. New York (1968).The case involved the prosecution of Sam Ginsberg, the owner of Sam’s Stationary and Luncheonette in Bellmore, Long Island, for selling two “girlie” magazines to a sixteen-year-old boy. The magazines featured pictures of nude women, such that did not meet the definition of obscenity for adults. Writing for the Court, Justice William J. Brennan Jr. reasoned that the New York statute “simply adjusts the definition of obscenity to social realities” and serves the state’s interest in protecting minors. Nearly every state has some form of harmful to minors law. Many of these laws limit distribution of sexually explicit material to minors. The majority of these laws have sur-
vived constitutional challenge. For example, the Eleventh Circuit Court of Appeals upheld a Georgia law regulating the display of material harmful to minors in American Booksellers v.Webb (11th Cir. 1990). The Tennessee Supreme Court upheld a similar law in Davis-Kidd Booksellers, Inc. v. McWherter (Tenn. 1993). Harmful to minors laws have fared far less successfully in cyberspace, as federal courts have invalidated several such laws. Although the physical world affords a relatively easy way to segregate adult and minor consumers of adult material, the online world presents much tougher challenges. For this reason, many reviewing courts have struck down Internet harmful to minors laws, finding that the state’s laudable interests in protecting minors cannot suppress the free speech rights of adults or older minors. For example, the Tenth Circuit Court of Appeals ruled in American Civil Liberties Union v. Johnson (1999) that a New Mexico statute criminalizing online transmission of material harmful to minors violated the First Amendment. Other appeals courts invalidated similar laws in PSINET, Inc. v. Chapman (4th Cir. 2004) and American Booksellers Foundation v. Dean (2d Cir. 2003). Congress has made notable attempts to restrict online material that might be considered harmful to minors.When the Communications Decency Act of 1996, which sought to prohibit “indecent” and “patently offensive” speech on the Internet, was invalidated by the Supreme Court in Reno v. American Civil Liberties Union (1997), Congress responded by passing the narrower Child Online Protection Act of 1998 (COPA). However, in Ashcroft v.American Civil Liberties Union (2004), the Court upheld a preliminary injunction from the lower courts preventing enforcement of COPA. The Court ruled that software designed to filter out offensive content was a less speech restrictive alternative to limiting minors’ exposure to online pornography than was a general criminal law such as COPA. On remand, the Third Circuit Court of Appeals in March 2007 granted a permanent injunction against enforcement of COPA, finding that it violated the First Amendment. See also Ashcroft v.American Civil Liberties Union (2002) (2004); Brennan, William J., Jr.; Child Online Protection Act of 1998; Communications Decency Act of 1996; Ginsberg v. New York (1968); Miller v. California (1973); Obscenity and Pornography; Reno v. American Civil Liberties Union (1997).
David L. Hudson Jr.
Harper v. Poway Unified School District (9th Cir. 2006) furthe r reading Coulter, Ann H. “Restricting Adult Access to Material Obscene as to Juveniles.” Michigan Law Review 51 (1987): 1681–1698. Garfield, Alan E. “Protecting Children from Speech.” Florida Law Review 57 (2005): 565–651. Heins, Marjorie. Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth. New York: Hill and Wang, 2001. Heins, Marjorie. Sex, Sin, and Blasphemy. New York: New Press, 1993. Nunziato, Dawn C. “Do Children Have the Same First Amendment Rights as Adults? Toward a Constitutional Regulation of Minors’ Access to Harmful Internet Speech.” Chicago-Kent Law Review 79 (2004): 121–173.
Harper and Row v. Nation Enterprises (1985) In a decision attempting to balance First Amendment free speech rights with copyright values, the Supreme Court held in Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985), that a prepublication of approximately 300 words of an excerpt from President Gerald Ford’s memoir, A Time to Heal, was not an example of “fair use” but a copyright infringement. In the excerpt, President Ford explained for the first time publicly his reasoning for pardoning President Richard M. Nixon of any wrongdoing in the Watergate break-in and cover-up. Harper and Row had an agreement for Time magazine to be the first to review Ford’s book. A writer for The Nation magazine somehow got possession of galley proofs of the book and wrote a lengthy review that appeared prior to the book’s publication and to any Time review. Time canceled the contract with Harper and Row, and Harper and Row sued The Nation for copyright infringement. Writing for a 6-3 majority, Justice Sandra Day O’Connor explained the balance between the First Amendment and copyright laws.The First Amendment protects the dissemination of information, whereas copyright laws protect the expression of authors for the purpose of encouraging them to create and disseminate more works for the benefit of society. She observed that “the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Because copyright protects only the author’s expression and not the ideas or facts, the First Amendment’s protection for the dissemination of ideas is not lessened. In addition, the doctrine of fair use allows even the use of some copyrightable expression in instances where the uses are particularly beneficial to society and not particularly harmful to the copyright owner.
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The opinion did not analyze all of the fair use factors as enumerated in the Copyright Act of 1976. Rather, the Court held that the unpublished nature of the original material “is ‘a key, though not necessarily determinative, factor’ tending to negate a defense of fair use.” O’Connor wrote, “Under ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.” Justice William J. Brennan Jr.’s dissent took issue with the majority’s limited fair use analysis. He argued that journalistic use of a limited amount of creative expression, even if unpublished, should be allowed in order not to “stifle the broad dissemination of ideas and information copyright is intended to nurture.” Fearing that there could never be fair use in unpublished works, librarians and researchers exhorted Congress to amend the Copyright Act. In 1992 Congress added a sentence to the Fair Use provisions (17 U.S.C. 107) indicating “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all of the above factors.” See also Copyright; Copyright Act of 1976; Fair Use; Nixon, Richard M.; O’Connor, Sandra Day.
Geoffrey P. Hull
furthe r reading Patry, W. The Fair Use Privilege in Copyright Law. 2d ed. Washington, D.C.: Bureau of National Affairs, 1985. Shelton, John L., and Bernard Timberg (eds.). Fair Use and Free Inquiry: Copyright Law and the News Media. Norwood, N.J.: Ablex Publishing, 1980.
Harper v. Poway Unified School District (9th Cir. 2006) In Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), a federal appeals court ruled that school officials did not violate the First Amendment rights of a student whom they punished for wearing T-shirts with anti-gay messages. The majority had reasoned that school officials could limit the student’s speech because it invaded the rights of gay and lesbian students. While the Supreme Court later vacated the lower court’s decision, it remains important because it examined an important—and still unanswered— question about when school officials can punish student speech that is deemed harmful to other students. Poway High School in San Diego allowed the student club Gay-Straight Alliance to hold a “Day of Silence” at the
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school to teach students tolerance about sexual orientation. Some students, including then-sophomore Tyler Harper, objected to the messages of this program on religious grounds. Harper wore T-shirts bearing messages such as “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED” and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27.’” Harper’s teacher cited him with a dress code violation and sent him to the principal’s office, where he had to remain the rest of the school day. Harper later filed a federal lawsuit, alleging violation of several constitutional rights, including First Amendment claims involving freedom of speech, free exercise, and the establishment clause. A district court rejected Harper’s claim for a preliminary injunction. On the free speech claim—the major issue in the litigation—the district court reasoned that school officials could prohibit Harper’s clothing based on the Supreme Court’s standard in Tinker v. Des Moines Independent Community School District (1969). The Tinker standard provides that school officials can prohibit student expression if they can reasonably predict that the student speech will cause a substantial disruption of school activities.The district court pointed to controversy and tension the previous year regarding another Day of Silence event. On appeal, a three-judge panel of the Ninth Circuit also rejected Harper’s claims for a preliminary injunction by a 2-1 vote. However, the majority focused on another part of the Tinker standard. According to Judge Stephen Reinhardt, the “determinative issue” was “the impermissible intrusion on the rights of gay and lesbian students.” He focused on other language from the Tinker opinion that allows school officials to prohibit student speech that invades the rights of others: “Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn,” he wrote. Reinhardt reasoned that students generally can speak on controversial issues and limited his holding “to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion and sexual orientation.” He also rejected Harper’s other religion-based First Amendment claims. Judge Alex Kozinski dissented, believing that the school had committed viewpoint discrimination by promoting the Day of Silence but disallowing Harper’s speech. Kozinski
reasoned that Tinker’s “invasion of the rights of others” language should be limited to “assault, defamation, invasion of privacy, extortion and blackmail” because otherwise “a state legislature could effectively overrule Tinker by granting students an affirmative right not to be offended.” He also believed that the school’s anti-harassment policy was substantially overbroad. Harper sought en banc review, which was denied over the dissents of five judges. The en banc order featured heated opinions from Reinhardt and the dissenters. While the appeal over the denial of preliminary injunctive relief continued, the federal district court entered final judgment in January 2007. In March 2007, the Supreme Court, in an unsigned order, granted certiorari in Harper and vacated the judgment “with instructions to dismiss the case as moot.” The mootness question arose because Harper since had graduated from high school.The Court noted that this action would permit “relitigation” of the underlying issues if necessary. Although Reinhardt’s opinion was vacated, numerous lower courts have cited the opinion, which continues to engender substantial academic debate.The question remains as to when school administrators can punish student speech because they believe it invades the rights of other students. Tyler Harper’s attorneys are still litigating the underlying First Amendment issues involving the school’s dress code policy under which he was cited. In February 2008, a federal district court again ruled that school officials did not violate Tyler Harper’s First Amendment rights. See also Dress Codes; Sexual Harassment Laws; Students, Rights of; Tinker v. Des Moines Independent Community School District (1969).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Tinker with Tinker Standards?” First Amendment Center, August 9, 2006. www.firstamendmentcenter.org/ analysis.aspx?id=17253. Mauro, Tony. “Court Vacates 9th Circuit Ruling Against Anti-Gay TShirt.” First Amendment Center, March 6, 2007. www.firstamendmentcenter.org/analysis.aspx?id=18251. “RECENT CASE: Constitutional Law—Freedom of Speech—Ninth Circuit Upholds Public School’s Prohibition of Anti-Gay T-Shirts. Harvard Law Review 120 (2007): 1691–1698.
Hartman v. Moore (2006)
Harte-Hanks Communications v. Connaughton (1989) In Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989), the Supreme Court further clarified its treatment of libel under the First Amendment by deciding that public figures can establish a claim for libel by showing that a publisher acted with “reckless disregard” as to the truth or falsity of a statement.The Court also clarified that a reviewing court in a libel case must conduct an “independent examination” of the record pursuant to Bose Corp. v. Consumers Union of United States, Inc. (1984).The Court upheld the First Circuit Court of Appeals’ ruling that a newspaper article was defamatory, false, and published with actual malice even though no separate determination of malice had been substantiated. Daniel Connaughton, an unsuccessful candidate for the position of Municipal Judge of Hamilton, Ohio, had sued Harte-Hanks Communications, the owner of a local newspaper called the Journal News, which had supported his opponent, for libel. Connaughton charged that the paper had falsely alleged that he had acted unethically, lied, and extorted witnesses. The Supreme Court reviewed this case because the method used by the lower court in making its determination was contested. In a libel case, a reviewing court must “exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.” This means the appeals court has its own responsibility in reviewing cases, to determine, from the record, whether or not malice was established in the trial court. In Harte-Hanks, the appeals judge simply used the same rationale made by the trial court and reassessed the facts. When the Supreme Court received this case, the justices independently reviewed the facts of the case based on the record and upheld the rulings of the trial and appeals courts. The Court also took the opportunity to reexamine libel of a public figure.While private figures can sue for libel and win by merely proving an offensive story published was false, public figures are held to a higher standard because of their resources to respond to defamatory claims. In New York Times Co. v. Sullivan (1964), the Court established the standard of “actual malice” in cases of public figures. This standard required that public figures suing for defamation must demonstrate that the defendant acted with actual malice, meaning he or she intended to cause harm by publishing a story that was false or with “reckless disregard” for its truth.
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In Harte-Hanks, the Court found that there was reckless disregard for the truth because when the paper published the article, it still had serious doubts about the legitimacy of the claims from the main witness.The Court allowed the claim to be established by showing that the paper had published the story without any effort to determine whether it was true. This decision, therefore, affirms that a public figure can demonstrate libel by showing that the publisher allowed printing with “reckless disregard for the truth.” Journalists are protected under the First Amendment but still have the responsibility to check for accuracy. Harte-Hanks thus allows public figures defamed by a journalist who did not reasonably verify the facts of a story to seek redress. See also Actual Malice; Bose Corp. v. Consumer Unions of United States, Inc. (1984); Libel and Slander; New York Times Co. v. Sullivan (1964).
Ashley Campbell with Walter Huber
furthe r reading Perzanowski, Aaron. “Relative Access to Corrective Speech: A New Test for Requiring Actual Malice.” California Law Review 94 (2006): 833–871.
Hartman v. Moore (2006) In Hartman v. Moore, 547 U.S. 250 (2006), the Supreme Court ruled that plaintiffs alleging federal civil claims—in this case, violation of First Amendment expressive rights— for retaliatory prosecution must prove the absence of probable cause as an essential element of their claims. The case involved William G. Moore Jr., the chief executive officer of a company that offered multiple optical character readers that would enable the U.S. Postal Service to read and sort mail much quicker than with its standard single-line scanning machines. Moore had lobbied Congress, testified before committees, and engaged in other First Amendment–protected activity that criticized the postal service for not using the new technology. The U.S. Postal Service eventually employed this new technology but entered into a contract with one of Moore’s competitors. Postal inspectors then investigated Moore to determine whether he had participated in a kickback scheme with a postal service governor.The postal inspectors urged that criminal charges be brought against Moore and his company, but after a six-week trial, a federal district court dismissed the charges, finding a “complete lack of direct evidence” linking Moore to criminal wrongdoing.
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Moore then filed a federal civil claim under Bivens v. Six Unknown Fed. Narcotics Agents (1971), alleging retaliation for the exercise of his First Amendment rights. He claimed that the prosecutor and postal inspectors had engineered the investigation because he had publicly criticized the U.S. Postal Service.A federal court granted the prosecutor immunity, but the claims against the postal inspectors continued. The inspectors contended that the claims against them must fail because Moore must prove a lack of probable cause. Moore countered that he need only show that a substantial factor in the decision to bring the unfounded criminal charges was retaliation for his protected activities. By a 5-2 vote (Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. did not participate), the Supreme Court ruled that a plaintiff alleging retaliatory prosecution under Bivens or under 42 U.S.C. section 1983 must show a lack of probable cause. Writing for the majority, Justice David Souter explained, “Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost, it makes sense to require such a showing as an element of a plaintiff ’s case, and we hold that it must be pleaded and proven.” Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, dissented, noting that the record in the case showed that the postal inspectors engaged in “unusual prodding” of the prosecutor to institute criminal charges against Moore. Ginsburg reasoned that requiring a lack of probable cause will deter “only entirely baseless prosecutions” and allow “retaliators” to pursue many claims that should not be brought. She agreed with the federal appeals court standard that allows retaliatory prosecution claims where the plaintiff shows “strong motive evidence combine[d] with weak probable cause” and that the claim would not have been brought but for the retaliatory animus. See also Ginsburg, Ruth Bader; Souter, David H.;Whistleblowers.
David L. Hudson Jr.
furthe r reading Miller, Jason. “Absence of Probable Cause Required for Retaliatory Prosecution.” Lawyers Journal 8 (2006).
Hartzel v. United States (1944) In Hartzel v. United States, 322 U.S. 680 (1944), the Supreme Court overturned the conviction of an individual for violating the Espionage Act of 1917. Especially when contrasted
with a number of decisions upholding convictions that the Court issued during World War I, this decision from World War II shows a Court more willing to tolerate dissent. The United States had indicted Hartzel under the Espionage Act of 1917 for sending literature to individuals, including members of the military, attacking America’s British allies and accusing the president of allying with Jews. Hartzel was especially concerned with the peril of the “yellow races” and hoped to see the war effort directed against them rather than against the Germans. The Supreme Court overturned Hartzel’s conviction on the basis that the Espionage Act and other criminal laws that affected First Amendment freedoms should be narrowly construed in accord with Justice Oliver Wendell Holmes’s admonition to do so in Abrams v. United States (1919). Subjectively, the jury had to find that an individual had the specific intent to cause insubordination in the armed forces. Objectively, in the language of Schenck v. United States (1919), it must be shown that the individual’s words had created “a clear and present danger” that Congress had a right to prevent. Writing for the majority, Justice Francis W. Murphy noted that although he believed the pamphlets contained “vicious and unreasoning attacks,” he did not believe that the government had showed that the petitioner had specifically sought to bring about disloyalty or mutiny in the armed forces or that he had created a real danger of doing so. Murphy wrote that in the absence of such evidence, “an American citizen has the right to discuss these matters either by temperate reasoning or by immoderate and vicious invective without running afoul of the Espionage Act of 1917.” Justice Stanley F. Reed authored a dissent in which Justices Felix Frankfurter, William O. Douglas, and Robert H. Jackson concurred. They believed that the record did contain adequate evidence to indicate that Hartzel was attempting to cause disloyalty within the armed forces and argued that this was a matter for a jury, rather than for an appellate court, to decide. See also Abrams v. United States (1919); Espionage Act of 1917; Murphy, Francis W.; Schenck v. United States (1919);World War II.
John R.Vile
furthe r reading Block, Frederick. “Civil Liberties during National Emergencies: The Interactions between the Three Branches of Government in Coping with Past and Current Threats to the Nation’s Security.” New York University Review of Law and Social Change 29 (2005): 259–524.
Hatch Act of 1939
Hatch Act of 1939 The Hatch Act, an attempt to regulate corruption and possible intimidation of federal employees in the civil service by their elected supervisors, was enacted by Congress in 1939. The act banned the use of federal funds for electoral purposes and forbade federal officials from coercing political support with the promise of public jobs or funds. Sen. Carl Hatch, D-N.M., introduced the act after learning that New Deal–era government programs, specifically the Works Progress Administration, were using federal funds overtly to support Democratic Party candidates in the 1938 elections. The act prohibits federal employees below the policymaking level from taking “any active part” in political campaigns, such as running for office in partisan political campaigns, giving speeches on behalf of partisan political candidates, or soliciting money for such candidates. Critics charge that this law also limits First Amendment rights of expression. In 1940 Congress amended the act to include state and local employees whose salaries included federal funds. The amendment created campaign expenditure limits on political parties and contribution limits on individuals. In 1993 Congress again amended the Hatch Act to allow most federal employees to engage actively in partisan political management and political campaigns. The amendment allowed employees to express opinions on political subjects more openly. Specific exceptions to this general policy, as well as general prohibitions, are included in the Office of Personnel Management Regulations. The Supreme Court has twice considered challenges to the Hatch Act and has twice upheld its constitutionality.The Court applied a balancing test between the presumptively valid interests of the government in regulating its employees with the individual’s interests in free speech. In United Public Workers of America v. Mitchell (1947), the Court balanced the rights of individuals to free speech with the “elemental need for order.” In upholding the enforcement of the law, the Court deferred to Congress’s judgment regarding the amount of political neutrality necessary for federal employees. It explained that Congress was not unconcerned about its employees and that it had left “untouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency.” In dissent, Justice Hugo L. Black argued that the rights to vote and privately express political opinions were part of the broader
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freedoms protected by the Constitution, and he saw no reason to limit the range of freedoms for federal employees. The Court again reviewed the Hatch Act as amended in United States Civil Service Commission v. National Association of Letter Carriers (1973). In this case the Court overturned a lower appellate court decision and upheld the constitutionality of the Hatch Act’s ban on federal employees’ ability to take an active part in certain political activity. The Court believed that Congress had enacted a constitutional balance between the interests of an individual employee and the government-employer’s interests in maintaining limitations on partisan political activities. The Court found that Congress used the act to avoid “practicing political justice” and also to avoid the appearance of currying federal government favor through political activity. Further, the Court explained that by limiting the political activities of federal employees, Congress protected the employees’ interests to be free from tacit coercion to become politically active. The 1993 amendments superseded this opinion, at least with respect to most federal employees. In Broadrick v. Oklahoma (1973), the Court upheld a state law restricting the political actions of state employees. In United States v. National Treasury Employees Union (1995), however, the Court limited the scope of a ban on honoraria given to federal employees for speeches and writings. Bauers v. Cornett (8th Cir. 1989), involving an appeal by an employee of the Missouri Division of Employment Security against the director and assistant director, who had questioned the employee’s attempt to raise funds for lobbying efforts, further explains statutory changes superseding Supreme Court decisions in Broadrick and Letter Carriers. See also Broadrick v. Oklahoma (1973); United Public Workers of America v. Mitchell (1947); United States v. National Treasury Employees Union (1995). United States Civil Service Commission v. National Association of Letter Carriers (1973).
David Asp
furthe r reading Bolton, John R. The Hatch Act:A Civil Libertarian Defense. Washington, D.C.: American Enterprise Institute, 1976. Bridges, Michael. “Release the Gags: The Hatch Act and Current Legislative Reform—Another Voice for Reform.” Capital University Law Review 22 (1993): 237. Schroth, Peter W.“Corruption and Accountability of the Civil Service in the United States.” American Journal of Comparative Law 553 (2006). U.S. Office of Special Counsel. Hatch Act Guide for Federal Employees. www.osc.gov/ha_fed.htm.
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Hate Speech
Hate Speech The term “hate speech” is generally agreed to mean abusive language specifically attacking a person or persons because of their race, color, religion, ethnic group, gender, or sexual orientation. Although the First Amendment still protects much hate speech, there has been substantial debate on the subject in the past two decades among lawmakers, jurists, and legal scholars. The scholarly debate concerning the regulation of hate speech flared in the late 1980s, primarily focusing on campus speech codes, pitting those who view regulation of hate speech as a necessary step toward social equality against those who see hate speech regulations as abridgements of the fundamental right of free speech. The traditional liberal position is that speech must be valued as one of the most important elements of a democratic society. Traditional scholars see speech as a fundamental tool for self-realization and social growth and believe that the remedy for troublesome speech is more speech, not more government regulation of speech. For example, liberal theorist Nadine Strossen, relying to some degree on John Stuart Mill’s connection between speech and the search for truth, argues that restricting hate speech will mask hatred among groups rather than dissipate it. Proponents of hate speech regulation usually do so from the perspective of critical race theory, believing that legal decisions are based on preserving the interests of the powerful, and see no value in protecting bias-motivated speech against certain already oppressed groups. They question the necessity and logic of protecting speech that not only has no social value but is also socially and psychologically damaging to minority groups.These proponents of the regulation of hate speech suggest a new balance between free speech and social equality. For example, Mari Matsuda, a law professor at Georgetown University, has advocated creating a legal doctrine defining proscribable hate speech from a basis in cases where the message is one of racial inferiority, the message is directed against a historically oppressed group, and the message tends to persecute or is otherwise hateful and degrading. The Illinois Supreme Court reviewed the question of restricting a Nazi rally in Village of Skokie v. National Socialist Party of America (1978).The court, relying heavily on a U.S. Supreme Court case, Cohen v. California (1971), raised the slippery slope argument, contending that restricting the wearing of a swastika would lead to an endless number of
restrictions on all sorts of offensive speech. Adhering to the content neutrality principle, the court ruled that the government could not base rules on the feelings of “the most squeamish among us” and that the wearing of swastikas was “a matter of taste and style.” In R.A.V. v. St. Paul (1992) the Supreme Court appeared to close the door on hate speech regulations. The case involved a city ordinance in St. Paul, Minnesota, prohibiting bias-motivated disorderly conduct against others on the basis of race, color, creed, religion, or gender. The Court struck down the ordinance, finding it to be unconstitutional on its face because it was viewpoint discriminatory. The Court reviewed whether hate speech as defined in the ordinance fit into the “fighting words” category.This category, first established in Chaplinsky v. New Hampshire (1942), was defined as “such words, as ordinary men know, are likely to cause a fight.” The Court in R.A.V. found that the ordinance had removed specific hateful speech from the category of fighting words because, by specifying the exact types of speech to be prohibited, the restriction was no longer content neutral. More than a decade later, the Supreme Court again ruled on a hate speech case. Virginia v. Black (2003) concerned the constitutionality of a Virginia statute that made it unlawful to burn a cross with the intent of intimidating any person or group of persons. Many scholars have argued that the Court’s opinion in Black is completely opposite from its ruling in R.A.V. Relying on the history of the use of cross burnings to intimidate African Americans, the plurality found that R.A.V. did not mean “the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech.” The Court did accept the idea that some individuals might burn crosses for reasons other than intimidation. Current case law and research concerning hate speech has shifted focus toward hate speech on the Internet. The Internet brings with it a myriad of new problems for the First Amendment, including how to determine what level of scrutiny to apply and how to react to existing restrictions on hate speech by much of the international community. See also Chaplinsky v. New Hampshire (1942); Cohen v. California (1971); Critical Race Theory; R.A.V. v. St. Paul (1992); Village of Skokie v. National Socialist Party of America (Ill. 1978); Virginia v. Black (2003).
Chris Demaske
Haynes, Charles C. furthe r reading Cortese, Anthony. Opposing Hate Speech. London: Praeger, 2006. Delgado, Richard, and Jean Stefancic. Understanding Words that Wound. Boulder:Westview Press, 2004. Greenawalt, Kent. Fighting Words: Individuals, Communities, and Liberties of Speech. Princeton: Princeton University Press, 1995. Leets, Laura, and Howard Giles.“Words as Weapons—When Do They Wound: Investigations of Harmful Speech.” Human Communication Research 24 (1997): 260–301. Lewis, Anthony. Freedom for the Thought that We Hate: A Biography of the First Amendment. New York: Basic Books, 2007. Matsuda, Mari. “Public Responses to Racist Speech: Considering the Victim’s Story.” Michigan Law Review 87 (1989): 2320–2381. Shiffrin, Steven. Dissent, Injustice, and the Meanings of America. Princeton: Princeton University Press, 1999. Strossen, Nadine. “Regulating Racist Speech on Campus: A Modest Proposal.” Duke Law Journal 1990 (June 1990): 484–573. Tsesis,Alexander. Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements. New York: New York University Press, 2002.
Hay, George Born in Williamsburg, Virginia, George Hay (1765–1830) was a lawyer, a writer, and a federal district judge. He made important contribution to First Amendment theory by writing two pamphlets defending the freedom of the press. Under the pen name Hortensisus, Hay published An Essay on the Liberty of the Press in the Aurora before issuing it as a pamphlet in 1799. This essay defended James Thomson Callender, a fellow Democratic Republican, against attempts to prosecute him under the Sedition Act of 1798 for publishing criticisms of President John Adams. Prefacing the pamphlet with an open letter to the president, Hay attempted to show that Congress had absolutely no power over the press and that the Sedition Act was therefore unconstitutional. He argued that Congress could exercise only those powers that the Constitution explicitly granted or that were clearly implied from such powers, whereas in the Callender case the First Amendment denied such power and the Tenth Amendment further confirmed such denial. In seeking a “fair construction” of the Constitution, Hay denied that constitutional provisions intended to grant this power to Congress. Hay feared that a construction allowing Congress to regulate the press would permit it to regulate almost anything. Like his contemporary, Tunis Wortman, Hay further denied that the press could legitimately be regulated by back-door methods involving the common law. In his view the press was as free as it was in the state of nature—the right was “an absolute freedom” not a “qualified or abridged freedom.”
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The freedom of the press should be as unlimited as the freedom of speech and of religion. Hay’s position concerning freedom of the press apparently left open the possibility of civil suits for libel. By 1803 an ungrateful Callender had turned against both Hay and President Thomas Jefferson (who, as vice president, had been implicated in the Callender case). In his second pamphlet, An Essay on the Liberty of the Press Shewing That the Requisition of Security for Good Behaviour from Libellers, is Perfectly Compatible with the Constitution and Laws of Virginia, published in Richmond in 1803, Hay argued that the state should be able to require individuals, including Callender, to post security against writers who had libeled private individuals. He articulated a position that is similar to that of the Supreme Court in New York Times Co. v. Sullivan (1964), in which the Court made a distinction between discussion of public affairs and the libel of private individuals. Hay argued that the power to require that people accused of libel post security must not be abused. “The government is not permitted to abridge, but it may certainly enlarge the freedom of the press.” See also Adams, John; Hamilton,Alexander; Jefferson,Thomas; Libel and Slander; New York Times Co. v. Sullivan (1964); Sedition Act of 1798; Seditious Libel;Wortman,Tunis.
John R.Vile
furthe r reading Levy, Leonard W. “Liberty and the First Amendment, 1790–1800.” American Historical Review 68 (October 1962): 22–37. Lynch, Jack. “The Alien and Sedition Acts.” Colonial Williamsburg 29 (Winter 2007): 62–67. Shepard, E. Lee. “Hay, George.” American National Biography, ed. John A. Garraty and Mark C. Carnes. New York: Oxford University Press, 1999. 10:364–366.
Haynes, Charles C. Charles C. Haynes (1949– ), an expert on religious liberty, is known for his ability to find common ground among national organizations as well as in communities and schools divided by First Amendment conflicts. Born in Durham, N.C., Haynes lived his early years in Myrtle Beach, S.C., and in New York City. As a youth, he met Indian religious leader Meher Baba, an experience that influenced the rest of his life. Haynes earned undergraduate and doctorate degrees from Emory University and a master’s degree from Harvard Divinity School. Haynes has spent much of his adult life as an advocate for religious liberty, working as a consultant for Americans
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United Research Foundation and serving as executive director of First Liberty Institute at George Mason University. In 1994 he joined the Freedom Forum’s First Amendment Center as a visiting scholar. He is now senior scholar at the First Amendment Center in Arlington,Virginia. Haynes is the author or coauthor of six books, including Finding Common Ground:A Guide to Religious Liberty in Public Schools (1981) and Religion in American Public Life: Living with Our Deepest Differences (2001). He has been the principal force behind a series of guidelines on religion and public education, three of which were distributed to every public school in 2000 under President Bill Clinton. Haynes’s First Amendment work extends beyond religious liberty. In 2006 he had a leading role in creating the first guidelines designed to assist educators, students, and parents address freedom of expression as it concerns sexual orientation in public schools. His bimonthly syndicated column “Inside the First Amendment” appears in more than 150 newspapers nationwide. See also Americans United for Separation of Church and State; First Amendment Center; McMasters, Paul K.
David L. Hudson Jr.
furthe r reading Haynes, Charles C. www.firstamendmentcenter.org/biography.aspx ?name=c_haynes. Parvin, Paige P. “Emory Medalist Charles Haynes,” Emory Magazine 81 (Autumn 2005): 24–27. www.emory.edu/EMORY_MAGAZINE/ autumn_2005/medalists_haynes.htm.
Hays, Arthur Garfield Arthur Garfield Hays (1881–1954), one of the founding members of the American Civil Liberties Union (ACLU) in 1920, was a long-time member of the ACLU’s national committee and served as its general counsel until his death.The New York Times described Hays as “the lawyer who grew rich representing corporations and who became famous defending civil liberties without pay” (Quoted in Walker, p. 53). Born into a wealthy family in Rochester, New York, Hays earned a B.A., M.A., and LL.B. from Columbia University. After a short stint in a corporate law firm, he set up the firm of Hays, Kaufmann & Lindheim and, after it was dissolved, founded Hays, St. John & Abramson. Although Hays had many corporate clients, he is best known for his defense of First Amendment freedoms. He served with Clarence Darrow defending Tennessee educator
John Scopes for teaching evolution in the Scopes monkey trial of 1925. He successfully defended irascible journalist H. L. Mencken in a case designed to test Boston’s restrictive laws against obscenity. He defended the Scottsboro Boys against false rape charges in Alabama in the 1930s. And he took numerous cases defending the rights of union members to organize. See also American Civil Liberties Union; Baldwin, Roger; Darrow, Clarence; Scopes Monkey Trial.
John R.Vile
furthe r reading Finan, Christopher M. From the Palmer Raids to the Patriot Act:A History of the Fight for Free Speech in America. Boston: Beacon Press, 1970. Walker, Samuel. In Defense of American Liberties: A History of the ACLU. 2d ed. Carbondale: Southern Illinois University Press, 1990.
Hazelwood School District v. Kuhlmeier (1988) In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Supreme Court held that schools may restrict what is published in student newspapers if the papers have not been established as public forums.The Court also decided that the schools may limit the First Amendment rights of students if the student speech is inconsistent with the schools’ basic educational mission. Three high school student journalists, including Cathy Kuhlmeier, had sued their Missouri school district in 1983 for infringing on their First Amendment rights after the principal of Hazelwood East High School, Robert E. Reynolds, removed articles from a pending issue of Spectrum, the student newspaper.Two articles he objected to dealt with divorce and teen pregnancy. Although the district court ruled against the students, they won their case in the Eighth Circuit Court of Appeals, and the district appealed to the Supreme Court. In a 5-3 decision (there were only eight members of the Court, as the senate had not confirmed Justice Anthony M. Kennedy), the Supreme Court overturned the Court of Appeals’ ruling. Writing for the Court, Justice Byron R.White noted that First Amendment rights of students in the public schools “are not automatically coextensive with the rights of adults in other settings.”Those rights, he argued, must be “applied in light of the special characteristics of the school environment,” and schools do not need to tolerate student speech that is inconsistent with their “basic educational mission.”
Headlight Flashing In examining whether the Spectrum was a forum for public expression, White concluded that school facilities were public forums only if administrators had “by policy or practice” opened those facilities for “indiscriminate use by the general public.” The Court showed evidence that the paper had not “by policy or practice” been operating as a public forum. Hazelwood created a new standard for school-sponsored student speech as opposed to student-initiated speech. Educators, White said, do not violate student First Amendment rights “by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” However,White also said students should go to court to protect their constitutional rights “when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose.” The Court also stated that a school acting as a publisher of a student newspaper or as a producer of a school play could disassociate itself from speech that would “substantially interfere with its work or impinge upon the rights of other students” and from speech that was “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.” White argued that a school “must be able to take into account the emotional maturity of the intended audience” when determining whether content was appropriate for the readers. Justice William J. Brennan Jr. wrote the dissenting opinion denying that the First Amendment permits “such blanket censorship authority.” He cited Tinker v. Des Moines Independent Community School District (1969) that said, “students in the public schools do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Public educators, Brennan said, “must accommodate some student expression, even if it offends them or offers views or values that contradict those the school wishes to inculcate.” Furthermore, Brennan said,“official censorship of student speech on the ground that it addresses potentially sensitive topics is . . . impermissible.” Since the decision, the Student Press Law Center (SPLC) has held that student publications, which are operating as a public forum either “by policy or practice,” cannot be censored under Hazelwood. A public forum, the SPLC says, means that through policy or practice school officials have given student editors the authority to make content deci-
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sions. The SPLC also holds that school officials must show that they have a valid educational purpose for censorship and that the censorship is not intended to silence a specific viewpoint with which they disagree or a viewpoint that might be unpopular. School officials must prove that censorship has occurred because there would be “substantial disruption of school activities or an invasion of the rights of others.” As of 2006, six states—Arkansas, California, Colorado, Iowa, Kansas, and California—have laws that protect the First Amendment rights of students. Similar measures have been introduced in other states. Scholars continue to debate the relationship between speech at the high school and college level. Student press advocates expressed great concern when a federal appeals court ruled in Hosty v. Carter (2005) that the Hazelwood framework applies at the university level. See also Hosty v. Carter (7th Cir. 2005); Students, Rights of;Tinker v. Des Moines Independent Community School District (1969).
H. L. Hall
furthe r reading Haynes, Charles C., Sam Chaltain, John E. Ferguson Jr., David L. Hudson Jr., and Oliver Thomas. The First Amendment in Schools. Washington, D.C.: Association for Supervision and Curriculum Development, 2003. Hudson, David L., Jr. “Cathy Cowan Reflects on Her High School Journalism Fight in Hazelwooed Case.” First Amendment Center, December 27, 2001. www.firstamendmentcenter.org/analysis.aspx ?id=4360.
Headlight Flashing The practice, common among motorists, of flashing their headlights to alert other drivers to an upcoming patrol car has been claimed as a form of expression protected under the free speech clause of the First Amendment. Thus far courts have generally interpreted the practice as protected free speech. When Wallace Wason flashed his headlights to warn oncoming motorists about the police officer who had just ticketed him, he was arrested and criminally charged with interfering with an officer in the performance of his duties. A jury found Wason guilty as charged in City of Warrensville Heights v.Wason (1976).The Ohio Appellate Court reversed the trial court’s guilty verdict, holding that the defendant’s actions had not prevented the officer from issuing citations or from making arrests. The court ruled that there was no evidence that other drivers had been speeding before seeing the defendant’s flashing headlights.Thus, the court held, the
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Healy v. James (1972)
defendant had not interfered with official police duties and was not guilty of the charges against him. In 1999 a New Jersey appellate court held that the act of flashing one’s headlights as a warning is a free speech right protected by the First Amendment.That same year, however, the Pennsylvania Supreme Court, in Commonwealth v. Beachey (1999), reviewed a defendant’s use of his headlights as a day-time warning to other motorists without discussing any First Amendment implications. A Tennessee circuit court, in State v.Walker (2003), returned to the constitutional question by accepting the First Amendment as a defense to charges involving speed-trap warnings. Reviewing these cases, UCLA law professor Eugene Volokh describes the act of flashing one’s headlights as “crime-facilitating speech,” similar to the actions of publishing names of witnesses in the newspaper or printing instructions that explain how to make bombs or commit suicide. Volokh says that a driver by flashing headlights is encouraging other drivers to speed before they reach the speed trap and again after they have passed the speed trap. Leslie Kendrich, in a law review article on the subject, however, argues that headlight flashing is not “how-to information.” It is merely a signal that other drivers may or may not choose to follow. Courts thus should not view headlight flashing as the act of aiding and abetting criminal activity but as constitutionally protected free speech. See also Expressive Conduct; Symbolic Speech;Volokh, Eugene.
Virginia L.Vile
furthe r reading Kendrich Leslie. “Note: A Test for Criminally Instructional Speech.” Virginia Law Review 91 (2005): 1973–2021. Volokh, Eugene. “Crime-Facilitating Speech.” Stanford Law Review 57 (2005): 1095–1122.
Healy v. James (1972) In Healy v. James, 408 U.S. 169 (1972), the Supreme Court affirmed public college students’ First Amendment rights of free speech and association, determining that those constitutional protections apply with the same force on a state university campus as in the larger community. At Central Connecticut State College, the school president Dr. James had denied official status to the local chapter of a left-wing student group, Students for a Democratic Society, who had been associated with violence on other campuses. The president said the group’s philosophy was
“antithetical to the school’s policies,” its independence from the national organization was “doubtful,” and it would be “disruptive.” Without official status, the group could not announce its activities in the campus newspaper, post notices on college bulletin boards, or use campus facilities for meetings. Healy, a student, had appealed Dr. James’s decision, which two lower federal courts had affirmed. Writing for an eight-member majority, Justice Lewis F. Powell Jr. observed at the outset that the case arose in 1969 when a climate of unrest on many U.S. college campuses was marked by civil disobedience. Powell quickly established that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” He cited the Court’s declaration in Tinker v. Des Moines Independent Community School District (1969) that neither public secondary students nor their teachers “shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.” Though the Court had long recognized that officials must govern conduct in the public schools, Powell emphasized precedents “leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.” The college classroom and its surroundings are a distinct “marketplace of idea,” Powell wrote. Because denial of official status was in effect a form of prior restraint, Powell reasoned, a “heavy burden” rested on the college to justify its action. The college president could not deny recognition simply because he disagreed with the philosophy or ideas advocated by the students, regardless of how repugnant or abhorrent he found those views. However, relying on Tinker, Powell said colleges could prohibit students’ associational activities that would “infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.” Schools also could impose reasonable time, place, and manner restrictions on student speech and require that groups seeking official recognition agree in advance to conform to “reasonable campus law.” The Court remanded the case to ascertain whether the students were willing to abide by “reasonable campus rules and regulations.” Justice William H. Rehnquist concurred only in the result, saying the majority opinion obscured distinctions that allow the government as school administrator to impose reasonable rules and sanctions on students that as a sovereign it could not impose on all citizens. A year later, in Papish v. Board of Curators of the University of Missouri (1973), the Court said Healy made “clear that the
Heffron v. International Society for Krishna Consciousness (1981) mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” See also Papish v. Board of Curators of the University of Missouri (1973); Powell, Lewis F., Jr.; Students, Rights of; Time, Place, and Manner Restrictions;Tinker v. Des Moines Independent Community School District (1969).
Joey Senat
furthe r reading Calvert, Clay, and Robert D. Richards. “Interview and Commentary: Lighting a Fire on College Campuses: An Inside Perspective on Free Speech, Public Policy and Higher Education.” Georgetown Journal of Law and Public Policy 3 (2005): 205–255. Martin, Karyl Roberts.“Note: Demoted to High School: Are College Students’ Free Speech Rights the Same as Those of High School Students?” Boston College Law Review 45 (2003): 173–204.
Heckler’s Veto A heckler’s veto occurs when the government accepts restrictions on speech because of the anticipated or actual reactions of opponents of the speech. The Supreme Court first recognized the term in Brown v. Louisiana (1966), citing the work of First Amendment expert Harry Kalven Jr., who coined the phrase. The term is also used in general conversation to refer to any incident in which opponents block speech by direct action or by “shouting down” a speaker through protest. Although some scholars make reference to a string of heckler’s veto cases, the idea appears across a wide range of cases in First Amendment law as a label critical for any claim, made in defense of the government’s suppression, that speech inciting hostile reactions may be restrained. The offense to audiences and their reactions to expression generally have been important justifications for restrictions on speech. Issues of obscenity and “fighting words” are common examples.The circumstances that raise a heckler’s veto, in which the claim of offense has been viewed with much greater skepticism, can be distinguished in two ways. First, speech protected by raising the heckler’s veto objection is considered to have some value or contribution to public debate, unlike the forms of speech that the Supreme Court has left categorically unprotected. Second, cases involving supposed hecklers’ vetoes usually concern the behavior of crowds, not an impressionable observer or an individual who might be provoked to fight. A heckler’s veto “doctrine” has sometimes been articulated as the principle that the Constitution requires the gov-
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ernment to control the crowd in order to defend the communication of ideas, rather than to suppress the speech.Yet the larger the opposition grows and the more difficult it is for the government to protect the speaker, the more compelling become the practical considerations in restricting or removing the speaker from the scene. The landmark heckler’s veto case is Terminiello v. Chicago (1949), in which a riot took place outside an auditorium before, during, and after a controversial speech. Justice William O. Douglas, writing for a 5-4 majority, held unconstitutional Arthur Terminiello’s conviction for causing a breach of the peace, noting that speech fulfills “its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Just two years later, in Feiner v. New York (1951), the Court nevertheless upheld Irving Feiner’s conviction for causing a breach of the peace, in similar circumstances, after the police asked him three times to stop speaking to a crowd that was growing hostile. In general, the core concern with the heckler’s veto is that allowing the suppression of speech because of the discontent of the opponents provides the perverse incentive for opponents to threaten violence rather than to meet ideas with more speech.Thus the Supreme Court has tended to protect the rights of speakers against such opposition in these cases, effectively finding hecklers’ vetoes inconsistent with the First Amendment. See also Brown v. Louisiana (1966); Feiner v. New York (1951); Kalven, Harry, Jr.;Terminiello v. Chicago (1949).
Patrick Schmidt
furthe r reading Kalven, Harry, Jr. The Negro and the First Amendment. Columbus: Ohio State University Press, 1965. LaRue, Jan. “The Troubling Resurgence of the ‘Heckler’s Veto ’ ” Human Events. January 26, 2005. www.thefire.org/index.php/ article/5188.html.
Heffron v. International Society for Krishna Consciousness (1981) In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981), the Supreme Court upheld a content-neutral time, place, and manner regulation that placed restrictions on the religious practices of the Krishna sect against allegations that it restricted the First Amendment exercise of religion.
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A Minnesota regulation prohibited anyone at the Minnesota state fair from selling or distributing any written material except from designated, fixed-location booths. Because Krishna religious doctrines commanded its members to go out into public places and distribute their religious material, the International Society for Krishna Consciousness challenged this regulation, arguing that it restricted their religious practices. Writing for a 5-4 majority, Justice Byron R.White characterized the state fair regulation as a content-neutral time, place, and manner regulation. According to White, the regulation did not discriminate; it forbade every person and organization from distributing literature or soliciting donations except from a fixed booth. As such, this regulation was subject to a lower standard of review than would be applied to content-based regulations. Unlike the strict scrutiny test, content-neutral time, place, and manner regulations only had to be supported by a significant state interest and leave open ample alternative channels for communication of the information.White found that the significant state interest was the need to maintain the orderly movement of the huge crowds of people attending the state fair and access to alternate forums was not denied without or within the fairgrounds. Writing in dissent, Justice William J. Brennan Jr. argued that in subjecting proselytizers to arrest and removal from the fairgrounds, the restriction on distributing literature substantially burdened First Amendment rights. Brennan also asserted that the regulation was an overly intrusive means of achieving the state’s interest in crowd control and that the state had not shown that a relaxation of the booth rule “would create additional disorder in a fair that is already characterized by the robust and unrestrained participation of hundreds of thousands of wandering fairgoers.” See also Brennan, J.William, Jr.; Content Neutral;Time, Place, and Manner Restrictions;White, Byron R.
zine published material that some law-enforcement agencies considered obscene. Born in Chicago, Hefner earned a BA in psychology from the University of Illinois and studied for a semester at Northwestern University. He founded Playboy in 1953 and later expanded the publication into a cultural empire, by producing Playboy-related television programs, films, clothing, clubs and casinos, and online content. The magazine, which featured photographs of nude women and, in its earlier days, articles by significant literary figures of the period, became popular in the 1950s, selling more than a million copies per month. In 1963 Hefner was arrested for selling obscene literature. A jury was unable to reach a verdict. Changes in the public’s attitude toward sex in the 1960s challenged the magazine’s approach to sexual freedom by suggesting that female sexuality deserved as much respect as did male sexuality. Critics of Playboy argued that women dressed in bunny costumes—a Playboy trademark—existed only for the pleasure of men. Hefner fought back by writing a series of editorials entitled “The Playboy Philosophy” that championed his interest in individual freedom and suggested the country was repressed by a Puritan heritage. After two decades of reduced success, the magazine was rejuvenated when Hefner received several awards, including the Henry Johnson Fisher Award in 2002 from the Magazine Publishers of America. Hefner was inducted into the Hall of Fame of the American Society of Magazine Editors in 1998 and occasionally serves as guest lecturer for a course he endowed at the University of Southern California, entitled Censorship in Cinema. In 1979 Playboy Enterprises, Inc., established the Hugh M. Hefner First Amendment Awards, for noteworthy contributions to enhance and protect First Amendment rights. Although he is still a major shareholder in the enterprise, Hefner promoted his daughter, Christie, to head Playboy in 1988.
Patrick M. Garry
furthe r reading Hunter, Howard O., and Polly J. Price. “Regulation of Religious Proselytism in the United States.” Brigham Young University Law Review 2001 (2001): 537–574.
Hefner, Hugh Hugh Marston Hefner (1926–), the founder of Playboy magazine, is a prominent advocate of First Amendment rights. Hefner’s interest in the subject originated when his maga-
See also Feminist Theory; Obscenity and Pornography; Puritans; United States v Playboy Entertainment Group (2007).
Veronica Hefner and Jurij Toplak
furthe r reading Brady, Frank. Hefner. New York: Macmillan, 1974. Van Ness Films. Hugh Hefner, American Playboy. Directed by Kevin Burns. A&E Biography series. 1996.
Hein v. Freedom from Religion Foundation (2007)
Hein v. Freedom from Religion Foundation (2007) In Hein v. Freedom from Religion Foundation, 551 U.S. ____ (2007), the Supreme Court decided that taxpayers do not have the right to challenge executive branch expenditures on conferences designed to further faith-based initiatives. It thus cut off a potential means of challenging the constitutionality of such expenditures, which some believe violate the establishment clause of the First Amendment. President George W. Bush had created a White House Office of Faith-Based and Community Initiatives, with Jay Hein as director, within the Executive Office of the President through executive orders and had funded it through “general Executive Branch appropriations” rather than through direct congressional appropriations. The Freedom from Religion Foundation challenged this type of expenditure as a violation of the establishment clause. Consistent with its interpretation of prior precedents relative to standing in such cases, the Court ultimately decided on a 5-4 vote that this method of financing effectively immunized the programs against taxpayer challenges. Justice Samuel A. Alito Jr. wrote the opinion for the Court, which was joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy. Alito’s decision focused primarily on applying the Court’s ruling in Flast v. Cohen (1968) relative to taxpayer standing. Noting that the Court had generally classified taxpayer claims as “too generalized and attenuated to support Article III [the Article that outlines judicial powers] standing,” he acknowledged that Flast had recognized exceptions where taxpayers were challenging the exercise of congressional powers under the taxing and spending clause and where taxpayers could show a nexus between their status as taxpayers and “the precise nature of the constitutional infringement alleged.” In Hein, Congress had not authorized the expenditures through a direct appropriation; the case thus more clearly resembled the decision in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (1982), where the Court had rejected standing, than it resembled Flast, where the Court had accepted it. Alito observed that Flast had largely been confined to its facts and that any other approach would raise serious separation of powers concerns by involving courts in matters that did not involve true cases or controversies.
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Alito further argued that the Freedom from Religion Foundation had presented no limiting principle. Pointing to the “parade of horribles” that respondents had claimed “could occur if Flast is not extended to discretionary Executive Branch expenditures,” he observed that “Of course, none of these things has happened, even though Flast has not previously been expanded in the way that respondents urge.” Justice Anthony Kennedy wrote a brief concurring opinion affirming Flast but arguing against its further extension. Justice Antonin Scalia wrote a blistering concurring opinion, joined by Justice Clarence Thomas, arguing that Flast had created “utterly meaningless distinctions” that the Court should overturn in pursuit of logic and the rule of law. Scalia believed that Flast’s mistake had been to recognize standing for “Psychic Injury” rather than a “Wallet Injury,” whereas he thought the former was too insubstantial to continue. In an argument that resembles his objection to “psychological” coercion in other establishment clause cases, Scalia argued that the Court should reject any case based on “a taxpayer’s purely psychological displeasure that his funds are being spent in an allegedly unlawful manner.” Justice David H. Souter wrote a dissent that was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer. Souter thought that the members of the Freedom from Religion Foundation had just as much standing as the litigants in Flast. He believed that both cases involved “the right of conscience” and tax expenditures. As to separation of powers, Souter argued that “there is no difference . . . between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one.” He believed that expenditures on behalf of religious causes sent the improper message that nonreligious adherents were “outsiders” rather than “full members of the political community.” See also Alito, Samuel A., Jr.; Faith-based Organizations and Government Aid; Flast v. Cohen (1968); Scalia, Antonin; Souter, David H.; Valley Forge Christian College v. Americans United for Separation of Church and State (1982).
John R.Vile
furthe r reading Greer, Megan.“Today’s Opinion in Hein v. Freedom From Religion.” http://www.scotusblog.com/movabletype/archives/2007/06/ todays_opinion_21.html.
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Heller v. New York (1973)
Heller v. New York (1973)
Hennington v. Georgia (1896)
The Supreme Court in Heller v. New York, 413 U.S. 483 (1973), vacated and remanded an obscenity conviction in light of its decisions four days earlier in Miller v. California and Paris Adult Theatre I v. Slaton, where it had set new standards for determining which materials were obscene, and therefore unprotected by the First Amendment. The Court did so even though it upheld a warrant that a New York judge had issued confiscating a copy of the sexually oriented film, Blue Movie. Heller, the manager of a commercial movie theater, and others connected with the establishment, had been arrested after a judge had viewed the movie, which contained scenes depicting a nude couple engaged in ultimate sexual acts.The judge had also seized a warrant for the seizure of a copy of the movie. Writing for the Court, Chief Justice Warren E. Burger agreed that the judge in the lower court could issue a warrant without first conducting an adversary hearing on its probable obscenity. The present case did not involve an instance of “final restraint,” as in United States v.Thirty-seven Photographs (1971) or Freedman v. Maryland (1965), since in Heller the judge had seized only one copy of the film for evidentiary purposes. Neither did he confiscate and destroy vast quantities of books of materials as in A Quantity of Books v. Kansas (1964). The record also gave no indication that this was the theater’s only copy. Justice William O. Douglas wrote a dissent, which also applied to Roaden v. Kentucky (1973), stating that the obscenity law in question violated the First Amendment. Justice William J. Brennan Jr. also wrote a dissent, joined by Justices Potter Stewart and Thurgood Marshall, arguing that the law was “unconstitutionally overbroad” and therefore facially invalid.
In Hennington v. Georgia, 163 U.S. 299 (1896), the Supreme Court upheld a Georgia law forbidding trains from running on Sundays against challenges that it unduly interfered with interstate commerce. The Court’s reasoning was analogous to that which it used in the twentieth century to uphold the legitimacy of Sunday closing laws against challenges that such laws violated the establishment clause of the First Amendment. Justice John Marshall Harlan I, writing for the majority, observed that Georgia and other states for many years had laws prohibiting work on the Sabbath. Georgia’s Supreme Court had recognized that such laws were an appropriate exercise of state police powers designed to “reduce wear and tear, promote health, favor cleanliness, encourage social intercourse, afford opportunity for introspection and retrospection, and tend in a high degree to expand the thought and sympathies of the people, enlarge their information, and elevate their morals.” Harlan cited the Georgia high court to say that judges were not concerned with the motives of the legislators, and it was of no consequence if the day of rest they chose coincided with Christian sentiments: “That which is properly made a civil duty by statute is none the less so because it is also a real or supposed religious obligation; nor is the statute vitiated, or in anywise weakened, by the chance, or even the certainty, that in passing it the legislative mind was swayed by the religious rather than by the civil aspect of the measure.” Harlan observed that much beneficial legislation corresponded with duties spelled out in the Ten Commandments. Surveying precedents, Harlan further found that state police regulations affecting interstate commerce were not illegal in the absence of conflicting congressional legislation. By contrast, Chief Justice Melville W. Fuller and Justice Edward White thought that they were.
See also A Quantity of Books v. Kansas (1964); Brennan,William J. Jr.; Burger,Warren E.; Douglas,William O.; Freedman v. Maryland (1965); Miller v. California (1973); Obscenity and Pornography; Paris Adult Theatre I v. Slaton (1973); Roaden v. Kentucky (1973); United States v.Thirty-seven Photographs (1971).
John R.Vile
furthe r reading Berger, Suzanne M. “Searches of Private Papers: Incorporating First Amendment Principles into the Determination of Objective Reasonableness.” Fordham Law Review 51 (1983): 967–990.
See also Harlan, John Marshall, I; Sunday Blue Laws.
John R.Vile
furthe r reading Green, Steven K. “Justice David Josiah Brewer and the ‘Christian Nation’ Maxim.” Albany Law Review 63 (1999): 427–476.
Henry, Patrick
Henry v. Collins (1965) Henry v. Collins, 380 U.S. 356 (1965), reversed a libel conviction of an individual who had criticized two public officials. The Supreme Court relied in Henry on the argument that the lower courts had not met the actual malice standard that the Court had established in New York Times Co. v. Sullivan (1964).The decision thus continued to affirm that the First Amendment’s guarantee of freedom of speech required public figures to meet a high bar in proving that they had been libeled. A jury in Coahoma County, Mississippi, had granted a libel judgment on behalf of a county attorney and a city police chief after Aaron Henry, charged with disturbing the peace, claimed that his arrest was “the result of a diabolical plot” in which the two men were involved. The judge had instructed the jury that it could “infer malice from the falsity and libelous nature of the statement.” In a per curiam decision, the Court cited the actual malice requirement established for libel of public figures in Sullivan and reaffirmed in Garrison v. Louisiana (1964). It required that public figures could only establish actual malice by showing that a derogatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Justices Hugo L. Black, William O. Douglas, and Arthur Goldberg concurred in the judgment in Henry, focusing not merely on the jury instructions but on their belief that the First Amendment prohibited “any libel judgment solely because of . . . criticism against respondents’ performance of their public duties.” See also Actual Malice; Black, Hugo L.; Garrison v. Louisiana (1964); Libel and Slander; New York Times Co. v. Sullivan (1964); Public Figures and Officials.
John R.Vile
furthe r reading Hancock, Catherine. “Origins of the Public Figure Doctrine in First Amendment Defamation Law.” New York Law School Law Review 50 (2005/2006): 81–143.
Henry, Patrick Patrick Henry (1736–1799) was a firebrand speaker, an ardent supporter of the American Revolution, and an early opponent of the adoption of the U.S. Constitution. His opposition helped convince Federalists to agree to support a
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bill of rights to militate against what Henry and other AntiFederalists viewed as a threat to states’ rights and individual rights from a powerful federal government. The promise of a bill of rights helped pave the way for the adoption of the Constitution in 1788. Born in colonial Virginia of an English mother and Scottish father, Henry failed as a farmer and storekeeper but found his calling in the law. In court he displayed quick wit, knowledge of human nature, and forensic gifts. In 1763 he defended local tax collectors in a damage suit, arguing natural rights, after the British crown had disallowed a Virginia law that permitted payment of the Anglican clergy in money instead of tobacco.Although Henry technically lost the case, known as the Parsons’ Cause, the jury awarded only nominal damages to the clergy, and Henry’s fame grew. In 1764 Henry was elected to the House of Burgesses, the lower house of the Virginia legislature, where he supported frontier interests against the aristocracy. His speech against the Stamp Act in 1765 asserted the rights of the colonies to make their own laws. (“If this be treason, make the most of it.”) Henry was a Virginia delegate to the First Continental Congress, in Philadelphia, in 1774. At the Virginia Convention in 1775, he sponsored measures for armed resistance to the British by the Virginia militia. (“Give me liberty or give me death!”) Although he was prepared to go to war with Britain, he initially opposed independence, thinking that independence was premature until a strong government could be established and alliances made with France and Spain. After helping to draw up Virginia’s state constitution, in 1776, Henry served three one-year terms as governor. His influence with the legislature was sporadic because of his habit of leaving before the end of the session. As commander in chief of Virginia troops during the Revolutionary War, he was prevented from exercising command by state leaders who considered him erratic. After the war Henry advocated amnesty for British Loyalists and state support for religious teachers, the latter position putting him in conflict with James Madison and Thomas Jefferson, who advocated strict separation of church and state and successfully pushed for the Virginia Statute for Religious Freedom. Public service had left Henry badly in debt. He returned for a while to his law practice and became a successful criminal attorney.As a state legislator (1783–1784), he was in favor of strengthening the Articles of Confederation and allowing state taxes for support of churches. After serving as governor of Virginia from 1784 to 1786, he returned to the legislature
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until 1790. He refused to attend the Constitutional Convention of 1787 and led the Anti-Federalists at the Virginia ratifying convention in opposing the Constitution. Near the end of his career, Henry opposed the Virginia and Kentucky Resolutions, which Jefferson and Madison had secretly written in opposition to the Alien and Sedition Acts of 1798; he denied that a state had the right to decide the constitutionality of federal laws. Fearing that the radicalism of the French Revolution would infect the United States, Henry made an apparent turnabout and joined the Federalist Party. He then successfully ran, at George Washington’s request, for the Virginia legislature in 1799. He died before taking his seat. See also Anti-Federalists; Bill of Rights; Constitutional Convention of 1787; Jefferson, Thomas; Madison, James; Virginia Declaration of Rights;Virginia Statute for Religious Freedom.
Martin Gruberg
furthe r reading Beeman, Richard. Patrick Henry. New York: McGraw-Hill, 1974. Carson, Julia M. H. Son of Thunder: Patrick Henry. New York: Longmans, Green, 1945. Mayer, Henry. A Son of Thunder: Patrick Henry and the American Republic. New York: Franklin Watts, 1992.
Hentoff, Nat A civil libertarian, jazz critic, and self-described troublemaker, Nat Hentoff (1925–) has spent much of his career defending the First Amendment against a variety of perceived threats. His writings on music, education, ethics, journalism, and civil liberties—particularly free expression—have appeared in dozens of major newspapers and periodicals, including the New York Times and Village Voice. Additionally, Hentoff has written more than twenty-five books. Among those regarding free expression are The First Freedom: The Tumultuous History of Free Speech in America (1980), The Day They Came to Arrest the Book (1993), and Living the Bill of Rights: How to Be an Authentic American (1999). Hentoff was born in Boston to Jewish parents who had emigrated from Russia. He graduated from the Boston Latin School in 1941 and attended Northeastern University. He did graduate work at Harvard University and in 1950 was a Fulbright fellow at the Sorbonne in Paris. His first journalism job came at age fifteen with a brief stint at the Boston City Reporter, where he dug up news on city scandals. Later, while at Northeastern, he worked on the student newspaper.
As Hentoff explained in his memoir Boston Boy (1986), his “obsession” for the First Amendment was sparked when the university’s president forbade Hentoff and his staff to report on the school’s board of trustees.The young editor and most of his staff resigned in protest. A long-time member of the American Civil Liberties Union (ACLU), Hentoff has not always agreed with stereotypically liberal causes. For example, he opposes capital punishment as well as abortion, and he resigned from the ACLU in 1995 when the organization opposed the mandatory identification of HIV-infected newborns. Hentoff has vehemently criticized campus speech codes as a flagrant affront to the First Amendment. He serves on the steering committee of the Reporters Committee for Freedom of the Press and is on the board of advisers for the Foundation for Individual Rights in Education. See also American Civil Liberties Union; Reporters Committee for Freedom of the Press.
Neil Ralston
furthe r reading “Nat Hentoff.” Washingtonpost.com. www.washingtonpost.com/ wp-srv/politics/opinions/hentoff.htm.
Herbert v. Lando (1979) In Herbert v. Lando, 441 U.S. 153 (1979), the Supreme Court held that there is no protection under the free speech and press provisions of the First Amendment shielding the editorial process used for new stories when the stories provoke libel charges. Anthony Herbert had sued the respondents, including CBS editor Barry Lando, because Herbert believed he had been defamed by a television show and published articles that featured him. Herbert conceded that he was a “public figure” and therefore had to prove that the respondents had published damaging falsehoods about him with “actual malice.” During the discovery process, Herbert sought to access materials related to the editing process of the stories. The respondents refused to comply, claiming that the First Amendment protected them against inquiries into this process. The district court rejected these claims, but the Second Circuit Court of Appeals ruled that the First Amendment did protect the editorial process.The Supreme Court then granted certiorari. Writing for a 6-3 majority, Justice Byron R.White pointed out that the court of appeals had misinterpreted the
Hernandez v. Commissioner of Internal Revenue (1989) Supreme Court’s prior precedents, such as New York Times Co. v. Sullivan (1964). Although the Court in Sullivan had meant to create a more difficult standard under the First Amendment to win a libel case, it had not meant to make it more difficult to gather evidence to determine when a libel had been committed. Precedent did not suggest any First Amendment restriction on the sources from which a plaintiff in a libel case can obtain the necessary evidence to prove actual malice. Instead, it required that in order to prove that a defendant is liable, the plaintiff must focus on the defendant’s conduct and state of mind. This required plaintiffs to be able to inquire into whether a defendant knew or suspected that a story had falsehoods. Therefore, a First Amendment bar on examining the editorial decisions that led to a story would only frustrate the intent of the Court’s earlier decisions. The Court found unconvincing the respondent’s claim that subjecting the editorial process to discovery in libel cases would create a chilling effect on the editorial process. White wrote that if editors took extra care to avoid publishing knowing or reckless falsehoods because of their fear of liability, such a result would be consistent with the First Amendment. Finally, the Court did not believe that the creation of a constitutional shield for the editorial process would help to combat the escalating costs that publishers had to put into defending defamation cases; only complete immunity from liability suits, which would be unacceptable, would do that. In separate dissents, Justices William J. Brennan Jr., Potter Stewart, and Thurgood Marshall all sought to provide broader protection for the editorial process. See also Curtis Publishing Co. v. Butts (1967); Gertz v. Robert Welch Inc. (1974); Libel and Slander; New York Times Co. v. Sullivan (1964); Public Figures and Officials;Time, Inc. v. Firestone (1976).
Tom McInnis
furthe r reading Lewis, Anthony. Make No Law. New York:Vintage Books, 1991. Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech: A Treatise on the First Amendment. New York: Mathew Bender, 1994.
Hernandez v. Commissioner of Internal Revenue (1989) In a case with First Amendment free exercise and establishment clause implications, the Supreme Court in Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680 (1989), pre-
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vented individuals from deducting monies used for religious “auditing” and “training” sessions from taxable income. The Church of Scientology conducts one-on-one sessions in which church leaders use electronic devices designed to measure skin responses to help members, including Robert Hernandez, gain increased spiritual awareness through sequential levels of auditing. The sessions operate according to the Scientology “doctrine of exchange,” which requires individuals to pay for everything they receive. The sessions, which the church advertises, are the Church’s “primary source of income.” Justice Thurgood Marshall wrote the opinion for five members of the Court, upholding decisions by the Tax Court and the First and Ninth Circuit Courts of Appeal. Marshall first addressed statutory issues.Traditionally, the IRS had distinguished between gifts that were made without expectation of reward and quid pro quo exchanges in which donors received something in exchange. Marshall determined that payments for auditing sessions fell into the latter category. Prohibiting deductions for auditing sessions was similar to prohibiting parents from deducting tuition payments to parochial schools. If the IRS were to attempt to distinguish “religious” benefits from others, it would have to become more, rather than less, entangled. In addressing the establishment clause issues, Marshall denied that the law preferred some denominations over others. Relying heavily on the decision in Larson v. Valente (1982), Marshall decided that the regulation was not facially discriminatory. The Court applied the three-part test established in Lemon v. Kurtzman (1971).The purpose of the law was appropriate because it was not “born of animus to religion in general or Scientology in particular.” The primary effect of the regulation neither advanced nor inhibited religion. Although the IRS had to determine which transactions were quid pro quo exchanges and which were not, this inquiry was no more intrusive than other inquiries that the Court had previously upheld. In addressing free exercise claims, Marshall denied that the IRS had imposed a substantial burden on the Church of Scientology. Church members were not opposed to paying taxes; the only burden imposed was that adherents would have less money to purchase additional sessions. Marshall further denied that the IRS was engaged in selective prosecution. Marshall thought there was a fundamental difference between the fees at issue here and traditional “pew rents, building fund assessments, and periodical dues,” which the Court had previously exempted. In any
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event, he did not think the record provided adequate information to reach such a conclusion. Justice Sandra Day O’Connor wrote a dissent joined by Antonin Scalia.They viewed the IRS regulation as “a singular exception” to longstanding treatment of other faiths and did not believe it was distinguishable from deductions for pew rents and other contributions. Justices William J. Brennan Jr. and Anthony M. Kennedy did not participate in the decision. See also Larson v. Valente (1982); Lemon v. Kurtzman (1971); Scientology;Taxation of Religious Entities.
John R.Vile
furthe r reading Machan, Sandra.“Deductibility of Mandatory Donations to Religious Organizations under the Internal Revenue Code.” Akron Tax Journal 7 (1980): 169–178.
Herndon v. Lowry (1937) In Herndon v. Lowry, 301 U.S. 242 (1937), the Supreme Court struck down a Georgia Supreme Court decision that had upheld a conviction under a state criminal syndicalism statute penalizing attempts to incite insurrection or inducing others to do so. The Court held that the state had violated First Amendment rights of free speech and assembly. Angelo Herndon was an African American member of the Communist Party who had moved from Kentucky to Atlanta as an organizer. Although he was found with communist publications in his possession, there was no evidence that he had distributed materials calling for the violent overthrow of the government. Rather than applying the clear and present danger test that the Court had articulated in Schenck v. United States (1919) and related cases, the Georgia courts had relied on Gitlow v. New York (1925) to show that Herndon’s materials had a “dangerous tendency,” which the state could prevent. Justice Owen J. Roberts, writing for the 5-4 majority, argued that “The power of a state to abridge freedom of speech and of assembly is the exception rather than the rule and the penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.” In the case at hand, the Georgia court had construed the statute in such a “vague and indefinite” way as to violate the First Amendment.The state appeared to be penalizing Herndon in part because he was spreading literature having to do with unemployment
and emergency relief. Roberts noted that the court further failed to distinguish advocacy of violence “in the distant future” from those that were more proximate. In his dissenting opinion, Justice Willis Van Devanter argued that the state had provided “a reasonably definite and ascertainable standard by which to determine the guilt or innocence of the accused.” He pointed to literature in Herndon’s possession indicating that the communists wanted to bring about revolution and stir up racial hatred. He noted that First Amendment guarantees of speech and assembly did not shield or protect “acts of intentional incitement to forcible resistance to the lawful authority of a State.” He thought the lower court’s decisions could be interpreted only to apply to the proximate inducement of violence. Hernon and De Jonge v. Oregon (1937) are the first decisions in which the Supreme Court applied the freedom of assembly provisions of the First Amendment to the states via the Fourteenth Amendment. Brandenburg v. Ohio (1969) eventually rejected other state laws that attempted to punish individuals for speech that did not result in the threat of “imminent lawless action.” See also Bad Tendency Test; Brandenburg v. Ohio (1969); Clear and Present Danger Test; Communist Party of the United States; De Jonge v. Oregon (1937); Gitlow v. New York (1925); Schenck v. United States (1919);Vagueness.
John R.Vile
furthe r reading Ross, William B. “When Did the ‘Switch in Time’ Actually Occur? Re-discovering the Supreme Court’s ‘Forgotten’ Decisions of 1936–1937.” Arizona State Law Journal 37 (2005): 1153–1220.
Hess v. Indiana (1973) In Hess v. Indiana, 414 U.S. 105 (1973), the Supreme Court overturned the conviction of a demonstrator in affirming that advocacy of illegal activity in the indefinite future is protected by the First Amendment. As police cleared a street of anti-war demonstrators in Bloomington, Indiana, defendant Gregory Hess, standing on the curb, yelled, “We’ll take the fucking street again [or later].” Authorities charged him with violating the state’s disorderly conduct statute, and a jury convicted him. Hess challenged the prosecution on the grounds that the statute in question was unconstitutionally vague, overly broad on its face, and a violation of the First Amendment. The Indiana Supreme Court upheld his conviction.
Hicklin Test In a per curiam decision, the Court overturned Hess’s conviction, ruling that he had been wrongly prosecuted because his speech was protected. The Court’s reasoning turned on its construction of the facts in the case. In reviewing the record, the justices disagreed with the inferences drawn by the Indiana Supreme Court, which had accepted the trial court’s determination that Hess intended to incite further lawless action and was likely to do so.The justices, however, concluded that Hess did not address any particular person or group with his speech, that he was not speaking louder than other demonstrators, and that he was arrested because of the particular words he used. The Court inferred that Hess’s speech could reasonably be construed as, at best, a plea for moderation on the part of the crowd or, at worst, advocacy of illegal activity in the indefinite future. Either way, the arrest was an unconstitutional infringement of Hess’s First Amendment right of free speech.The Court determined that Hess’s speech could not be characterized as fitting within one of the narrow First Amendment exceptions that would permit his prosecution, such as for obscenity, based on Roth v. United States (1957); for fighting words, as in Chaplinsky v. New Hampshire (1942); or for violating privacy interests, based on Cohen v. California (1971). The Court also reasoned alternatively that had Hess’s speech been viewed as advocacy for illegal action on the crowd’s part, it was, at most, advocacy for action at an indefinite future time. Applying the Brandenburg incitement test, the Court held that because Hess’s speech was not intended to incite imminent, further lawless action on the part of the crowd, or likely to produce such action, the state lacked sufficient grounds to punish the speech. Three justices, led by William H. Rehnquist, disagreed with the Court’s construction of, and right to construe, the factual record. Rehnquist argued that the record permitted a reasonable inference that Hess was, in fact, advocating imminent illegal conduct against the police and that the Indiana courts’ interpretation of the evidence should be accepted. The dissenters did not, however, question the Court’s interpretation of applicable First Amendment precedent. See also Brandenburg v. Ohio (1969); Chaplinsky v. New Hampshire (1942); Cohen v. California (1971); Fighting Words; Obscenity and Pornography; Rehnquist,William H.; Roth v. United States (1957).
Kevin R. Davis
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furthe r reading Redish, Martin H. “Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger.” California Law Review 70 (September 1982): 1159–1200.
Hicklin Test Named for Benjamin Hicklin, a nineteenth-century court recorder in London, England, the Hicklin test is an obscenity standard that originated in an English case. In Regina v. Hicklin (1868), Lord Chief Justice Alexander Cockburn, writing for the Court of Queen’s Bench, supplied a broad definition of obscenity, based on ascertaining “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” The Hicklin test, developed in a country with no written constitution and thus no guaranteed First Amendment rights, was initially used in U.S. law. It ultimately did not survive constitutional challenges based on First Amendment and other considerations. American courts adopted the Hicklin test in applying the Federal Anti-Obscenity Act of 1873 (the Comstock Act) and subsequent state anti-obscenity statutes modeled on the federal act.The Hicklin test permitted a conviction for purveyors of obscenity if a publication had a mere tendency to arouse lustful thoughts in the minds of the most susceptible, usually youthful, readers. Isolated passages could be used to determine whether there was sufficient evidence to infer a defendant’s intention to corrupt public morals. A defendant could not rebut this inference by arguing that a book was published in the public interest or by providing evidence of its literary merit. First employed by a circuit court in the Southern District of New York in United States v. Bennett (1879), a case in which the defendant was convicted of mailing a document advocating legalized prostitution, the Hicklin test came to justify a wide-ranging official scrutiny of literature and the prosecution of serious works of contemporary fiction. Notable among them were Theodore Dreiser’s An American Tragedy and D. H. Lawrence’s Lady Chatterley’s Lover in 1930; James Joyce’s Ulysses in 1933; Edmund Wilson’s Memoirs of Hecate County in 1948; and Henry Miller’s Tropic of Cancer in 1953. The first case to question the Hicklin test’s applicability “to the morality of the present time” was United States v. Kennerley (S.D.N.Y. 1913). Later federal court decisions altered the test in various ways: United States v. Dennett (2d Cir. 1930) by requiring that a work be judged by its
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Hill v. Colorado (2000)
dominant theme; United States v. One Book Named Ulysses (2d Cir. 1933) that it undergo independent literary analysis and be judged by its effect on a person of average sexual instincts; United States v. Levine (2d Cir. 1936) that its lustful effect on the reader outweigh its literary or scientific merits; and Parmelee v. United States (D.C. Cir. 1940) that it be judged, as in Kennerley, by contemporary community standards. Although the Supreme Court had decided cases involving obscenity convictions as early as 1896, it did not address their First Amendment issues until sixty years later. The Court rejected the Hicklin test’s “most susceptible person” requirement in Butler v. Michigan (1957) and then scrapped the test itself in Roth v. United States (1957). Justice William J. Brennan Jr., in his opinion for the Court in Roth, upheld the use of the Comstock Act and a similar state statute, declaring that obscenity was not protected First Amendment speech. He then crafted a new obscenity test. The new test required that a conviction be based on a finding that the average person applying contemporary community standards would feel that the dominant theme of the material taken as a whole appealed to a prurient interest in sex.This test, has, in turn, been modified by the Court’s decision in Miller v. California (1973). See also Brennan, William J., Jr.; Butler v. Michigan (1957); Comstock Act of 1873; Comstock, Anthony; Miller v. California (1973); Obscenity and Pornography; Roth v. United States (1957).
William Crawford Green
furthe r reading Clor, Harry M. Obscenity and Public Morality: Censorship in a Liberal Society. Chicago: University of Chicago Press, 1969.
Hill v. Colorado (2000) The Supreme Court in Hill v. Colorado (2000) ruled as constitutional a 1993 statute regulating protestors outside of health facilities because it did not regulate speech, but rather where some speech may occur. Leila Hill and other “sidewalk counselors” who protested abortion at clinics filed suit, challenging the statute as a violation of their First Amendment right to free speech. The trial court granted summary judgment for the state, and the Colorado Court of Appeals affirmed, ruling that the statute’s restrictions were content neutral because they targeted no specific group.The Supreme Court of Colorado declined to hear the case.The petitioners appealed to the U.S. Supreme Court, which vacated the lower judgment without opinion
and remanded the case to the Colorado Court of Appeals. The court of appeals again upheld the statute, as did the Supreme Court of Colorado, and the protesters once again appealed to the U.S. Supreme Court. In the majority opinion for the 6-3 Court, Justice John Paul Stevens asserted that the statute passed the contentneutrality test outlined in Ward v. Rock against Racism (1989) and imposed a valid time, place, and manner restriction, also as under Ward. In addition, the state had a legitimate interest in protecting the health and safety of patients, and the regulation was narrowly tailored to serve that interest. It was critical to the analysis that the statute applied to all protestors and that it did not preclude other speech by protestors, such as signs and stationary speakers. The Court distinguished the Colorado statute from the injunction overturned in Schenck v. Pro-Choice Network of Western New York (1997).The Colorado statute only restricted a protestor from approaching an individual, whereas the injunction in Schenck required that protestors remain at least fifteen feet away from such individuals, even if it meant that the protestor must move away from the building or sidewalk. In a concurring opinion, Justice David H. Souter reasoned that the Colorado statute was a restraint on the approach and not on the content of speech; it only affected the speaker who actively and knowingly approaches an individual for the purpose of oral protest, education, or passing out of literature.The audible and visual messages offered by such protestors were not precluded by the statute, only one manner in which those messages may be delivered. Justice Antonin Scalia dissented, arguing that the statute was content based because it only limited one who wished to approach another for the purpose of educating, counseling, or protesting. All other approaches were acceptable under the statute. For content-based legislation, Scalia pointed out that the Court must apply strict scrutiny and that the statute failed that level of scrutiny. The statute, he said, was not narrowly tailored to serve a compelling state interest because it restricted more speech than necessary. In a separate dissent, Justice Anthony M. Kennedy characterized the statute as vague and overbroad concerning the speech it attempted to regulate and as viewpoint discriminatory by restricting debate on one side of the abortion issue. See also Abortion Protests; Kennedy, Anthony M.; Scalia, Antonin; Schenck v. Pro-Choice Network of Western New York (1997); Souter, David H.; Stevens, John Paul;Time, Place, and Manner Restrictions; Ward v. Rock against Racism (1989).
Brandi M. Snow
Hit Man Manual furthe r reading Bader, Eleanor J., and Patricia Baird-Windle. Targets of Hatred: AntiAbortion Terrorism. New York: Palgrave MacMillan, 2001. Bork, Robert H. Coercing Virtue: The Worldwide Rule of Judges. Washington, D.C.: AEI Press, 2003. Mitchell, Don. The Right to the City: Social Justice and the Fight for Public Space. New York: Guilford Press, 2003.
Hirsh v. City of Atlanta (1990) The one-sentence Supreme Court decision in Hirsh v. City of Atlanta, 495 U.S. 927 (1990), denied an application by the anti-abortion group Operation Rescue to stay an injunction issued by a Georgia court prohibiting its members from demonstrating within fifty feet of an abortion clinic and imposing further restrictions upon them. The Operation Rescue members had argued that the injunction violated their First Amendment right to free speech. The Georgia Supreme Court, however, upheld the injunction as a regulation designed to protect the rights of Atlanta’s citizens to obtain medical services. In a concurring opinion, Justice John Paul Stevens asserted that this case could not be distinguished from Village of Skokie v. National Socialist Party of America (Ill. 1978), which involved a march by uniformed Nazis, on the basis of the content of the speech. He, however, continued, “It is entirely proper . . . to draw a distinction between injunctive relief imposing time, place, and manner restrictions upon a class of persons who have persistently and repeatedly engaged in unlawful conduct” from one “that constitutes a naked prior restraint against a proposed march by a group that did not have a similar history of illegal conduct in the jurisdiction where the march was scheduled.” Justice Anthony M. Kennedy, in a dissent joined by William J. Brennan Jr., Thurgood Marshall, and Antonin Scalia, argued that the Court was required to treat this case as it did in Skokie. The Supreme Court of Georgia subsequently heard the case in Hirsh v. City of Atlanta and Williams v. City of Atlanta (1991) and upheld the restrictions imposed by the lower court.The Supreme Court of Georgia pointed to Operation Rescue’s persistent violations of the law and saw the injunction as narrowly tailored to meet such interests, consistent with reasonable time, place, and manner restrictions. Two dissenting justices thought the restrictions were too broad. See also Abortion Protests; Content Neutral; Kennedy, Anthony M.; Stevens, John Paul; Time, Place, and Manner
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Restrictions; Village of Skokie v. National Socialist Party of America (Ill. 1978).
John R.Vile
furthe r reading LaPlante, Nona. “Clinic Blockades:What Is the Problem? What Is the Harm? What Is the Solution?” CIRCLES: The Buffalo Women’s Journal of Law and Social Policy 3 (1995): 15–36. Ledewitz, Bruce. “Civil Disobedience, Injunctions, and the First Amendment.” Hofstra Law Review 19 (Fall 1990): 67–141.
Hit Man Manual As the title suggests, the book Hit Man:A Technical Manual for Independent Contractors is a how-to guide for those seeking to pursue a career as murderers for hire. It was written by Rex Feral, a pseudonym some believe belongs to a Florida woman, who originally wrote the book as a crime novel. The book was published by Paladin Press in 1983 and sold approximately 13,000 copies while it was on the market. It became the subject of two suits in federal court, both with First Amendment implications. In 1993 James Perry murdered Mildred Horn; her eightyear-old son, Trevor, who was a quadriplegic; and Janice Saunders, Trevor’s nurse. Lawrence Horn, Mildred Horn’s ex-husband and Trevor’s father, had hired Perry to commit the murders with the expectation of inheriting the $2 million that Trevor received as a settlement for injuries. Perry, who had purchased a copy of Hit Man, executed the crime “by the book,” following its instructions to arrange his contract with Horn, select a weapon, construct a homemade silencer, and dispose of the bodies. The victims’ survivors filed a wrongful death action against Paladin Press in a Maryland federal court, alleging that the publisher had aided and abetted the murderer.The plaintiffs in the Maryland case were represented by Rodney A. Smolla, a First Amendment scholar. Paladin stipulated that it intended the book to be used by criminals and would-be criminals and that it intended and had knowledge that the book would be used to execute the crime of murder for hire. Thus the only issue was whether the First Amendment acted as a complete bar to the plaintiffs’ claims. The district court, using its interpretation of the Supreme Court’s opinion in Brandenburg v. Ohio (1969), held that the First Amendment barred the claims and entitled the publisher to immunity because Hit Man “merely advocates or teaches murder” and does not “incite or encourage” it.
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The Fourth Circuit Court of Appeals reversed the lower court’s decision in Rice v. Paladin Enterprises, Inc. (4th Cir. 1997), stating that the district court had misinterpreted Brandenburg, a seminal decision in which the Supreme Court held that “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence” is protected under the First Amendment, while actually “preparing” people for “imminent lawless action” is not protected speech.The Fourth Circuit held that Hit Man fell within the latter category of speech, and consequently the First Amendment did not provide a bar to civil liability for aiding and abetting. The court cited a number of criminal aiding and abetting cases to support its reasoning. Many First Amendment advocacy groups, several of which wrote amicus curiae briefs on behalf of Paladin, criticized the decision as being inimical to freedom of speech. Paladin was also sued in an Oregon federal court, in 2001, by the victims of an attempted contract murder for aiding and abetting and for conspiracy to commit murder. Like the Fourth Circuit, the Oregon court allowed the claims to go forward.The court held that although Paladin did not make the same stipulations that it did in Rice, it was clear from the book’s content and marketing that the publisher intended the book to be used in the commission of such crimes. Both the Maryland and Oregon plaintiffs settled out of court with Paladin’s insurance company. Paladin agreed to stop selling the book as part of the Rice settlement, although used copies are still widely available on the Internet. See also Brandenburg v. Ohio (1969); Smolla, Rodney A.
furthe r reading
Emilie S. Kraft
Hauprich, Keith C. “A Triple Homicide, a Book Publisher, and the First Amendment: How Will Rice v. Paladin Enterprises, Inc. Impact the Entertainment and Media Industries?” UCLA Entertainment Law Review 7 (1999): 33–56. Kopel, David. “The Day They Came to Sue the Book.” Reason. August–September 1999. http://reason.com/9908/fe.dk.the.shtml. McMasters, Paul. “Murder by the Book: Free Speech Takes a Hit.” May 24, 1999. www.freedomforum.org/templates/document.asp ?documentID=4584. Sanford, Bruce W., and Bruce D. Brown. “Hit Man’s Miss Hit.” 27 Northern Kentucky Law Review 17 (2000): 69–80.
Hobbie v. Unemployment Appeals Commission of Florida (1987) In Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987), the Supreme Court invalidated a ruling by
the state’s Appeals Commission denying unemployment benefits to an individual on the grounds that it violated the First Amendment’s free exercise clause. Paula Hobbie was fired from her job at a jewelry company after she informed the company that she had become a Seventh-day Adventist and could no longer work from sundown on Friday to sundown Saturday. The Florida Department of Labor and Employment Security subsequently denied Hobbie’s claims for benefits, and the Unemployment Appeals Commission subsequently agreed that her refusal to work on the Sabbath constituted “misconduct connected with [her] work.” Justice William J. Brennan Jr. wrote the Court’s majority opinion, which focused on the free exercise clause of the First Amendment. He argued that the case was controlled by earlier rulings in Sherbert v.Verner (1963) and Thomas v. Review Board of Indiana Employment Security Division (1981). In Sherbert, the Court had upheld unemployment payments to a Seventh-day Adventist who had lost her job in South Carolina, and in Thomas, it had upheld such benefits to a Jehovah’s Witness who was fired for refusing to produce armaments. Brennan said that both cases demonstrated that state-imposed burdens on religious exercises required “strict scrutiny” on the part of the Court and could only be justified by the showing of “a compelling interest.” Brennan argued that the Court had specifically rejected the application of a less rigorous standard to such cases in Bowen v. Roy (1986). Brennan rejected Florida’s attempts to distinguish this case from earlier precedents.Although the state’s burden was less than that imposed by South Carolina, Brennan noted, “The immediate effects of ineligibility and disqualification are identical, and the disqualification penalty is substantial.” It was irrelevant whether Hobbie entered employment with a religious conviction or converted after beginning work. The Court’s decision in Wisconsin v.Yoder (1972), with regard to public education for Amish students, further established that the Court’s accommodation of religious beliefs did not constitute an establishment of religion or entangle church and state. Such accommodation simply provided for governmental neutrality. Scholars continue to debate the impact that the Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith (1990), which abandoned the compelling state interest test, will have on decisions like Sherbert and Hobbie.
Holidays, Religious See also Bowen v. Roy (1986); Brennan, William J., Jr.; Employment Division, Department of Human Resources of Oregon v. Smith (1990); Powell, Lewis F., Jr.; Rehnquist,William H.; Seventhday Adventists; Sherbert v.Verner (1963);Thomas v. Review Board of Indiana Employment Security Division (1981); Wisconsin v. Yoder (1972).
John R.Vile
furthe r reading Kelly, Kathleen P. “Note: Abandoning the Compelling Interest Test in Free Exercise Cases: Employment Division, Department of Human Resources v. Smith.” Catholic University Law Review 40 (1991): 929–965.
Holidays, Religious Holidays are days that have been set aside to celebrate a cultural, religious, or national observance. Often these days have become special occasions—for example, Labor Day and Thanksgiving—when public schools and government offices are closed.As the population of the United States has become culturally and religiously diverse, the observance of religious holidays has caused controversy in the workplace, in schools, and in public places. The conflicts arise from questions concerning the free exercise and establishment of religion clauses of the First Amendment. If a government refuses to recognize religious holidays for fear of establishing or favoring a religion, does that refusal infringe on an individual’s right to the free exercise of religion? If it does recognize such holidays, is it violating the establishment clause? Several important cases dealing with these questions have been heard in the courts. When Indiana’s practice of giving state employees Good Friday off with pay was challenged, the Seventh Circuit Court of Appeals, in Bridenbaugh v. O’Bannon (7th Cir. 1999), stated that a government may give employees a religious holiday as a paid vacation day, but it can do so only if it can provide a legitimate secular purpose for choosing a particular day. Bridenbaugh argued that Indiana’s practice, a law since 1941, violated the separation of church and state. In 1998 Richard Ganulin, a Jewish lawyer, filed suit against the U.S. government alleging that the law making Christmas day a legal public holiday violated the establishment clause of the First Amendment. Ganulin based his complaint on the fact that Christmas is a Christian holiday when Christians celebrate the birth of Jesus Christ. In Ganulin v. United States (S.D. Ohio 1999), a federal district judge in Cincinnati granted a motion to dismiss the case.
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Ganulin appealed to the Sixth Circuit Court of Appeals. In 2000 the Court of Appeals affirmed the district court’s decision in an unpublished decision and dismissed the lawsuit. Ganulin appealed the case to the Supreme Court, which denied certiorari in 2001, leaving in place the Sixth Circuit’s decision affirming the holiday’s constitutionality. Since Ganulin filed his lawsuit, two major appeals to court decisions have been handed down regarding official holidays. In Granzeier v. Middleton (6th Cir. 1999), the Sixth Circuit Court of Appeals held that closing a county’s courts and administrative offices on Good Friday did not violate the Constitution.The Fourth Circuit Court of Appeals also upheld a Good Friday holiday in Maryland in Koenick v. Felton (4th Cir. 1999). Supreme Court decisions on religion in public schools have stated that Christmas, Hanukkah, and other religious holidays may be observed in a secular manner.Teachers may teach objectively about the religious components of holidays when they deem the religious elements appropriate as part of the secular instruction. Public schools are limited to celebrating holidays that have both secular and religious significance. Thus, for example, it would not be appropriate to celebrate Easter in the public schools, but it would be appropriate to recognize Thanksgiving. In Lynch v Donnelly (1984), the Supreme Court, in a 5-4 decision, held that the City of Pawtucket, Rhode Island, could have a nativity scene on public property because it also displayed secular Christmas symbols, such as a Santa’s house and a Christmas tree. The Court found that the display merely depicted the historical origins of the holiday and had “legitimate secular purposes.” In the minds of the Court’s majority, the crèche served the legitimate secular purpose of symbolically depicting the historical origins of the Christmas holiday. Five years later, in County of Allegheny v. American Civil Liberties Union (1989), the ACLU challenged two publicsponsored holiday displays in Pittsburgh, Pennsylvania, as state endorsement of religion. The first display involved a Christian nativity scene inside Allegheny County’s courthouse. The second display was a large Hanukkah menorah, erected each year by the Chabad Jewish organization, outside the City-County Building. In a 5-4 decision, the Court held that the crèche inside the courthouse unmistakably endorsed Christianity in violation of the establishment clause. By prominently displaying the words “Glory to God for the birth of Jesus Christ,” the county sent the message that it supported and promoted Christianity. The Court also
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held, however, that not all religious celebrations on government property violated the establishment clause; in context, the menorah simply emphasized the diversity of the season. People who feel strongly that it is their right to place religious displays on public property are looking for ways to display religious symbols so that they pass the constitutional tests. And governments at all levels are becoming more sensitive to potential conflicts and the consequences of those conflicts. See also Lemon v. Kurtzman (1971); Lynch v. Donnelly (1984); Sunday Blue Laws.
Hana M. Ryman and J. Mark Alcorn
furthe r reading Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. Chapel Hill: University of North Carolina Press, 1994. Miller, William Lee. The First Liberty: America’s Foundation in Religious Freedom. Washington, D.C.: Georgetown University Press, 2003.
Hollywood Ten See Blacklists
Holmes, Oliver Wendell, Jr. By the time Oliver Wendell Holmes Jr. (1841–1935) retired from the Supreme Court in 1932, after serving for twentynine years, he had become known as the Great Dissenter and was viewed as a civil libertarian who protected the First Amendment from encroachments, particularly during World War I and the period of hostility to dissent that followed the war. Holmes wrote some of the most significant free speech decisions ever handed down by the Court. In the process he attempted to identify the fine line between protected and unprotected speech with his clear and present danger test, in which he used the now classic example of an individual falsely shouting “Fire” in a theater as an example of speech that was “substantively evil.” Holmes was born in Boston, Massachusetts, into a prominent, staunchly abolitionist family. After graduating from Harvard in 1861, he served with the Massachusetts 20th Volunteers during the Civil War. He graduated from Harvard Law School in 1866 and after a brief period of private practice in partnership with his brother returned to Harvard to teach legal history, constitutional law, and jurisprudence. A compilation of Holmes’s Harvard lectures was published in 1881 as The Common Law, considered by many scholars to be the best book written on the American
legal system. Common Law expounded Holmes’s legal philosophy, which he based on the notion that law is derived from human experience rather than logic. In 1882 Holmes, a progressive Republican, accepted a position on the Massachusetts Supreme Court where he served for twenty years, helping to shape the state’s interpretations of libel and slander laws. He was named Massachusetts chief justice in 1899. In 1902 President Theodore Roosevelt named him to the Supreme Court, and the Senate unanimously confirmed him. Holmes did not begin his tenure as a First Amendment advocate, assuming that role after more than a decade on the Court. His first significant experience with the First Amendment as a justice occurred with Patterson v. Colorado (1907), in which a newspaper editor was convicted of contempt after printing articles and cartoons depicting members of the Colorado Supreme Court in a derogatory manner. Writing for the majority, Holmes determined that no First Amendment issues were at issue because the amendment limited only the actions of the national government. The Court addressed the constitutionality of a similar statute in Fox v.Washington (1915). In his majority opinion, Holmes rejected Jay Fox’s claim that his First Amendment rights had been infringed upon in his misdemeanor conviction for printing an article, “The Nude and the Prudes,” in praise of nudity. Holmes began to take on the role of activist civil libertarian with two sedition cases that originated in the United States’ involvement in World War I. In Schenck v. United States (1919), Holmes delivered the majority opinion upholding the conviction of socialist Charles Schenck, who had been charged with violating the Espionage Act of 1917 by attempting to discourage draftees from responding to draft notices. Acknowledging that interfering with the government’s ability to raise troops might constitute a legitimate exception to the First Amendment, Holmes introduced the clear and present danger test. Attempting to determine what forms of speech were unprotected by the First Amendment, Holmes suggested that it should be determined according to “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”Those evils were defined as plotting the overthrow of the government, inciting riots, and destroying life and property. Later that same year, in Abrams v. United States (1919), Holmes dissented, along with Justice Louis D. Brandeis,
Holocaust Denial when the Court upheld the convictions of five petitioners also charged under the Espionage Act of 1917. In his dissent, Holmes stated that the principle of free speech remained the same during war time as in peace time; he reiterated his belief that congressional restraints on speech were permissible only when speech constituted a “present danger of immediate evil or an intent to bring it about.” By 1923 World War I had ended, and the mood of the Court had become more open on the issue of seditious speech. Such was the case when the Court agreed to hear Gitlow v. New York (reargued 1925).The case involved socialist Benjamin Gitlow, who had been accused of plotting to overthrow the government and had been convicted of criminal anarchy for distributing socialist literature. Although noting that Gitlow had not managed to encourage others to revolt, the Court upheld his conviction. Gitlow began the process of incorporating the First Amendment freedoms of speech and press and making them applicable to the states. While accepting the idea that the First Amendment should apply to the states, Holmes was joined by Brandeis in a dissenting opinion in which he argued that the words at issue posed no clear and present danger of inciting violent action. In 1927 the Court returned to the issue of sedition in Whitney v. California, a case challenging California’s criminal anti-syndicalism law. The Court upheld the statute and acknowledged that Charlotte Whitney, as a member of a communist organization, was in a position to attempt to carry out seditious activities in addition to talking about them.Acknowledging that communist conspiracies were not protected by the First Amendment because those involved in the plot had both the intent and means to attempt an overthrow of the government, Holmes joined in Brandeis’s concurring opinion, which is often cited as an eloquent defense of free expression. Although some justices never accepted the validity of Holmes’s argument, the Court applied the clear and present danger test in a number of cases. After the 1950s, however, the test was supplanted by the preferred freedoms doctrine, which gave precedence to the First Amendment whenever it came into conflict with other rights. Ultimately, the Court treated First Amendment issues under the strict scrutiny test, which closely examines cases in which fundamental rights and those of protected classes according to race, religion, and ethnicity are at issue. For Holmes, the First Amendment provided the foundation for a democratic society. He was accordingly more likely to overturn state and federal convictions in this area than
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in the area of economic regulation, where, as demonstrated in his notable dissents in Lochner v. New York (1905) and Hammer v. Dagenhart (1918), he was willing to uphold state maximum hours and child labor laws against claims that they violated reigning principles of laissez faire economics, which Holmes did not believe were incorporated in the Constitution. See also Abrams v. United States (1919); Brandeis, Louis D.; Clear and Present Danger Test; Espionage Act of 1917; Fox v.Washington (1915); Frankfurter, Felix; Gitlow v. New York (1925); Patterson v. Colorado (1907); Preferred Position Doctrine; Schenck v. United States (1919);Whitney v. California (1927).
Elizabeth R. Purdy
furthe r reading Barnett, Randy E. Restoring the Lost Constitution: The Presumption of Liberty. Princeton: Princeton University Press, 2004. Barton, Steven J., ed. The Path of the Law and Its Influences:The Legacy of Oliver Wendell Holmes, Jr. New York: Cambridge University Press, 2000. Burton, David H. Political Ideas of Justice Holmes. Cranbury, N.J.: Associated University Press, 1992. Cushman, Clare, ed. The Supreme Court Justices: Illustrated Biographies, 1789–1995. 2d ed. Washington, D.C.: Congressional Quarterly, 1996. Holmes, Oliver Wendell, et al. Holmes and Frankfurter: Their Correspondence, 1912–1934. Hanover, N.H.: Hanover University Press of New England, 1996. Pohlman, H. L. Justice Oliver Wendell Holmes: Free Speech and the Living Constitution. New York: New York University Press, 1991. White, G. Edward. Justice Oliver Wendell Holmes: Law and the Inner Self. New York: Oxford University, 1993.
Holocaust Denial Holocaust deniers assert that the slaughter of European Jews by the Nazis during World War II never happened. Holocaust denial is strongest in countries with direct experience with the Nazi past (such as Germany, France, and Austria), but deniers are also active in the United States, the United Kingdom, and Canada. Although the earliest examples of denial began immediately after World War II, Holocaust deniers emerged as a cultural phenomenon in the late 1970s. The official response of the United States to Holocaust denial has been significantly different from that in other countries, primarily because the U.S. Constitution’s First Amendment provides for freedom of expression. Most European countries have responded to denial with legal prosecutions.At first, the prosecutions took place under an odd assortment of laws banning defamation of the dead,
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In January 2005, leaders from thirty countries gathered to remember the victims of the Holocaust on the sixtieth anniversary of the liberation of the Nazi death camp at Auschwitz, in southern Poland. Here Mel Mermelstein, a former camp inmate, lights a candle to mark the occasion. In 1980 Mermelstein had sued the Institute for Historical Review for its stance on the Holocaust.
the falsification of history, and group libel; later, the prosecutions took place under laws that made Holocaust denial itself a crime. In 1985 the Ontario government in Canada prosecuted Ernst Zundel for distributing a pamphlet entitled Did Six Million Really Die?—a case that proved difficult for prosecutors. Zundel was tried under a law banning the knowing distribution of false news. Because the adversarial legal system derived from the British common law lets the defense make its own case, Zundel was able to present several witnesses who explained to the jury why his belief that the Holocaust never happened was sincere. The trial thus became a debate over the Holocaust itself. Although a jury
twice found Zundel guilty, some media headlines conveyed the idea that the Holocaust was in doubt. Finally, in 1992 the Canadian Supreme Court held that the false news law was unconstitutional. There have been no prosecutions of Holocaust deniers in the United States, although Mel Mermelstein, a southern California businessman who was a Holocaust survivor, in 1980 sued the Institute for Historical Review for breach of contract, after the institute offered $50,000 for proof that any Jews were gassed at Auschwitz.After a state judge took judicial notice of the Holocaust as a fact beyond reasonable dispute, the case settled out of court in Mermelstein’s favor. The main controversy posed by Holocaust denial in the United States arose in the early 1990s, when Holocaust deniers sent ads denying the Holocaust to college newspapers.Although most papers rejected the ads, a large minority ran them—including papers at the University of Michigan, Ohio State University, and Brandeis University. The students who ran the ads argued that the free expression clauses of the First Amendment compelled them to do so. Holocaust scholar Deborah Lipstadt accused the college newspapers of ignorance about both the Holocaust and the First Amendment. (The student newspapers at private universities had no obligation to run the ads, and the papers at state universities had to run them only if the school administration had direct oversight of the papers.) Many of the papers that ran the ads also ran editorials explaining the importance of the Holocaust and decrying the deniers. These editorials also explained why the editors believed the First Amendment required them to run the ads. If the students were legally mistaken, they were moved by First Amendment values. See also American Nazi Party and Related Groups; Group Libel; Hate Speech; Students, Rights of; World War II.
Robert A. Kahn
furthe r reading Bischoping, Katherine.“Responses to Holocaust Denial:A Case Study at the University of Michigan.” Contemporary Jewry 18 (1997): 44–59. Douglas, Lawrence. The Memory of Judgment: Making Law and History in the Trials of the Holocaust. New Haven: Yale University Press, 2001. Kahn, Robert A. Holocaust Denial and the Law: A Comparative Study. New York: Palgrave-Macmillan, 2004. Lipstadt, Deborah. Holocaust Denial: The Growing Assault on Truth and Memory. New York: Basic Books 1993.
Hoover, J. Edgar
Homeschooling Although no specific Supreme Court case deals directly with homeschooling, the practice of educating children at home, a number of precedents connect this endeavor with parents’ and students’ rights of free speech and the free exercise of religion. Such First Amendment rights may also be protected by the doctrine of privacy, either alone or in conjunction with the Ninth Amendment, and concern for due process. In early America, most families educated their children at home. The first state to require school attendance was Massachusetts, which adopted a compulsory education law in 1642, although it did not enact a compulsory attendance law until 1852. States have the primary authority over education. They exercise this authority through their police powers, which are constitutionally grounded in the Tenth Amendment. As the Supreme Court recognized in its desegregation decisions, most notably in Brown v. Board of Education (1954), the individual states’ responsibility for education has grown considerably with the increasing importance of education in modern times. The homeschooling movement has expanded in recent years, primarily among conservative Protestants, although the movement is not limited to conservatives or Protestants. Parents often hope that by homeschooling their children they can counter what they perceive to be secularizing influences in public schools, some of which they attribute to Supreme Court decisions such as Engel v. Vitale (1962) and Abington School District v. Schempp (1963), which limited devotional prayer and Bible reading in schools. In Meyer v. Nebraska (1923), the Court ruled that a state could not prohibit a parochial school from teaching German to students. In Pierce v. Society of Sisters (1925), the Court struck down a law that prohibited parents from sending their children to parochial schools. Basing its judgment chiefly on the due process clause of the Fourteenth Amendment, the Court observed, “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” In Farrington v. Tokushige (1927), the Court also declared that a state’s control over the “intimate and essential details” of private schools was limited.The Court further recognized the rights of religious parents when it ruled, in Wisconsin v.Yoder (1972), that Amish parents have the right to take their children out of public schools after the children have completed the eighth grade. Other decisions—Mueller v.Allen (1983), for example, which
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upheld income tax deductions for parents of children in parochial schools against establishment clause challenges— have recognized that the operation of state schools saves state tax dollars, a principle that could also be applied to home schooling.Today all fifty states recognize the rights of parents to educate children at home. Most legal scholars agree that states are entitled to enact minimal training requirements for parents who homeschool their children and to prescribe the number of hours that students must devote to schoolwork, while rejecting schemes that effectively attempt to preclude alternate forms of education. See also Abington School District v. Schempp (1963); Engel v.Vitale (1962); Meyer v. Nebraska (1923); Mueller v.Allen (1983); Pierce v. Society of Sisters (1925); Privacy;Wisconsin v.Yoder (1972).
John R.Vile
furthe r reading Gordon,William M., Charles J. Russo, and Albert S. Miles. The Law of Home Schooling. Topeka, Kan.: National Organization on Legal Problems of Education, 1994. Lukasik, Lisa M. “Comment: The Latest Home Education Challenge: The Relationship between Home Schools and Public Schools.” North Carolina Law Review 74 (1996): 1913–1977. MacMullan, Jack. “Comment: The Constitutionality of State Home Schooling Statutes.” Villanova Law Review 29 (1994): 1309–1350. Page, Bruce D., Jr. “Note: Changing Our Perspective: How Presumptive Invalidity of Home School Regulations Will Further the State’s Interest in an Educated Citizenry.” Regent University Law Review 14 (2001–2002): 181–214.
Hoover, J. Edgar J. Edgar Hoover (1895–1972) was director of the Federal Bureau of Investigation for forty-eight years, serving under every president from Calvin Coolidge to Richard M. Nixon. His supporters praised him for building the FBI into one of the world’s outstanding law-enforcement agencies. His critics accused him of abusing power, failing to combat organized crime, intruding the FBI into state and local cases in order to take credit for other organizations’ work, avoiding crimes that the FBI might not be able to solve, and violating individuals’ First Amendment rights. Hoover was a lifetime resident of Washington, D.C. After earning a law degree from George Washington University in 1917, he joined the Department of Justice. He served (1919–1921) as special assistant to the attorney general, A. Mitchell Palmer, and played a leading role in the “red raids,” a mass roundup and deportation of suspected Bolsheviks and anarchists who had emigrated from Europe but who had not
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acquired U.S. citizenship.When Coolidge became president, Hoover was appointed head of what was then the Bureau of Investigation. Hoover eliminated partisan politics from the organization’s appointments and improved recruiting and training methods. In 1924 he expanded the agency’s fingerprint files, which became the world’s largest such collection. In the 1930s Hoover won fame for tracking down socalled public enemies—bank robbers and gangsters such as John Dillinger and George “Machine Gun” Kelly. In 1939 President Franklin D. Roosevelt gave the FBI wide intelligence and counterespionage functions.These powers originally were directed largely against the Nazis. Hoover extended their functions to include monitoring and disruption of groups that he thought were affiliated with communists. He later published an anticommunist book, Masters of Deceit (1958). For years Hoover’s FBI was widely suspected of using questionable or illegal methods to gain information. The existence of a Counter Intelligence Program, or COINTELPRO, became known in 1971. COINTELPRO penetrated suspect organizations and used FBI resources to disrupt and discredit them. The full extent of Hoover’s misconduct became clear in 1975, after his death, through the work of a Senate select committee on intelligence activities, commonly known as the Church Committee, after its chair, Sen. Frank Church, D-Idaho. The committee documented Hoover’s surveillance of groups and individuals with whom he disagreed—many of whom had done no more than exercise their First Amendment rights to criticize the government. Congressional investigators disclosed that Hoover had often abused his powers: committing burglaries, spying illegally on U.S. citizens, and persecuting those who opposed his agency. Hoover believed that communists used racial discontent to further their cause and that they were behind the civil rights movement of the 1960s. He used COINTELPRO and other means to try to prove that Martin Luther King Jr. was a communist tool, but with no success. Hoover’s longevity as FBI director can in part be attributed to his secret files.These enabled him to intimidate even sitting presidents by threatening to leak damaging disclosures about them. He died in office. See also Communist Party of the United States; Federal Bureau of Investigation; Palmer, A. Mitchell.
Martin Gruberg
furthe r reading Gentry, Curt. J. Edgar Hoover:The Man and the Secrets. New York: W. W. Norton and Co., 1991. Hack, Richard. Puppetmaster: The Secret Life of J. Edgar Hoover. Mew Millennium Entertainment, 2004. O’Reilly, Kenneth. Black Americans: The FBI Files. New York: Carroll and Graf, 1994. Powers, Richard Gid. Secrecy and Power: The Life of J. Edgar Hoover. New York: Free Press, 1987. Theoharis,Athan G., and John Stuart Cox. Boss: J. Edgar Hoover and the Great American Inquisition. Philadelphia: Temple University Press, 1988.
Horn Honking The honking of automobile horns has led to several First Amendment challenges in the courts. Generally, the issue arises after an individual has been cited under a city ordinance for honking a car horn for reasons unrelated to poor driving by a fellow motorist. The individual then claims a First Amendment right to honk as a means of protest. The courts have reached divergent results in such cases. In State v. Compas (Mont. 1998), the Supreme Court of Montana ruled that Lori Compas’s free expression rights were not violated when she was charged with disorderly conduct after repeatedly blowing her horn to protest the location of a park for recreational vehicles near the Yellowstone River. The court ruled that the horn honking in this situation “did not constitute a protest to government of government acts which would be entitled to protection under the First Amendment.” In Weil v. McClough (S.D.N.Y. 1985), a federal district court in New York rejected Charles A. Weil’s First Amendment challenge to a city law stating that “No person shall operate or use or cause to be operated or used any claxon installed on a motor vehicle, except as a sound signal of imminent danger.” Weil was cited and fined for violating the ordinance after repeatedly honking his horn while stuck in Manhattan’s traffic gridlock.Weil argued that horn honking was a form of expressive conduct protected by the First Amendment. The federal district court rejected the argument, determining that the law furthered two substantial state interests—reducing noise and maximizing the usefulness of car horns. The court also noted that the ordinance did not target the content or viewpoint of individuals honking their horns. The federal court also cited the Supreme Court’s famous decision Kovacs v. Cooper (1949), in which the high court upheld a Trenton, New Jersey, ban on the use of sound trucks because of excessive noise.
Hosty v. Carter (7th Cir. 2005) However, at least one lower court has recognized a free expression challenge to a horn-honking law, albeit on state constitutional law grounds.The Oregon Court of Appeals, in City of Eugene v. Powlowski (Ore. App. 1992), ruled that a city law prohibiting horn honking for purposes other than a reasonable warning to another vehicle violated the free expression guarantee of Article 1, section 8 of the state constitution. The court determined that the law was unconstitutionally overbroad:“For example, it is broad enough to make honking unlawful if a motorist honked his horn as a friendly greeting to a bystander as he drives by a residence or any other circumstance when honking is used as a form of communication.” See also Expressive Conduct; Headlight Flashing; Kovacs v. Cooper (1949); Overbreadth.
David L. Hudson Jr.
furthe r reading Spragens, John. “Honking Mad.” Nashville Scene. June 13, 2002. www.nashvillescene.com/Sto\ries/News/2002/06/13/Honking_ Mad/index.shtml.
Hosty v. Carter (7th Cir. 2005) One of the most publicized lower court First Amendment decisions in recent memory, Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005), stands for the principle that the framework identified by the Supreme Court in a high school press censorship case also applies at the college and university level. The Seventh Circuit Court of Appeals decided that censorship of subsidized student newspapers at colleges as well as elementary and secondary schools does not violate students’ First Amendment rights. The case arose after Governors State University officials, including Dean of Students Affairs Patricia Carter, had objected to articles in the student newspaper The Innovator that were critical of the university. Carter had asked the printer to stop printing any more issues of the newspaper until she had the opportunity to review it. Three student reporters, including Margaret Hosty, sued in federal court, contending that censorship of The Innovator violated their First Amendment rights. A federal district court granted most of the university defendants summary judgment but denied Dean Carter qualified immunity, a defense in civil rights actions that protects defendants unless they violate clearly established principles of constitutional law. A three-judge panel of the Seventh Circuit affirmed and also ruled in favor of the students. Carter appealed to the full
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panel of the Seventh Circuit, which reversed by a vote of 7-4 and granted Carter qualified immunity. Previously, in Hazelwood School District v. Kuhlmeier (1988), the Supreme Court had ruled that high school officials could censor a school-sponsored student newspaper if they had a legitimate educational purpose for their actions. In footnote seven, the Supreme Court reserved the question as to whether Hazelwood would apply at the college level:“We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.” After the Hazelwood ruling, some lower federal courts assumed that the decision had little, if any, application at the university level. In Hosty, the Seventh Circuit Court of Appeals disagreed. Judge Frank Easterbrook, who wrote the majority opinion, determined that Hazelwood’s framework “applies to subsidized student newspapers at colleges as well as elementary and secondary schools.” This framework applies the public forum doctrine, asking whether the student newspaper operates as a public or nonpublic forum.The decision can be crucial and outcome determinative because there is greater protection for First Amendment rights in a public forum or even a limited public forum as opposed to a nonpublic forum. Easterbrook reasoned that The Innovator may be a designated public forum or a nonpublic forum but that, in either event, Dean Carter was entitled to qualified immunity because the Supreme Court had not clearly established whether Hazelwood applied at the college level.“Public officials need not predict, at their financial peril, how constitutional uncertainties will be resolved,” he wrote. In dissent, Judge Terence T. Evans wrote that the restrictions placed by the majority “have no place in the world of college and graduate school” and that Hazelwood “does not apply beyond high school contact.” Student press advocates, such as the Student Press Law Center, decried the Seventh Circuit’s failure to appreciate the legal significance of differences between students and journalists in high school as opposed to students at the college and university level.They feared that the decision would give university officials a green light to censor much schoolsponsored student speech at the university level. The students appealed the Seventh Circuit decision to the Supreme Court, but the high court declined to hear the case, thus leaving the court of appeals’ decision in place.
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Hotel and Restaurant Employees’ International Alliance v.Wisconsin (1942)
See also Hazelwood School District v. Kuhlmeier (1988); Public Forum Doctrine; Student Press Law Center; Students, Rights of.
David L. Hudson Jr.
furthe r reading Hudson, David L. Jr. “How Much Will Hosty Ruling Affect College Expression?” First Amendment Center, June 30, 2005. www.first amendmentcenter.org//analysis.aspx?id=15502. Student Press Law Center. “Hosty Q & A.” SPLC Report (Spring 2006). http://www.splc.org/report_detail.asp?id=1279&edition=39.
Hotel and Restaurant Employees’ International Alliance v. Wisconsin Employment Relations Board (1942) In Hotel and Restaurant Employees’ International Alliance v. Wisconsin Employment Relations Board, 215 U.S. 437 (1942), the Supreme Court upheld an injunction under Wisconsin’s Employment Peace Act of 1939 against picketing that had been issued and upheld by state courts. The Court decided that the injunction did not violate First and Fourteenth Amendment protections of freedom of speech. It reached this decision on the basis of the interpretation by the Wisconsin Supreme Court that limited the actual application of an otherwise broadly worded injunction only to violent picketing. Employees of two hotels in Wisconsin had gone on strike after being dissatisfied with the results of arbitration, and picketers had assaulted strike-breakers and had forcefully interfered with the delivery of goods to one of the hotels. One of the union officials who had been arrested and fined assaulted a nonstriking employee after returning to the picket line, and other acts of violence had required the police to take actions to protect the peace. Writing for the Court (except for Justice Owen J. Roberts, who did not participate), Justice Felix Frankfurter cited the Court’s decisions in Thornhill v.Alabama (1940) and American Federation of Labor v. Swing (1941), recognizing that the Court had upheld the right of peaceful picketing under the due process clause of the Fourteenth Amendment. He further wrote that the Court was bound to interpret the injunction that had been issued under state law in accord with the decision by Wisconsin courts, and they had clearly limited the injunction to violent picketing while upholding “freedom of speech and the right peacefully to picket.” Because this interpretation left “the petitioners’ freedom of
speech unimpaired,” the Court affirmed the lower court’s decision. See also American Federation of Labor v. Swing (1941); Frankfurter, Felix; Picketing;Thornhill v. Alabama (1940).
John R.Vile
furthe r reading Kahn, Peggy. Picketing: Industrial Disputes,Tactics, and the Law. London: Routledge and Kegan Paul, 1983.
Houchins v. KQED (1978) In Houchins v. KQED, 438 U.S. 1 (1978), the Supreme Court ruled that the First Amendment guarantee of a free press does not include an unlimited right to government information or sources of that information under the government’s control and that the media does not have an unlimited constitutional right to access of jails or similar facilities. As part of an investigation into an inmate suicide, media corporation KQED had sought permission to inspect the jail facilities and report conditions in the jail alleged to have contributed to the suicide. Sheriff Thomas L. Houchins denied the full request but offered KQED the opportunity to take regular tours of the facility that were open to the general public. KQED, alleging a right to gather information for the public, filed suit in federal court seeking complete access to the jail and inmates. After the federal courts ruled in favor of KQED, the sheriff appealed to the Supreme Court. In a 4-3 decision (Justices Thurgood Marshall and Harry Blackmun did not participate), the Court reversed the lower courts and ruled that freedom of the press does not include a generalized right to gather information.The majority decision was consistent with the Court’s earlier decision in Pell v. Procunier (1974) limiting face-to-face interviews with prison inmates of the reporter’s choosing. Writing for the Court, Chief Justice Warren E. Burger reviewed previous cases upholding the media’s “right to gather news” and the prohibitions on governmental interference with attempts by the media to communicate with the public. He found that the Court has never “intimated a First Amendment guarantee of a right of access to all information within government control.” Burger conceded that penal institutions were public facilities, of legitimate interest to the general public, and that the media did have an important role in “contributing to remedial action in the conduct of public business” when such action was required. However, this alone
House Un-American Activities Committee “affords no basis for the claim that the First Amendment compels others—private persons or governments—to supply information.” Burger noted that the County Board of Supervisors held public hearings on the suicide and jail conditions in general. If the media desired special access,“different from or greater than that accorded the public generally,” it should look to the legislature, not the courts. Justice John Paul Stevens authored a dissent, joined by Justices William J. Brennan Jr. and Lewis F. Powell Jr., that would have affirmed the circuit court decision granting access to KQED. See also Burger, Warren E.; Pell v. Procunier (1974); Prisons; Reporters’ Privilege.
Karen Aichinger
furthe r reading “The Rights of the Public and the Press to Gather Information.” Harvard Law Review 87 (1974): 1505–1533.
House Un-American Activities Committee From its inception in 1938 until it was dissolved in 1975, the House Un-American Activities Committee (HUAC) took a prominent role in the investigation of communist activity in the United States. Although its supporters claim that this committee of the U.S. House of Representatives performed an important function, its critics contend that its abuse of power trampled important First Amendment rights, such as freedom of expression and freedom of association. HUAC’s predecessor, the McCormack-Dickstein committee, named for its chair and vice chair, Reps. John W. McCormack, D-Mass., and Samuel Dickstein, D-N.Y., had been formed in 1934 to investigate Nazi propaganda. In 1938 it became the House Un-American Activities Committee, and its first chair was Rep. Martin Dies Jr., DTexas, who headed it until 1944. Under Dies, HUAC soon turned its attention toward investigating Communist Party infiltration and involvement in New Deal agencies, such as the Works Progress Administration. In 1939 it held hearings to investigate the WPA’s Federal Theatre Project, inquiring into whether any of its members or those who worked with it were communists. In 1946 HUAC became a permanent House committee, charged with investigating subversion in the United States. In 1947 and 1951 it investigated alleged Communist Party
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influence in Hollywood and the motion picture industry. As a result of these and subsequent hearings, nearly 300 actors and others employed in the movie industry were blacklisted or prevented from working. Many of those called to testify before HUAC pleaded the Fifth Amendment and refused to testify. Such refusal was often taken as tantamount to guilt, and many individuals were cited for contempt of Congress. Others did testify. Among them was noted film director Elia Kazan, who named numerous people who he believed were communist sympathizers, and they too were blacklisted. One of HUAC’s most famous hearings took place in 1948, when Whittaker Chambers, a former member of the Communist Party, testified before the committee. Chambers’s testimony eventually led to the conviction of Alger Hiss, a State Department employee suspected of being a communist, for perjury. HUAC fed off the hysteria of the cold war and anti-communism, paving the way for Sen. Joseph McCarthy, R-Wis., to begin hearings in the Senate in 1953. Between HUAC and the McCarthy hearings, Congress held broad, roving investigations into the political activity of many Americans suspected of being communists or communist sympathizers. The hearings also investigated many who did not hold communist views, creating a climate of political intimidation that came to be called “red baiting” or McCarthyism.The impact of these hearings was to ruin the careers of many individuals and to foster a political paranoia toward anyone suspected of holding contrary political views or of joining suspected political organizations. The end of HUAC came when it began to investigate opposition to the Vietnam War. Its 1967 and 1968 hearings investigating anti-war activists Abbie Hoffman and Jerry Rubin, both of whom attended the hearings at various times wearing a Santa Claus or a Revolutionary War patriot outfit, contributed to the rising unpopularity of HUAC. In 1969 its name was changed to the Internal Security Committee, and in 1975 it was abolished. During HUAC’s tenure, more than 3,000 individuals testified before it. Its investigations were the subject of several Supreme Court decisions that sought to define the scope of the constitutional power Congress had to hold hearings. See also Attorney General’s List of Subversive Organizations; Blacklists; Communist Party of the United States; Federal Theatre Project; Hoover, J. Edgar; Loyalty Oaths; McCarthyism; Nixon, Richard M.
David Schultz
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Hudgens v. National Labor Relations Board (1976)
furthe r reading Kaplan, Lewis A.“The House Un-American Activities Committee and Its Opponents: A Study in Congressional Dissonance.” Journal of Politics 30 (August 1968): 647–671. Morgan, Ted. Reds: McCarthyism in Twentieth-Century America. New York: Random House, 2003.
Hudgens v. National Labor Relations Board (1976) In Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976), the Supreme Court ruled that there was no right to exercise free speech in privately owned malls under the First Amendment. Members of a striking union had picketed in front of their employer’s store, which was leased in a mall owned by Scott Hudgens, and had been told by the mall manager that if they continued to picket they would be arrested for trespass. The National Labor Relations Board (NLRB) determined that the National Labor Relations Act of 1935 had been violated and brought suit to require Hudgens to allow the picketing to continue. Writing the 6-2 majority opinion, Justice Potter Stewart first stated unequivocally that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state, not private persons or corporations. He then stated that despite this truism, the record demonstrated exceptions. The first exception to the rule was in Marsh v. Alabama (1946), when the Court ruled that the sidewalks of a privately owned company town were the equivalent of those in a public community. Marsh influenced Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968), in which the Court ruled that picketing in a privately owned shopping mall was protected First Amendment activity since the walkways of a mall were the functional equivalent of a city sidewalk. Four years later the Court reconsidered the Logan Valley doctrine in Lloyd Corporation, Ltd. v. Tanner (1972) and, without explicitly overruling it, rejected its reasoning that privately owned malls were the equivalent of city sidewalks. Justice Stewart then made it clear that Logan Valley was no longer the ruling precedent and privately owned malls would no longer be considered to be equivalent to city sidewalks. As a result, First Amendment activity in privately owned malls could be limited by the owners of the property.
Dissenting, Justice Thurgood Marshall, joined by William J. Brennan Jr., argued that the Logan Valley decision should not be overruled because its First Amendment principles were sound. See also Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968); Lloyd Corporation, Ltd. v. Tanner (1972); Marsh v. Alabama (1946); Stewart, Potter.
Tom McInnis
furthe r reading Barron, James A., and C. Thomas Dienes. Handbook of Free Speech and Free Press. Boston: Little, Brown and Co., 1979. Gresham, Jay. “Still as Strangers: Nonemployee Union Organizers on Private Commercial Property.” Texas Law Review 62 (1984): 111–173.
Hughes v. Superior Court of California (1950) In Hughes v. Superior Court of California, 339 U.S. 470 (1950), the Supreme Court decided that a California court injunction against employees picketing to pressure stores to hire on a racial basis did not violate the freedom of speech protected by the First and Fourteenth Amendments.The case provides an early view of Supreme Court thinking on picketing and racial quotas. Hughes and other members of the Progressive Citizens of America had been picketing in front of Lucky Stores, Inc. in Richmond, California, to pressure the stores to hire a proportion of African Americans equal to the percentage of black customers, then about 50 percent. A California court cited the picketers for contempt for violating the injunction that had been issued against them. Justice Felix Frankfurter, who had coauthored a book on labor injunctions prior to becoming a Supreme Court justice, wrote the decision for an 8-0 Court (Justice William O. Douglas did not participate) upholding the lower court ruling.Writing prior to the Court’s historic desegregation decision in Brown v. Board of Education (1954), Frankfurter first noted that California had been sensitive to discrimination in employment and had sought to prohibit racial quotas, which might exacerbate “community tensions and conflicts.” Second, citing Bakery and Pastry Drivers and Helpers Local v. Wohl (1942), he observed that while the Court had used the Fourteenth Amendment to protect freedom of speech against state abridgements, picketing was “more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of
Hughes, Charles Evans one kind or another, quite irrespective of the nature of the ideas which are being disseminated.” Third, Frankfurter argued that in previous cases “the specific situations have controlled decision. It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent.” Applying reasoning counter to current precedents prohibiting viewpoint discrimination, Frankfurter cited the California court argument that there might be “a distinction between picketing to promote discrimination, as here, and picketing against discrimination.” Fourth, he ruled that it was irrelevant that the California policy had been “expressed by the judicial organ of the State rather than by the legislature.” The Court should recognize that “the policy of a State may rely for the common good on the free play of conflicting interests and leave conduct unregulated” or “may deem it wiser policy to regulate.” Justices Hugo L. Black and Sherman Minton concurred, citing Giboney v. Empire Storage and Ice Co. (1949). Justice Stanley F. Reed cited the same case and concurred on the rationale that state law prohibited discrimination on the basis of race. See also Bakery and Pastry Drivers and Helpers Local v. Wohl (1942); Frankfurter, Felix; Giboney v. Empire Storage and Ice Co. (1949); Picketing;Viewpoint Discrimination.
John R.Vile
furthe r reading Frankfurter, Felix, and Nathan Green. The Labor Injunction. New York: Macmillan, 1930.
Hughes, Charles Evans Charles Evans Hughes (1862–1948) served on the Supreme Court twice during his career, the second time as chief justice. He generally supported relatively broad protections for First Amendment freedoms and left a legacy of judicial integrity and strong leadership that helped preserve judicial independence in a time of crisis. The son of a pastor, Hughes graduated from Brown University and Columbia Law School. Between 1881 and 1910, when President William Howard Taft nominated him as an associate justice, he practiced law privately and taught briefly at Cornell University (1881–1883), before returning to a private practice, which he eventually combined with teaching duties at New York Law School. In 1905 he entered politics, serving as governor of New York from 1907 until his
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appointment to the Supreme Court. He resigned in 1916 to run against Woodrow Wilson for the presidency. After an unsuccessful presidential campaign, he worked in various private and public capacities, most notably as secretary of state from 1921 until 1925. In 1930 President Herbert Hoover nominated him as chief justice. As chief justice Hughes distinguished himself as an able administrator. During his tenure, the Court initially struck down many of President Franklin D. Roosevelt’s New Deal measures as interferences with property rights, but it then seemed to switch to a stance friendlier to the New Deal. Some attribute this change to Roosevelt’s Court-packing plan, in which he proposed to add an additional justice (up to fifteen) for each justice on the Court over the age of seventy. Hughes opposed Roosevelt’s plan, which might have seriously undermined the Court’s independence, by pointing out that the Court had not, as Roosevelt charged, fallen behind in its work. On the other hand, Hughes wrote the decision in West Coast Hotel Co. v. Parrish (1937), upholding the constitutionality of minimum-wage legislation. This decision is usually identified as the beginning of the Court’s change in attitude toward the New Deal. Hughes generally ruled favorably on behalf of civil liberties, especially First Amendment freedoms. He wrote the Supreme Court’s path-breaking decision in Near v. Minnesota (1931), striking down a Minnesota law against scandal-sheets as an improper prior restraint of publication. In De Jonge v. Oregon (1937), he wrote the opinion voiding an Oregon law that would have prevented a communist party from forming and holding meetings. In Stromberg v. California (1931), he wrote for the Court in striking down the conviction of a young woman for displaying a red flag. Stromberg was an important stage in the extension of the First Amendment to cover symbolic speech. Hughes generally supported First Amendment religious freedoms. Although he wrote the decision upholding a parade permit requirement as applied to Jehovah’s Witnesses as a reasonable restriction in Cox v. New Hampshire (1941), he voided an ordinance in Lovell v. City of Griffin (1938) that required Jehovah’s Witnesses to obtain a permit before they could distribute literature. He dissented from the Court’s decision in United States v. Macintosh (1931), denying naturalization to a selective conscientious objector. He did not, however, dissent from the Court’s decision in Minersville School District v. Gobitis (1940), later reversed, which upheld a law permitting children, in this case a Jehovah’s Witness, to be expelled from school for not saluting the American flag.
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Hunt v. McNair (1973)
Hughes retired from the Court in 1941 and died seven years later. See also Cox v. New Hampshire (1941); De Jonge v. Oregon (1937); Lovell v. City of Griffin (1938); Minersville School District v. Gobitis (1940); Near v. Minnesota (1931); Stromberg v. California (1931); United States v. Macintosh (1931).
John R.Vile
furthe r reading Hendel, Samuel. Charles Evans Hughes and the Supreme Court. New York: King’s Crown Press of Columbia University, 1951. Hughes, Charles Evans. The Autobiographical Notes of Charles Evans Hughes, ed. David J. Danelski and Joseph S. Tulchin. Cambridge, Mass.: Harvard University Press, 1973. Pusey, Merlo J. Charles Evans Hughes. 2 vols. New York: Columbia University Press, 1963. Vile, John R. “Charles Evans Hughes: An Eighteenth Century Statesman Redivivus.” In Leaders of the Pack: Polls and Case Studies of Great Supreme Court Justices, ed. William D. Pederson and Norman W. Provizer. New York: Peter Lang, 2003.
Hunt v. McNair (1973) In Hunt v. McNair, 413 U.S. 734 (1973), the Supreme Court affirmed a lower court decision interpreting the establishment clause of the First Amendment to allow for greater state financial interaction with religious colleges than with elementary or secondary schools. The case, brought by a South Carolina taxpayer, Richard W. Hunt, against the state governor, Robert E. McNair, involved the constitutionality of the South Carolina Educational Facilities Authority Act, which authorized the use of state tax-free bond authority to finance facilities at colleges, including the Baptist College at Charleston. As a condition of such bond use, the law prohibited the colleges from using the buildings for worship or sectarian instruction.The Supreme Court decided the case on the same day that it decided Committee for Public Education and Religious Liberty v. Nyquist. The Court majority, led by Justice Lewis F. Powell Jr., upheld lower court decisions affirming the law. Powell thought the law was justified under the decisions in Lemon v. Kurtzman (1971) and Tilton v. Richardson (1971). Applying the three-part Lemon test, Powell found that the law had the secular purpose of educating South Carolina students, had neither the primary effect of advancing nor inhibiting religion, and avoided excessive entanglement because the college was not pervasively religious. In a dissenting opinion, Justice William J. Brennan Jr., joined by Justices William O. Douglas and Thurgood
Marshall, argued that the law gave the bond-issuing authority too much control over buildings on the campus of a religious college. Brennan argued that the establishment clause did not simply forbid “payment of public funds directly to support sectarian institutions.” Instead, he argued that it prohibited “any official involvement with religion . . . which tends to foster or discourage religious worship or belief.” He observed that South Carolina aided the college by permitting it “to avail itself of the State’s unique ability to borrow money at low interest rates” and that the college, in turn, “surrenders to the State a comprehensive and continuing surveillance of the educational, religious, and fiscal affairs” of the college. See also Aid to Religious Colleges and Universities; Brennan, William J., Jr.; Committee for Public Education and Religious Liberty v. Nyquist (1973); Lemon Test; Lemon v. Kurtzman (1971); Powell, Lewis F., Jr.;Tilton v. Richardson (1971).
John R.Vile
furthe r reading Alexander, F. King.“Issues in Higher Education: The Decline and Fall of the Wall of Separation between Church and State and Its Consequences for the Funding of Public and Private Institutions of Higher Education.” Florida Journal of Law and Public Policy 10 (1998): 103–127.
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), the Supreme Court established that the First Amendment free speech rights of private groups to define the parameters of their expressive conduct during a parade trumped the provisions of a state anti-discrimination law. The Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB), formed in 1992, had wanted to participate in the traditional annual South Boston St. Patrick’s Day parade, in part to show its members’ pride in their dual identity as Irish Americans and gay Americans. When GLIB attempted to register for the parade, its application was rejected by the parade’s organizer, the South Boston Allied War Veterans Council, which said it had insufficient knowledge of the group and claimed concern over security. Over the next several years, the parties went to court numerous times. The Veterans Council and John J. “Wacko” Hurley
Hustler Magazine v. Falwell (1988) argued that the council had a First Amendment right to refuse to allow GLIB to take part in the parade because it disapproved of its message. GLIB claimed that the parade was a public event and, by barring it, the council was violating the Massachusetts public accommodations law that prohibited discrimination on the basis of sexual orientation. The lower state courts held that because the parade consisted of numerous messages and there was little or no selectivity in deciding which groups were permitted to march and little or no attempt to inquire into or censor the messages of these groups, the council did not have a First Amendment right to exclude GLIB. Moreover, even if there were a minor infringement of the council’s First Amendment right, the state’s interest in eradicating discrimination on the basis of sexual orientation was sufficient to justify it. After the state supreme court upheld the lower court’s decision, the council appealed to the U.S. Supreme Court, arguing the ruling violated its First Amendment rights. Speaking for a unanimous Court, Justice David H. Souter began by asking whether the First Amendment protects the Veterans Council against being forced to include an unwanted message in the parade. After recounting the century-old history of the St. Patrick’s Day parade, Souter characterized the parade as “a form of expression” protected by the First Amendment. The Court held that the council was not barring gay, lesbian, and bisexual individuals from the parade as individuals but rather was opposing their participation as a marching unit under the GLIB banner. Souter stated that GLIB’s message— its banner identifying it as the Irish-American Gay, Lesbian and Bisexual Group of Boston—would conflict with the council’s First Amendment right to determine the message it wished to convey in the parade. Even though the council allowed a wide assortment of messages in the parade, it could exclude GLIB if it believed that including it would signal the council’s acceptance of homosexuality. In any event, the council had an absolute right to decide which participants should be permitted to march in the parade, and the state’s goal of preventing discrimination in public accommodations did not justify overriding its right to determine the content of the parade’s message. “Disapproval of a private speaker’s statement does not legitimize use of the Commonwealth’s power to compel the speaker to alter the message by including one more acceptable to others,” Souter concluded. See also Boy Scouts of America v. Dale (2000); Souter, David H.
Susan Gluck Mezey
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furthe r reading Van Ness, Gretchen.“Parades and Prejudice: The Incredible True Story of Boston’s St. Patrick’s Day Parade and the United States Supreme Court.” New England Law Review 30 (1996): 625–662. Zaleskas, Kristine M. “Pride, Prejudice or Political Correctness? An Analysis of Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston.” Columbia Journal of Law and Social Problems 29 (1996): 507–549.
Hustler Magazine v. Falwell (1988) In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court reversed a lower court’s judgment for intentional infliction of emotional distress against a publisher, noting that the First Amendment protects publishers’ free speech and press rights from such claims made by public figures regarding materials that are clearly labeled as parodies. The celebrated Court decision pitted two icons of 1980s politics—Larry Flynt and the late Jerry Falwell—against one another in a contest over tort liability and the First Amendment. Flynt is the publisher of Hustler magazine, an explicitly hard-core monthly publication. Falwell was the founder of a conservative Christian group, the Moral Majority, and Liberty University in Lynchburg,Virginia. Inside the front cover of its November 1983 issue, Hustler published what it characterized as a “parody.” It was a takeoff on a national advertising campaign promoting Campari, an Italian liqueur. Campari ads featured various celebrities talking about their “first time,” a deliberate double entendre. Feigning a real Campari ad, Hustler’s parody contains a photograph of Jerry Falwell and an interview with him about his “first time”—a drunken incestuous encounter with his mother in an outhouse. At the bottom of the page was the disclaimer: “ad parody—not to be taken seriously.” Further, the magazine’s table of contents lists the ad as “Fiction; Ad and Personality Parody.” Falwell sued Flynt to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. The U.S. District Court for the Western District of Virginia granted a directed verdict for Hustler on Falwell’s invasion of privacy claim. On the libel claim, the jury found against Falwell, concluding that the Hustler parody could not “reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated.” However, the jury ruled for Falwell on the intentional infliction of emotional distress claim. The United States Court of Appeals for the Fourth Circuit affirmed this latter judgment, dismissing as “irrelevant” the jury finding that the Hustler parody did not describe
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Hutchinson v. Proxmire (1979)
actual facts; the appeals court viewed the issue as “whether [the parody’s] publication was sufficiently outrageous to constitute intentional infliction of emotional distress.” The Supreme Court reversed the Fourth Circuit’s judgment. Chief Justice William H. Rehnquist wrote for a unanimous Court (Justice Anthony M. Kennedy did not participate, having joined the Court after this case was argued).The core of the Court’s decision is that, under the “actual malice rule” of New York Times Co. v. Sullivan (1964), the First Amendment protects publishers from claims for damages for intentional infliction of emotional distress made by public figures. Rehnquist, a collector of political cartoons, wrote that although Falwell considered the cartoon to be outrageous, “‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or . . . their dislike of a particular expression. An ‘outrageousness’ standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.” See also Actual Malice; Flynt, Larry; Libel and Slander; New York Times Co. v. Sullivan (1964); Public Figures and Officials; Rehnquist, William H.
James C. Foster
furthe r reading Forman, Milos. People vs. Larry Flint. Sony Pictures, 1998. Smolla, Rodney A. Jerry Falwell v. Larry Flint: The First Amendment on Trial. New York: Notable Trials Library, 1991.
Hutchinson v. Proxmire (1979) In Hutchinson v. Proxmire, 443 U.S. 111 (1979), the Supreme Court ruled that neither the speech or debate clause (Article 1, 6) nor the First Amendment’s guarantee of free speech protects members of Congress against libel for statements that they make outside Congress. Senator William Proxmire (D–Wisc.) had chosen to give his “Golden Fleece Award” to Ronald Hutchinson, a behavioral scientist whose research involved the emotional behavior of animals. Proxmire had followed up on his speech in the Senate with further criticisms of the research in news releases and newsletters that he sent to his constituents. Hutchinson subsequently sued Proxmire and his legislative assistant, Morton Schwartz, for libel.
The Seventh Circuit Court of Appeals had ruled that the award’s connection with legislative business was grounds for immunity. The appeals court also determined that Proxmire’s comments regarding the wasteful spending of government funds were protected by the First Amendment and that Hutchinson was a public figure, therefore proof of “actual malice” was required as mandated by New York Times Co. v. Sullivan (1964). Writing for the Court, Chief Justice Warren E. Burger reversed and remanded the lower court’s decision. The Court held that the speech or debate clause did not provide absolute privilege from liability for statements not related to the “essential deliberation” of Congress. Burger noted that individual views expressed in newsletters and press releases were not privileged as part of the “informing function” of Congress. Although Justice Potter Stewart concurred, he dissented in part by contending that telephone calls to federal agencies were protected by the speech or debate clause. Justice William J. Brennan Jr.’s dissenting opinion held that legislators’ public criticism of unnecessary governmental expenditures was a legislative act shielded by the speech or debate clause. In its consideration of the free speech claim, the Court determined that Hutchinson was a private figure who need only demonstrate negligence to recover damages. The public’s interest in the expenditure of government funds did not make Hutchinson a public figure. Citing Curtis Publishing Co. v. Butts (1967), Gertz v. Robert Welch, Inc. (1974), and Time, Inc. v. Firestone (1976), the Court held that public figures “assume the risk” of defamation by actively thrusting themselves “to the forefront of particular public controversies.” See also Actual Malice; Burger, Warren E.; Congress; Curtis Publishing Co. v. Butts (1967); Gertz v. Robert Welch, Inc. (1974); Libel and Slander; New York Times Co. v. Sullivan (1964); Public Figures and Officials;Time, Inc. v. Firestone (1976).
Jon L. Brudvig
furthe r reading Christie, George C. “Underlying Contradictions in the Supreme Court’s Classification of Defamation.” Duke Law Journal 5 (1981): 811–821. Prager, Eileen Carroll. “Public Figures, Private Figures and Public Interest.” Stanford Law Review 30 (1977): 157–189.
Hynes v. Mayor of Oradell (1976)
Hutchinson, Anne Anne Hutchinson (1591–1643), a Puritan religious leader and preacher who was tried and convicted for heresy, has been variously portrayed as a defender of feminism and of freedom of religion. Because she left no writings behind, most of what scholars know about her comes from the accusations of others, but her trial in 1637 provides a window to the Puritan world of the sixteenth and seventeenth centuries when church and state were not separated. Although Hutchinson’s conviction for heresy violates principles that later were incorporated into the First Amendment, she and her accusers lived under a system with an established church where individuals who undermined the church were perceived as threats to the state Born in Lincolnshire, England, Anne Marbury married Will Hutchinson at the age of twenty-one. In 1634 she and her family followed John Cotton, a Puritan minister, who had immigrated to the Massachusetts Bay Colony a year before. There she served as a midwife and soon had large numbers of church members attending Bible studies at her house. Although Hutchinson supported Cotton and John Wheelwright, her brother-in-law, also a minister, she believed that most established clergy were operating under a covenant of works rather than of grace. She questioned whether one could tell the redeemed from the unredeemed on the basis of their lives, instead believing that she gained such knowledge by the direct witness of the Holy Spirit. In the eyes of Massachusetts governor John Winthrop, such a teaching undermined the authority of church teachers and was a sign of antinomianism, or opposition to all law. Hutchinson was brought to trial for three charges: breaking the Fifth Commandment by dishonoring the fathers of the Commonwealth; improperly holding meetings in her home; and defaming authorized ministers. She had a keen mind, and historians generally agree that she bettered her accusers on the first two charges (with Winthrop appealing to his authority as a man rather than to the superiority of his arguments), but she effectively affirmed the latter charge by claiming that she had received direct revelations from God. Such revelations called the authority and necessity of the church into question, and Hutchinson and about sixty followers were exiled to Rhode Island. In time, she and a number of family members moved to New York, where they were killed by Native Americans.
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See also Established Churches in Early America; Puritans.
John R.Vile
furthe r reading Gomes, Peter G. “Anne Hutchinson.” Harvard Magazine (November– December 2002). www.harvardmagazine.com/on-line/1102194 .html. Morgan, Edmund S. “The Case against Anne Hutchinson.” New England Quarterly 10 (December 1937): 635–649. Withington, Ann Fairfax, and Jack Schwartz. “The Political Trial of Anne Hutchinson.” New England Quarterly 51 (June 1978): 226–240.
Hynes v. Mayor of Oradell (1976) In Hynes v. Mayor of Oradell, 425 U.S. 610 (1976), the Supreme Court invalidated ordinances requiring advanced notices to police departments of door-to-door canvassing and solicitations because of vagueness, ruling that they violated First and Fourteenth Amendment rights of speech and assembly. The Borough of Oradell, New Jersey, adopted an ordinance that required individuals going house-to-house for civic organizations, charities, or political campaigns to notify the police department in writing for identification purposes. Hynes, a New Jersey state assemblyman whose district included Oradell, was joined by three other registered voters of the borough in challenging the law. Chief Justice Warren E. Burger wrote the 7-1 majority opinion (Justice John Paul Stevens did not participate), with which four other justices agreed, that a city could regulate door-to-door solicitations to protect citizens by a narrowly drawn ordinance, but in which seven justices thought the regulation at issue violated First and Fourteenth Amendment rights of speech and assembly by being void for vagueness. Burger’s review of precedents led him to acknowledge a city’s interest in protecting its citizens from annoyance, undue intrusion, and crime, but he thought that it was especially important that laws dealing with speech be clear. In this case, he did not think the borough had been clear as to which groups it covered or what canvassers had to include in the notification they sent to the police. In concurrence, Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, indicated that he was not as certain as Burger whether the ordinance would have been constitutional even had it been clearer. He was especially concerned about the threat that the ordinance might pose to anonymous speech.
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In a dissenting opinion, Justice William H. Rehnquist questioned whether the appellants had standing to raise all the issues that the Court had resolved. He pointed out that the ordinance did not require a permit, and he denied that it was vague. The line between permissible and impermissible regulations of door-to-door solicitations remains vague, with the Court most likely to strike down the regulation of religious and political and other noncommercial speech.
See also Anonymous Speech; Burger, Warren E.; Door-to-Door Solicitation;Vagueness.
John R.Vile
furthe r reading Hirschhorn, Philip L. “Noncommercial Door-to-Door Solicitations and the Proper Standard of Review for Municipal Time, Place, and Manner Restrictions.” Fordham Law Review 55 (1987): 1139–1163.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
I
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 REDRESS OF GRIEVANCES.
Ibanez v. Florida Department of Business and Professional Regulation Board (1994) The Supreme Court decision in Ibanez v. Florida Department of Business and Professional Regulation Board, 512 U.S. 136 (1994), addressed concerns about the disclosure of truthful, relevant qualifications in accountants’ commercial speech. The Court held that in cases involving commercial speech by professionals, the First Amendment takes precedence over deference to state regulatory agencies. Silvia Safille Ibanez, an attorney and Certified Public Accountant (CPA), brought suit in response to a reprimand from the Florida Board of Accountancy. Ibanez had advertised in the Yellow Pages and on her letterhead that she was a CPA and a Certified Financial Planner (CFP). The board was concerned that the ad might confuse consumers by misleading them to believe that CFP was a state-certified designation when, in fact, a CFP is credentialed by the private Certified Financial Planner Board of Standards.The Florida Board of Accountancy reprimanded Ibanez “for engaging in ‘false, deceptive, and misleading’ advertising” and because the board claimed that she was “unwilling to comply” with its regulation. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Court regarding most but not all of the issues raised; two justices dissented in part. The Court initially found no substantive evidence supporting the board’s claims of deceptive or misleading advertising because, in fact, Ibanez was both a CPA and a CFP. Therefore, Ginsburg focused on two issues. First, how would the Court apply the require-
ments of the Central Hudson test in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), as interpreted by the Court in subsequent opinions, to the circumstances of this case? Second, given these requirements, would mere assertions by the board of interests in regulation or wrongdoing by Ibanez suffice to justify a ruling against her? Ginsburg relied heavily on the standards for interpreting the Central Hudson test set forth in Edenfield v. Fane (1993). Following Edenfield, Ginsburg held that the regulation must advance the interest of the state in a “‘direct and material way’ and must be in ‘reasonable proportion to the interests served.’” Ginsburg could not justify a complete ban on advertising based on the evidence available to the Court, which consisted of assertions that, in some hypothetical situations, the public might be misled by Ibanez’s use of the CPA and CFP designations. Because the board could only point to “purely hypothetical” harms, its action was “unjustified.”Therefore, Ibanez serves as a strong precedent for the requirement that regulators must provide real rather than hypothetical evidence to support claims of deceptive or misleading advertising. See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Edenfield v. Fane (1993).
Richard Parker
furthe r reading DeVore, P. Cameron, and Robert D. Sack. Advertising and Commercial Speech: A First Amendment Guide. New York: Practicing Law Institute, 2003. Levy, Evan R.“Edenfield v. Fane: In-Person Solicitation by Professionals Revisited—What Makes Lawyers Different?” Albany Law Review 58 (1994): 261–298.
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Illinois ex rel. Madigan v.Telemarketing Associates, Inc. (2003)
Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003)
See also Ginsburg, Ruth Bader; Riley v. National Federation of the Blind (1988); Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984); Schaumburg v. Citizens for a Better Environment (1980).
John R.Vile In Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003), the Supreme Court ruled that state efforts to pursue fraud charges against fundraisers and telemarketers for misrepresenting monies collected in fundraising campaigns did not violate the free speech clause of the First Amendment. The Illinois attorney general had pursued fraud charges against Telemarketing Associates, Inc. for keeping 85 percent of funds solicited for Vietnam veterans while representing otherwise. The Illinois Supreme Court had ruled that Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984), and Riley v. National Federation of the Blind (1988) had barred such charges, but the U.S. Supreme Court decided differently in a unanimous decision, with Justice Ruth Bader Ginsburg delivering the opinion of the Court. Acknowledging that prior decisions had determined that a state could not set a specific percentage on monies collected in fundraising campaigns to be allocated to affected charities, Ginsburg observed that “when nondisclosure is accompanied by intentionally misleading statements designed to deceive the listener, the First Amendment leaves room for a fraud claim.” Ginsburg recognized that states had a substantial interest in preventing fraud. She further ruled that “So long as the emphasis is on what the fundraisers misleadingly convey, and not on percentage limitations on solicitors’ fees per se, such actions need not impermissibly chill protected speech.” The actions at issue did not constitute a prior restraint but targeted fraudulent representations. Under Illinois law, the attorney general had to “show that the defendant made a false representation of a material fact knowing that the representation was false; further, the complainant must demonstrate that the defendant made the representation with the intent to mislead the listener, and succeeded in doing so.” Such a standard provided “sufficient breathing room for protected speech.” Justice Antonin Scalia wrote a concurring opinion, joined by Justice Clarence Thomas, which also focused on the “‘solid core’ of misrepresentations . . . that go well beyond mere commitment of the collected funds to the charitable purpose.”
furthe r reading Wittrock, Kent D. “Note: The End of Fraudulent Solicitations— Really? The Supreme Court in Madigan v. Telemarketing Associates Provides That Fraudulent Statements in Charitable Solicitations Are Not Protected Speech.” University of Missouri-Kansas City School of Law Review 72 (2003): 275–294.
Illinois ex rel. McCollum v. Board of Education (1948) In Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948), the Supreme Court overturned a “released time” arrangement whereby public schools provide religious training during regular school hours, holding that the practice violated the establishment clause of the First Amendment. The Champaign Board of Education in Illinois had allowed religious teachers to come into public schools during regular school hours to provide religious training for students whose parents had agreed to it. Vashti McCollum, a taxpayer whose son was enrolled in the schools, objected to the exercises, but lower courts had decided that the practice violated neither the state nor the federal constitution. Justice Hugo L. Black, writing the opinion for the Court, argued that the practice violated the principles established in Everson v. Board of Education (1947), which had affirmed the need to erect a “high and impregnable” wall of separation between church and state. Rather than evidencing “hostility to religion,” Black said that the First Amendment rested “upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.” In this case, the state was using tax-supported buildings and compulsory attendance laws to provide students with religious classes. Justice Felix Frankfurter wrote a separate opinion, joined by Justices Robert J. Jackson and Wiley B. Rutledge, in which he reviewed the history of education in the United States and the development of released time programs. He pointed out that they were designed for “sectarian teaching” and relied on “inherent pressure by the school system in the interest of religious sects.” He did mention the possibility of a “dismissed time” program off school grounds, which the Court subsequently approved (over Frankfurter’s dissent) in Zorach v. Clauson (1952).
Illinois State Board of Elections v. Socialist Workers Party (1979) Jackson wrote a separate concurring opinion, somewhat questioning the Court’s jurisdiction in this case and expressing concern about too closely supervising local school boards. He feared that the Court was “likely to make the legal ‘wall of separation between church and state’ as winding as the famous serpentine wall designed by Mr. Jefferson for the University [of Virginia] he founded.” Justice Stanley F. Reed authored a vigorous dissent emphasizing that the school had elicited parental consent to its religious programs. He observed that, in founding the University of Virginia,Thomas Jefferson had approved programs whereby students would worship in religious schools near the university. Questioning the wall of separation analogy, he warned that “A rule of law should not be drawn from a figure of speech.” He also questioned the applicability of James Madison’s “Memorial and Remonstrance Against Religious Assessment” to public education. He did not think that the school program constituted the kind of state “aid” that Everson had been designed to prevent. He thought the Court could distinguish programs that were “ceremonial and compulsory” and thereby prohibited from those that were “voluntary and educational” and should not be. Pointing to various accommodations with religion, Reed argued that the establishment clause was not “an absolute prohibition against every conceivable situation where the two may work together, any more than the other provisions of the First Amendment—free speech, free press—are absolutes.” Referring to established practices, he concluded that “Devotion to the great principle of religious liberty should not lead us into a rigid interpretation of the constitutional guarantee that conflicts with accepted habits of our people.” In Zorach the Supreme Court ruled that schools could dismiss children from classrooms to participate in religious instruction in off-campus settings. See also Black, Hugo L.; Everson v. Board of Education (1947); Jefferson,Thomas; Madison, James; Released Time;Wall of Separation; Zorach v. Clauson (1952).
John R.Vile
furthe r reading Butler, Gordon. “Cometh the Revolution: The Case for Overruling McCollum v. Board of Education.” Dickinson Law Review 99 (1995): 843–942. McCollum,Vashti. One Woman’s Fight. Boston: Beacon Press, 1961.
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Illinois State Board of Elections v. Socialist Workers Party (1979) The Supreme Court decision in Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979), struck down an Illinois law requiring independent candidates and new political parties to obtain more petition signatures to qualify for the Chicago ballot than for a statewide office. It therefore affirmed other decisions tying third-party ballot access to the freedom of association that the Court has associated with the First Amendment. Illinois required parties receiving less than 5 percent of the vote in the previous election for the particular office, and independent candidates seeking statewide offices, to file petitions with the signatures of at least 25,000 qualified voters. However, the petition requirement for smaller political areas was 5 percent of the qualified voters. Because of the large population of Chicago, the Socialist Workers Party (SWP) had to file petitions with nearly 36,000 signatures to have its candidate for mayor on the ballot in the 1977 special election. The SWP and two voters had sued the Illinois State Board of Elections, claiming that the higher petition requirement for the Chicago election violated the equal protection clause.The board argued that the decision in an earlier case attacking Illinois’ 5 percent requirement should bar the SWP from attacking the rule. The earlier case, Jackson v. Ogilvie (1971), had been decided without an opinion on the same day the Court upheld Georgia’s 5 percent petition requirement in Jenness v. Fortson. The district and appellate courts had granted the injunction sought by the SWP, and the Illinois Board sought Supreme Court review. The Court, in an opinion by Justice Thurgood Marshall, held that the Jackson case did not bar a new challenge to the statute because the Jackson plaintiff had argued that the 5 percent requirement burdened his First Amendment by “depriving him of a right granted to candidates of established political parties.” Since the SWP raised a different challenge to the law, the Jackson case did not bar the new claim. When restricting the rights of voters to express their preferences for candidates, Marshall wrote, the state must establish that its classification serves a compelling state interest and is the least restrictive means of protecting that interest. The state Board of Elections had advanced no justification for the difference except pointing out that the legislature had required a geographical spread of the petition signatures
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in statewide races, but federal courts had struck down each restriction. Marshall concluded, “Historical accident, without more, cannot constitute a compelling state interest.”The Court held that Illinois could not require independent candidates and new parties to obtain more petition signatures in Chicago than in the whole state. Four members of the Court wrote three opinions in which they concurred in the result but disagreed with the majority opinion. Chief Justice Warren E. Burger joined by Justice Harry A. Blackmun complained about the use of “convenient and result oriented” phrases such as “compelling state interest” and “least drastic means” but agreed that the outcome of the case was correct. Justice William H. Rehnquist and Justice John Paul Stevens would have applied the rational relationship test (which is more deferential to legislative choices) but agreed the SWP was treated differently from a statewide party without a rational relationship to any state interest. See also Compelling State Interest; Jenness v. Fortson (1971); Marshall,Thurgood; Political Parties.
Edward Still
furthe r reading Ciment, James. “Socialist Workers Party.” In The Encyclopedia of Third Parties in America, ed. Immanuel Ness and James Ciment. Armonk, N.Y.: Sharpe Reference, 1998. Rosenstone, Steven J., Edward H. Lazarus, and Roy L Behr. Third Parties in America: Citizen Response to Major Party Failure. 2d ed. Princeton, N.J.: Princeton University Press, 1996.
Incitement Many Supreme Court cases upholding restrictions on speech believed to be subversive have relied on the idea that such speech is forbidden because it incites, or is likely to lead to, violence or illegal actions. In applying the clear and present danger test in Schenck v. United States (1919), Justice Oliver Wendell Holmes Jr. observed: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Holmes cited the example of a person who falsely shouts “Fire!” in a crowded theatre, causing a panic. In Gitlow v. New York (1925), the Court reverted to a bad tendency test while upholding New York’s criminal anarchy law. In this case, Benjamin Gitlow was arrested for distribut-
ing copies of a manifesto that called on fellow left-wing socialists to establish socialism through strikes and class action. He was convicted under a state criminal anarchy law, which called for punishing anyone advocating the overthrow of the government by force. In his opinion for the Court, Justice Edward Terry Sanford ruled that states had the right to punish “utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace.” He further pointed out: “The state cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler’s scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration.” In his dissent, joined by Justice Louis D. Brandeis, Justice Holmes responded that the majority’s distinction between theory and incitement was inadequate: It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. In later cases, the Court often distinguished between mere advocacy and incitement.Thus it upheld a conviction under a state criminal syndicalism law in Whitney v. California (1927) on the grounds that the Communist Labor Party that Anita Whitney had joined had uttered words “inimical to the public welfare, tending to incite crime, disturb the peace or endanger the foundations of organized government and threaten its overthrow.” In Dennis v. United States (1951), the Court also upheld the conviction of leading organizers of the Communist Party of the United States employing the gravity of the evil test, but it reversed the convictions of lower-level functionaries in Yates v. United States (1957). In Yates, however, it observed that “indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to ‘action for the accomplishment’ of forcible overthrow, to violence ‘as a rule or principle of action,’ and employing the ‘language of incitement,’ . . . is not constitutionally protect-
Indecency and the Electronic Media ed when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur.” In Brandenburg v. Ohio (1969), the Court overturned the conviction of Clarence Brandenburg, a member of the Ku Klux Klan who had made inflammatory statements, by insisting that it would only punish advocacy that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Still, one might expect that, much as it did when it applied the gravity of the evil test, the Court would distinguish between the kinds of illegal actions advocated—that is, an incitement to walk on the grass would hardly seem to merit the same kind of attention as calls for bombings or assassinations. In Hess v. Indiana (1973), the Court applied Brandenburg and said that before an individual’s speech could fall under the unprotected category of incitement to imminent lawless action, the speech must lead to “imminent disorder.” Confronted in Stewart v. McCoy (2002) with an individual who had been accused of advising gang members on how to organize themselves, Justice John Paul Stevens, in an opinion commenting on the Court’s denial of certiorari in the case, stated:“Long range planning of criminal enterprises—which may include oral advice, training exercises, and perhaps the preparation of written materials—involves speech that should not be glibly characterized as mere ‘advocacy’ and certainly may create significant public danger.” He observed, however, that the Court had not yet decided on the scope of “such instructional speech.” As for further applications of this doctrine, in 2005 law professor Kenneth Lasson explored in an article how the doctrine of incitement might be applied to religious speech, especially by militant Muslims who urge direct violence against those of other religions (Lasson 2005). See also Bad Tendency Test; Brandenburg v. Ohio (1969); Clear and Present Danger Test; Dennis v. United States (1951); Gitlow v. New York (1925); Gravity of the Evil Test; Hess v. Indiana (1973); Holmes, Oliver Wendell, Jr.; Islam; Schenck v. United States (1919); Stewart v. McCoy (2002); Whitney v. California (1927); Yates v. United States (1957).
John R.Vile
furthe r reading Lasson, Kenneth. “Incitement in the Mosques: Testing the Limits of Free Speech and Religious Liberty.” Whittier Law Review 27 (2005): 3–76.
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Redish, Martin M. “Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger.” California Law Review 70 (1982): 1159–1200.
Indecency and the Electronic Media The Federal Communications Commission (FCC) defines indecency in the broadcast industries as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Once established by the Communications Act of 1934, the FCC began to regulate the program content of television and radio broadcasts to prevent the airing of inappropriate material. Indecency should not be confused with obscenity. Obscenity refers to expression that receives no First Amendment protection. By contrast, indecency is often protected by the First Amendment, at least for adults. Courts have sanctioned restricting indecent broadcasts during hours when children may be exposed to such programming. In the first major landmark case on indecency over the airwaves, Federal Communications Commission v. Pacifica Foundation (1978), a father, while driving with his fifteen-year-old son, heard a 2 p.m. broadcast of “Seven Dirty Words” by comedian George Carlin.The father complained to the FCC, on his son’s behalf, that his son should not have to listen to obscene material. In response, the FCC ruled that Carlin’s monologue was not obscene but indecent, and that it should not have been broadcast on radio when minors could be listeners.The Supreme Court agreed. In a 5-4 vote, it held that the FCC had ruled correctly and that it had the authority to regulate indecent speech. After the Pacifica ruling, the FCC began issuing rules to define indecent and profane speech and to prohibit the broadcast of such material between the hours of 6 a.m. and 10 p.m. Today, the FCC regularly screens complaints, determines what is indecent and profane, and issues fines to uphold indecency standards. Material that is graphic, repeatedly focuses on offensive material, and titillates is subject to FCC scrutiny. For example, the FCC fined a university radio station for airing a rap song with lyrics explicitly describing anal intercourse. Because the song was aired in midafternoon when children were possibly in the audience, the broadcast was eligible for FCC regulation. Broadcasts that dwell on offensive material
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Indecency and the Electronic Media ic transmissions, cable and satellite broadcasts, and the Internet, among other things. For example, in Sable Communications of California v. Federal Communications Commission (1989) the Supreme Court held that any regulatory effort to protect minors from indecent telephone messages must be tailored narrowly so that it did not impinge on constitutionally protected indecent speech between adults. Another case revolved around the FCC’s efforts to require cable system operators to put all patently offensive programming into one specific channel and to block viewing of this channel unless a viewer specifically requested access. In that case, Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996), the Supreme Court struck down these regulations, holding that they were overly restrictive. Other, less restrictive means, such as the Vchip, could be used by subscribers to prevent children from gaining access to offensive broadcasts.
Congressional Attempts at Regulation
Comedian George Carlin receives a Lifetime Achievement Award at the 2001 American Comedy Awards in Los Angeles. Carlin’s “Seven Dirty Words” radio broadcast in the 1970s was the center of the first major Supreme Court case on indecency.
also may elicit FCC intervention. For example, a radio station broadcast a talk show depicting the flatulence and defecation activities of radio personality “Bubba, the Love Sponge.” In response to the repeated references to excretory activity, the FCC fined the radio station for airing patently offensive material. The FCC also examines why material is presented a certain way. For example, a radio call-in show focusing on an oral sex survey was deemed indecent because the survey results were presented in a titillating and pandering way, whereas a complaint against a high school sex education class aired on television that included sex organ models to demonstrate various birth control devices was dismissed by the FCC because the material was presented in an instructional, clinical manner. In the 1980s, the FCC became a party to court cases involving media other than radio and television—telephon-
Congress, like the FCC, has also sought to regulate cable television. One provision of the Telecommunications Act of 1996 required cable operators to completely scramble or block channels that primarily focused on sexually oriented programming or to limit the hours of broadcast when children could be in the viewing audience. However, in United States v. Playboy Entertainment Group (2000) the Supreme Court struck down this part of the act, holding that Congress should seek a less restrictive option to shield children. In an effort to regulate the Internet, Congress passed the Communication Decency Act (CDA) of 1996, which prohibited indecent transmissions on the Internet. In Reno v. American Civil Liberties Union (1997), the Supreme Court held that the Internet as a medium is entitled to the same full First Amendment protections as the print media and that this law impinged on protected speech. The Court noted that several provisions of the CDA were unconstitutionally vague because the act contained no definition of indecency. In yet another effort to regulate the Internet, in 1998 Congress passed the Child Online Protection Act (COPA). COPA, a modified version of the CDA, limited scrutiny to regulating the World Wide Web rather than the entire Internet. COPA also limited the transmission of material harmful to minors for commercial purposes rather than all purposes. Lower federal courts upheld injunctions, preventing enforcement, and also struck down the law as too broad. In Ashcroft v. American Civil Liberties Union (2004), the Supreme Court upheld the injunction blocking the law’s
Indian Appropriations Act of 1896 enforcement, stating that the law was probably unconstitutional. It then referred the case back to the lower federal court for further consideration. It is unlikely that COPA will ever be implemented as long as the Court finds that filtering software and laws prohibiting misleading domain names are sufficient to protect minors online. Two well-publicized events—rock star Bono’s utterance of the word fuck twice while accepting a Golden Globe award in a 2003 televised ceremony and singer Janet Jackson’s “wardrobe malfunction,” which exposed her breast on the televised halftime show of the 2004 Super Bowl— sparked increased pressure on Congress and the FCC to regulate and penalize indecent broadcasts more stringently. In response, Congress passed the Broadcast Decency Enforcement Act of 2005, which raises the maximum penalty from $32,500 to $325,000 for broadcasting indecent material on television or radio between 6 a.m. and 10 p.m. Meanwhile, broadcasters complain that the major network broadcasts are being unfairly targeted, while cable and satellite programs are virtually unregulated. Free speech proponents argue that indecency regulations are too subjective and have a chilling effect on legitimate, protected speech. Lawsuits have already been filed to challenge the new law. See also Ashcroft v.American Civil Liberties Union (2002) (2004); Broadcast Decency Enforcement Act of 2005; Carlin, George; Child Online Protection Act of 1998; Communications Act of 1934; Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996); Federal Communications Commission; Federal Communications Commission v. Pacifica Foundation (1978); Reno v. American Civil Liberties Union (1997); Sable Communications of California v. Federal Communications Commission (1989); United States v. Playboy Entertainment Group (2000).
Ruth Ann Strickland
furthe r reading Baker, Peter. “Bush Signs Legislation on Broadcast Decency: Measure Boosts Maximum Fine to $325,000.” Washington Post, June 16, 2006, A06. Brown, Keith, and Adam Candeub. “The Law and Economics of Wardrobe Malfunction.” Brigham Young University Law Review (2005): 1463–1513. Coates, Noelle. “The Fear Factor: How FCC Fines Are Chilling Free Speech.” William and Mary Bill of Rights Journal 14 (2005): 775–805. Cohen, Henry. Obscenity and Indecency: Constitutional Principles and Federal Statutes. New York: Novinka Books, 2003. Federal Communications Commission, Consumer and Governmental Affairs Bureau. “Obscene, Profane and Indecent Broadcasts: FCC Consumer Facts.” www.fec.gov/cgb/consumerfacts/obscene.html. Hilliard, Robert L., and Michael C. Keith. Dirty Sex and Indecency in American Radio Discourse. Ames: Iowa State Press, 2003.
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Marino, Jennifer L. “More ‘Filthy Words’ But No ‘Free Passes’ for the ‘Cost of Doing Business:’ New Legislation Is the Best Regulation for Broadcast Indecency.” Seton Hall Journal of Sports and Entertainment Law 15 (2005): 135–172. Rooder, Brian J. “Broadcast Indecency Regulation in the Era of ’Wardrobe Malfunction’: Has the FCC Grown Too Big for Its Britches?” Fordham Law Review 74 (2005): 871–907. Ruschmann, Paul. The FCC and Regulating Indecency. Philadelphia: Chelsea House, 2005. Sparr, Faith. “From Carlin’s Seven Dirty Words to Bono’s One Dirty Word: A Look at the FCC’s Ever-Expanding Indecency Enforcement Role.” First Amendment Law Review 3 (2005): 207–251. Triplett,William.“Broadcast Indecency.” CQ Researcher, April 16, 2004, 321–344. http://0-library.cqpress.com.wncln.wncln.org80/cq researcher/cqresrre20040441600. Welborn, Angie A., and Henry Cohen. “Regulation of Broadcast Indecency: Background and Legal Analysis.” In Television Standards? Indecency, Booze and Violence, ed. J. V. Barton, 1–40. New York: Novinka Books, 2005.
Indian Appropriations Act of 1896 In 1896 Congress passed the Indian Appropriations Act to pay for the education of American Indians using religious schools.The early history of Indian education in the United States is just one of several episodes in U.S. history characterized by church-state conflict and a First Amendment controversy over the use of tax funds to support religious schools. During this early struggle, Indians became victims in the conflict between Catholics and Protestants that dates from the Protestant Reformation in the 1500s. The Catholic Church had had an interest in Indian education since the time of Christopher Columbus, and Protestants had been antagonistic to Catholicism from the time of the first colonists. This controversy between Protestants and Catholics over Indian schools was based on the differences of opinion about religious beliefs and the principles of American society. Critics of Catholicism claimed it was alien to American principles and ideals because Catholics owed allegiance to a foreign power, the pope, who was set on undermining the United States. Protestants wanted to replace sectarian schools with public ones. In 1819 Congress appropriated $10,000 to the War Department to be used by associations or individuals who were already engaged in educating the Indians and who wanted the government’s help in funding schools. Requests from organizations came in immediately, and thus began an eighty-year period during which the federal government
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supported private Indian education.The money was distributed to churches to operate their own church schools. In 1869 the government put in place the contract school system (schools for Indians under private control), thereby providing direct government support to schools run by missionary groups. Catholics ran the vast majority of contract schools. The Protestant-Catholic conflict boiled to the surface when Baptist minister and educator Thomas Jefferson Morgan was appointed as commissioner of Indian affairs in 1889. He, in turn, appointed Daniel Dorchester, a Methodist minister, as the superintendent of American Indian schools. In 1892 all relations broke down between the Office of Indian Affairs and the Bureau of Catholic Indian Missions. Each Catholic school was then left to negotiate a separate contract.To help end government funding of Catholic mission schools, the parent organizations of most Protestant mission schools ceased applying for government funds. In 1896 Congress stepped into the fray. The Indian Appropriations Act, signed into law on June 10, 1896, declared that Congress would no longer appropriate funds for sectarian schools and that the expenditure of money for contract schools for fiscal year 1897 would be the same (or as equal as possible) among schools of various denominations. Direct federal funding for contract schools was eventually phased out completely as Congress insisted on enforcing the First Amendment separation between church and state. See also Aid to Parochial Schools; Catholics, Roman.
Susan L.Webb
furthe r reading Adams, Evelyn Crady. American Indian Education. New York:Arno Press and New York Times, 1971. Annual Report of the Commissioner of Indian Affairs. Washington, D.C.: Government Printing Office, 1896. Prucha, Francis Paul. The Churches and the Indian Schools, 1888–1912. Lincoln: University of Nebraska Press, 1979. Reyhner, Jon Allan. American Indian Education: A History. Norman: University of Oklahoma Press, 2004. The Statutes at Large of the United States of America from December 1895, to March 1897, and Recent Treaties, Conventions, and Executive Proclamations, with an Appendix Containing the Concurrent Resolutions of the Two Houses of Congress. Washington, D.C.: Government Printing Office, 1897.
Ingersoll, Robert Robert Ingersoll (1833–1899), one of the nineteenth century’s most-sought-after lecturers, was a passionate defender of
First Amendment principles, particularly in regard to the separation of church and state. Ingersoll was born in Dresden, New York, the son of a Congregational minister whose wife died when Robert was two years old. After teaching for a time, he studied for the bar in Illinois; he was an early supporter of Abraham Lincoln and the Republican Party, and fought in the Civil War. Ingersoll served as Illinois’ first attorney general and became a lecturer after it was clear that his freethinking was likely to block his way into higher political office. At a time during which many Americans were calling for a Christian amendment to officially acknowledge God in the Constitution, Ingersoll argued in an oration on July 4, 1876, that one of the strengths of the United States was that “our fathers retired the gods from politics” (Page 2005: 21). Ingersoll asserted that the founders “had the genius to know that no church should be allowed to have a sword; that it should be allowed only to exert its moral influence” (p. 22). He feared that a constitutional acknowledgment of God would require criminal prosecutions of those who were agnostics or atheists and observed that a similar acknowledgment in the Confederate Constitution had done nothing to protect it or to direct it toward justice. He thought the existing practices of including “In God We Trust” on coins, having chaplains in the armed forces, and opening legislative proceedings with prayer were already “contrary to the genius of the Republic, contrary to the Declaration of Independence, and contrary really to the Constitution of the United States” (pp. 34–35). He favored the complete “divorce of church and state” (p. 41). Favoring “liberty” for all men, women, and children, he praised “the doubters, the investigator, [and] the Infidel,” as “the saviors of liberty” (p. 69). Much likeVoltaire and Thomas Paine, whom he admired, Ingersoll told an audience in 1888 that he was there “for the purpose of defending your right to differ with me.” He continued: “I want to convince you that you are . . . absolutely free to follow the torch of your reason according to your conscience; and I believe that you are civilized to that degree that you will extend to me the right that you claim for yourselves” (Page 2005: 98). Ingersoll thought it was the height of impudence “to speak against the right to speak” and advocated “absolute liberty of mind” (pp. 103–105). Ingersoll opposed tax exemptions for churches on the basis that lifting the tax burden from such property distributed it elsewhere. He thought the state, rather than churches, should be in charge of all charitable activities, and he opposed Sunday closing laws.
In re Anastaplo (1961) See also Blasphemy; Christian Amendment; Declaration of Independence; In God We Trust; Paine,Thomas;Taxation of Religious Entities;Voltaire.
John R.Vile
furthe r reading Page,Tim, ed. What’s God Got to Do with It? Free Thought, Honest Talk, and the Separation of Church and State. Hanover, N.H.: Steerforth Press, 2005.
In God We Trust Since 1956 “In God We Trust” has been the official motto of the United States. Its use on U.S. currency dates to the Civil War.Though opponents argue that the phrase amounts to a governmental endorsement of religion and thus violates the establishment clause of the First Amendment, federal courts have consistently upheld the constitutionality of the national motto Some defenders of the motto justify it on the ground that it is a form of what Justice Sandra Day O’Connor has called “ceremonial deism,” that through constant repetition has largely lost is religious content. No longer religious in nature, the phrase has become, rather, a historical artifact, a public recognition of the role of religion in national life, and an expression of patriotism. O’Connor explained in her concurring opinion in Elk Grove Unified School District v. Newdow (2004), “eradicating such references would sever ties to history that sustains this Nation.” Given this, she continued,“the reasonable observer . . . fully aware of our national history and the origins of such practices, would not perceive these acknowledgements as signifying a government endorsement of any specific religion.” O’Connor concluded, “I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution.” According to her, “[H]istory, character, and context prevent” references to God, as in the national motto, “from being constitutional violations at all.” In Lambeth v. Board of Commissioners of Davidson County (M.D.N.C. 2004), a federal district court in North Carolina determined that the inscription “In God We Trust” on the facade of a government building does not violate the separation of church and state. The following year, the Fourth Circuit Court of Appeals affirmed the lower court decision. In 2006 a U.S. judge in the Eastern District of California wrote in Newdow v. Congress of the United States (C.D. Cal. 2006), “The national motto is excluded from First
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Amendment significance because the motto ‘has no theological or ritualistic impact’ and is of a purely secular,‘patriotic’ and ‘ceremonial character.’ ” The words In God We Trust, he said, constitute in effect “a secular national slogan.” In American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Board (6th Cir. 2001), dealing with an issue similar to the national motto issue, the Sixth Circuit Court of Appeals upheld the constitutionality of Ohio’s state motto, “With God, All Things Are Possible.” Unlike the national motto, however, this one comes directly from the Bible (Matthew 19:26). The court ruled that the establishment clause does not forbid “generalized religious language in official discourse,” and it was absurd to consider that “the First Amendment was designed to impose a secular political culture.” See also Civil Religion; Elk Grove Unified School District v. Newdow (2004); O’Connor, Sandra Day.
D. Jason Berggren
furthe r reading Jones, Richard H. “‘In God We Trust’ and the Establishment Clause.” Journal of Church and State 31 (Autumn 1989): 381–417.
In re Anastaplo (1961) In In re Anastaplo, 366 U.S. 82 (1961), the Supreme Court held that a plaintiff ’s exclusion from the bar of the state of Illinois based on his refusal to respond to questions about his membership in the Communist Party did not violate his First Amendment protections of freedom of speech and association. The dispute arose from the state’s Committee on Character and Fitness’s 1954 decision to deny George Anastaplo, an instructor and researcher at the University of Chicago, admission to the bar based on his refusal to respond when asked if he was a member of the Communist Party. Anastaplo’s refusal was not based on his protection against self-incrimination but on his belief that the committee had no authority to ask such questions given the First Amendment protections of the freedom of speech and of association. Ironically, Anastaplo’s hearing before the committee was triggered not by any avowal of communist ideology but by his strong belief in the language of the Declaration of Independence.The state required applicants to the bar to file a personal history in response to a questionnaire that included the directive to “State what you consider to be the prin-
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ciples underlying the Constitution of the United States.” In his response, Anastaplo, who had graduated from law school and passed the bar exam, cited the doctrine of separation of powers, the doctrine of inalienable rights, and the principle that people retain the right to alter or to abolish the government if it becomes destructive of the inalienable rights that it was instituted to secure. It was the last response that concerned the state committee. The Court had developed several tests in cases involving conflicts between the policies of state and local government and First Amendment freedoms. One such test was called the “balancing test” or “ad hoc balancing test.” This test seeks to balance legitimate governmental interests with individual liberty and is associated with the jurisprudence of Justices Felix Frankfurter and John Marshall Harlan II. In Anastaplo, Harlan applied the balancing test in his opinion for the Court and affirmed the finding of the Illinois Supreme Court that had upheld Anastaplo’s exclusion from the bar. In his dissenting opinion (joined by Chief Justice Warren Burger and Justices William O. Douglas and William J. Brennan Jr.), Justice Hugo L. Black condemned the balancing test, arguing that it meant in essence that First Amendment rights “can be repressed whenever there is sufficient government interest in doing so.” Black’s reasoning in his dissent reflects a turn by the Court toward a more “absolutist” understanding of the First Amendment freedoms. George Anastaplo went on to a distinguished academic career, primarily as a law professor at Loyola University in Chicago and author of expositions on First Amendment freedoms. See also Ad Hoc Balancing; Bar Admissions; Black, Hugo L.; Declaration of Independence; Harlan, John Marshall, II.
Paul Cornish
furthe r reading Anastaplo, George. The Constitutionalist: Notes on the First Amendment. Dallas,Texas: Southern Methodist University Press, 1971.
In re Primus (1978) In re Primus, 436 U.S. 412 (1978), stands for the principle that the First Amendment limits the ability of state authorities to sanction attorneys with nonprofit groups for political activities associated with garnering potential clients.The Supreme Court reasoned that such attorneys with nonprofit organizations are entitled to more constitutional protection than attorneys seeking clients for purely financial motives.
Edna Smith Primus, an attorney in Columbia, South Carolina, had contacted a woman in Aiken County, South Carolina, about challenging an alleged practice in the area of sterilizing women as a condition of continued receipt of Medicaid benefits. In her capacity as a cooperating attorney with the American Civil Liberties Union, Primus had written a letter to a woman who had been sterilized by a local doctor and who had attended an ACLU informational meeting. Primus offered the woman free legal representation, an offer that was eventually rejected. For her efforts, the disciplinary board of the Supreme Court of South Carolina issued Primus a private reprimand for engaging in improper solicitation.The state Supreme Court increased the punishment to a public reprimand. Primus then appealed to the U.S. Supreme Court, which reversed on First Amendment grounds by a 7-1 (Justice William J. Brennan Jr. did not participate) vote. Writing for the majority, Justice Lewis F. Powell Jr. distinguished Primus’s soliciting from that of Ohio attorney Albert Ohralik, who engaged in direct, face-to-face solicitation with two young women in a hospital.The Court decided Ohralik v. Ohio State Bar Association (1978) and the Primus decision on the same day. According to Powell, the First Amendment protected Primus, unlike Ohralik, because her action was “not inperson solicitation for pecuniary gain.” He noted that Primus’s actions “were undertaken to express personal political beliefs and to advance the civil-liberties objectives of the ACLU.” Powell believed that Primus’s actions were entitled to similar protection as the NAACP received from the Court in NAACP v. Button (1963), when the Court protected the civil rights organization and its attorneys for soliciting prospective litigants. The state had argued that Primus could be disciplined because the state had a strong interest in preventing undue influence, invasion of privacy, and other evils associated with solicitation. Powell rejected the arguments, writing: “In the context of political expression and association, however, a State must regulate with significantly greater precision.” The Court’s lone dissenter, Justice William H. Rehnquist, criticized the different results in Ohralik and Primus. He saw no “principled basis” for distinguishing between “ambulance chasers” and “civil liberties lawyers.” See also Attorney Advertising; NAACP v. Button (1963); Ohralik v. Ohio State Bar Association (1978); Powell, Lewis F., Jr.; Rehnquist, William H.
David L. Hudson Jr.
In re Rapier (1892) furthe r reading Moliterno, James E. “Politically Motivated Bar Discipline.” Washington University Law Quarterly 83 (2005): 725–772.
In re R.M.J. (1982) In In re R.M.J., 455 U.S. 191 (1982), the Supreme Court unanimously ruled that Missouri’s ethics rule restricting advertising by lawyers to ten categories of information— name, address, and telephone number; areas of practice; date and place of birth; schools attended; foreign language ability; offices hours; fee for an initial consultation; availability of a schedule of fees; credit arrangements; and the fixed fee to be charged for certain “routine” legal services—was unconstitutional under the First Amendment.The Court’s decision reversed a Missouri Supreme Court ruling that upheld the constitutionality of the ethics rule while issuing a private reprimand to a lawyer for failing to comply with the advertising restrictions. This is one of several decisions in which the Court has decided the extent to which the First Amendment protections apply to the regulation of lawyer advertising. Writing the opinion for the Court, Justice Lewis F. Powell Jr. reviewed the Missouri ethics rule regulating lawyer advertising that had been revised in an effort to comply with the Court’s prior decision in Bates v. State Bar of Arizona (1977). In Bates, the Court decided that lawyer advertising was a form of commercial speech protected by the First Amendment but still could be regulated to prevent false, deceptive, or misleading advertising. Prior to the decision in Bates, Missouri and most other states had an absolute prohibition on lawyer advertising. In response to the Bates decision, the Committee on Professional Ethics and Responsibility of the Supreme Court of Missouri revised the ethics rule regulating lawyer advertising in an effort to strike a balance between a complete prohibition and unlimited advertising. In applying these restrictions to advertising by the lawyer R.M.J., the Missouri Supreme Court reprimanded the lawyer for failing to adhere to the precise language of the rule. In striking down the Missouri ethics rule, the Court determined that the information published by the lawyer was not inherently misleading, had not been shown to be misleading, and the Supreme Court of Missouri had failed to demonstrate any substantial justification for the restrictions. Although the Court struck down the Missouri ethics rule as too restrictive, the Court emphasized that the states retain
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authority to regulate advertising that is inherently misleading or misleading in practice.The Court noted that efforts to regulate lawyer advertising must consist of carefully drawn restrictions, and that the First and Fourteenth Amendments require that any restrictions imposed must be no more extensive than reasonably necessary to further substantial government interests. R.M.J. helped lay the groundwork for several other Court decisions defining the permissible limits on lawyer advertising. See also Attorney Advertising; Bates v. State Bar of Arizona (1977).
Peter A. Joy
furthe r reading Miragliotta, Bernadette. “First Amendment: The Special Treatment of Legal Advertising.” Annual Survey of American Law 1990 (1992): 597–632.
In re Rapier (1892) In In re Rapier, 143 U.S. 110 (1892), the Supreme Court affirmed the legality of revised federal statutes prohibiting the use of the U.S. mails to send lottery cards or any publications advertising lotteries, holding that the prohibitions do not violate the First Amendment freedom of the press. Rapier and co-defendant Dupre had been arrested for mailing a newspaper and a letter containing an advertisement for the Louisiana lottery in violation of federal laws limiting the use of the mail for such purposes. In attempting to defend Rapier, his attorney had raised a number of objections, most focusing specifically on freedom of the press and relying fairly heavily on arguments on behalf of such freedom that Alexander Hamilton had made in People v. Croswell (N.Y. 1804). Writing an opinion that had been initially assigned to Justice Joseph Bradley (who had since died), Chief Justice Melville W. Fuller largely affirmed the decision in Ex parte Jackson (1877), on which he also relied. He argued that while the chief purpose of the provision granting Congress power over the mail had been “to furnish mail facilities for the people of the United States,” such facilities need not be “furnished for every purpose.” Fuller rejected the defense’s idea that Congress could prohibit that which was mala in se (bad in and of itself) as opposed to that which was mala prohibita (illegal only because it was prohibited). If such a distinction existed, it would be up to Congress to specify what fell within each category. Fuller further said that there was no “fundamental right” to operate a lottery.
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Addressing First Amendment concerns, Fuller opined: “The freedom of communication is not abridged . . . unless Congress is absolutely destitute of any discretion as to what shall or shall not be carried in the mails, and compelled arbitrarily to assist in the dissemination of matters condemned by its judgment, through the governmental agencies which it controls.” Accordingly, Congress’s exercise of its constitutional power to establish post offices did not abridge freedom of the press. See also Ex parte Jackson (1877); Hamilton, Alexander; Mail; People v. Croswell (N.Y. 1804).
John R.Vile
furthe r reading Henning, Peter J.“Maybe It Should Just Be Called Federal Fraud:The Changing Nature of the Mail Fraud Statute.” Boston College Law Review 36 (1995): 435–477.
In re Sawyer (1959) In In re Sawyer, 360 U.S. 622 (1959), the Supreme Court reversed a Ninth Circuit Court of Appeal’s suspension of an attorney who had criticized the court handling her case as well as the court proceedings.The attorney had argued that her speech was protected by the First Amendment. Hawaii attorney Harriet Bouslog Sawyer had been suspended for criticizing the court that handled the criminal trial of her clients who were charged with conspiracy under the Smith Act of 1940. Sawyer had described the trial as “horrible and shocking” and otherwise criticized the proceedings. Lower courts had found that Sawyer had violated the Canons of Ethics of the American Bar Association. Five justices agreed that the evidence did not establish that Sawyer had impugned the integrity of the presiding judge or reflected on his impartiality and fairness. Justice William J. Brennan Jr. wrote the lead opinion questioning the adequacy of the evidence and observing that the case might be different had the defendant been accused of obstructing justice. He observed that accounts of what Sawyer had said varied greatly but that, in any event, “lawyers are free to criticize the state of the law,” not only to professional but also to lay audiences. Although Sawyer had criticized the proceedings, she had chiefly focused on the state of the law and had not mentioned the trial judge by name. Moreover, the fact that appellate courts reverse lower court judgments regularly indicates that such criticism is no disgrace. As to charges that Sawyer’s interview of
a juror after the trial was improper, Brennan suggested that the law in Hawaii had been applied inconsistently and that there were special reasons that she might have done so in this case. In a concurring opinion, Justice Hugo L. Black agreed that there was no specific Hawaii law authoring suspension of lawyers in this case, but he questioned whether such a law would be constitutional if it did exist. In a separate concurrence, Justice Potter Stewart indicated that he would not accept any implication that the First Amendment would be violated by even-handed discipline of attorneys. Justice Felix Frankfurter authored a dissent joined by Justices Tom C. Clark, John Marshall Harlan II, and Charles E. Whittaker. Frankfurter believed that it was clear that Sawyer had attacked the proceedings and the judge in a case in which she was participating, and he found it largely irrelevant that she had not specifically been charged with obstruction of justice. He also found appeals to free speech to be unavailing: Acknowledging that “the free play of the human mind is an indispensable prerequisite of a free society” and that “freedom of thought is meaningless without freedom of expression,” he cited Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis to oppose erecting freedom of speech “into a dogma of absolute validity” or into an absolute. Especially during trials, defense attorneys, like prosecutors, had responsibilities not only to their clients but also to the law. Justice Clark wrote a separate dissent arguing that the Court was in no position to second-guess the courts that had already examined the facts of the case and concluded that Sawyer’s speech was an attack on the judge during an ongoing trial. See also Bar Admissions; Brandeis, Louis D.; Brennan,William J., Jr.; Clark, Tom C.; Contempt of Court; Frankfurter, Felix; Holmes, Oliver Wendell, Jr.; Smith Act of 1940.
John R.Vile
furthe r reading Snyder, Lloyd B.“Rhetoric, Evidence, and Bar Agency Restrictions on Speech by Attorneys.” Creighton Law Review 28 (1995): 357–417.
In re Stolar (1971) In In re Stolar, 401 U.S. 23 (1971), the Supreme Court ruled that the First Amendment prohibits a state from penalizing an attorney solely on the basis of membership in a particular organization.This companion case to Baird v. State Bar of Arizona is one of a number of Court rulings related to
In re Summers (1945) admission to the bar that tempered earlier decisions in In re Anastaplo (1961) and Konigsberg v. State Bar (1961). Robert Martin Stolar, who had been accepted to the New York bar, refused to answer a number of written questions required for admission to the bar of Ohio. Ohio required him to state whether he was a member of any organization that advocated the violent overthrow of the U.S. government and to list all organizations to which he had belonged since being a law student. Writing for the Court, Justice Hugo L. Black said that questions about Stolar’s memberships in organizations was precluded by the Court’s decision relative to teachers in Shelton v. Tucker (1960). Black found that “The First Amendment prohibits Ohio from penalizing a man solely because he is a member of a particular organization.” Black further noted that Stolar already belonged to the New York bar and that he had supplied plenty of information for Ohio to check on his moral character. Justice Harry A. Blackmun authored a dissenting opinion for four justices agreeing that Ohio had no general right to inquire into all of Stolar’s associations but asserting that the state could inquire as to whether he belonged to any organizations devoted to overthrowing the government by force. Similarly, Justice John Marshall Harlan II, in partial dissent, argued that a state could deny “admission to those who seek entry to the profession for the very purpose of doing away with the orderly processes of law” and affirmed “that temperate inquiry into the character of their beliefs in this regard . . . is a relevant and permissible course to that end.” See also Baird v. State Bar of Arizona (1971); Bar Admissions; Black, Hugo L.; In re Anastaplo (1961); Konigsberg v. State Bar (1961); Shelton v.Tucker (1960).
John R.Vile
furthe r reading Keeley, Theresa. “Comment: Good Moral Character: Already an Unconstitutionally Vague Concept and Now Putting Bar Applicants in a Post-9/11 World on an Elevated Threat Level.” University of Pennsylvania Journal of Constitutional Law 6 (2004): 844–879.
In re Summers (1945) In In re Summers, 325 U.S. 561 (1945), the Supreme Court upheld the decision by the state of Illinois to deny admission of an attorney to the bar because he was a conscientious objector to war. The Court determined that the state’s deci-
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sion did not deny the attorney’s First and Fourteenth Amendment rights to the free exercise of religion. To be admitted to the bar in Illinois, attorneys were required to take an oath to support the constitution of Illinois, which included a provision requiring service in the state militia during times of war. Clyde Wilson Summers, a conscientious objector and Christian pacifist, applied to be admitted to the bar. The Committee on Character of Fitness of the Illinois Bar, a committee that advises the Illinois Supreme Court on bar admission,“refused to issue a certificate that he was of such moral character as to be allowed to practice law” in the state based solely on his refusal to take the oath.The Supreme Court of Illinois upheld the finding of the committee, and Summers appealed to the U.S. Supreme Court arguing that the state had violated his First and Fourteenth Amendment rights. In his majority opinion, Justice Stanley F. Reed first found that because the petition for admittance to the bar was considered on the merits by the Illinois Supreme Court, there was a case of controversy involved and thus the case was justiciable before the U.S. Supreme Court. Reed next concluded that Summers was not denied due process and that “he was not barred because of his religion but because under the state interpretation of its constitution he could not take the oath of office in good faith.” He further based his opinion on the fact that the Court had previously upheld the denial of U.S. citizenship to immigrants who refuse to pledge military service in an oath similar to the Illinois oath. A similar requirement by Illinois, in Reed’s opinion, was not a violation of the First or Fourteenth Amendments, and the denial of Summers to the bar was upheld. Justice Hugo L. Black—joined by Justices William O. Douglas, Frank W. Murphy, and Wiley B. Rutledge—dissented, claiming that Summers was denied a license solely because of his religious beliefs. The state agreed that Summers met every qualification, except for the military service provision.This, according to Black, was a clear attack on the religious freedom of Summers, now a professor emeritus at the University of Pennsylvania law school. See also Aliens; Bar Admissions; Conscientious Objection to Military Service.
Jonathan R. Ellzey
furthe r reading Booker, James J. “The ‘Right’ to Practice Law.” Duke Bar Journal 1 (1953): 249–259.
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Intelligent Design
Cushman, Robert E. “Constitutional Law in 1944–1945: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1944.” American Political Science Review 40 (1946): 231–255.
Intelligent Design Intelligent design is a theory that the universe and its complex life forms cannot be explained solely by natural causes, and thus an intelligent higher power contributed to the origins of the universe. Any effort by school officials to teach intelligent design in public school science classes raises an establishment clause problem by blurring the lines between church and state. The proponents of intelligent design believe it is not subject to the same constitutional hurdles as creationism, which clearly presents religious doctrine. In his book Law, Darwinism, and Public Education:The Establishment Clause and the Challenge of Intelligent Design (2003), Francis J. Beckwith contends that the arguments used to exclude creationism from the public classroom in Epperson v.Arkansas (1968) and Edwards v.Aguillard (1987) do not apply to intelligent design, which is not infused with Christian fundamentalism. Others disagree, viewing intelligent design as creationism in disguise. These critics contend that intelligent design is not science, and it is not represented in the peer-reviewed scientific literature. Jeremy Leaming of Americans United for Separation of Church and State refers to intelligent
In October 2005, several families in Dover, Pennsylvania, protested the local school board’s resolution calling for the teaching of intelligent design theory as an alternative to evolution.
design as “a reincarnation of creation science” (quoted in Hudson 2006). In Kitzmiller v. Dover Area School District (M.D. Pa. 2005), a federal district court in Pennsylvania ruled that a school board’s policy calling for intelligent design to be taught in biology classes violated the establishment clause of the Constitution. The school board had passed a resolution in October 2004 that called on teachers to read a statement to students noting the “gaps/problem” with evolution and asking them to consider intelligent design as another explanation for life’s origins. The trial began in September 2005, and U.S. district court judge John E. Jones III issued a 139-page opinion in December granting the challengers of the intelligent design resolution a permanent injunction. Judge Jones found that the school district’s resolution violated the endorsement and Lemon tests—two of the leading tests put forth by the Supreme Court to assess establishment clause controversies. The endorsement test—proposed by Justice Sandra Day O’Connor in her concurring opinion in Lynch v. Donnelly (1984)—asks whether a reasonable, objective observer aware of the underlying controversy would believe that the government was endorsing religion. In applying this test, the judge found that “the religious nature of intelligent design would be readily apparent to an objective observer, adult or child.” Indeed, he added, intelligent design’s religious nature was shown by the fact that it believes in a “supernatural
International Association of Machinists v. Street (1961) designer.” He also pointed out that “[t]he overwhelming evidence at trial established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory.” The judge also found that the school board’s policy violated both the purpose and primary effects prongs of the Lemon test— as put forth by Chief Justice Warren E. Burger in Lemon v. Kurtzman (1971). After the court’s decision, the membership of the school board changed, and the new board decided not to appeal the ruling to the Third Circuit Court of Appeals. In January 2006, California school officials approved an intelligent design course in a high school in the El Tejon Unified School District. Members of Americans United for Separation of Church and State, who had successfully challenged the policy in Dover, Pennsylvania, sued in federal court, contending in Hurst v. Newman (2006) that this course would violate the establishment clause. Although school officials dropped the course in response to the lawsuit, intelligent design controversies will likely continue to surface in public schools. See also Americans United for Separation of Church and State; Creationism; Edwards v. Aguillard (1987); Endorsement Test; Epperson v. Arkansas (1968); Evolution; Lemon v. Kurtzman (1971); Lemon Test; Lynch v. Donnelly (1984).
David L. Hudson Jr.
furthe r reading Beckwith, Francis J. Law, Darwinism and Public Education: The Establishment Clause and the Challenge of Intelligent Design. Lanham, Md.: Rowman and Littlefield, 2003. Behe, Michael J. Darwin’s Black Box: The Biochemical Challenge to Evolution. 2d ed. New York: Free Press, 2006. Greenawalt, Kent. “Establishment Religious Ideas: Evolution, Creationism, and Intelligent Design.” Notre Dame Journal of Law, Ethics and Public Policy 17 (2003): 321–397. Hanakahi, Wendy F. “Evolution-Creationism Debate: Evaluating the Constitutionality of Teaching Intelligent Design in Public School Classrooms.” Hawaii Law Review 25 (2002): 9–58. Hudson, David L., Jr.“Evolution and Creationism:An Overview.” First Amendment Center Online, January 2006. www.firstamendment center.org/rel_liberty/publicschools/topic.aspx?topic=evolution_ creation. Katskee, Richard B. “Why It Mattered to Dover That Intelligent Design Isn’t Science.” First Amendment Law Review 5 (2006): 112–161. Moseley, T. Mark. “Intelligent Design: A Unique Perspective to the Origins Debate.” Regent University Law Review 15 (2002): 327–354.
Internal Security Act of 1950 See McCarran Act of 1950
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International Association of Machinists v. Street (1961) In International Association of Machinists v. Street, 367 U.S. 740 (1961), the Supreme Court overturned a Georgia court decision that had declared the union-shop provisions of the Railway Labor Act of 1926 unconstitutional. Street and other machinists had argued that the union which they were forced to join was improperly spending money to support political causes and candidates with which they disagreed. The Court decided that if the law were interpreted so as not to require nonunion members to contribute to political activities, it would not violate First Amendment protections for freedom of expression. Justice William J. Brennan Jr. wrote the majority opinion and noted that in Railway Employees’ Department v. Hanson (1956) the Court had decided that the union-shop provision requiring nonunion members to pay equivalents of union dues for the benefits they received was constitutional, but there had been no finding that monies designated as equivalent to union dues had been used to finance political activities. Brennan believed that Congress had not intended to force employees to pay for political speech to which they were opposed and suggested that the lower court should refund portions of dues that went to political activities to employees who had protested against them. In a concurring opinion, Justice William O. Douglas acknowledged that some forced association was necessary but said it could never be conditioned “on the individual’s acceptance of the group’s philosophy.” Justice Charles E. Whittaker thought the part of the Court’s opinion relating to separating costs of political action from other costs was too onerous. Justice Hugo L. Black’s dissent questioned the Court’s construction of the law at issue. He thought the Court should have struck the law down as unconstitutionally requiring individuals to spend their money on beliefs that they did not support. He cited James Madison and Thomas Jefferson in their opposition to requiring individuals to contribute any of their money toward religious establishments. Justice Felix Frankfurter wrote a separate dissent, joined by Justice John Marshall Harlan II, questioning the Court’s construction of the law. They thought that union expenditures, even on behalf of political activities, were closely tied to other union objectives and that Congress had intended to allow this practice to continue. They thought the political
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expenditures at issue were too “miniscule” to “claim constitutional recognition.” See also Black, Hugo L.; Brennan,William J., Jr.; Douglas,William O.; Frankfurter, Felix; Jefferson, Thomas; Madison, James; Railway Employees’ Department v. Hanson (1956).
John R.Vile
furthe r reading Sumner, David G. “Note: Plumbers and Pipefitters: The Need to Reinterpret the Scope of Compulsory Unionism.” American University Law Review 33 (1984): 493–534.
International Brotherhood of Electrical Workers v. National Labor Relations Board (1951) In International Brotherhood of Electrical Workers v. National Labor Relations Board, 341 U.S. 694 (1951), the Supreme Court affirmed the Second Circuit Court of Appeal’s decision that a union’s peaceful picketing had illegally induced a strike designed to force a general contractor’s termination of its contract with a subcontractor in violation of the National Labor Relations Act of 1947. The case arose after a union agent picketed a construction site on the basis that an electrical subcontractor had employed nonunion men and succeeded in getting another carpentry subcontractor to stop his work. This case was a companion to Labor Board v. Denver Building Trades Council and United Brotherhood of Carpenters v. Labor Board, each of which dealt with unfair labor practices. In interpreting the provisions of section 8 (b) (4) (A) of the National Labor Relations Act, which was designed to prohibit actions that “induce or encourage” secondary boycotts, Justice Harold H. Burton, writing for six justices, decided that the language did apply to the legal picket at issue. He observed that this prohibition “carries no unconstitutional abridgment of free speech.” He further observed that “the substantive evil condemned by Congress . . . is the secondary boycott and we recently have recognized the constitutional right of states to proscribe picketing in furtherance of comparably unlawful objectives. There is no reason why Congress may not do likewise.” See also Picketing.
John R.Vile
furthe r reading Kahn, Peggy. Picketing: Industrial Disputes,Tactics, and the Law. London: Routledge and Kegan Paul, 1983.
International Brotherhood of Teamsters Union v. Hanke (1950) In International Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470 (1950), the Supreme Court in a 5-3 majority sustained an injunction against picketing of a self-employer’s place of business that was directed toward forcing the owner to adopt a union shop. The Court decided that the injunction did not violate freedom of speech as guaranteed by the First and Fourteenth Amendments. This case was decided together with Automobile Drivers and Demonstrators Local Union No. 882 v. Cline, and the Court issued the decision on the same day as it also upheld another injunction against picketing in Hughes v. Superior Court of California. Justice Felix Frankfurter wrote the Court’s opinion relative to Hanke and Cline, the owners of used automobile and repair shops in Seattle, Washington. Frankfurter observed that picketing was a “hybrid” that “cannot dogmatically be equated with the constitutionally protected freedom of speech.” As indicated in Thornhill v. Alabama (1940), it was important to allow states to enforce their own public policies. This point was further reiterated in Senn v. Tile Layers Protective Union (1937), when picketing was permitted in Wisconsin against a self-employed tile layer. In Hanke and Cline, the state of Washington chose to safeguard the opportunity of individuals who were self-employed to avoid union membership. Frankfurter thought it was irrelevant that Wisconsin’s policy had been expressed by its legislature and Washington’s by its courts. Justice Hugo L. Black dissented with a brief citation to his dissent in Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Café (1942). Justice Sherman Minton authored a dissent joined by Justice Stanley F. Reed, observing that the picketing in Hanke was peaceful. In distinguishing this case from Senn, Minton wrote that “because Wisconsin could permit picketing, and not thereby encroach upon freedom of speech, it does not follow that it could forbid like picketing” since the latter prohibition involved First and Fourteenth Amendment free speech protections. Minton feared that the injunction at issue was “not directed at any abuse of picketing but at all picketing.” See also Black, Hugo L.; Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Café (1942); Frankfurter, Felix; Hughes v. Superior Court of California (1950); Picketing; Senn v. Tile Layers Protective Union (1937);Thornhill v. Alabama (1940).
John R.Vile
International Religious Freedom Act of 1998 furthe r reading Getman, Julius. “Symposium: Directions in Labor Law—Concern for the Dignity of the Worker: Labor Law and Free Speech: The Curious Policy of Limited Expression.” Maryland Law Review 43 (1984): 4–22.
International Brotherhood of Teamsters Union v. Vogt (1957) In International Brotherhood of Teamsters Union v.Vogt, 354 U.S. 284 (1957), the Supreme Court reaffirmed that First Amendment protections for freedom of expression did not prevent states from limiting peaceful picketing directed to coerce employers to interfere with employees’ rights to choose whether or not to join a union. Union members had picketed outside Vogt, Inc.’s gravel pit in Oconomowoc,Wisconsin, which led to reduced business.Vogt requested an injunction to prohibit such picketing. Justice Felix Frankfurter’s opinion for the Court reviewed a long line of cases in which the Court recognized that picketing could involve “an aspect of communication” protected by the First and Fourteenth Amendments but also recognized that rights to free expression might have to be balanced against other considerations. Frankfurter summarized the cases as establishing “a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law . . . could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.” In Justice William O. Douglas’s dissenting opinion, joined by Chief Justice Earl Warren and Justice Hugo L. Black, he argued that the Court had come full circle from its decision in Thornhill v.Alabama (1940) and American Federation of Labor v. Swing (1941). Douglas observed that the case at hand involved “no rioting, no mass picketing, no violence, no disorder, no fisticuffs, no coercion—indeed nothing but speech” and should therefore be protected. He feared that the decision left states “free to decide whether to permit or suppress any particular picket line for any reason other than a blanket policy against all picketing.” See also American Federation of Labor v. Swing (1941); Douglas, William O.; Frankfurter, Felix; Picketing; Thornhill v. Alabama (1940).
John R.Vile
furthe r reading Kahn, Peggy. Picketing: Industrial Disputes,Tactics, and the Law. London: Routledge and Kegan Paul, 1983.
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International Religious Freedom Act of 1998 The International Religious Freedom Act (IRFA) of 1998 offers an example of how the principles of the First Amendment can influence not only U.S. domestic policy, but foreign policy as well. The act established the Office of International Religious Freedom within the Department of State to oversee numerous diplomatic missions to promote religious freedom. An ambassador-at-large heads the office and acts as the principal adviser to the president and secretary of state in matters concerning religious freedom abroad. The ambassador-at-large is also a nonvoting member of the Commission on International Religious Freedom, an independent organization created by the IRFA. The Office of International Religious Freedom prepares and submits the Annual Report to Congress on International Religious Freedom, which examines the status of religious freedom in foreign countries; government policies in conflict with the religious beliefs and practices of groups, religious denominations, and individuals; and U.S. policies to promote religious freedom around the world. Based on these findings, the secretary of state can designate as “countries of particular concern” those nations guilty of particularly severe violations of religious freedom.The law authorizes the president to respond to such countries in a manner ranging from a private, but official, expression of concern to economic sanctions. The Commission on International Religious Freedom is charged with reviewing the Annual Report to Congress on International Religious Freedom and making policy recommendations concerning particular countries.Thus, the report by the commission differs in scope from the State Department report and is sometimes critical of the State Department’s analysis of individual countries. The commission also gives independent policy recommendations to the president, the secretary of state, and Congress. The IRFA established the position of special adviser on international religious freedom and assigned it to the National Security Council to “serve as liaison with the Ambassador at Large for International Religious Freedom, the United States Commission on International Religious Freedom, Congress and, as advisable, religious nongovernmental organizations.” Other key elements of the IRFA are the establishment of guidelines delineating religious persecution and identifying specific actions constituting violations of religious freedom.
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International Society for Krishna Consciousness v. Lee (1992)
The IRFA draws heavily on international law, referring to Article 18 of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Charter of the United Nations. Regardless, some critics view the IRFA as a unilateral attempt to dictate policy to other countries (Shattuck 2002). The first sentence of the first substantive section of the IRFA reads, “The right to freedom of religion undergirds the very origin and existence of the United States,” and the act proceeds to laud the “religious freedom” that the nation’s founders sought to establish. Discussions of the fundamental nature of the right to religious freedom permeate the IRFA and the subsequent reports mandated of the State Department and the commission created by the IRFA. According to Farr (2006), the First Amendment and the test set out by the Supreme Court in Lemon v. Kurtzman (1971) to interpret the establishment clause restrain the effectiveness of the IRFA. Farr cites an unwillingness on the part of U.S. diplomats to engage international religious communities because of a fear that such actions will appear to advance or inhibit religion.This cautious approach creates a dilemma for policymakers because the IRFA specifically charges that the effect of any policies implemented under the IRFA be evaluated in regard to the potential impact on religious communities. Therefore, although section 2(b) of the IRFA states that “[i]t shall be the policy of the United States . . . [t]o seek to channel United States security and development assistance to governments other than those found to be engaged in gross violations of the right to freedom of religion, as set forth in the Foreign Assistance Act of 1961, in the International Financial Institutions Act of 1977, and in other formulations of United States human rights policy,” potential actions may be inhibited by concerns related to the First Amendment. Despite the potential for conflicts between the IRFA and the First Amendment, critics, including the former director of the Office of International Religious Freedom, charge that after the initial fanfare with which the IRFA emerged, it has brought few tangible improvements.They cite the relegation of the ambassador-at-large to the Human Rights Bureau, which is largely outside mainstream diplomatic circles, as indicative of the role of the IRFA in foreign policy and diplomacy (Farr 2006). See also Lemon Test.
Karen Petersen
furthe r reading Farr, Thomas F. “The Diplomacy of Religious Freedom.” First Things, no. 163 (May 2006): 12–15. International Religious Freedom Act of 1998. www.state.gov/ documents/organization/2297.pdf. Shattuck, John. Keynote Address, Harvard Human Rights Journal Conference, Religion, Democracy, and Human Rights. Harvard Law School, February 15, 2002. United States Commission on International Religious Freedom. www.uscirf.gov. U.S. Department of State, Bureau of Democracy, Human Rights, and Labor: International Religious Freedom. www.state.gov/g/ drl/rls/irf.
International Society for Krishna Consciousness v. Lee (1992) In International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), the Supreme Court held that a regulation prohibiting solicitation of funds in an airport was constitutional. The decision turned on the determination of whether an airport operated by a government agency is a public forum. Since Hague v. Committee for Industrial Organization (1939), public places, such as streets, sidewalks, and parks, have been understood as public fora and therefore considered presumptively open for the exercise of speech rights. Speech regulations in these fora are permissible only if they are narrowly tailored to serve a compelling state interest. Not all public places, however, are public fora. The standard of scrutiny for a regulation of speech in a public place depends partly on the Court’s classification of the forum. Members of the International Society for Krishna Consciousness (ISKCON), a nonprofit religious corporation, perform a ritual called sankirtan, which involves soliciting funds and distributing literature in public places. In 1988 the New York Port Authority, a government agency that owns and operates the three airports in metropolitan New York, adopted a regulation forbidding repetitive solicitation of funds or distribution of literature within airport terminals. ISKCON filed suit, alleging that the regulation violated its speech rights. A district court agreed, but a circuit court was willing to upheld bans on solicitation but not on the distribution of literature.The ISKCON thus appealed one part of the ruling (at issue here) while Lee, the superintendent of the Port Authority, appealed another in the companion case Lee v. International Society for Krishna Consciousness. Chief Justice William H. Rehnquist, writing for the majority, agreed with the circuit court in arguing that airports are not “traditional public fora,” because they have not
Internet typically been used for speech, and are not “designated public fora,” because the regulations show that airport authorities oppose speech there. Thus, he concluded that airports are nonpublic fora, and regulations of speech there must only be reasonable and content neutral.The Port Authority’s regulations of solicitation were reasonable, he said, because the terminal’s function—transportation—can be disrupted by such solicitation causing congestion, time delays, and the risk of fraud. Justice Sandra Day O’Connor, in a concurrence that applied to this case and Lee v. International Society for Krishna Consciousness, agreed that airports are nonpublic fora and that regulations must only be reasonable. She also found, however, that although the ban on solicitation was reasonable, the ban on leafleting was not, because accepting a leaflet does not force a person to stop walking and does not create the risk of fraud. In another concurring opinion, Justice Anthony M. Kennedy argued that the majority’s forum analysis was flawed.The inquiry into the nature of a forum, he said, must be based on an objective analysis of its physical characteristics, not on government claims.Airport terminals, he said, are similar to sidewalks and streets, and they are one of the few spaces left for people to engage in expressive activity. Thus, Kennedy argued, airports are public fora, so speech regulations must be given strict scrutiny. He found that the ban on solicitation was permissible, but the ban on distributing literature was not. Justice David H. Souter, in dissent, argued that airports are public fora and that neither ban was permissible. He noted that no evidence of fraud existed and that banning solicitation did not leave open ample alternative channels of communication. In sum, in this case and in Lee v. International Society for Krishna Consciousness, five justices agreed that airports were not public fora; six found that the ban on solicitation of funds was constitutional; and five held that the ban on the distribution of literature was unconstitutional. See also Hague v. Committee for Industrial Organization (1939); Public Forum Doctrine; Rehnquist,William H.
Katrina Hoch
furthe r reading Farber, Daniel A., and John E. Nowak. “The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication.” Virginia Law Review 70 (1984): 1219–1266. Fiss, Owen M. “Silence on the Street Corner.” In Liberalism Divided: Freedom of Speech and the Many Uses of State Power. Boulder, Colo.: Westview Press, 1996.
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Gey, Steven G. “Reopening the Public Forum: From Sidewalks to Cyberspace.” Ohio State Law Journal 58 (1998): 1535–1634. Kalven, Harry, Jr. “The Concept of the Public Forum: Cox v. Louisiana.” In The Negro and the First Amendment. Chicago: University of Chicago Press, 1965. Kohn, Margaret. Brave New Neighborhoods: The Privatization of Public Space. New York: Routledge, 2004. Stone, Geoffrey. “Fora Americana: Speech in Public Places.” Supreme Court Review (1974).
Internet The Supreme Court faces special challenges in dealing with regulation of speech on the Internet. The Internet’s unique qualities, such as its ability to spread potentially dangerous information quickly and widely, as well as its easy accessibility by minors, have prompted lawmakers to call for tighter restrictions of Internet speech. Others argue that Congress and the courts should refrain from limiting the possibilities of the Internet unnecessarily and prematurely, because it is a new, technologically evolving medium. For its part, the Supreme Court continues to balance precedents with the novel technological features of the medium. One major area of Internet regulation that Congress has entered is protecting minors from pornography and other indecent or obscene speech on the Internet. For example, the 1996 Communications Decency Act (CDA) prohibited “the knowing transmission of obscene or indecent messages” over the Internet to minors. However, in Reno v. American Civil Liberties Union (1997) the Supreme Court struck down this law as being too vague. The Court held that the regulation created a “chilling effect” on speech and prohibited more speech than necessary to achieve the objective of protecting children.The Court also rejected the government’s arguments that speech on the Internet should receive a reduced level of First Amendment protection, akin to that of the broadcast media. Instead, the Court ruled that speech on the Internet should receive the highest level of First Amendment protection—like that extended to the print media. In response to the Court’s ruling, in 1998 Congress passed the Child Online Protection Act (COPA), which dealt only with minors’ access to commercial pornography and provided clear methods to be used by site owners to prevent access by minors. However, in 2004 the Court struck down COPA (Ashcroft v. American Civil Liberties Union), arguing that less restrictive methods such as filtering and blocking should be used instead. The Court contended that these alternative methods were at least in theory more effective than those
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specified in COPA because of the large volume of foreign pornography that Congress cannot regulate. Congress also ventured into the area of child pornography, passing the Child Pornography Prevention Act (CPPA) in 1996. The CPPA criminalized virtual child pornography—that is, pornography that sexually depicts, or conveys the impression of depicting, minors.Although the act targeted computer-generated or altered works advertised as child pornography, in Free Speech Coalition v. Reno (9th Cir. 1999) the federal appeals court found some language in the statute to be so overly broad and vague that much protected speech would be covered under the CPPA.The court noted that the state’s interest in protecting children from the physical and psychological abuse arising from their participation in the making of pornography—the basis for its ban in New York v. Ferber (1982)—was not present in virtual child pornography. U.S. courts have also dealt with other areas of Internet speech that traditionally have been less protected or unprotected under the First Amendment. Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (9th Cir. 2002), decided by an en banc panel of the Ninth Circuit Court of Appeals, revolved around what constitutes dangerous speech and a true threat in the context of the Internet. The American Coalition of Life Activists (ACLA) posted a Web site that listed the personal contact information of doctors who performed abortions, including details such as the names of their children. The names of doctors who had been murdered were crossed off and the names of those who had been wounded by anti-abortion activists were grayed. Although the site did not contain explicit threats, opponents argued that it was akin to a hit list, and the doctors on the list believed it to be a serious threat to their safety. The appeals court held that the ACLA could be held liable for civil damages, and that the Web site did not contain “political speech” protected under the First Amendment. The Court wrote: “It is the use of the ‘wanted’-type format in the context of the poster pattern—poster followed by murder—that constitutes the threat.” The posters were not “political hyperbole” because “[p]hysicians could well believe that ACLA would make good on the threat.” Thus it was a true threat, not protected as political speech. Courts have not found all speech on the Internet that might be called threatening to be unprotected under the First Amendment right of freedom of speech. For example, in United States v. Alkhabaz (6th Cir. 1997) a university stu-
dent, Abraham Alkhabaz, posted sexually explicit, violent stories on the Internet and also exchanged e-mails with another man that appeared to be a plan to act out one story by attacking a woman at Alkhabaz’s university. In court, Alkhabaz claimed the e-mails were mere fantasy, and the court agreed, arguing that the messages did not constitute a true threat because they were not “conveyed to effect some change or achieve some goal through intimidation.” In yet another area of Internet usage—protecting children from access to inappropriate obscene and nonobscene materials on public library computers—the Supreme Court allowed the federal government to require libraries to install filters on such computers as a condition for receiving federal aid to purchase computers. But the three dissenting justices in United States v. American Library Association (2003) viewed the requirement of filtering devices on library computers, which both adults and children must request to be unlocked, to be an overly broad restriction on adult access to protected speech. See also Ashcroft v.American Civil Liberties Union (2002) (2004); Child Online Protection Act of 1998; Child Pornography Prevention Act of 1996; Communications Decency Act of 1996; Government Funding and Free Speech; Harmful to Minors, Laws; New York v. Ferber (1982); Obscenity and Pornography; Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (9th Cir. 2002); Reno v. American Civil Liberties Union (1997); United States v. American Library Association (2003).
Ronald Kahn
furthe r reading Kang, Jeffy. “Cyber-Race.” Harvard Law Review 113 (2000): 1131–1208. Lessig, Lawrence. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. Schachter, Madeleine. Law of Internet Speech. 2d ed. Durham, N.C.: Carolina Academic Press, 2002. Slevin, James. The Internet and Society. Cambridge: Polity Press, 2000. Wallace, Jonathan, and Mark Mangan. Sex, Laws, and Cyberspace: Freedom and Censorship on the Frontiers of the Online Revolution. New York: Henry Holt, 1997.
Interstate Circuit, Inc. v. Dallas (1968) In Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968), the Supreme Court rejected a city’s film censorship ordinance that failed to provide sufficient guidance to those in the motion picture industry and to members of the city board who had to decide whether the films were suitable for
Intrusion minors. The Court determined 8-1 that the city ordinance violated the First and Fourteenth Amendments by being too vague, even though on the same day it had upheld a general harmful-to-minors law in Ginsberg v. New York. A Dallas, Texas, ordinance created a Motion Picture Classification Board that had the power to classify films as “not suitable for young persons” if board members thought the films were likely to incite or encourage crime, delinquency, or sexual promiscuity on the part of young persons. The exhibitor and distributor of the movie Viva Maria challenged the ordinance in Texas state court after the classification board ruled the movie not suitable.After a county court and the Texas Court of Civil Appeals upheld the city law, the film industry appealed to the Supreme Court. Writing for the majority, Justice Thurgood Marshall ruled that the film ordinance was unconstitutionally vague because it failed to provide sufficient guidance and standards to determine which films should merit censorship. He noted the lack of a definition for “sexual promiscuity” and concluded that the law turned the classification board into a “roving commission.” In a concurring opinion, Justice William O. Douglas, joined by Justice Hugo L. Black, also ruled against the ordinance. They reiterated their position that obscenity and harmful-to-minors laws flatly violated the First Amendment. In his dissenting opinion, Justice John Marshall Harlan II wrote of the “intractable obscenity problem.” Harlan favored giving more deference to state and local governments in the obscenity arena, particularly because the Court cannot give sufficient guidance to such governments. “The truth is that the Court has demanded greater precision of language from the City of Dallas than the Court can itself give, or even than can sensibly be expected in this area of the law,” he wrote. See also Ginsberg v. New York (1968); Harmful to Minors Laws; Marshall, Thurgood; Motion Picture Ratings; Obscenity and Pornography.
David L. Hudson Jr.
furthe r reading Hixson, Richard. Pornography and the Justices:The Supreme Court and the Intractable Obscenity Problem. Carbondale, Ill.: Southern Illinois University Press, 1996.
Intrusion An intrusion on seclusion claim applies when someone intentionally intrudes, physically or through electronic sur-
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veillance, upon the solitude or seclusion of another. This form of invasion of privacy has implications for the First Amendment, particularly when members of the press are punished for their news-gathering activities. For example, a First Amendment clash may arise when members of the paparazzi are targeted for their invasive conduct. Intrusion differs from trespass, which is a civil claim or a criminal charge for entering private property without the owner’s consent. In addition to unauthorized physical entry, eavesdropping, and wiretapping, an intrusion claim can be brought for lying or misrepresenting circumstances in order to obtain entry, or exceeding the consent given for entry. To pursue an intrusion on seclusion claim in most states, a plaintiff must establish that (1) the defendant, without authorization, intentionally invaded the plaintiff ’s private matters; (2) the invasion is offensive to a reasonable person; (3) the matter that the defendant intruded upon is a private one; and (4) the intrusion caused the plaintiff mental anguish or suffering. The intrusion itself is actionable, regardless of whether any information is communicated to others. More broadly, to prove intrusion claims plaintiffs must show that they had a reasonable expectation of privacy. Courts have found such an expectation in one’s home, as well as in public facilities such as locker rooms and bathrooms. Courts have also found a reasonable expectation of privacy in financial matters, telephone calls, and personal postal and electronic mail. Such an expectation may also be based on privacy statutes, which may impose their own penalties. These statutes, which address the use of surveillance and bugging equipment, vary by state. But the general rule is that photographing or recording anything that occurs in, or can be easily seen from, public areas is not actionable; use of special equipment to see or hear activity in a private place or that an unaided person would not be able to see or hear is actionable. The laws on eavesdropping and wiretapping of telephone and electronic communications are complicated and vary by state. Federal law generally prohibits interception of oral communications without consent, although major exceptions are applicable to business such as the “telephone extension” exception, which allows employers to monitor business phone calls “in the ordinary course of business.” If users have been informed of monitoring, continued use is considered consent. The federal wiretapping law also applies to cell phones and e-mail. Most courts have held that the federal law
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applies only to e-mails while “in transit,” not when they are “stationary” (for example, stored on a hard drive), even if the storage is fleeting and temporary. But recently a federal appeals court held in United States v. Councilman (1st Cir. 2005) that e-mails are covered whether in transit or in storage. As electronic communication continues to expand and fears of identity theft rise, intrusion claims will undoubtedly expand to cover these forms of communication. The same can be said of cell phones able to capture images; it is feared that their use in locker rooms and restrooms will raise privacy concerns. Whether and how state provisions apply to email and cell phones depends on how they have been written and interpreted. In addition to the federal laws, every state but Vermont (where state courts have still set limits on the practice) has its own eavesdropping law. Most (thirty-nine states and the District of Columbia) require “one party consent” to record a conversation, and eleven states require all parties to consent. A recent well-known example of such eavesdropping was the 1997 recording made by government worker Linda Tripp of her telephone conversation with White House intern Monica Lewinsky. In that conversation, Lewinsky disclosed her sexual liaison with President Bill Clinton. The telephone conversation, which was later released to Newsweek magazine, was taped in Maryland, one of the states in which both parties must consent to the taping. Consent is a defense to an intrusion claim. However, it must be informed consent and from someone with a legal right to give it. Consent is easiest to prove when in writing. Lying in order to receive consent renders the consent invalid. An action can still be found to be intrusion if it exceeds the scope of the consent granted. Intrusion raises several First Amendment issues. For one thing, a defendant cannot defeat a private effort to sue for intrusion by raising a First Amendment right to free speech. If in fact privacy has been invaded, then the victim can sue and collect for damages. In addition, the government can enhance some privacy laws to protect against intrusion. Although such laws may limit the free speech ability of intruders to intercept and release information, these laws also facilitate and promote privacy and free communication among users, thereby promoting the type of communication that the First Amendment favors. See also Paparazzi; Privacy.
Eric P. Robinson
furthe r reading Citizen Media Law Center. “Elements of an Intrusion Claim,” March 10, 2008, www.citmedialaw.org/legal-guide/elements-intrusionclaim. Hilliard, James W.“A Familiar Tort That May Not Exist in Illinois: The Unreasonable Intrusion on Another’s Seclusion.” Loyola University of Chicago Law Journal 30 (1999): 601–625. “Intrusion by News-Gathering Entity as Invasion of Right of Privacy.” ALR 4th (American Law Reports) 69 (1989): 1059. Tutaj, Adam J. “Intrusion upon Seclusion: Bringing an ‘Otherwise’ Valid Cause of Action into the 21st Century.” Marquette Law Review 82 (1999): 665–687.
Islam Some six million Muslims reside in the United States, two million of whom belong to a mosque. The U.S. Muslim population largely consists of immigrants or descendants of immigrants from South Asia or Arab countries; about a third are African American. Like those of other religious minorities, the religious beliefs and practices of Muslims have sometimes raised First Amendment free exercise issues. The custom followed by some Muslim women to wear a headscarf (hijab) in public has provoked controversy in several European countries. In France, schoolchildren are not allowed to wear headscarves; in Germany, many states ban teachers from wearing them. In the United States, most school districts allow students to wear headscarves, and some school districts that initially refused to allow headscarves changed their position after protests from parents and Muslim groups.Three states—Nebraska, Oregon, and Pennsylvania— ban school teachers from wearing religious clothing. In the face of religious discrimination lawsuits filed by teachers, the courts have upheld the constitutionality of these statutes. It is not yet clear how school uniform requirements might affect the religious rights of public school students. Outside of schools, proponents of the hijab have had mixed success. After protests, Wisconsin reversed a policy banning hijabs in prison visitation rooms. However, in Freeman v. State (Fla. Cir. Ct. 2003) a court, interpreting Florida’s Religious Freedom Restoration Act, held that a woman could not pose for a driver’s license photo wearing a niqab, a religious veil that covers the entire face except for the eyes, although in the 1970s and 1980s some courts had allowed Pentecostal Christians to forgo license photos altogether. In distinguishing the earlier cases, the court repeatedly referred to the danger posed by terrorism. The rights of Muslim prisoners, especially in the area of dietary privileges, have generally grown over the decades
Islam
A high school basketball player wears a hijab during a December 2007 game in Dearborn, Michigan. Some schools have sparked First Amendment debates by banning the wearing of headscarves on school grounds.
and are now protected by the Religious Land Use and Institutionalized Persons Act of 2000. However, in O’Lone v. Estate of Shabazz (1987) the Supreme Court held that prison authorities could ban weekly prayers held on Fridays because they could undermine prison safety. Meanwhile, the Federal Bureau of Prisons, concerned about the spread of radical Islam in prisons in the wake of the al-Qaida attacks of September 11, 2001, placed a moratorium on the hiring of Muslim chaplains that may be unconstitutional. A similar issue is Muslim charities. Since the events of September 11, the U.S.Treasury Department has blocked the assets of twenty-seven Muslim charities on suspicion of passing funds to terrorists. In Holy Land Foundation for Relief and Development v. Ashcroft (D.D.C. 2002), a federal district court
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rejected the charity’s free exercise claim, because the charity in question did not represent itself as a religious entity and because there is no free exercise right to support terrorists. Although Islam does not formally recognize a separation of church and state, Islam vis-à-vis the establishment clause has roused little debate. However, the practice of weekly prayers poses tough questions for public schools that seek to accommodate Muslim religious preferences without endorsing Islam. In Eklund v. Byron Union School District (9th Cir. 2006), the Ninth Circuit Court of Appeals held that forcing students to take an Islamic name and read a prayer in a social studies role-playing exercise did not violate the establishment clause. The September 11 attacks refocused attention on the boundary between political advocacy and incitement of terrorist acts. Some cases involved facts that if true would meet the Brandenburg v. Ohio (1969) standard of incitement of imminent lawless action that government had the right to punish. For example, in 2005 federal authorities successfully prosecuted Ali al-Timimi, a U.S. biologist and prominent Islamic leader, for encouraging U.S. Muslims to take up arms in support of the Taliban. Authorities also prosecuted Sami al-Arian, a Florida computer science professor, for raising funds for the Palestinian Islamic Jihad organization.After the jury acquitted him on some counts and deadlocked 102 in favor of acquittal on the others, al-Arian accepted a guilty plea. Muslims have also been the victims of free speech. In Citizen Publishing Co. v. Miller (Ariz. 2005), the Arizona Supreme Court held that a letter to the editor in a Tucson paper arguing that after another attack on U.S. soldiers in Iraq “we” should “go to the closest mosque” and kill five Muslims was not imminent incitement under Brandenburg because the threat would only go into effect after the next attack. Even though many Muslims kept their children out of school in response to the letter, the court also held that unlike the burning cross at issue in Virginia v. Black (2003), the letter was not directed at an individual or group of individuals. Freedom of speech also figured in the controversy over the publication in the Jylands Post, a Danish newspaper, of cartoons depicting the Prophet Muhammad in a negative light. Muslims objected to the cartoons both because many Muslims believe that Islam forbids pictorial representations of the Prophet and because they found the cartoons to be insulting. Although many European papers republished the cartoons, often as a statement of explicit solidarity for the Post, few papers in the United States ran the cartoons, and
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most of those that ran them did so because they felt the controversy over the cartoons had made them newsworthy. See also Blasphemy; Brandenburg v. Ohio (1969); Dress Codes; O’Lone v. Estate of Shabazz (1987); Prisons; Religious Land Use and Institutionalized Persons Act of 2000;Virginia v. Black (2003).
Robert A. Kahn
furthe r reading Afridi, Sam. Muslims in America: Identity, Diversity and the Challenge of Understanding. New York: Carnegie Corporation of New York, 2001. Bulliet, Richard W. The Case for Islamo-Christian Civilization. New York: Columbia University Press, 2004. Currier, Patrick T. “Note, Freeman v. State of Florida: Compelling State Interests and the Free Exercise of Religion in Post–September 11th Courts.” Catholic University Law Review 53 (2004): 913–942. Gey, Steven G. “Free Will, Religious Liberty, and a Partial Defense of the French Approach to Religious Expression in Public Schools (The Ninth Annual Frankel Lecture).” Houston Law Review 42 (2005): 1–79. Haddad, Yvonne Yazbeck, and Adair T. Lummis. Islamic Values in the United States: A Comparative Study. Oxford: Oxford University Press, 1987. Kaiser, Elizabeth D. “Jesus Heard the Word of God, but Mohammed Had Convulsions: How Religion Clause Principles Should Be Applied to Religion in the Public School Social Studies Curriculum.” Journal of Law and Education 34 (2003): 321–356. Lasson, Kenneth. “Incitement in the Mosques: Testing the Limits of Free Speech and Religious Liberty.” Whittier Law Review 27 (2005): 3–76. Rauf, Imam Feisal Abdul. What’s Right with Islam Is What’s Right with America: A New Vision for Muslims and the West. New York: HarperCollins, 2005. Ruff, Kathryn A. “Note, Scared to Donate: An Examination of the Effects of Designating Muslim Charities as Terrorist Organizations on the First Amendment Rights of Muslim Donors.” New York University Journal of Legislation and Public Policy 9 (2005–2006): 447–502. Seymour, Stephen. “Note, The Silence of Prayer: An Examination of the Federal Bureau of Prisons’ Moratorium on the Hiring of Muslim Chaplains.” Columbia Human Rights Law Review 37 (2006): 523–558. Tannenbaum, Robert S. “Note, Preaching Terror: Free Speech or Wartime Incitement?” American University Law Review 55 (2006): 786–819. Teitel, Ruti.“No Laughing Matter:The Controversial Danish Cartoons Depicting the Prophet Mohammed and Their Broader Meaning for Europe’s Public Square.” Findlaw.com, February 15, 2006. http://writ.news.findlaw.com/comentary/20060215_teitel.html.
Issue Advocacy Issue advocacy refers to public statements and advertising on public issues that are unregulated by political campaign finance laws and regulations. U.S. courts have accepted some
limits on direct campaign contributions that do not pass constitutional muster under the free expression provisions of the First Amendment when applied directly to such issue advocacy. The term issue advocacy grew out of the Supreme Court’s landmark case Buckley v. Valeo (1976), which held that the prohibition in the Federal Election Campaign Act of 1971 against certain contributions and expenditures “in connection with” federal elections could be read to prohibit only the “express advocacy” of the election or defeat of candidates for federal office.To read it more broadly would render the language vague and overbroad. In a footnote to Buckley the Court described express advocacy as language that literally urged the election or defeat of a candidate for federal office, such as “Vote for Jones” or “Defeat Smith.” Statements that did not meet the definition of express advocacy were issue advocacy.The latter could be financed with “soft” or unregulated money, which included funds from corporate or labor union treasuries or individual contributions in excess of the law’s contribution limits. The consequence was an era of “sham issue advocacy” in which Congress’s efforts to remove corporate and labor money from federal election campaigns were greatly diluted. As long as a corporate- or labor-funded message clearly intended to promote or undermine a candidate avoided urging a vote for or against the person, it was perfectly legal. Thus if the message described a candidate’s record in either glowing or derogatory terms, it escaped regulation so long as it did not urge a vote one way or the other. Such messages might end with a suggestion that the listener “Call Candidate X and tell him to keep up the good work,” or “Tell Candidate Y to change his unpatriotic ways.” Congress acted to correct this “loophole” in the Bipartisan Campaign Reform Act of 2002, sponsored by Senators John McCain, R-Ariz., and Russ Feingold, D-Wis. The new law created a new category of political advocacy, “electioneering communications,” that cannot be funded by corporate or labor treasuries. An electioneering communication is any broadcast, cable, or satellite communication that (1) refers to a clearly identified candidate for federal office; (2) is made within sixty days of the general election for the office sought by the candidate or thirty days of a primary election; and (3) is targeted to the relevant electorate. Because the provision was aimed at curbing the immense amounts being spent on television advertising, it excluded print communications.
Issue Advocacy The Supreme Court upheld the electioneering communication provision in McConnell v. Federal Election Commission (2003) against claims that it violated the principle contained in the Buckley footnote. By a vote of 5-4, the Court ruled that the Buckley language was only illustrative, and thus it did not prohibit Congress from dealing with “sham issue advocacy,” which had the same effect as express advocacy. Although it upheld the electioneering communication provision on its face, the Court did not decide whether there might be such a thing as true issue advocacy, which was not intended to influence elections even though it met the statutory definition. Some doubt also remains about how the provision affects advocacy by nonprofit organizations. In an earlier case, Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court had held that such ideological corporations, so long as they did not accept contributions from business corporations or labor unions, were entitled to special protection under the free speech provisions of the First Amendment even for expenditures for “express advocacy.” This area of the law is in considerable flux, and future developments may well be determined by changes in the
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membership of the Supreme Court. For example, in Federal Election Commission v.Wisconsin Right to Life, Inc. (2007) the Court upheld an as-applied challenge to the same provision of the Bipartisan Campaign Reform Act that was ruled constitutional in McConnell. As a result, the constitutional status of the distinction between issue and express advocacy made in the Bipartisan Campaign Reform Act may no longer be valid, and the earlier distinction found in Buckley may once again be constitutionally controlling. See also Bipartisan Campaign Reform Act of 2002; Buckley v.Valeo (1976); Federal Election Commission v. Massachusetts Citizens for Life (1986); Federal Election Commission v.Wisconsin Right to Life, Inc. (2007); McConnell v. Federal Election Commission (2003).
Frank Askin
furthe r reading Askin, Frank. “Of Bright Lines and Fuzzy Arguments: McCainFeingold Tries to Rein in Sham Issue Advocacy. Election Law Journal 1 (2002): 373–385. Lowenstein, Daniel Hays, and Richard Hasen. Election Law. 3d ed. Durham, N.C.: Carolina Academic Press, 2004. Malbin, Michael J., ed. The Election after Reform: Money, Politics and the Bipartisan Campaign Act. Lanham, Md.: Rowman and Littlefield, 2006.
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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 REDRESS OF GRIEVANCES.
Jackson, Robert H. Throughout his storied legal career, which included thirteen years on the Supreme Court, Robert Houghwout Jackson (1892–1954) was a strong advocate of the First Amendment, but his advocacy was not without its limits. Raised in western New York, Jackson was largely a selftaught lawyer. After reading law with a local attorney, he completed a two-year law course at Albany Law School in one year and was admitted to the New York bar in 1913, when he was twenty-one years old. Jackson’s first exposure to politics, as a Democratic committeeman, convinced him that he preferred practicing law to pursuing politics. However, he still managed to catch the eye of New York governor Franklin D. Roosevelt, who appointed him to a commission studying the New York state judicial system. Later, during Roosevelt’s tenure as president, Jackson served in several capacities in the federal government: special counsel to the Securities and Exchange Commission, U.S. assistant attorney general, U.S. solicitor general, U.S. attorney general, and, from 1941 until his death in 1954, Supreme Court justice. During a year-long leave of absence from the Court, he served as chief U.S. prosecutor of Nazi war criminals at Nuremberg, Germany. While on the Supreme Court, Jackson tended to be a strong supporter of civil liberties, including those found in the First Amendment. For example, he believed in a high wall of separation between the church and state. He thus dissented in Everson v. Board of Education (1947), when the majority held that New Jersey had not violated the establishment clause of the First Amendment when it reimbursed parochial school parents the cost of busing their children to public
school. He also dissented from the ruling in Zorach v. Clauson (1952), which allowed public schoolchildren to leave school grounds to attend religious education or observance. Jackson wrote the majority opinion in West Virginia State Board of Education v. Barnette (1943) in which the Court ruled
Supreme Court justice Robert H. Jackson emphasized that First Amendment rights should not be interpreted to mean “liberty without law.”
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that a school could not compel a student to salute the U.S. flag and recite the Pledge of Allegiance. Jackson famously wrote:“The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts.” Jackson’s defense of the First Amendment was not without its limits, however; he generally advocated judicial restraint. In his view, the First Amendment freedoms ensured that citizens could make their discontent public so that the subject of that discontent could be addressed publicly. Moreover, although all citizens had the obligation to tolerate and reply to open dissent, no matter how disagreeable, “this concept of liberty had no tolerance of any form of lawlessness, no belief that there could be freedom except under law.” In addition, the protections afforded by the Constitution “must not be discredited by an interpretation to mean liberty without law. Nothing can do the cause of liberal government more harm . . . than to give . . . the impression that our Bill of Rights is useful only to our enemies or is a mere refuge for criminals.” In a separate address, Jackson was a bit clearer about his fear of unchecked rights. He argued that classifying the freedoms of speech, press, and assembly as “preferred freedoms” was problematic, because communists (and by implication others who advocate the overthrow of the U.S. government) invoke these preferred rights to shelter themselves from legal recourse if they are attacking the government. The clearest example of Jackson’s fear of unchecked liberty was his “suicide pact” line from Terminiello v. Chicago (1949) in which a speech incited a riot. Jackson claimed that “[t]his Court has gone far toward accepting the doctrine that civil liberty means . . . that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrine logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Scholars have noted that Jackson altered his stance on the protections afforded by the First Amendment after his service as prosecutor in the Nuremberg trials. For example, although he explicitly defended the preferred position doctrine (granting special priority to First Amendment freedoms) soon after his appointment to the Supreme Court, he later rejected the doctrine. He did, however, continue to
emphasize the importance of rights for the accused and protections from warrantless searches. In the end, it is perhaps best to describe Jackson as a civil libertarian, but one who was fearful of allowing unfettered action based on the belief that the First Amendment freedoms themselves had few or no limits. See also Everson v. Board of Education (1947); Preferred Position Doctrine;Terminiello v. Chicago (1949);West Virginia State Board of Education v. Barnette (1943); Zorach v. Clausen (1952).
Tobias T. Gibson
furthe r reading Domnarski, William. The Great Justices 1941–54: Black, Douglas, Frankfurter and Jackson in Chambers. Ann Arbor: University of Michigan Press, 2006. Jackson, Robert H.“Wartime Security and Liberty under Law.” Buffalo Law Review (1951): 103–118. White, G. Edward. The American Judicial Tradition: Profiles of Leading American Judges. New York: Oxford University Press, 1976.
Jacobellis v. Ohio (1964) The Supreme Court decision in Jacobellis v. Ohio, 378 U.S. 187 (1964), overturned on First Amendment grounds the conviction of a movie theater manager who had been prosecuted for showing a film deemed by Ohio authorities to be obscene. In Cleveland Heights, Ohio, local officials had charged theater manager Nico Jacobellis with obscenity for showing the French movie The Lovers. Jacobellis’s conviction was upheld throughout the Ohio state court system. The Supreme Court reversed, ruling that the film was not obscene and was thus constitutionally protected. Six justices found the film not to be obscene, but they wrote four concurring opinions, none of which gained the support of more than two members. Justice William J. Brennan Jr. announced the judgment of the Court, but only Justice Arthur J. Goldberg joined his opinion. Brennan wrote that the Court should apply the standard that he had articulated in Roth v. United States (1957): “whether, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Brennan concluded that The Lovers did not meet this test. He also determined that “the constitutional status of an allegedly obscene work must be determined on the basis of a national standard.” (In 1973 the Court would reject this position in Miller v. California.)
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Justice Hugo L. Black, joined by Justice William O. Douglas, reiterated his view that the First Amendment does not allow for censorship of any kind. Justice Potter Stewart penned the most famous opinion in Jacobellis, issuing a short concurrence reasoning that only “hard-core pornography” should qualify as obscenity. He proclaimed: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Stewart later bemoaned the prospect of “I know it when I see it” becoming the epitaph on his grave. Justice Goldberg wrote a short concurrence, with which Justice Byron R.White concurred in the judgment with no opinion. Chief Justice Earl Warren dissented, joined by Justice Tom C. Clark, finding that the state had presented sufficient evidence to warrant an obscenity conviction. Warren also reasoned that local, not national, community standards should hold in obscenity cases. Justice John Marshall Harlan II also dissented, writing that states should have the power to ban material that “has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive matter.”
was again convicted and fined $5.00 and costs. Under Texas law, she could appeal to no higher state court; however, because she had raised questions of federal substance in court, she was able to appeal to the U.S. Supreme Court. In the opinion for the Court, Justice Hugo L. Black addressed the two main arguments of the city government. First, relying chiefly on Hague v. Committee for Industrial Organization (1939), he denied that the city’s authority to regulate traffic and maintain order gave it an absolute right “to prohibit the use of the streets for the communication of ideas.” Second, relying on Lovell v. City of Griffin (1938), he established that the city did not have the right to prohibit the distribution of handbills “at all times, at all places, and under all circumstances.” The fact that the handbills that Jamison was distributing contained an invitation to purchase a religious book did not immunize them from First Amendment protection. This decision, although still a valid precedent, would not exempt the distribution of religious pamphlets from valid time, place, and manner restrictions. Justice Felix Frankfurter issued a one-sentence concurrence, and Justice Wiley B. Rutledge did not participate in the case.
See also Brennan,William J., Jr.; Community Standards; Miller v. California (1973); Obscenity and Pornography; Roth v. United States (1957); Stewart, Potter.
John R.Vile
David L. Hudson Jr.
furthe r reading Hixon, Richard F. Pornography and the Justices:The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois Press, 1996. Rembar, Charles. The End of Obscenity. New York: Random House, 1968.
Jamison v. Texas (1943) In Jamison v.Texas, 318 U.S. 413 (1943), the Supreme Court overturned the conviction of a Jehovah’s Witness who had violated a Dallas, Texas, ordinance prohibiting the distribution of handbills on the streets.The Court based its decision on the First and Fourteenth Amendment rights of freedom of the press and religion. Jamison had been convicted in the Corporation Court of Dallas, and she appealed to the County Criminal Court. She
See also Black, Hugo L.; Hague v. Committee for Industrial Organization (1939); Jehovah’s Witnesses; Lovell v. City of Griffin (1938);Time, Place, and Manner Restrictions.
furthe r reading McAninch, William Shepard. “A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court.” University of Cincinnati Law Review 55 (1987): 997–1077.
Jefferson, Thomas Thomas Jefferson (1743–1826), author of the Declaration of Independence and third president of the United States, articulated and perpetuated the American ideals of liberty and freedom of speech, press, and conscience. Jefferson was born in Goochland (now Albemarle) County, Virginia. His father, Peter Jefferson, died in 1757 when Thomas was only fourteen. Thomas inherited 5,000 acres of land and many slaves. He attended the College of William and Mary in Williamsburg,Virginia, from 1760 to 1762, but left without taking a degree. After studying law under prominent Virginia lawyer and judge George Wythe, Jefferson was admitted to the Virginia bar in 1767. In 1769 he began a six-year tenure in Virginia’s House of Burgesses.
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In 1776, one year after he entered the Second Continental Congress, Jefferson, now thirty-three, was one of five members selected to draft the Declaration of Independence. Following the lead of John Adams, the committee unanimously selected Jefferson to write the document, which he did over the course of three days. The Continental Congress then amended the Declaration and ratified it on July 4, 1776.The Declaration of Independence is best known for articulating the natural rights philosophy that all people (“men”) are entitled to “life, liberty, and the pursuit of happiness,” and that they have the right to reject any government that does not secure such rights. As he did throughout his life, Jefferson strongly believed that every American should have the right to prevent the government from infringing on the liberties of its citizens. Certain liberties, including those of religion, speech, press, assembly, and petition, should be sacred to everyone. Jefferson was serving as ambassador to France when the Constitutional Convention met in 1787 to replace the Articles of Confederation, but he remained well informed about events in America, largely because of his correspondence with his good friend James Madison. Jefferson recognized that a stronger federal government would make the country more secure economically and militarily, but he feared that a strong central government might become too powerful, restricting citizens’ rights. He therefore wanted the new Constitution to be accompanied by a written “bill of rights” to guarantee personal liberties, such as freedom of religion, freedom of the press, freedom from standing armies, trial by jury, and habeas corpus. Jefferson’s correspondence with James Madison helped to convince Madison to introduce a bill of rights into the First Congress.After ratification by the requisite number of states, the first ten amendments to the Constitution, known as the Bill of Rights, went into effect in 1791. In Everson v. Board of Education (1947), Justice Hugo L. Black and some of his colleagues on the Supreme Court traced the origins of the First Amendment to a bill establishing religious freedom that Jefferson drafted and introduced in the Virginia General Assembly in 1779. The bill was not passed until 1786, when, through the efforts of James Madison, it was adopted as the Virginia Statute for Religious Freedom.The statute, which had three main sections, explained why compulsory religion requirements were wrong, stated that men were free to express their opinions on religion and choose how or if to worship without having their rights as citizens diminished, and
explained how the right of freedom of religion was a natural right of mankind. Meanwhile, Jefferson’s own religious views appear to have been fairly unorthodox (for example, he attempted to edit references to miracles out of the Bible), and he was a strong defender of freedom of conscience. During his presidency, Jefferson wrote a much-quoted letter to Baptists in Danbury, Connecticut, arguing that the First Amendment had created a wall of separation between church and state. Jefferson demonstrated his strong support for the First Amendment during the presidency of John Adams, a member of the Federalist Party. Jefferson belonged to the rival party, known variously as the Republican Party, DemocraticRepublican Party, or Jeffersonian-Republican Party. In 1798 the Federalist-dominated Congress passed the Alien Act, which allowed the president to deport any noncitizens he considered to be a threat to national security. That same year, Congress also passed the Sedition Act, which allowed the imposition of fines or imprisonment for anyone convicted of publishing false or malicious statements against Congress, the president, or any other part of the government. Jefferson thought the Alien and Sedition Acts to be clear violations of the freedoms of speech and the press guaranteed in the First Amendment. In his mind, the acts were created simply to undermine his political party. In response, he and Madison anonymously wrote the Virginia and Kentucky Resolutions of 1798, strongly suggesting that the federal government was overstepping the boundaries set forth not only in the First Amendment but also in the Tenth Amendment, which reserved certain powers to the states. In part because of these arguments, Jefferson won the presidential election of 1800 (resolved in 1801) and became the third chief executive of the United States. As president, Jefferson would pardon all those persons who had been convicted under the Sedition Act. Before ascending to the presidency, Jefferson served as governor of Virginia, from 1779 to 1781, and secretary of state under President George Washington, from 1789 to 1793. As secretary of state, he often feuded with Alexander Hamilton, the first secretary of the Treasury. Jefferson, who preferred to use the pen as his primary means of attack, was quite sensitive to criticism. In 1796 Jefferson lost the presidential election to Adams by three electoral votes, an outcome that under the Constitution earned him the vice presidency. In the election of 1800, Jefferson tied in electoral votes with fellow Democratic-Republican Aaron Burr, thereby forcing the House of Representatives to decide the
Jehovah’s Witnesses outcome of the election. Alexander Hamilton disliked both men, but he supported Jefferson as the lesser of the two evils. In the end, Burr became Jefferson’s vice president. During his two terms in office, Jefferson sought to stay true to his principles of a weak national government by cutting the federal budget and taxes, while still reducing the national debt. However, the most notable events of Jefferson’s presidency may seem to be at odds with these values.They included the Louisiana Purchase of 1803 in which Jefferson, in a constitutionally questionable act, approved the purchase before Congress authorized payment; the Jefferson-supported Embargo Act of 1807, which effectively prohibited all U.S. trade with other nations; and the Lewis and Clark expedition, which made many scientific discoveries while exploring the Louisiana Territory, which the nation had just purchased. Critics charged that Jefferson exceeded the powers granted to him in the Constitution by engaging in these activities. After he left the presidency, Jefferson returned to his Virginia home, Monticello, to pursue his numerous intellectual passions. On July 4, 1826, fifty years after the signing of the Declaration of Independence, Thomas Jefferson died at Monticello. His former adversary and friend John Adams died the same day. After his death, Jefferson’s possessions were sold at auction at Monticello to cover his many debts. At his request, Jefferson’s proudest accomplishments were listed on his gravestone: author of the Declaration of Independence, author of the Virginia Statute for Religious Freedom, and father of the University of Virginia. Each was tied to his conception of freedom. The most lasting legacies of this complex man are the contributions he made to articulating American ideals and leading the nation during its early years. See also Adams, John; Bill of Rights; Constitutional Convention of 1787; Declaration of Independence; Everson v. Board of Education (1947); Hamilton,Alexander; Madison, James; Sedition Act of 1798; Virginia and Kentucky Resolutions; Virginia Statute for Religious Freedom;Wall of Separation.
Carol Walker
furthe r reading Bennett, William J. The Spirit of America. New York: Simon and Schuster, 1997. Brodie, Fawn. Thomas Jefferson. New York: Bantam Books, 1974. Bruns, Roger. Thomas Jefferson. New York: Chelsea House, 1986. Cunningham, Noble. Jefferson vs. Hamilton. Boston: St. Martin’s Press, 2000. Ellis, Joseph J. American Sphinx. New York:Vintage Books, 1996. Holmes, David. The Faith of the Founding Fathers. Oxford: Oxford University Press, 2006.
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Jefferson, Thomas. Notes on the State of Virginia, ed. Frank Shuffelton. New York: Penguin Press, 1999. ———. Writings. New York: Library of America, 1984. Knudson, Jerry W. Jefferson and the Press. Columbia: University of South Carolina Press, 2006. Koch,Adrienne. Jefferson and Madison. Old Saybrook, Conn.: Konecky and Konecky Press, 2000. Sheldon, Garrett Ward. The Political Philosophy of Thomas Jefferson. Baltimore: Johns Hopkins University Press, 1991.
Jehovah’s Witnesses Perhaps no religious sect has had a greater impact relative to its size on expanding the First Amendment free exercise of religion than has the Jehovah’s Witnesses. Apart from their many legal battles, Jehovah’s Witnesses avoid contact with the state.They do not lobby, vote, or otherwise try to influence public policy. Charles Russell Taze founded the group in Pittsburgh in the 1870s. The organization consisted of the Watchtower Bible and Tract Society, which published literature about the Bible, and “Bible study circles,” which devoted themselves to intense study of the group’s literature and to its sale and distribution door-to-door and on the streets. The movement’s adherents initially called themselves Bible Students until 1931, when they took the name Jehovah’s Witnesses; Jehovah is a transliteration of the lettersYHWH, which were used in place of the unspeakable name for God in the Old Testament. The group shares similarities with Christian denominations, although they do not recognize Christ as divine, instead placing him in an exalted position. In 1900 the Watchtower Society headquarters moved to its present location in Brooklyn, New York. Beginning in 1916 under the movement’s second leader, Joseph F. Rutherford, a lawyer from Missouri, central control over the faithful was tightened, and the modern movement began to take shape. Local groups built Kingdom Halls for their meetings and elaborate reporting systems were developed to allow the central leadership to keep abreast of and exercise control over local activities. Rutherford held strong and unpopular views, including hatred of capitalism and disdain of other clergy. Under Rutherford, the Jehovah’s Witnesses developed their own legal department to defend members who took to the streets to proclaim their faith and who might find themselves in situations arousing conflict.They also drafted elaborate legal plans and instructed their followers on how to respond when arrested and how to behave in court. The American Civil Liberties Union aided Witnesses in some major cases.
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Jehovah’s Witnesses
More than 250,000 Jehovah’s Witnesses gathered at the 1958 Driving Will International Assembly in New York. Jehovah’s Witnesses have been a major force in advancing free exercise of religion rights in the United States.
The Witnesses ran afoul of the law as early as World War I because of their pacifist stance and their refusal to take oaths. Some were arrested under the Sedition Act of 1918, “the only time in American history when almost all the leaders of a denomination were in jail” (Conkin 1997: 152). The Witnesses also went to court to defend their right under the free exercise clause to refuse blood transfusions based on their religious beliefs.They have won legal victories protecting the rights of adults in this regard, but the courts have sided with compelling state interests where children are involved. A Jehovah’s Witness provided the occasion for the Supreme Court’s “fighting words” ruling in Chaplinsky v. New Hampshire (1942), in which the Court unanimously decided that Walter Chaplinsky’s abusive, face-to-face name-calling, aimed at a city marshal, would likely cause the “average person” to retaliate, were not essential to reasonable discourse, and thus were not protected speech. Because Witnesses were instructed to remain courteous in their encounters with the police, however, this case seems somewhat of an aberration and not truly a defining part of the Witnesses’ struggle for their free exercise rights. Door-to-door and street evangelizing and saluting the flag are by far the two areas in which the Jehovah’s Witnesses have made their most profound contribution to shaping interpretations of the free exercise and free speech clauses. The Witnesses’ first important legal victory protecting their style of evangelism came in Lovell v. City of Griffin (1938), in
which the Witnesses challenged the broad discretionary powers of a city manager in Georgia to decide who could hand out printed materials on the streets.The Court found that in the absence of clear standards and procedures in deciding who to license was a violation of the already incorporated free speech clause of the First Amendment. The Witnesses won a major legal victory in Cantwell v. Connecticut (1940), a landmark case involving the discretionary power of government officials to issue permits for solicitation and a charge of disturbing the peace by playing an inflammatory anti-Catholic message on a record player after first asking permission of a passer-by. The Court upheld the Witnesses on both counts. This ruling incorporated the free exercise clause of the First Amendment into the Fourteenth Amendment to make the former applicable to the states.The case expanded the concept of free exercise in its suggestion that although the state could regulate actions performed in the name of religion, the power to regulate must be narrowly confined to avoid whenever possible weakening a person’s religious freedom. Between 1939 and 1950, the Witnesses won fourteen of nineteen Supreme Court cases involving the distribution of literature and permit requirements. The Jehovah’s Witnesses believe that saluting flags, including that of the United States, is tantamount to worshipping a graven image. They were not the first group to resist mandatory recitation of the Pledge of Allegiance in public schools, but their resistance was the most widespread, coor-
Jehovah’s Witnesses dinated, and uncompromising. It was also successful. In 1935 elementary and secondary schools across the country began expelling Jehovah’s Witnesses for their refusal to salute the flag.These actions came at a time when growing numbers of states were incorporating the pledge into the school day and, coincidentally, at the same time that Witnesses were being persecuted in Germany for refusing to give the “Heil Hitler” salute required by the National Socialist government. Beatings, whippings, and other violence accompanied some expulsions in the United States, often with the blessing or participation of local law enforcement officials. The Witnesses’ early legal efforts to obtain relief from the courts failed. Judges refused to treat their religious beliefs seriously and held that the schools had the right to demand patriotism, including respect for the flag, from their students. The Supreme Court agreed to hear a case from Minersville, Pennsylvania, involving a twelve-year-old, Lillian Gobitas (a court clerk’s error changed the family’s last name to “Gobitis”), who had been punished for refusing to salute the flag although no law required it at the time. The Gobitas family won their case in the lower courts, but the Supreme Court ruled against them, 8-1. The majority opinion in Minersville School District v. Gobitis (1940) stressed the importance of empowering legislatures to promote unity in the face of the growing threat of Germany. In a lone dissent, Justice Harlan Fiske Stone countered by drawing a distinction between voluntary and compulsory expressions of loyalty and questioned whether compelling students to violate their religious convictions would produce the desired result. Violence against the Jehovah’s Witnesses, including beatings, destruction of Kingdom Halls, and at least one castration, escalated after the Gobitis decision. The American Legion, in particular, was linked to more than one hundred vigilante episodes. Some newspaper editors and religious and national leaders condemned the violence and criticized the Court’s role in inadvertently instigating it. In 1942 Justices Hugo L. Black,William O. Douglas, and Francis W. Murphy from the Gobitis majority announced a change of heart in Jones v. City of Opelika. Aided by the presence of two new justices, they overturned Gobitis in West Virginia State Board of Education v. Barnette (1943) by a 6-3 vote. Justice Robert H. Jackson’s majority opinion extended beyond the religious scruples of the Witnesses to hold that no one for whatever reason could be compelled to salute the flag: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or
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force citizens to confess by word or act their faith therein.” The Jehovah’s Witnesses have since had fewer encounters of the sort that led them to seek relief at the Supreme Court level, but they retain their legal department. In a relatively recent case, the high court ruled 8-1 in their favor in Watchtower Bible and Tract Society v. Village of Stratton (2002), which involved permits for canvassing. In this instance, Stratton, Ohio, required canvassers going to private residences to first obtain a free permit by filling out a rather complicated form (that included listing all the premises to be visited), to carry the permit with them as they canvassed, and to respect the wishes of residences that had filed a “no solicitation” form and posted a “no solicitation” sign. (The Witnesses did not challenge this last condition.) Justice John Paul Stevens, writing for the Court, reviewed previous Witness cases and framed this decision as a continuation of the Court’s commitment to protecting the ability of “little people” to promote their causes by means affordable to them, the anonymity of those who for various reasons did not want their names linked to the causes they promoted, the ability to engage in spontaneous speech that would be hindered by the permit process, and the beliefs of those religious persons, such as the Witnesses, who feel that their commitment to do the will of a higher power prohibits them from seeking the permission of a petty official. Chief Justice William H. Rehnquist in his dissent turned the tables, making the Witnesses, with their team of lawyers, the “heavy” and recasting the 278 residents of Stratton as the “little people” seeking privacy and protection from frauds and criminals. See also Blood Transfusions and Medical Care against Religious Beliefs; Cantwell v. Connecticut (1940); Chaplinsky v. New Hampshire (1942); Conscientious Objection to Military Service; Covington, Hayden C.; Door-to-Door Solicitation; Jones v. City of Opelika (1942) (1943); Lovell v. City of Griffin (1938); Minersville School District v. Gobitis (1940); Pledge of Allegiance; Watchtower Bible and Tract Society v. Village of Stratton (2002); West Virginia State Board of Education v. Barnette (1943).
Jane G. Rainey
furthe r reading Conkin, Paul K. American Originals: Homemade Varieties of Christianity. Chapel Hill: University of North Carolina Press, 1997. Ellis, Richard J. To the Flag: The Unlikely History of the Pledge of Allegiance. Lawrence: University Press of Kansas, 2005. Henderson, Jennifer Jacobs.“The Jehovah’s Witnesses and Their Plan to Expand First Amendment Freedoms.” Journal of Church and State 46, no. 4 (Autumn 2004): 811–832.
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Jenkins v. Georgia (1974)
Louderback-Wood, Kerry. “Jehovah’s Witnesses, Blood Transfusion, and the Tort of Misrepresentation.” Journal of Church and State 47, no. 4 (Autumn 2005): 783–822. Manwaring, David. Render unto Caesar. Chicago: University of Chicago Press, 1962. Morgan, Richard E. The Supreme Court and Religion. New York: Free Press, 1972. Peters, Shawn Francis. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Lawrence: University Press of Kansas, 2000. Smith, Chuck. “The Persecution of West Virginia Jehovah’s Witnesses and the Expansion of Legal Protection for Religious Liberty.” Journal of Church and State 43, no. 3. (Summer 2001): 539–577.
Jenkins v. Georgia (1974) In Jenkins v. Georgia, 418 U.S. 153 (1974), the Supreme Court overturned the conviction of a movie theater manager who had been prosecuted for showing a film deemed obscene by local and state authorities. The Court’s decision affirmed two fundamental principles of obscenity law: the First Amendment allows states great latitude in how they define “contemporary community standards,” and material with nudity and sexual themes alone is not obscenity. Billy Jenkins, a theater manager in Albany, Georgia, was convicted of distributing obscene material by showing Carnal Knowledge, a movie that contained nudity and discussed sexual themes.The Georgia Supreme Court affirmed his conviction by a 4-3 vote; however, the U.S. Supreme Court unanimously reversed. The Court’s decision in Jenkins v. Georgia, issued the same day as its ruling in Hamling v. United States (1974), was based on obscenity guidelines issued the previous year in Miller v. California (1973). Writing for the Court, Justice William H. Rehnquist agreed with the state—and the finding in Miller—that jurors did not have to be instructed that community standards must meet a hypothetical state standard. However, Rehnquist reasoned that the movie was not obscene because it did not depict sexual activities in a “patently offensive way.” He added that “nudity alone is not enough to make material legally obscene under the Miller standards.” Concurring, Justice William J. Brennan Jr. expressed his continued dissatisfaction with the Miller test and obscenity prosecutions involving consenting adults—a position he first adopted in dissent in Paris Adult Theatre I v. Slaton (1973). See also Brennan,William J., Jr.; Hamling v. United States (1974); Miller v. California (1973); Obscenity and Pornography; Paris Adult Theatre I v. Slaton (1973); Rehnquist,William H.
David L. Hudson Jr.
furthe r reading Hixson, Richard F. Pornography and the Justices:The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996. MacKenzie, John P. “Court Eases Its Stand on Obscenity,” Washington Post, June 25, 1974, A1. Mathews, Linda P.“Movie ‘Carnal Knowledge’ Not Obscene, Supreme Court Holds,” Los Angeles Times, June 25, 1974, 3A.
Jenness v. Fortson (1971) The Supreme Court in Jenness v. Fortson, 403 U.S. 431 (1971), upheld a Georgia law requiring minor-party candidates to obtain the signatures of 5 percent of eligible voters on their nominating petitions. The Court held that the law did not abridge First Amendment rights of free speech and association because there were no restrictions on which voters could sign the petitions, and write-in votes were freely allowed. The Socialist Workers Party (SWP) nominated Linda Jenness as its candidate for governor of Georgia in 1970. At the time, Georgia required parties that had not received at least 20 percent of the vote in the previous presidential or gubernatorial election to file petitions to place their candidates on the ballot. Each petition had to be signed by at least 5 percent of the number of voters eligible in the previous election for the office. The party had 180 days to circulate the petitions, which were due on the day the major parties held their primaries. Before the petition deadline, the SWP filed suit against the Georgia law, and a three-judge district court denied relief to the party. On appeal, the Supreme Court affirmed. Writing for the Court, Justice Potter Stewart compared the Georgia law with the Ohio laws struck down in Williams v. Rhodes (1968), which had intended to make the Democratic and Republican Parties “a complete monopoly” by forbidding independent candidates, barring write-in votes, and requiring minor parties to obtain the signatures of 15 percent of the number of voters in the previous gubernatorial election by early February of the election year and thereafter hold a primary election. The Court held that the Georgia law was much less strict on minor parties because of the smaller number of petition signatures, the later deadline for the petitions, absence of a primary requirement, and acceptance of write-in votes.The Court noted that by using petitions, George C. Wallace (of the American Independent Party) had been able to qualify in Georgia as a third-party presidential candidate in 1968, and Howard “Bo” Callaway (of the Republican Party) had
Johanns v. Livestock Marketing Association (2005) received a plurality of the vote for governor in 1966 after qualifying by petition. Justices Hugo L. Black and John Marshall Harlan II concurred without writing opinions. See also Political Parties; Stewart, Potter; Williams v. Rhodes (1968).
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In response to concerns that the tax violated the establishment clause by leading to undue entanglement between church and state, O’Connor observed that collection of the tax did not require the state “to inquire into the religious content of the items sold or the religious motivation for selling or purchasing the items, because the materials are subject to the tax regardless of content or motive.”
Edward Still
furthe r reading Ciment, James. “Socialist Workers Party.” In The Encyclopedia of Third Parties in America, ed. Immanuel Ness and James Ciment. Armonk, N.Y.: Sharpe Reference, 1998. Raskin, Jamin B. Overruling Democracy: The Supreme Court vs. the American People. New York: Routledge, 2004. Rosenstone, Steven J., Edward H. Lazarus, and Roy L. Behr. Third Parties in America: Citizen Response to Major Party Failure. 2d ed. Princeton: Princeton University Press, 1996. Winger, Richard. “The Supreme Court and the Burial of Ballot Access:A Critical Review of Jenness v. Fortson.” Election Law Journal 2 (2002): 235–252.
Jimmy Swaggart Ministries v. Board of Equalization of California (1990) In Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990), the Supreme Court ruled that California could impose the same use taxes on the sales of a minister as it could for other retailers without violating the free exercise or establishment clauses of the First Amendment. Televangelist Jimmy Swaggart filed suit against the California Board of Equalization, requesting a refund of about $185,000 in taxes and interest his ministry had paid on goods sold within California. The petition was denied and made its way to the Supreme Court. In the unanimous ruling, Justice Sandra Day O’Connor distinguished the taxes in this case from those in Murdock v. Pennsylvania (1943) and Follett v. Town of McCormick (1944). The Court regarded the taxes in both of those cases, which had been applied to door-to-door solicitors, as license taxes or flat taxes that applied regardless of the quantity of sales. Because those licenses were required as a condition to engaging in the activity in question, they constituted a form of prior restraint. By contrast, California was taxing Jimmy Swaggart Ministries as it would any other retailer.Any burden that the tax imposed was minimal; moreover, paying the taxes did not violate the ministry’s “sincere religious beliefs” and thus did not constitute a heavy burden on their free exercise.
See also Follett v. Town of McCormick (1944); Licensing Laws; Murdock v. Pennsylvania (1943);Taxation of Religious Entities.
John R.Vile
furthe r reading King, Erika. “Tax Exemptions and the Establishment Clause.” Syracuse Law Review 49 (1999): 971–1036. Marshall, William P. “The Case Against the Constitutionally Compelled Free Exercise Exemption.” Case Western Reserve Law Review 40 (1990): 357–412.
Johanns v. Livestock Marketing Association (2005) In Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005), the Supreme Court rejected a First Amendment challenge to a compelled advertising program for beef producers; the Court based its decision on the governmentspeech doctrine. Under the Beef Promotion and Research Act, the government imposed mandatory contributions from beef producers to fund generic advertisements for beef. Several beef producers objected, contending that they had a First Amendment right not to be compelled to contribute to such speech. They cited as authority United States v. United Foods Inc. (2001), a case in which the high court struck down a similar advertising program involving mushroom producers. The government countered that it had its own right to free speech that immunized it from a First Amendment challenge from specific beef producers. The Supreme Court rejected the challengers’ arguments by a 6-3 vote. Writing for the majority, Justice Antonin Scalia reasoned that the government had a First Amendment right to promote its own message regarding beef.“The message set out in the beef promotions is from beginning to end the message established by the Federal Government,” he wrote.“When, as here, the government sets the overall message to be communicated, and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine merely because it solicits assis-
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Johnson v. Avery (1969)
tance from nongovernmental sources in developing specific messages.” Scalia appeared to offer hope for objecting beef producers when he wrote that if “individual beef advertisements were attributed” to certain beef producers, they might have a valid as-applied challenge. In the main dissent, Justice David H. Souter, joined by Justices Anthony M. Kennedy and John Paul Stevens, wrote that “if government relies on the government-speech doctrine to compel specific groups to fund speech with targeted taxes, it must make itself politically accountable by indicating that the content actually is a government message, not just the statement of one self-interested group the government is currently willing to invest with power.” See also As-applied Challenges; Government Speech Doctrine; United States v. United Foods Inc. (2001).
David L. Hudson Jr.
furthe r reading Hayes, Mia Guizzetti. “First Amendment Values at Serious Risk: The Government Speech Doctrine after Johanns v. Livestock Marketing.” Catholic University Law Review 55 (2006): 795–830. Hudson, David L., Jr. “Compelled Advertising.” First Amendment Center, April 28, 2008. www.firstamendmentcenter.org/Speech/ advertising/topic.aspx?topic=compelled.
Johnson v. Avery (1969) In Johnson v. Avery, 393 U.S. 483 (1969), the Supreme Court invalidated a Tennessee prison rule that prohibited inmates from assisting others with legal matters, including preparing writs of habeas corpus, finding it denied many inmates access to the courts to file claims. Although rooted in due process, many later decisions characterize the Court’s opinion as affirming that inmates retain the First Amendment right to petition the courts for a redress of grievances. William Joe Johnson, who was serving a life sentence for rape, sued in 1965 after prison officials confiscated his law books and typewriter and placed him in solitary confinement because he had assisted other inmates with legal papers. Johnson claimed this violated several constitutional rights, most notably by making it difficult for illiterate inmates to file habeas corpus petitions challenging their incarceration. A federal district court invalidated the rule, which it said had “the practical effect of silencing forever any constitutional claims which many prisoners might have” (M.D. Tenn. 1966).The U.S. Court of Appeals for the Sixth Circuit
reversed the decision, finding that the prison officials had substantial interests in maintaining prison discipline and ensuring that law is practiced by licensed attorneys, not “jailhouse lawyers.” The U.S. Supreme Court reversed the decision. Writing for the majority, Justice Abe Fortas noted that “it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed.” He wrote that Tennessee had failed to provide a meaningful alternative way for inmates to receive assistance with filing legal documents, such as from public defenders, law students, or volunteer lawyers. Justice William O. Douglas concurred, writing: “Without the assistance of fellow prisoners, some meritorious claims would never see the light of a courtroom.” Justice Byron R. White, joined by Justice Hugo L. Black, dissented, reasoning that many inmates serving as “jailhouse lawyers” were providing incompetent legal assistance. Later the Court reduced the level of protection of inmates to access to the courts in Lewis v. Casey (1995) and ruled that an inmate did not have a First Amendment right to assist another inmate in legal matters in Shaw v. Murphy (2001). See also Prisons; Shaw v. Murphy (2001).
David L. Hudson Jr.
furthe r reading Champagne,Anthony, and Kenneth C. Haas.“The Impact of Johnson v. Avery on Prison Administration.” Tennessee Law Review 43 (1976): 275–306. Waguespack, Kenneth. “Shaw v. Murphy: Restricting Inmates’ First Amendment Rights.” Southern University Law Review 29 (2001): 113–127.
Johnson v. Robison (1974) In Johnson v. Robison, 415 U.S. 361 (1974), the Supreme Court ruled that a federal law making veterans’ education benefits available for individuals who had served in the military, but not for conscientious objectors who had performed alternate service, did not violate either the equal-protection or free-exercise clauses. Robison, a conscientious objector, argued that denying equal benefits violated his Fourteenth Amendment rights to equal protection and his First Amendment right to free exercise of religion. In the 8-1 majority decision, Justice William J. Brennan Jr. wrote that the law at issue was intended to bar court review
Joint Anti-Fascist Refugee Committee v. McGrath (1951) of administrative determinations of individual eligibility rather than to preclude review of constitutional issues.Then, measuring the law at issue for its reasonableness and its relationship to the object of the legislation, he found that the degree of disruption veterans suffered was far greater and “qualitatively different” than that of conscientious objectors who performed alternate service. Brennan also ascertained a rational relationship between the legislation and its goals. Congress had not adopted the law to penalize beliefs, and the withholding of educational benefits “involves only an incidental burden upon appellee’s free exercise of religion.” As Brennan saw it, conscientious objectors had been excluded “not because of any legislative design to interfere with their free exercise of religion, but because to do so would not rationally promote the Act’s purposes.” In the sole dissenting opinion, Justice William O. Douglas referenced a number of other free-exercise decisions, including Sherbert v.Verner (1963) and Wisconsin v.Yoder (1972), that he thought called for a different verdict. He wrote that benefits should be just as available to conscientious objectors who had engaged in alternate service as it was to individuals who held desk jobs in the military. As he saw it, “Government . . . may not place a penalty on anyone for asserting his religious scruples.That is the nub of the present case.” See also Brennan, William J., Jr.; Conscientious Objection to Military Service; Douglas, William O.; Sherbert v. Verner (1963); Wisconsin v.Yoder (1972).
John R.Vile
furthe r reading Eisgruber, Christopher L., and Lawrence G. Sager. “Mediating Institutions: Beyond the Public/Private Distinction: The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct.” University of Chicago Law Review 61 (Fall 1994): 1245–1315.
Joint Anti-Fascist Refugee Committee v. McGrath (1951) The Supreme Court decision in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951), furthered First Amendment rights of speech and association by ruling that lower courts had improperly dismissed a suit against the U.S. attorney general by three organizations—all of which claimed to be charitable—that he had included on a list of designated communist organizations. The attorney general claimed to have been acting under provision of Executive Order 9835, giving him this author-
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ity. However, the Court ruled that these organizations had standing to challenge the classification. Writing for the Court, Justice Harold H. Burton concluded that the attorney general’s decision to post the names of the organizations had been “patently arbitrary,” a case of administrative discretion being allowed “to run riot.” In a concurring opinion, Justice Hugo L. Black likened the designations to a form of “unjustified governmental defamation.” Black argued that the classification amounted to an unconstitutional form of censorship because it allowed the attorney general to punish organizations and their members “merely because of their political beliefs and utterances.” He also thought the classification constituted an illegal bill of attainder, which he emphasized by including an appendix describing similar behavior under the Stuart kings of England. In another concurring opinion, Justice Felix Frankfurter concentrated on demonstrating that the affected organizations had standing to sue. He also argued that they had been denied due process. Similarly, Justice William O. Douglas argued that the attorney general had gone too far in attempting to punish potential members of a fifth column within the United States. He associated the attorney general’s action with improper “guilt by association.” In the dissent, Justice Stanley F. Reed, joined by Chief Justice Frederick M. Vinson and Justice Sherman Minton, stressed the right of the government to protect itself. Reed observed that “[r]easonable restraints for the fair protection of the Government against incitement to sedition cannot properly be said to be ‘undemocratic’ or contrary to the guarantees of free speech.” If the organizations suffered by being identified for their affiliations, it was a consequence of their own actions. Any harm they experienced as a result of reduced contributions was not adequate to provide them with standing. See also Black, Hugo L.; Blacklists; Communist Party of the United States; Douglas,William O.; Frankfurter, Felix; Jackson, Robert H.
John R.Vile
furthe r reading Broxmeyer, Eric.“The Problems of Security and Freedom: Procedural Due Process and the Designation of Foreign Terrorist Organizations Under the Anti-Terrorism and Effective Death Penalty Act.” Berkeley Journal of International Law 22 (2004): 439–488.
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Jones v. City of Opelika (1942) (1943)
Jones v. City of Opelika (1942) (1943) The two Supreme Court cases, Jones v. City of Opelika 316 U.S. 584 (1942) and 319 U.S. 103 (1943), which were sandwiched between Minersville School District v. Gobitis (1940) and West Virginia State Board of Education v. Barnette (1943), raised important issues regarding free exercise of religion. In the first Jones case (Jones I), the U.S. Supreme Court upheld a nondiscriminatory licensing fee to sellers of religious books and pamphlets. One year later in the second case (Jones II), the Court reversed itself and struck down such fees. The City of Opelika, Alabama, had charged Jones, a member of the Jehovah’s Witnesses, with violating its licensing ordinance by selling books, operating as a book agent, and operating as a transient dealer, all without a license.The trial court found the Witness guilty of displaying pamphlets in his upraised hand and selling them on the street. The Court of Appeals of Alabama reversed the conviction, and the Supreme Court of Alabama decided that the licensing provisions were constitutional and reversed the appellate court.The Jehovah’s Witnesses from Alabama appealed to the U.S. Supreme Court, which consolidated the case with two other licensing fee cases involving Witnesses. Justice Stanley F. Reed wrote the opinion for the Supreme Court, upholding the Opelika ordinances as religiously nondiscriminatory and, therefore, not infringing on the fundamental rights of freedom of speech, press, and religion. The opinion further stated that the selling of the pamphlets was more a commercial transaction than a religious or educational one. This decision is particularly significant because of Chief Justice Harlan Fiske Stone’s dissent in which he, joined by three other justices, compared the licensing tax to the stamp tax used by England to suppress colonial pamphleteers.The dissent stated that First Amendment freedoms enjoyed a “preferred position” and, because of this, caution must be taken to ensure taxes are not used to suppress the opinions of “discrete and insular minorities.” Also in the dissent was the declaration from the minority that the flag-salute decision of Gobitis had been wrongly decided. In October 1942, Justice James F. Byrnes, one of the majority in Opelika, resigned and was replaced by Justice Wiley B. Rutledge, who would take the opposite position of his predecessor in Jones II. In the term following Jones I, the
Court heard re-argument in Jones II and other consolidated cases, including Murdock v. Pennsylvania (1943). In Jones II the Court struck down as unconstitutional city ordinances that required Jehovah’s Witnesses and other religious proselytizers to pay a license fee to practice their religion, thus reversing Jones I. The opinion stated that the license tax restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise. See also Jehovah’s Witnesses; Licensing Laws; Minersville School District v. Gobitis (1940); Murdock v. Pennsylvania (1943); Preferred Position Doctrine; Stamp Act; Stone, Harlan Fiske; West Virginia State Board of Education v. Barnette (1943).
Hana M. Ryman and J. Mark Alcorn
furthe r reading Manwaring, David R. “Freedom of Conscience: The Flag-Salute Case.” In The Third Branch of Government: 8 Cases in Constitutional Politics, ed. C. Herman Prichett and Alan F. Westin, 20–49. New York: Harcourt, Brace & World, 1963.
Jones v. North Carolina Prisoners’ Union (1977) In Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977), the Supreme Court upheld state prison restrictions on union activities. The North Carolina Department of Corrections prohibited inmates from soliciting other inmates to join the North Carolina Prisoners’ Labor Union, barred meetings of the union, and refused to allow bulk mailings to inmates for distribution to other inmates. The union challenged these restrictions in federal court, alleging the restrictions violated their First Amendment free-speech and free-assembly rights. The union also alleged that prison officials violated their equal-protection rights because they accorded these privileges to other groups such as Alcoholics Anonymous and the Jaycees. Prison officials, including appellant David Jones, the Secretary of the Department of Correction, contended the restrictions were necessary for prison security. A three-judge federal district court ruled in favor of the prisoners’ union, finding that the no-solicitation ban was too restrictive and not necessary to advance prison security concerns. The prison officials appealed to the U.S. Supreme Court, which reversed and upheld the restrictions. Writing for the majority, Justice William H. Rehnquist criticized the lower court for not giving appropriate defer-
Jones v.Wolf (1979) ence to prison officials and “appropriate recognition to the peculiar and restrictive circumstances of penal confinement.” He applied a rational-basis analysis, concluding that the restrictions were reasonable because prison officials could conceivably believe that allowing prisoner union activities could stir up trouble among the inmates.“The case of a prisoners’ union, where the focus is on the presentation of grievances to, and encouragement of adversary relations with, institution officials surely would rank high on anyone’s list of potential trouble spots,” Rehnquist wrote. The majority also rejected the equal-protection claims, noting that the Jaycees and Alcoholics Anonymous did not have “the avowed intent to pursue an adversary relationship with the prison officials.” Chief Justice Warren E. Burger’s concurrence emphasized that prison reforms must come not from the federal courts but from prison administrators, who have more expertise in these matters. Justice John Paul Stevens concurred with the bulk of the majority opinion but dissented on the solicitation restriction because he believed it was too broad. Justice Thurgood Marshall, joined by William J. Brennan Jr., dissented and criticized the majority for applying the rational-basis standard. “Yet in no First Amendment case of which I am aware has the Court deferred to the judgment of such [prison] officials simply because their judgment was ‘rational.’ ” The Court’s opinion in Jones was a harbinger for future Supreme Court prisoner rights decisions such as Turner v. Safley (1987) and Overton v. Bazzetta (2003), in which the Court exercised broad deference and applied a reasonableness standard. See also Overton v. Bazzetta (2003); Prisons; Rehnquist,William H.;Turner v. Safley (1987).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. Prisoners’ Rights. New York: Chelsea House Publishers, 2007. McFadden,Trevor N.“When to Turn to Turner? The Supreme Court’s Schizophrenic Prison Jurisprudence.” Journal of Law & Politics 22 (2006): 135–182. Palmer, John W. Constitutional Rights of Prisoners. 8th ed. Cincinnati, Ohio: Anderson Publishing, 2006.
Jones v. Wolf (1979) In Jones v. Wolf, 443 U.S. 595 (1979), the Supreme Court ruled that, under the religion clauses of the First
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Amendment, a state could resolve disputes over church property between two groups by applying neutral principles of law rather than relying on compulsory deference to religious authority. However, the Court remanded the case to the lower court to ensure that the state had applied such neutral principles, rather than resolving it by considerations of religious doctrine and polity. Faced with a schism in the Vineville Presbyterian Church of Macon, Georgia, between a majority who had split from the church to join the Presbyterian Church of America and a minority who wanted to stay with the Presbyterian Church in the United States, the state court attempted to resolve the issue of who owned church property by applying “neutral principles of law,” which the U.S. Supreme Court had commended in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969). Finding nothing in the deeds, state statutes, or the Book of Church Order regarding any trust to the general church, Georgia courts awarded the property to the faction in the congregation with the majority of members. Because the U.S. Supreme Court could not tell from the record whether Georgia had constitutionally applied the neutral-principles analysis or whether it was influenced in part by church doctrine, it remanded the case for further consideration. Specifically, it could not ascertain why the state court had deferred to majority rule in the case or whether, or how, the state would allow other evidence to overcome this rule. Justice Harry A. Blackmun’s majority opinion stressed that the First Amendment mandated that civil courts have a limited role in resolving church property disputes.As long as they did not examine doctrinal matters, states could apply neutral principles of law rather than adopt compulsory deference to the denomination’s highest authority, which had been decided in some cases of churches that were hierarchically arranged. In a dissenting opinion joined by Chief Justice William H. Rehnquist and Justices Potter Stewart and Byron R. White, Lewis F. Powell Jr. argued that the Court’s analysis was “more likely to invite intrusion into church polity” than to prevent it. Powell thought it was more relevant to examine the church government; in the case at hand, the church was part of a hierarchical structure and the church’s most authoritative body had declared in favor of the minority of the congregation. Watson v. Jones (1871), thus dictated that its decision should prevail.
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Judaism
See also Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969);Watson v. Jones (1871).
John R.Vile
furthe r reading: Gerstenblith, Patty. “Civil Court Resolution of Property Disputes Among Religious Organizations.” American University Law Review 39 (Spring 1990): 513–572. Whitehead, John W. “The Conservative Supreme Court and the Demise of the Free Exercise of Religion.” Temple Political & Civil Rights Law Review 7 (Fall 1997): 1–71.
Judaism The First Amendment establishment and free exercise clauses represented an implicit promise to Jews, and members of other minority faiths, that the New World offered them the opportunity to exercise their faith freely and without being regarded as second-class citizens. Although George Washington was among those early American leaders who expressed the judgment that the United States should protect the liberty of conscience of all citizens, including Jews, even after the adoption of the First Amendment, other leaders continued to insist that the United States was a Christian nation. For example, Justice Joseph Story advanced the view (with which Thomas Jefferson disagreed) that U.S. common law embodied Christian principles. Daniel Webster argued before the Supreme Court in Vidal V. Girard’s Executors (1844) that “the preservation of Christianity is one of the main ends of government.” (He did, however, later change his mind; he lost the case on other grounds.) He also called schools “for the propagation of Judaism” illegitimate. In Church of the Holy Trinity v. the United States (1892), Justice David J. Brewer opined,“We find everywhere a clear recognition of the same truth:This is a Christian nation.” In United States v. Macintosh (1931), the Court described Americans as “a Christian people.” Jewish Americans formulated two kinds of responses to these kinds of “Christian America” claims.The accommodationist social relations model stressed the broadly religious versus the narrowly Christian character of Americans. The legal reform model emphasized the separation of church and state and the importance of the secular nature of the U.S. government. Each response reflected a different reading of history, allied Jewish leaders with different groups, and translated into radically different policy positions. Although the period 1916–1939 witnessed the appointment of three Jewish justices—Louis D. Brandeis, Benjamin
N. Cardozo, and Felix Frankfurter—to the Supreme Court, the major national Jewish advocacy organizations— American Jewish Committee (founded in 1906), AntiDefamation League (ADL) of B’nai B’rith (1913), and American Jewish Congress (1918)—maintained a low profile on church-state issues.They feared that concerted action to challenge majoritarian religion practices, such as school prayer and aid to parochial education, would stir up latent anti-Semitism and raise questions about the loyalty of Jews to American values.Thus Jewish organizations initially relied on the social relations model, which emphasized public education and public relations efforts, interfaith negotiations to enlist the support of sympathetic Christian denominations, and compromise with public officials over what religious values and methods of instruction government could aid. In time, however, Jewish organizations, led by the American Jewish Congress, realized that to influence public policy they would have to augment the social relations model with a legal reform model that emphasized litigation and legislation to rectify inequalities in the law between majority and minority religions.This strategy had two main elements: attacking the discrimination against Jews in colleges, universities, and housing and using law and litigation to bring issues of church-state separation to the courts, thereby promoting policy change. Two 1940s Supreme Court cases, neither of which was brought by Jews, changed the public policy picture for Jewish groups. In Cantwell v. Connecticut (1940), the justices applied the free exercise of religion clause of the First Amendment to the states, and in Everson v. Board of Education (1947) they held that the establishment clause of the First Amendment also applied to the states via the due process clause of the Fourteenth Amendment. Only after Everson did Jewish groups use the courts to secure principles that treated them, other minority religions, and nonbelievers as equals. In Everson, the issue was whether the use of public funds by the state of New Jersey to pay for travel to school for all children, including those in parochial schools, violated the Constitution.The Court said it did not, but in doing so it established the principle of separation of church and state, which in later cases led to constitutional limitations on public aid to parochial schools. Because the American Jewish Congress did not have the support of other Jewish organizations and because it feared alienating Catholic groups under the social relations model, it chose not to submit an amicus brief in Everson, even though all the major Jewish organizations opposed the New Jersey law.
Judaism The decision in Everson forced the major Jewish organizations to reevaluate their collective strategies on churchstate relations and to consider using the federal courts to secure the policies they were seeking. All the organizations favored a nonsectarian public education system supported by First Amendment principles and the separation of church and state. However, after Everson at first only the American Jewish Congress was prepared to favor a litigation strategy over a social relations one. Led by a young staff attorney, Leo Pfeffer, the American Jewish Congress sought to emulate the techniques of the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) by establishing in 1945 its Commission on Law and Social Action (CLSA), which to this day oversees the legal strategy of major Jewish groups. Over the years, the CLSA has participated in many of the leading establishment and free exercise cases decided by the Supreme Court, including Abington School District v. Schempp (1963), which banned state-sponsored “voluntary” Bible reading in public schools. In two crucial cases, the ADL and American Jewish Committee were content to let Pfeffer and the American Jewish Congress handle the trial phases. In Tilton v. Richardson (1971), the Supreme Court permitted the federal government to provide grants to church-sponsored higher educational institutions for the construction of nonreligious school facilities, and in Lemon v. Kurtzman (1971) the Court set the test under which courts would decide whether a state program or action violates the establishment clause.When it became clear that the decisions in these cases would significantly affect the constitutionality of parochial school aid, which they opposed, the ADL, the American Jewish Committee, and the constituent organizations of the National Community Relations Advisory Council filed amicus briefs. The American Jewish Committee has responded to the growth of the religious right by again trying an interfaith approach, joining with non-Jewish organizations, such as the National Council of Churches, in cases such as Lynch v. Donnelly (1984) and County of Allegheny v. American Civil Liberties Union (1989), which addressed the constitutionality of religious symbols, the crèche and menorah, respectively, in holiday displays. In Wallace v. Jaffree (1985), the Court ruled on the constitutionality of whether one minute could be set aside at the start of the school day for meditation or voluntary prayer. Leading Jewish organizations are not always united on whether to pursue litigation under the religion clauses and
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A Jewish couple prays on the Brooklyn Bridge on New Year’s Day, 1919. Jewish policy groups have fought to bring issues of religious discrimination and church-state separation to the forefront of U.S. politics.
on what position to take. For example, by the end of the twentieth century the separationist consensus in the American Jewish community was coming under increasing pressure from Orthodox Jewish organizations that publicly supported state aid to attend parochial schools, including their own, and the constitutionality of government vouchers to attend such schools. That said, several important cases under the religion clauses raised issues related directly to the Jewish community. In Braunfeld v. Brown (1961), an Orthodox Jew, whose religious convictions kept him from opening his store on Saturday, the Sabbath, challenged Pennsylvania’s blue law (it required businesses to close on Sunday) as a violation of the religious liberty clauses—he needed to open his store six days a week for economic reasons. The Court, however, upheld the law. All three major Jewish groups opposed Sunday closing laws as forms of state religious establishment that also impinged on religious liberty.
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Judicial Campaign Speech
In the late 1970s, another important case—but one that did not reach the Supreme Court—addressed the controversial question of whether Nazis should be enjoined from wearing their swastikas and uniforms and marching in Skokie, Illinois, a city of seventy thousand that was more than half Jewish, including many survivors of the Holocaust. Jewish organizations were divided about whether to adhere to the ACLU’s position, calling for supporting First Amendment speech principles and permitting the Nazis to march. The national governing board of the American Jewish Congress supported the march in Skokie, so long as the Nazis were not allowed to wear their uniforms and swastikas—the Congress viewed those items as equivalent to illegal “fighting words,” which would incite violence. The ADL and American Jewish Committee opposed the march outright, saying it constituted “menticide,” defined as “the deliberate infliction of mental and emotional distress.” In Goldman v. Weinberger (1986), the Supreme Court rejected the free exercise challenge of an air force regulation forbidding the wearing of headgear indoors, in this case a yarmulke, the Jewish skullcap worn by Orthodox Jews. All three major Jewish organizations supported the free exercise challenge in amicus briefs. Although the Court ruled against Goldman, Congress later adopted legislation to protect such rights. In Board of Education of Kiryas Joel Village School District v. Grumet (1994), the state of New York designated Kiryas Joel, a village of Orthodox Jews, as a separate school district for purposes of providing education for their handicapped children; most of their children attended private religious schools.The Court ruled, however, that the law violated the establishment clause of the Constitution, because the district followed the village boundary line, which excluded all but practitioners of one religion. See also American Nazi Party and Related Groups; Board of Education of Kiryas Joel Village School District v. Grumet (1994); Brandeis, Louis D.; Braunfeld v. Brown (1961); Cantwell v. Connecticut (1940); Cardozo, Benjamin N.; Church of the Holy Trinity v. United States (1892); County of Allegheny v. American Civil Liberties Union (1989); Everson v. Board of Education (1947); Frankfurter, Felix; Goldman v.Weinberger (1986); Holocaust Denial; Jefferson, Thomas; Lemon v. Kurtzman (1971); Lynch v. Donnelly (1984); Pfeffer, Leo; Story, Joseph; Sunday Blue Laws; Tilton v. Richardson (1971); United States v. Macintosh (1931); Wallace v. Jaffree (1985).
Ronald Kahn
furthe r reading Cohen, Naomi W. Jews in Christian America: The Pursuit of Religious Equality. New York: Oxford University Press, 1992. Ivers, Gregg. To Build a Wall: American Jews and the Separation of Church and State. Charlottesville: University Press of Virginia, 1995. Kahn, Ronald. “Constituting the Separation of Church and State.” In The Supreme Court and Constitutional Theory, 1953–1993. Lawrence: University Press of Kansas, 1994. Strum, Philippa. When the Nazis Came to Skokie: Freedom for Speech We Hate. Lawrence: University Press of Kansas, 1999.
Judicial Campaign Speech To promote judicial impartiality, states have traditionally subjected the campaign speeches or statements by judges running for office to regulation, but recent court decisions have granted comments by judicial candidates greater First Amendment protection. In 1812 Georgia was the first state to move away from judicial appointment to electing its judges. Later, the vast majority of states moved toward electing their judges, so that now in thirty-eight states election is the primary method used to staff at least some courts. In 1924 the American Bar Association (ABA) issued its Canons of Judicial Ethics, which specified that judges “should not announce in advance [their] conclusions of law on disputed issues of fact to secure class support.” In 1972 the ABA issued a Code of Judicial Conduct in which Canon 7B(1)(c) urged judicial candidates to neither “make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office,” nor “announc[e] [their] views on disputed legal or political issues.” The 1990 revisions of the 1972 “announce clause” led to the issuance of Canon 5A(d)(ii), which prohibits “statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court.” By 2002 twelve states, including Minnesota, had limited judicial speech based on the 1972 language, while another thirty states had either drawn on the 1990 language (twenty-five states) or used the 1924 language (Montana) or other sources to define limits to judicial speech. In 1974 Canon 5 of the Minnesota Code of Judicial Conduct had imposed several restrictions on judicial candidates. The code prohibited judicial candidates from announcing their views on disputed legal or political issues, affiliating themselves with political parties, or personally soliciting or accepting campaign contributions. These rules were meant to promote the integrity of judges and encour-
Judicial Campaign Speech age an independent judiciary by preventing judges who had announced their views on topics that later came before them being cast as biased or partial. In 1998 a candidate for the Minnesota Supreme Court challenged the Canon 5 rules, contending that the announce, affiliation, and solicitation clauses violated his First Amendment free speech right. In Republican Party of Minnesota v. White (2002), the Supreme Court struck down the announce clause restriction by a 5-4 vote and remanded the case to the lower court. Writing for the Court, Justice Antonin Scalia found that the announce clause imposed a content-based restriction on the First Amendment that required strict scrutiny. And he rejected the promotion of impartiality as a constitutionally compelling justification for the announce clause. Finally, he held that any effort to hold elections while limiting what can be discussed prevents candidates from discussing what elections are about—issues and policy. Thus, the announce clause violated the First Amendment. Justice Anthony M. Kennedy’s concurring opinion favored a flat prohibition of content-based restrictions on political speech. After this decision, the ABA amended its Code of Judicial Conduct to provide in Canon 5A(3)(d): “A candidate for judicial office shall not with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are likely inconsistent with the impartial performance of the adjudicative duties of the office.” When the remanded case made its way to the Eighth Circuit Court of Appeals, it ruled that the affiliation and solicitation rules also violated the First Amendment. The majority observed that the three clauses of Canon 5 limited a judicial candidate’s speech, thereby demanding a strict scrutiny analysis that required a compelling governmental interest. Minnesota asserted that promoting judicial independence and impartiality was compelling, because “a judge must be independent of and [be] free from outside influences in order to remain impartial and to be so perceived.” Accepting the rationale that protecting litigants from biased judges was compelling, the majority of the Eighth Circuit asked if the partisan activities and the solicitation clauses were narrowly tailored, and then found that the partisan activities clause was barely tailored at all. There was no evi-
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dence that membership in or affiliation with a specific party could generate a bias that could not be remedied with the less restrictive recusal option. More important, the court stated that the Canon 5 partisan activities clause was underinclusive in that it assumed that only political parties and not other organizations, such as the National Rifle Association or the National Association for the Advancement of Colored People, could be a source of bias or threat to judicial independence. Canon 5 was also underinclusive in that it permitted persons to affiliate with a party only up to the point they became a judicial candidate, and then such association was prohibited because it was corrupting. The en banc majority ruled that the solicitation clause was a content-based and viewpoint restriction on speech, because it prohibited judicial candidates from speaking to others about a particular subject—such as contributing money to their campaigns. Moreover, the court found that the solicitation clause, like the partisan activities clause, was not narrowly tailored in that a mere signature on a fund-raising letter would not necessarily indicate bias or an inability to be open-minded. Again, judges could address specific instances of bias by recusing themselves. The two White opinions thus appear to indicate that judicial campaign speech is entitled to as much free speech protection as any other type of campaign speech. Meanwhile, some lower courts have struck down related provisions in their states’ judicial canons. For example, in North Dakota Family Alliance, Inc. v. Bader (N.D. Dist. 2005) a federal court in North Dakota relied on the Supreme Court’s decision in White to strike down the “pledges and promises” clause of its judicial code. Proponents of greater First Amendment protection believe it makes judicial candidates and judges more accountable to the public, but critics fear such protection will politicize the courts, increase judicial campaign expenses, and eventually compromise judicial integrity and impartiality. See also Content Based; Republican Party of Minnesota v. White (2002);Viewpoint Discrimination.
David Schultz
furthe r reading Schultz, David. “Judicial Selection in Minnesota: Options after Republican Party v.White.” Bench and Bar of Minnesota (2005): 17–21. White, Penny J. “A Matter of Perspective.” First Amendment Law Review 3 (2005): 5–87.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
K
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 REDRESS OF GRIEVANCES.
Kalven, Harry, Jr. Harry Kalven Jr. (1914–1974), a University of Chicago law professor, was best known for his advocacy of and thoughtful writings about freedom of speech and free expression. Kalven was born in Chicago, where he attended the University of Chicago both as an undergraduate and law student before serving in the military during World War II. He then taught at the University of Chicago from 1945 until his death in 1974. Three events are critical to Kalven’s reputation as an insightful defender of the First Amendment. First, in 1963 he successfully defended comedian Lenny Bruce’s obscenity appeal to the Illinois Supreme Court. Bruce often used profanity and sexual references in his stand-up routines. After a December 4, 1962, performance at the Gates of Horn Club in Chicago, Bruce was arrested and eventually convicted of violating a state obscenity statute. Kalven and other members of his legal team appealed the case to the Illinois Supreme Court, which agreed in People v. Bruce (Ill. 1964) that his comedy routine was social commentary and not obscenity. The decision has been hailed as a major victory for artistic freedom. The second event was publication of Kalven‘s 1965 book The Negro and the First Amendment—a major defense of free speech. In the book he argued that the core of free political speech was the absence of seditious libel as a crime. Finally, his unfinished work, A Worthy Tradition: Freedom of Speech in America (1988), was published after his death and is now considered a classic in First Amendment law.The book traces the evolution of free speech in America from the early part of the twentieth century in Schenck v. United States
(1919) and Gitlow v. New York (1925) to the 1969 decision in Brandenburg v. Ohio. Kalven argued that the Court had gradually expanded the scope of political speech in the United States to protect democratic dissent and disagreement. After his death, the American Civil Liberties Union created a Harry Kalven Jr. prize to recognize other champions of free speech. See also Brandenburg v. Ohio (1969); Bruce, Lenny; Gitlow v. New York (1925); Miller v. California (1973); Obscenity and Pornography; Schenck v. United States (1919); Seditious Libel.
David Schultz
furthe r reading Kalven, Harry, Jr. The Negro and the First Amendment. Chicago: University of Chicago Press, 1965. ———. A Worthy Tradition: Freedom of Speech in America. New York: Harper and Row, 1988.
Kaplan v. California (1973) Kaplan v. California, 413 U.S. 115 (1973), a case decided by the Supreme Court in conjunction with Miller v. California (1973) and Paris Adult Theatre I v. Slaton (1973), affirmed that a book, even without illustrations, can be obscene and thus unprotected by the First Amendment. After an undercover police officer purchased the book Suite 69 at the adult Peek-A-Boo bookstore in Los Angeles, a jury convicted the proprietor of the bookstore of obscenity under California law, and a California appellate court affirmed the conviction. Chief Justice Warren E. Burger wrote the U.S. Supreme Court decision vacating the case and remanding it to the
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Karlan v. City of Cincinnati (1974)
state appellate court to determine whether the California law under which Kaplan had been convicted was consistent with obscenity standards established in the companion cases, Miller and Paris Adult Theatre I. The Court affirmed that books could be deemed obscene under these precedents. Burger described the book at issue as being made up “entirely of repetitive descriptions of physical, sexual conduct, ‘clinically’ explicit and offensive to the point of being nauseous.” Observing that the case “squarely presents the issue of whether expression by words alone can be legally ‘obscene’ in the sense of being unprotected by the First Amendment,” Burger observed that the Court’s definition of obscenity made no distinction “as to the medium of the expression.” He noted that in Mishkin v. New York (1966) the Court had concluded that a book was obscene, and he cited a large number of cases, most decided by one-sentence per curiam opinions, in which the Court had reversed convictions on obscenity. Acknowledging that books should have “a different and preferred place in our hierarchy of values,” Burger further observed that “this generalization, like so many, is qualified by the book’s content” and that the First Amendment did not protect obscenity. He went on to note that “for good or ill, a book has a continuing life.” Moreover, it could end up in the hands of young people. He did not find that states had to wait on experts to produce empirical data “before enacting controls of commerce in obscene materials.” The companion cases established that “the commercial exposure and sale of obscene materials to anyone, including consenting adults, is subject to state regulation.” In examining the trial court proceedings, Burger concluded that the state was not required to apply “national” pornography standards. Although the defense could introduce expert testimony, the introduction of the materials in and of themselves could be sufficient for a jury to make such a determination without separate “expert” testimony from the prosecution. Referring to his dissent in the companion Miller case, Justice William O. Douglas wanted to remand the case for dismissal because he found the term obscenity “too vague to satisfy the requirements of due process.” Justice William J. Brennan Jr., joined by Justices Potter Stewart and Thurgood Marshall, wrote a dissent, indicating that he would reverse the lower-court judgment on the basis of reasons he had articulated in his dissents in the companion cases.
See also Brennan, William J., Jr.; Burger, Warren E.; Douglas, William O.; Miller v. California (1973); Mishkin v. New York (1966); Obscenity and Pornography; Paris Adult Theatre I v. Slaton (1973).
John R.Vile
furthe r reading Loewy, Arnold H. “Obscenity, Pornography, and First Amendment Theory.” William and Mary Bill of Rights Journal 2 (1993): 471–493.
Karlan v. City of Cincinnati (1974) In Karlan v. City of Cincinnati, 416 U.S. 924 (1974), the U.S. Supreme Court was asked to decide whether a city ordinance prohibiting words uttered in an “ ‘abusive,’ ‘vulgar,’ ‘insulting,’ ‘profane,’ ‘indecent,’ [or] ‘boistrous’” manner violated the Constitution by being vague and overbroad. After its review, the Court remanded the case to the Ohio Supreme Court with instructions to rely on the precedent established by Gooding v. Wilson (1972) and Lewis v. City of New Orleans (1974). The Ohio Supreme Court had ruled in 1973 that the city ordinance was rightfully applied to a defendant who had shouted profanities at police officers and called them “pigs.” The court reasoned that the ordinance was constitutional, because the words spoken to the police officers would have provoked an average person to a retaliatory response that breached the peace. In essence, the court ruled that the words spoken to the officer were “fighting words” that were not protected by the First and Fourteenth Amendments under Chaplinsky v. New Hampshire (1942). Gooding and Lewis had invalidated similar ordinances in other jurisdictions, because the ordinances failed to narrowly define unprotected speech.The U.S. Supreme Court had held that only through narrowly defined statutes can people engage in speech that is protected without fear of criminal prosecution. In Lewis, Justice Lewis F. Powell Jr. had written a separate opinion concurring with the outcome of the Court’s majority opinion, but for different reasons.The opinion is applicable to the factual circumstances in Karlan in that Justice Powell reasoned that words spoken to police officers should not be considered “fighting words,” because police officers are trained to exercise a higher degree of constraint than the average citizen. One interesting aspect of Karlan is that Justice William O. Douglas dissented from the opinion of the majority to
Kedroff v. Saint Nicholas Cathedral (1952)
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remand the case—he favored reversing the decision outright—because state courts “have consistently shown either inability or unwillingness to apply” standards established by earlier Supreme Court rulings.
tection principles and failed “to establish a clearly defined standard of guilt.” The decision remains an important precedent in the fight against comic book censorship.
See also Chaplinsky v. New Hampshire (1942); Fighting Words; Gooding v. Wilson (1972); Lewis v. City of New Orleans (1974); Vagueness.
See also Overbreadth;Vagueness;Winters v. New York (1948).
Kevin Buckler
furthe r reading Dooling, R. Blue Streak: Swearing, Free Speech and Sexual Harassment. New York: Random House, 1996. Murphy, D. D. “Conceptual Issues in Prohibiting ‘Hate Speech.’ ” Mankind Quarterly 43 (2003): 335–352.
Katzev v. County of Los Angeles (Cal. 1959) In Katzev v. County of Los Angeles, 341 P.2d 310 (Cal. 1959), the California Supreme Court struck down a county ordinance that prohibited the sale or circulation of “crime” comic books. The court ruled that the law, which provided for up to six months’ imprisonment and a $500 fine, violated several First Amendment principles. The county of Los Angeles passed the law with the intention of protecting minors from juvenile delinquency. In response, a group of magazine and book dealers filed a lawsuit in a California state court seeking a declaratory judgment that the ordinance was unconstitutional. A California superior court dismissed the lawsuit. On appeal, the California Supreme Court reversed, finding the ordinance fatally flawed. In making its ruling, the state high court applied the U.S. Supreme Court’s clear and present danger test. It then concluded that a legislative body cannot prohibit a publication— even if it finds the publication “reprehensible”—unless it can show that the publication poses a clear and present danger. The California high court noted that the U.S. Supreme Court had ruled in Winters v. New York (1948) that publications about bloodshed and crime were entitled to as much First Amendment protection as other literature. The court also declared the law to be unconstitutionally overbroad, because it would sweep within its ambit relatively innocuous material such as Bugs Bunny and Classic Comics. The ordinance was too vague as well, forcing distributors to guess at whether certain material was prohibited under the ordinance. Similarly, the law violated equal pro-
David L. Hudson Jr.
furthe r reading Hajdu, David. The Ten Cent Plague: The Great Comic-Book Scare and How It Changed America. NewYork: Farrar, Straus and Giroux, 2008. McWilliams, James. “Comic Books: An Overview.” First Amendment Center Online. www.firstamendmentcenter.org/Speech/arts/topic .aspx?topic=commix. Prettyman, E. Barrett, Jr., and Lisa A. Hook. “The Control of MediaRelated Imitative Violence.” Federal Communication Law Journal 38 (1987): 317–382.
Kedroff v. Saint Nicholas Cathedral (1952) In Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94 (1952), the Supreme Court ruled that Article 5-C of the Religious Corporations Law of New York exercised unconstitutional legislative interference in the freedom of religion. The article effectively vested administration of U.S. Russian Orthodox churches in a U.S. group that was distinct from its Soviet counterpart, the Supreme Church Authority in Moscow (then under the atheistic influences of the Soviet government). Justice Stanley F. Reed based his majority opinion in Kedroff on the idea that a government that could by legislative will or fiat grant authority to one group could just as easily grant it to another. Reed relied on Watson v. Jones (1871) for the principle that churches are governed by their own ecclesiastical bodies. But he denied that the Court’s decision in American Communications Association v. Douds (1950), which permitted Congress to protect interstate commerce by requiring labor leaders to swear that they were not communists, warranted New York’s action, because, with its action, New York was intruding “into the forbidden area of religious freedom contrary to the principles of the First Amendment.” Justice Felix Frankfurter’s concurring opinion, joined by Justices Hugo L. Black and William O. Douglas, stressed the utter incapacity of state legislatures to decide such matters. He observed that a contrary ruling could set a precedent for state control of many other churches with foreign connections.
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Keller v. State Bar of California (1990)
Justice Robert H. Jackson’s dissent stressed state control over questions of “ownership or possession of real estate within its borders.” He rejected the notion that the New York law should “yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution.” Jackson dismissed the religious freedom issue in this case as “insubstantial.” In a follow-up per curiam decision in Kreshik v. Saint Nicholas Cathedral (1960), the Court ruled that the state judiciary was also barred from interfering in ecclesiastical government. See also American Communications Association v. Douds (1950); Communist Party of the United States;Watson v. Jones (1871).
John R.Vile
furthe r reading Gerstenblith, Patty. “Civil Court Resolution of Property Disputes among Religious Organizations.” American University Law Review 39 (1990): 513–572.
Keller v. State Bar of California (1990) In Keller v. State Bar of California, 496 U.S. 1 (1990), members of the California state bar challenged the bar’s use of compulsory membership fees to support political causes with which members disagreed. They claimed such a practice was a violation of the members’ right to free association. Chief Justice William H. Rehnquist, delivering the opinion for a unanimous Supreme Court, held that the state bar could fund such political causes if they were “germane” to the association. Despite the state bar’s assertion and the California Supreme Court’s finding to the contrary, the U.S. Supreme Court held that for purposes of the First Amendment the state bar was not a state agency entitled to protection under the “government speech doctrine.” It more closely resembled a labor union, and the Court proceeded to analyze the case from that perspective. Relying on an earlier opinion dealing with the spending of union dues, Abood v. Detroit Board of Education (1977), the Court held that the state bar could use the dues of dissenting members to fund political and ideological activities “germane” to the purpose justifying the compelled association. It then fell to the Court to provide a definition of “germane” activities. The Court turned to Ellis v. Brotherhood of Railway,Airline and Steamship Clerks (1984) to frame the proper test. It held
that “the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating” the legal profession or improving the quality of legal services in the state. The Court acknowledged that drawing a precise line between acceptable and unacceptable activities would not always be easy. But it found the extreme ends of the spectrum to be clear. Finally, the Court called on the State Bar of California to adopt a challenge procedure to its fee scheme in line with the Court’s earlier decision in Chicago Teachers Union v. Hudson (1986). That decision outlined a three-part procedure: (1) a fee must be accompanied by an adequate explanation of the basis of the fee; (2) a member must have a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker; and (3) an escrow account should be established for the amounts reasonably in dispute while challenges are pending. See also Abood v. Detroit Board of Education (1977); Chicago Teachers Union v. Hudson (1986); Ellis v. Brotherhood of Railway, Airline and Steamship Clerks (1984); Government Speech Doctrine; Rehnquist,William H.
Alan Tauber
furthe r reading Brock, Ralph H. “Giving Texas Lawyers Their Dues: The State Bar’s Liability under Hudson and Keller for Political and Ideological Activities.” St. Mary’s Law Journal 28 (1996): 47–108. Lake, James B. “Lawyers, Please Check Your First Amendment Rights at the Bar: The Problem of State-Mandated Bar Dues and Compelled Speech.” Washington and Lee Law Review 50 (1993): 1833–1864. Wasserman, Howard M.“Compelled Expression and the Public Forum Doctrine.” Tulsa Law Review 77 (2002): 163–245.
Kelley v. Johnson (1976) In Kelley v. Johnson, 425 U.S. 238 (1976), the Supreme Court found that a county regulation limiting the length of county policemen’s hair did not violate the First or Fourteenth Amendment. As Justice William H. Rehnquist stated for the majority, “[T]he constitutional issue to be decided by these courts is whether petitioner’s determination that such regulations should be enacted is so irrational that it may be branded ‘arbitrary,’ and therefore a deprivation of respondent’s ‘liberty’ interest in freedom to choose his own hairstyle.” The grooming standards of New York’s Suffolk County Police Department established for its officers a specific style and length of hair, regulated sideburns and mustaches,
Kennedy, Anthony M. banned beards and goatees, but allowed wigs for cosmetic reasons.The debated policy stated: “Hair will not touch the ears or the collar except closely cut hair on the back of the neck.” The police department contended that uniformity of appearance contributed to officer safety and advanced the department’s esprit de corps. However, the respondent policeman claimed that the police department’s guidelines violated his right of free expression under the First Amendment and his liberty interests under the Fourteenth Amendment. The majority of the Court rejected these arguments.The justices weighed the degree of infringement and the need for the regulation and determined whether the application of the policy to a uniformed police force would be a significant intrusion into personal liberty. In its ruling, the Court majority noted that state and federal employers could impose considerable restrictions on their employees that could not be imposed on citizens outside that employment context.The Court concluded that the respondent failed to show the regulation was so irrational that it was arbitrary and unconstitutional. In his dissent, Justice Thurgood Marshall stated: “If little can be found in past cases of this Court or indeed in the Nation’s history on the specific issue of a citizen’s right to choose his own personal appearance, it is only because the right has been so clear as to be beyond question.” He further argued that the rationales given for the department’s regulations did not justify this one particular restriction on appearance, as many other potential differences in appearance were still allowed under the regulations. See also Hair Length and Style; Rehnquist,William H.
Kristy Rothenbuhler with Walter Huber
furthe r reading Avery, Issac T., and Mary Easely, eds. Legal Aspects of Police Supervision: Case Resource Book. Incline Village, Nev.: Copperhouse Publishing, 1997. Ducat, Craig R., ed. Constitutional Interpretation. 8th ed. Belmont, Mass.:Thomson Learning, 2004.
Kennedy, Anthony M. Since being confirmed to sit on the Supreme Court in 1988, Anthony McLeod Kennedy (1936– ) has frequently been in the middle of his bitterly divided colleagues in First Amendment cases. Kennedy was born in Sacramento, California, and educated at Stanford University, London School of Economics, and
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Harvard Law School. He later entered private practice and taught at the McGeorge School of Law of the University of the Pacific. In 1974 a seat opened on the Ninth Circuit Court of Appeals, and President Gerald R. Ford nominated Kennedy to the position. In April 1975, Kennedy was confirmed by the Senate, making him at age thirty-eight the youngest federal appeals judge in the country when appointed to the bench. In 1987 President Ronald Reagan nominated Kennedy to the Supreme Court to replace Justice Lewis F. Powell Jr., who was retiring. In early 1988, Kennedy was easily confirmed by the Senate, which had just dealt with the highly controversial and failed nominations of Judges Robert H. Bork and Douglas H. Ginsburg. Throughout his time on the Rehnquist Court (Chief Justice William H. Rehnquist died in 2005), Kennedy and Justice Sandra Day O’Connor were the swing votes in First Amendment cases. With O’Connor’s departure from the Court in 2006 and the appointments of Chief Justice John
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G. Roberts Jr. and Justice Samuel A.Alito Jr., both conservatives, Kennedy often became the sole justice in the middle— generally accommodating religion, but not always, and largely protecting speech, but leaving some space for government regulation. Kennedy has sided with the liberals in key decisions on school prayer, political speech, and obscenity. His overriding concern for liberty and his willingness to view the Constitution as a living document are important features of his First Amendment jurisprudence. In free exercise cases, Kennedy has joined with his fellow conservatives on the Court in adopting the neutrality test, a test put forth by the majority in Employment Division, Department of Human Resources of Oregon v. Smith (1990), which upheld the denial of unemployment benefits to two Native Americans who were fired from their jobs for ingesting peyote for religious purposes. And yet Kennedy wrote the unanimous opinion in Church of the Lukumi Babalu Aye v. City of Hialeah (1993) that struck down a local ordinance prohibiting animal sacrifice, because the statute targeted the Santeria religion and therefore failed the neutrality test. In the area of religious establishment, Kennedy has voted with his colleagues to accommodate religion, with a few notable exceptions. In cases on the religious use of public facilities and funds, Kennedy has always been an accommodationist. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), for example, he wrote the majority opinion that held that student religious groups were entitled to the same state university student activity funds to produce a religious newspaper that student nonreligious groups received. His opinion in Rosenberger advanced the concept of avoiding viewpoint discrimination as a leading First Amendment principle. Similarly, in cases on the government endorsement of religion, he has also been completely accommodationist, such as in Van Orden v. Perry (2005) and McCreary County v. American Civil Liberties Union (2005) in which he voted to allow Ten Commandment displays on public grounds regardless of the circumstances surrounding their placement. In the area of aid to religious schools, Kennedy has also accommodated religion in every instance—such as school vouchers in Zelman v. Simmons-Harris (2002)—except one. In Board of Education of Kiryas Joel Village School District v. Grumet (1994), he invalidated a public school district that the state of New York had created specifically for a community of Hasidic Jews. In school prayer cases, Kennedy has joined the liberals in separating church and state under the establishment clause.
In both Lee v.Weisman (1992) and Santa Fe Independent School District v. Doe (2000), he struck down invocations at public school functions. Kennedy has established a civil libertarian record in speech cases that has been generally skeptical of contentbased restrictions on speech. In Texas v. Johnson (1989), he provided the decisive vote that protected a protester’s right to burn the U.S. flag. And Kennedy has questioned campaign finance laws that seek to limit political contributions. In his separate opinion in McConnell v. Federal Election Commission (2003), he explained that he viewed campaign donations as a mechanism of core political speech. In extending his protectionist stance toward speech in public forums and the preservation of order, Kennedy voted in Hill v. Colorado (2000) to strike down restrictions on antiabortion protestors. In both R.A.V. v. St. Paul (1992) and Virginia v. Black (2003), he voted to strike down cross-burning statutes as impermissibly content-based. In obscenity cases involving children, Kennedy has voted to strike down federal laws that he found to be so vaguely written that they proscribed protected speech. In Ashcroft v. Free Speech Coalition (2002), he delivered the majority opinion explaining that a federal child pornography statute was written so broadly as to impermissibly prohibit constitutionally protected speech such as scientific and artistic portrayals of children. In other speech cases, Kennedy has come close to being a free speech absolutist. In his concurring opinion in Republican Party of Minnesota v.White (2002), he ruled that the First Amendment flatly prohibited a content-based restriction on the political speech of judicial candidates. Law professor Eugene Volokh, who tracked the justices’ record in free speech cases from 1994 to 2002, found Kennedy to be by far the most speech-protective justice on the Supreme Court. Kennedy’s generally accommodationist stance on religious matters and yet speech protectiveness in the face of contentbased restrictions reflect broader trends in the New Right political regime from which he was drawn. See also Ashcroft v. Free Speech Coalition (2002); Board of Education of Kiryas Joel Village School District v. Grumet (1994); Church of the Lukumi Babalu Aye v. City of Hialeah (1993); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Hill v. Colorado (2000); Lee v. Weisman (1992); McConnell v. Federal Election Commission (2003); McCreary County v.American Civil Liberties Union (2005); O’Connor, Sandra Day; R.A.V. v. St. Paul (1992); Republican Party of Minnesota v. White (2002); Rosenberger v. Rector and Visitors of the University of
Kimm v. Rosenberg (1960) Virginia (1995); Santa Fe Independent School District v. Doe (2000);Texas v. Johnson (1989);Van Orden v. Perry (2005);Virginia v. Black (2003); Zelman v. Simmons-Harris (2002).
Artemus Ward
furthe r reading Amar, Akhil Reed. “Justice Kennedy and the Ideal of Equality.” Pacific Law Journal 28 (1997): 515–532. Keck,Thomas M. The Most Activist Supreme Court in History:The Road to Modern Judicial Conservatism. Chicago: University of Chicago Press, 2004. Tushnet, Mark. A Court Divided:The Rehnquist Court and the Future of Constitutional Law. New York:W. W. Norton and Co., 2005. Volokh, Eugene. “How the Justices Voted in Free-Speech Cases, 1994–2002.” www.law.ucla.edu/volokh/howvoted.htm. Yarbrough, Tinsley E. The Rehnquist Court and the Constitution. New York: Oxford University Press, 2000.
Keyishian v. Board of Regents (1967) In Keyishian v. Board of Regents, 385 U.S. 589 (1967), an important decision for the concept of academic freedom, the Supreme Court declared unconstitutional a New York State law intended to prevent the employment of “subversives” in teaching and other public employee jobs.The ruling was one of the last of the “communist cases” that occupied the Court in the 1950s and 1960s. Harry Keyishian was an English instructor at the State University of New York at Buffalo when he refused to sign an oath stating that he was not a communist. Because he failed to comply with state law and administrative rules, his contract was not renewed. He and other faculty sued, and a federal court upheld New York’s regulatory scheme. The U.S. Supreme Court reversed by a 5-4 vote, ruling that the New York law and regulations violated the First Amendment. Writing for a narrow majority, Justice William J. Brennan Jr. first pointed out that an earlier ruling on the same New York law, Adler v. Board of Education (1952), did not address all the issues before the Court in Keyishian and therefore was not a binding precedent. Justice Brennan then revealed that the Court found flaws in the New York law. He wrote that terms in the law—seditious, treasonous, and teaching or advising the doctrine of overthrow of the government—were too vague to define speech or conduct that was prohibited.The vagueness of the terms and the complexity of the New York regulatory scheme led Justice Brennan to conclude: “It would be a bold teacher
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who would not stay as far as possible from utterances or acts which might jeopardize his living by enmeshing him in this intricate machinery.” He also warned that the breadth of the regulations threatened the concept of academic freedom, which he regarded as “a special concern of the First Amendment.” Guarding against the “chilling effect” on free speech requires “sensitive tools” that make clear what speech and conduct are prohibited. Justice Tom C. Clark dissented, arguing that the Court should not decide the case because the required certification of not being a communist had been scrapped by the state in 1965. Justice Brennan had contended in the majority decision that the laws intended to find subversives and keep them out of state employment were still on the books and would continue to have a chilling effect on teachers and others, even if teachers were no longer required to fill out a certificate stating they were not communists. But Clark argued that this scenario meant that no issue of contention was actually before the Court. Brennan’s majority opinion is often credited with helping to boost the concept of academic freedom as a constitutionally protected value. “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned,” Brennan wrote. See also Academic Freedom; Adler v. Board of Education (1952); Brennan,William J., Jr.; Chilling Effect; Loyalty Oaths; Overbreadth; Vagueness.
Stephen Wermiel
furthe r reading Rabban, David M. “A Functional Analysis of ‘Individual’ and ‘Institutional’ Academic Freedom under the First Amendment.” Law and Contemporary Problems 53 (1990): 227–301. Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech. Vol. 2. Cleveland:Thomson West, 2006. “The Supreme Court, 1966 Term: Loyalty of State Employees.” Harvard Law Review 81 (1967): 69.
Kimm v. Rosenberg (1960) The per curiam Supreme Court decision in Kimm v. Rosenberg, 363 U.S. 405 (1960), focused chiefly on the self-incrimination provision of the Fifth Amendment, but it also had implications for First Amendment freedoms. In this case, the Court sustained denial of the petitioner’s application to have his deportation from the country suspended, finding that Section 19(c) of the Immigration Act of 1917 as amended
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the following year and the Internal Security Act of 1950 made communists ineligible for suspension of deportation and that the burden was on the petitioner to show he was eligible for such suspension. Diamond Kimm, an immigrant who had been in the United States for many years, had applied for a suspension of an order deporting him to Korea, but during the deportation hearing he invoked his Fifth Amendment right to refuse to say whether he belonged to the Communist Party. The hearing officer then denied the suspension, which was affirmed by the Board of Immigration Appeals and the Ninth Circuit Court of Appeals. On appeal, the majority of the Supreme Court held that the Internal Security Act of 1950 had amended the Immigration Act of 1918 to include communists among those who could be deported. In the majority’s view, any application for suspension was “a matter of discretion and of administrative grace,” requiring an application to supply any information that would have a direct bearing on an individual’s eligibility. Justice William O. Douglas authored a dissent, joined by Chief Justice Earl Warren and Justice Hugo L. Black. Douglas viewed this decision as on a par with the Court’s decisions in Barenblatt v. United States (1959) and Uphaus v. Wyman (1959) (1960), with which he also disagreed. He argued that the “presumption of innocence” was too important to require an alien to establish a negative. Invoking the Fifth Amendment should be considered a “neutral act, as consistent with innocence as with guilt.” Justice William J. Brennan Jr. wrote another dissent, joined by Warren and Douglas, arguing that the government had the burden of establishing the deportability of aliens. He found that the ruling impinged on Kimm’s freedom of speech. See also Barenblatt v. United States (1959); Brennan,William J., Jr.; Douglas,William O.; Uphaus v.Wyman (1959) (1960).
John R.Vile
furthe r reading Chin, Gabriel J. “Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law.” Georgetown Immigration Law Journal 14 (2000): 257–287.
Kingsley Books, Inc. v. Brown (1957) The Supreme Court’s 5-4 ruling in Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957), was delivered the same day as those in Roth v. United States (1957) and Alberts v. California (1957), which redefined the test for determining what constitutes obscene material unprotected by the First Amendment. In Kingsley Books, the Supreme Court upheld a New York statute that permitted a legal officer to bring a case to enjoin the distribution of obscene materials, which the state could destroy after an expedited hearing. The state trial judge had held that the materials in question, booklets titled “Nights of Horror,” were “dirt for dirt’s sake” and ordered them destroyed. Citing the presumption against prior restraint, however, he had refused to enjoin the publication of future issues. Justice Felix Frankfurter authored the majority opinion upholding the procedures employed and denying that they constituted a form of prior restraint. He observed that the term prior restraint was neither “a self-wielding sword” nor “a talismanic test.” He actually found the civil measures at issue in the case to be less threatening than the criminal laws punishing the distribution of pornography. The laws went into effect after, rather than before, publication, and thus were distinguishable from the evils of prior restraint and censorship as established in Near v. Minnesota (1931). Chief Justice Earl Warrren dissented on the basis that this procedure put books on trial without adequate standards and without the “personal element basic to the criminal laws.” Justices William O. Douglas and Hugo L. Black dissented, because the injunction procedures vested the state with “the paralyzing power of a censor.”They observed that the statute made one criminal conviction for a book conclusive on other copies of a book, even though the conviction might have been aimed at a different community or age group. Justice William J. Brennan Jr.’s dissent cited the lack of a right to a jury trial as a fatal defect of the statute. He found juries essential to judging obscenity under the tests established in Roth. See also Alberts v. California (1957); Censorship; Frankfurter, Felix; Near v. Minnesota (1931); Obscenity and Pornography; Prior Restraint; Roth v. United States (1957).
John R.Vile
furthe r reading Catlett, Steven T. “Enjoining Obscenity as a Public Nuisance and the Prior Restraint Doctrine.” Columbia Law Review 84 (1984): 1616–1629.
Kinoy, Arthur
Kingsley International Pictures v. Board of Regents (1959) In Kingsley International Pictures v. Board of Regents, 360 U.S. 684 (1959), the Supreme Court continued to review constitutional issues of prior restraint raised by the practice begun in 1911 of states licensing films. The Court held that New York’s statute controlling the licensing of films regulated ideas no matter how they were expressed or their consequent effects, thereby contravening the guarantees of the First Amendment. The decision expanded on the Court’s decision in Burstyn v.Wilson (1952) extending First Amendment protection to films. As amended in 1954, New York’s Education Law required that all films be licensed for exhibition by the Motion Picture Division of the New York Education Department, and it called for denial of license to any film that “expressly or impliedly portrays acts of sexual immorality . . . as desirable, acceptable or proper patterns of behavior.” The denial of license for the film Lady Chatterley’s Lover, based on the novel by D. H. Lawrence, was appealed to the Regents of the State of New York, who upheld the denial, finding that the film clearly portrayed adultery in a positive light. The Appellate Division of the New York Supreme Court reversed (5-0) the Regents’ decision, holding that the statutory standard applied in the denial of license was beyond constitutionally acceptable bounds for prior restraint, particularly because the film itself did not fall within the common judicial definitions of obscenity. In a split decision, the New York Court of Appeals reversed the appellate decision and upheld the denial of license, finding that societies have always moved legislatively to protect public morals from corruption, that common law precedents have upheld such legislation, and that the New York legislature had clearly expressed its conviction that such immoral expression, especially in the more persuasive medium of film, would have a corrosive effect on public morals. Because the New York standard addressed the same substantive evil that placed obscene expression beyond First Amendment protection, its application by the Regents was constitutionally permissible. In a 9-0 decision, the U.S. Supreme Court reversed the New York Court of Appeals, finding the New York statute was invalid under the First Amendment.The majority opinion, written by Justice Potter Stewart and joined by four other justices, held that the New York statute in effect regu-
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lated ideas irrespective of their mode of expression or consequent effect, contrary to the guarantees of the First Amendment. Specifically, the Court held that the denial of license based on a film’s portrayal of immorality was arbitrary and acted to suppress expression of ideas beyond the conventional and shared by the majority. In a concurring opinion joined by two other justices, Justice John Marshall Harlan II agreed with the result, but cautioned that film licensing was not precluded by the First Amendment and that the New York statutory standard might be constitutionally permissible, albeit in this case the standard had been inappropriately applied. By denying the implicit inclusion of sexual themes within the obscenity exception to First Amendment protections, the Kingsley decision fundamentally narrowed future obscenity prosecutions to the scrutiny of graphic depictions of sexuality that appeal to prurient interest, and it presaged the practical demise of film licensing—after Freedman v. Maryland (1965)—as prior restraint under constitutional due process guarantees. See also Burstyn v.Wilson (1952); Freedman v. Maryland (1965); Stewart, Potter.
James R. Alexander
furthe r reading “Comment: State Court Upholds Constitutionality of Refusal to License Lady Chatterley’s Lover under Recently Amended Motion Picture Licensing Statute.” Columbia Law Review 59 (1959): 337–351. Couvares, Francis G., ed. Movie Censorship and American Culture. Washington, D.C.: Smithsonian Institution Press, 1996. Randall, Richard S. Censorship of the Movies: The Social and Political Control of a Mass Medium. Madison: University of Wisconsin Press, 1968. Wertheimer, John. “Mutual Film Reviewed: The Movies, Censorship, and Free Speech in Progressive America.” American Journal of Legal History 37 (1993): 158–189. Wittern-Keller, Laura. Freedom of the Screen: Legal Challenges to State Film Censorship, 1915–1981. Lexington: University Press of Kentucky, 2007.
Kinoy, Arthur Arthur Kinoy (1920–2003) was a well-known civil liberties attorney, who tirelessly advocated for liberal causes. Among other things, he represented accused espionage agents Ethel and Julius Rosenberg, challenged laws that restricted the activities of civil rights protestors, and battled the Nixon administration over the use of wiretaps. Kinoy argued six
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cases before the Supreme Court, including two that centered on First Amendment issues. Cameron v. Johnson (1968) challenged a Mississippi anti-picketing law, and Dombrowski v. Pfister (1965) challenged a Louisiana anti-subversive law. Born in Brooklyn, New York, Kinoy obtained his undergraduate degree from Harvard in 1941 and his law degree from Columbia in 1947. He then formed a law firm with classmate William M. Kunstler and his brother, Michael J. Kunstler. The trio referred to the firm Kunstler, Kunstler, and Kinoy as the “new KKK” in their battle against segregation and other progressive causes. In 1964 Kinoy joined the faculty at Rutgers Law School, where he taught until his retirement in 1991. In 1966 he founded the Center for Constitutional Rights with civil rights lawyers Kunstler, Morton Stavis, and Ben Smith, and it is still active today. The same year, he was ejected from a hearing of the House Un-American Activities Committee, where he was serving as a lawyer, and charged with disorderly conduct. In Kinoy v. District of Columbia (D.C.C. 1968), the U.S. Court of Appeals for the District of Columbia invalidated his conviction.
topic of “Revolutionary Strategy in Imperialist Countries”— but his advocacy of communism made him ineligible for a visa under the Immigration and Nationality Act. Although his ineligibility was subject to waiver, Attorney General Richard G. Kleindienst denied the waiver because Mandel had abused his opportunities during his last visit to the United States. Several American professors and Mandel sued the attorney general for violating Mandel’s First Amendment right to engage in free academic speech. Although the Court recognized that the First Amendment implicated the rights of U.S. citizens to “receive information and ideas,” it found that such rights in this case had to give way to the plenary powers that Congress had to exclude aliens, and which it had delegated to the president. The decision is consistent with the opinion in the Chinese Exclusion Case (1889) in which the Court had ruled that Congress had the right to control immigration as an inherent aspect of U.S. sovereignty. The Court has issued similar rulings related to First Amendment rights in United States ex rel.Turner v.Williams (1904), Knauff v. Shaughnessy (1950), and Harisiades v. Shaughnessy (1952).
See also Cameron v. Johnson (1965) (1968); Dombrowski v. Pfister (1965); Kunstler,William.
See also Blackmun, Harry A.; Harisiades v. Shaughnessy (1952); United States ex rel.Turner v.Williams (1904).
David L. Hudson Jr.
Nina Dutton with Walter Huber
furthe r reading Coscarelli, Kate. “Civil Liberties Champion Arthur Kinoy Dies.” Times-Picayune, September 21, 2003, 11. Center for Constitutional Rights,“Mission and History.” www.ccr-ny .org/v2/about/history.asp. Kunstler, William, with Sheila Isenberg. My Life as a Radical Lawyer. New York: Birch Lane Press, 1994.
Kleindienst v. Mandel (1972) In Kleindienst v. Mandel, 408 U.S. 753 (1972), the Supreme Court, in a 6-3 vote, held that the attorney general of the United States did not violate a foreign journalist’s freedom of speech by denying him entry into the country to attend academic meetings. Writing for the majority, Justice Harry A. Blackmun ruled that the government had the right to decide whether an alien was allowed in the country on subsequent academic trips even if an American professor had invited him. First Amendment protections did not extend to noncitizens. Ernest Mandel, a revolutionary Marxist from Belgium, was invited to speak at several U.S. colleges—at one on the
furthe r reading Henkin, Louis. “The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny.” Harvard Law Review 100 (1987): 853–886.
Konigsberg v. State Bar (1961) In its 5-4 decision in Konigsberg v. State Bar, 366 U.S. 36 (1961), the Supreme Court ruled that it was not unconstitutionally arbitrary for California to deny an applicant admission to the state bar because the applicant refused to answer questions about his Communist Party affiliation. The Konigsberg decision is one of several addressing a bar applicant’s First Amendment rights in the bar application process. Later cases all but expressly overruled this decision. Writing for the majority, Justice John Marshall Harlan II rejected the applicant’s claims that California’s denial of his application for bar admission violated both his First and Fourteenth Amendment rights. Harlan reasoned that the requirement did not violate the applicant’s Fourteenth Amendment due process right against arbitrary state action because the questions were relevant to qualifications for the
Kovacs v. Cooper (1949) practice of law. Harlan explained that by refusing to answer the questions, the applicant prevented the bar admissions committee from reaching an informed decision about his character and fitness.The Court held that the initial burden of establishing good character was on the applicant, and his failure to cooperate justified the admissions committee’s denial of his application. The majority also rejected the applicant’s claim that the questions about membership in the Communist Party impinged upon his rights to free speech and association guaranteed by the First Amendment.The Court reasoned that the rights to free speech and association were not “absolutes,” and that in this case the government’s interest in regulating the practice of law outweighed the applicant’s interest in withholding information about his political beliefs and association.The Court concluded that the questions were designed to deny positions of public trust to persons supposed to be dangerous and not to penalize the political beliefs of the applicant. Writing in dissent, Justice Hugo L. Black argued that denial of bar admission for refusing to answer questions about political affiliations violated the First Amendment. Rather than using the balancing test applied by the majority, he would require a clear and present danger test before justifying the infringement on the First Amendment rights of a bar applicant. In three later bar admission cases—Baird v. State Bar of Arizona (1971), In re Stolar (1971), and Law Students Research Council v. Wadmond (1971)—the Court severely limited the holding in Konigsberg. In these three cases, the Court established that the government could ask a bar applicant narrowly tailored questions and deny admission to the bar only if an applicant’s advocacy of overthrowing the government, or membership in a group advocating overthrow, was coupled with the specific intent to achieve that end. See also Baird v. State Bar of Arizona (1971); Bar Admissions; Harlan, John Marshall, II; In re Stolar (1971); Law Students Research Council v.Wadmond (1971).
Peter A. Joy
furthe r reading Fieman, Colin A. “A Relic of McCarthyism: Question 21 of the Application for Admission to the New York Bar.” Buffalo Law Review 42 (1994): 47–76.
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Kovacs v. Cooper (1949) The 5-4 Supreme Court decision in Kovacs v. Cooper, 336 U.S. 77 (1949), upheld the conviction of a man under a Trenton, New Jersey, ordinance that prohibited the use of sound trucks that emitted “loud and raucous” noises on city streets. Scholars often cite the case to demonstrate that the First Amendment does not give absolute protection to speech.The government can impose reasonable time, place, and manner restrictions on expression, particularly when the government is not restricting speech based on its content or viewpoint. Justice Stanley F. Reed authored a decision, joined by Chief Justice Frederick M. Vinson and Justice Harold H. Burton, upholding inclusion in the ordinance of the phrase “loud and raucous” against charges that it was too vague. Reed believed the ordinance was reasonably applied to “vehicles with sound amplifiers emitting loud and raucous noises.” Although city streets are “a normal place for the exchange of ideas by speech or paper, they are not “beyond control.” And although freedom of speech occupies a “preferred position,” it “does not require legislators to be insensitive to claims by citizens to comfort and convenience.” The ordinance allows for discussion by means of “the human voice, by newspapers, by pamphlets, [and] by dodgers.” Justice Felix Frankfurter’s concurring opinion professed that the majority decision was closer to his dissent in Saia v. New York (1948)—it had denied a police chief the authority to decide whether to grant permits to sound trucks in public parks—than to the majority opinion in that case, but he devoted most of his opinion to refuting the idea that freedom of speech deserved a “preferred position.” Frankfurter found that the phrase had become “a deceptive formula” that led to “mechanical jurisprudence.” Indeed, it was a perversion of Justice Oliver Wendell Holmes Jr.’s reasoning in free speech cases. So long as legislators did not “prescribe what ideas may be noisily expressed” or “discriminate” among them, they were free to make judgments about the legitimacy of sound trucks. In a separate concurring opinion, Justice Robert H. Jackson distinguished the regulation of sound trucks, which could drown out the speech of others, from the regulation of other media. Justice Hugo L. Black, joined by Justices William O. Douglas and Wiley B. Rutledge, dissented. Black objected that the record contained no evidence that the noise produced by the sound truck had actually been “loud and raucous.” He believed the case permitted evils similar to the one that Saia had invalidated. The ordinance unfairly tipped the
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scales against individuals for whom sound trucks were a cheap alternative to the use of more established and expensive media. Laws limiting the use of amplifiers on city streets had to be more carefully drawn. In a separate dissent, Rutledge also focused on the ambiguity of the statute and argued that Frankfurter had proved, rather than disproved, that First Amendment freedoms occupied a “preferred position.” See also Black, Hugo L.; Frankfurter, Felix; Preferred Position Doctrine; Saia v. New York (1948).
John R.Vile
furthe r reading Wallmeyer, Elizabeth J. “Filled Milk, Footnote Four and the First Amendment: An Analysis of the Preferred Position of Speech after the Carolene Products Decision.” Fordham Intellectual Property, Media and Entertainment Law Journal 13 (2003): 1019–1052.
Kozinski, Alex Alex Kozinski (1950– ), chief judge of the Ninth Circuit Court of Appeals, is well known for his cases and writings, which have been especially influential in the areas of commercial speech and the right of publicity. Born in Bucharest, Romania, Kozinski fled with his parents first to Vienna and then to Hollywood, California, where he was reared and where he became a U.S. citizen in 1968. Kozinski excelled at the University of California at Los Angeles, including its law school—he was managing editor of its law review. After obtaining his law degree, he clerked for Judge Anthony M. Kennedy at the Ninth Circuit Court of Appeals and then for Chief Justice Warren E. Burger at the Supreme Court before working as a private attorney and serving in the Ronald Reagan administration. In 1982 Reagan nominated Kozinski to serve as chief judge of the U.S. Court of Federal Claims. Reagan nominated him again in 1985, this time to the Ninth Circuit Court of Appeals, where at age thirty-five Kozinski was the youngest judge to serve at that level since William Howard Taft had so served in 1892. While serving on the court, Kozinski has used the cases appearing before it and law reviews to press for expanded freedom of speech. For example, in Duran v. City of Douglas (9th Cir. 1990) he ruled that a citizen had the right to direct an obscene hand gesture toward police officers. Kozinski has been a special defender of commercial speech, which he believes the Supreme Court unduly narrowed in Central Hudson Gas and Electric Corp. v. Public Service
Commission (1980). Scholar Mitch Sollenberger has observed that Kozinski’s coauthored 1990 article “Who’s Afraid of Commercial Speech?” in the Virginia Law Review has been cited more than a hundred times in other law review articles (Sollenberger 2003: 444). Supreme Court justice Clarence Thomas has championed commercial speech positions similar to those taken by Kozinski at the Ninth Circuit. Other cases have demonstrated his free speech and right of publicity concerns. In Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (9th Cir. 2002), Kozinski was in the 6-5 minority; he would have rejected the civil suit against the publishers of posters and a Web site that provided personal information on abortion providers. Similarly, Kozinski dissented in Harper v. Poway Unified School District (9th Cir. 2006), a decision that the Supreme Court later vacated.The majority decision had disciplined a student for wearing a t-shirt with an anti-gay message. In Vanna White v. Samsung Electronics America (9th Cir.1993), Kozinski thought the circuit court took the right of publicity too far when it allowed television hostess Vanna White to collect damages against a robot wearing a dress and designed to imitate her. In a 1998 interview, Kozinski expressed his concern about sexual harassment laws, attempts to ban flag burning by constitutional amendment, and congressional attempts to regulate Internet pornography. In the interview, Kozinski observed: “To me, the First Amendment stands for the basic principle that the government does not decide what citizens can say, speak, write or read” (Hudson 1998). See also Commercial Speech; Flag Desecration; Harper v. Poway Unified School District (9th Cir. 2006); Planned Parenthood of the Columbia/Willamette, Inc. v.American Coalition of Life Activists (9th Cir. 2002); Publicity, Right of; Sexual Harassment Laws; Thomas, Clarence.
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furthe r reading Hudson, David. “Federal Appellate Judge Speaks Out on the First Amendment,”August 4, 1998. www.freedomforum.org/templates/ document.asp?documentID=9950. Sollenberger, Mitch. “Kozinski, Alex.” Great American Judges: An Encyclopedia, 2 vols., ed. John R. Vile, 1:442–448. Santa Barbara, Calif.: ABC-CLIO, 2003.
Ku Klux Klan Behind a mask of chivalry, the Ku Klux Klan (KKK), a fraternal organization founded in the South in the post–Civil
Ku Klux Klan War period, sought to perpetuate white supremacy through terror. Although some Supreme Court decisions have allowed prosecution of the Klan for terrorist activity, others have affirmed the First Amendment rights of Klan members. The first Klan was organized in May 1866 by a group of young Confederate veterans as a prankish social club. Soon, however, it evolved into a secret organization seeking to enable southern whites to reassert their political and social supremacy against Radical Reconstruction. Confederate general Nathan Bedford Forrest was its first leader. During its first incarnation, the KKK intimidated blacks, carpetbaggers (migrants from the North), and scalawags (southern collaborators). Flogging, mutilation, lynching, and other acts of violence and lawlessness were employed to intimidate blacks and keep them from voting. Indeed, the early Klan committed more crimes than its twentieth-century successors combined. Largely rural, the organization paralyzed the normal law enforcement process. Although Forrest formally disbanded the KKK in 1869, it did not die. In response, Congress passed a Force Act in 1870 and in 1871 and the Ku Klux Klan Act in 1871, authorizing the president to suspend the writ of habeas corpus, suppress disturbances by force, and impose heavy penalties on terrorist organizations. Federal troops were sent into some areas to combat Klan activity. Nine South Carolina counties suspended habeas corpus, and federal agents arrested hundreds of southerners for conspiracy against the national government. As whites regained political power, the activities of the Klan declined. In 1882 in United States v. Harris, the Supreme Court declared a section of the KKK Act inapplicable to the acts of private persons and thus unconstitutional. In 1915 at a ceremony at Stone Mountain, Georgia, the Klan was re-created by a former preacher, “Col.” William J. Simmons, as a patriotic fraternal society. This resurgence followed the release of the sensational movie Birth of a Nation, based on the 1905 novel by Thomas Dixon, The Clansman. The original Klan did not burn crosses; this notion took birth in Dixon’s novel. But Klan leaders did have blown-up titles: Grand Wizard of the Empire, Grand Dragon of the Realm, Grand Titan of the Dominion, and Grand Cyclops of the Den. In the early 1920s, an era of economic dislocation, the Klan spread nationwide. With a membership of between two and four million members, it held political power in Indiana, Oklahoma, and Oregon, as well as in the old South, and it helped to elect U.S. senators and governors.The Klan
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appealed to white, native-born Protestants who were very patriotic and fearful of immigrants, radicals, Jews and Catholics, and labor unions. In 1924 the National Democratic Convention defeated a motion denouncing the Klan after a bitter party platform controversy. In the mid-1920s, inept and exploitive leadership, internal conflict, and alleged immorality and violence damaged the Klan’s reputation. The 1930s found the KKK anti-Jewish and anti-communist. In 1940 the Klan joined with the German-American Bund in holding a large rally in New Jersey. The organization formally disbanded in 1944 when it was unable to pay back federal taxes. A third Klan movement emerged in 1946, after World War II, based on fear of communism and the civil rights movement. Samuel Green, an Atlanta physician, headed the revival. However, the group was a shadow of its earlier incarnations. Membership peaked in the 1960s at about seventeen thousand. The new Klan offered hard-core opposition to the civil rights movement. It was behind the bombing of a black church in Birmingham, Alabama, in 1963, the murder of three civil rights workers in Mississippi in 1964, and the murder of Viola Liuzzo, a voting rights volunteer from the North, in 1965.The passage of civil rights laws and surveillance by the Federal Bureau of Investigation led to a further decline in membership. In the 1970s, the Klan sought respectability by accepting women members and setting up youth groups. It largely abandoned its opposition to Roman Catholics. Some Klan leaders even ran for public office in the South. David Duke, a former Grand Wizard, was elected to the Louisiana House of Representatives in 1989 and ran unsuccessfully for governor as a Republican in 1991. The Klan and Klan activity have been at the heart of many First Amendment cases. Demonstrations (and counterdemonstrations) and racially provocative statements by Klansmen have often produced controversy. In overturning the conviction of a Klansman in Brandenburg v. Ohio (1969), the Supreme Court established that states could only suppress subversive speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In Capitol Square Review and Advisory Board v. Pinette (1995), the Court upheld the right of the Klan to display a Latin cross on state capitol grounds. In R.A.V. v. St. Paul (1992), the Supreme Court struck down a hate speech law that had been applied to youth who had burned a cross on a lawn, ruling that the law contained a
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form of viewpoint discrimination prohibited by the First Amendment. However, in Virginia v. Black (2003) the Court ruled that the First Amendment did not prohibit laws that penalized individuals who burned crosses with the intent of intimidating others. See also The Birth of a Nation; Brandenburg v. Ohio (1969); Capitol Square Review and Advisory Board v. Pinette (1995); Catholics, Roman; Cross Burning; R.A.V. v. St. Paul (1992);Virginia v. Black (2003).
Martin Gruberg
furthe r reading Chalmers, David Mark. Hooded Americanism:The History of the Ku Klux Klan. 3d ed. Durham, N.C.: Duke University Press, 1981. Katz,W. L. The Invisible Empire:The Ku Klux Klan Impact on History. 2d ed. Seattle,Wash.: Open Hand Publishers, 1987. MacLean, Nancy K. Behind the Mask of Chivalry: The Making of the Second Ku Klux Klan. New York: Oxford University Press, 1994. Newton, Michael, and Judy Ann Newton. The Ku Klux Klan: An Encyclopedia. New York: Garland Publishing, 1991. Randel, William Peirce. Ku Klux Klan: A Century of Infamy. Philadelphia: Chilton Books, 1965. Tourgee, Albion. The Invisible Empire. Baton Rouge: Louisiana State University Press, 1989. Wade,Wyn Craig. The Fiery Cross:The Ku Klux Klan in America. New York: Simon and Schuster, 1988.
Kunstler, William William Moses Kunstler (1919–1995) was a self-described radical lawyer, who thrived on representing controversial clients, such as civil rights agitator H. Rap Brown, expelled congressman Adam Clayton Powell Jr., and political and social activist Abbie Hoffman. Kunstler is perhaps best known for his defense in the 1960s of liberal rabble rousers Hoffman, Jerry Rubin, and the other defendants in the Chicago Seven case. Born in New York City, Kunstler obtained his undergraduate degree from Yale University in 1941 and his law degree from Columbia University in 1949. He later formed a law firm with his brother, Michael, and law school classmate Arthur Kinoy. He was cofounder in 1966 of the nonprofit Center for Constitutional Rights. Kunstler argued six cases before the Supreme Court, including the First Amendment disputes in Texas v. Johnson (1989), United States v. Eichman (1990), and Ward v. Rock against Racism (1989). In Texas v. Johnson and United States v. Eichman, Kunstler successfully argued that Texas and federal laws criminalizing flag burning violated the First
Amendment right to engage in political dissent. In Ward, he was less successful in opposing regulations that New York City was imposing on rock concerts in Central Park; the Court decided that these were reasonable time, place, and manner restrictions. Kunstler wrote books on a variety of topics, ranging from the death penalty to civil liberties lawyers to his autobiography (with Sheila Isenberg) My Life as a Radical Lawyer (1994). See also Chicago Seven Trial; Kinoy, Arthur; Texas v. Johnson (1989); United States v. Eichman (1990); Ward v. Rock against Racism (1989).
David L. Hudson Jr.
furthe r reading Langum, David J. William M. Kunstler: The Most Hated Lawyer in America. New York: New York University Press, 1999. Stout, David.“William Kunstler, 76, Dies; Lawyer for Social Outcasts.” New York Times, September 15, 1995.
Kunz v. New York (1951) The companion case to Niemotko v. Maryland (1951), Kunz v. New York, 340 U.S. 290 (1951), overturned a New York City ordinance under which officials had refused to renew a permit for street preaching to Carl Jacob Kunz, a Baptist minister whose earlier sermons had ridiculed and denounced other religious beliefs. Chief Justice Frederick M.Vinson wrote the 8-1 decision for the Supreme Court, which struck down the ordinance as a prior restraint of First Amendment rights. In his opinion, Vinson observed that the ordinance did not specify any power of revocation. He cited a series of earlier cases—including Lovell v. City of Griffin (1938) and Hague v. Committee for Industrial Organization (1939)—in which the Court had condemned licensing systems that “vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.” He believed these decisions pointed to “the invalidity of such prior restraints upon the right to speak.” The city was free to impose “punitive remedies” on speech that led to disorder or violence, but such “punishment” had to be distinguished from unconstitutional “suppression.” Justice Felix Frankfurter’s concurring opinion attempted to situate the decision in the context of related cases. Justice Robert H. Jackson’s dissent emphasized that Kunz’s previous street sermons had attacked other races and faiths, accusing Catholicism of being “a religion of the devil”
Kunz v. New York (1951) and denouncing Jews as “Christ-killers.” Pointing out that street preachers focus on “a captive audience,” Jackson believed that the epithets Kunz used were “insulting or fighting words,” which, according to Chaplinsky v. New Hampshire (1942), “by their very utterance inflict injury or tend to incite an immediate breach of the peace” (emphasis added). What the majority identified as improper “prior restraint” was simply recognition that Kunz’s “past conduct” had “caused some disorder,” and that his future conduct was likely to do the same. For Jackson, the New York regulation fell among the limited cases in which the state had the right of both “prevention” and “punishment.” He further argued that it was unhelpful to take a concept like prior restraint that applied chiefly to freedom of the press and apply it to freedom of speech. He contended that a permit system
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could reasonably protect a city against “fanatics who take possession of its streets to hurl into its crowds defamatory epithets that hurt like rocks.” Despite Jackson’s vigorous dissent, Kunz appears to remain good law. It warns against any licensing statutes that vest discretion for religious or political speech in the licensing authorities. See also Chaplinsky v. New Hampshire (1942); Fighting Words; Licensing Laws; Niemotko v. Maryland (1951); Prior Restraint.
John R.Vile
furthe r reading Currie, David P. “The Constitution in the Supreme Court, 1946–1953.” Emory Law Journal 37 (1988): 249–294.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
Laird v. Tatum (1972) In Laird v. Tatum, 408 U.S. 1 (1972), the Supreme Court decided to dismiss a challenge to an army surveillance program directed at civilians on the basis that the “chilling effect” on First Amendment rights the civilians were alleging was too speculative to establish legal standing. The army had initiated a surveillance program, which consisted mostly of gathering news clippings and some direct observation by army personnel, in order to be prepared if it were called to quell civil disturbances. Although the individuals the government was watching did not point to any direct harm, they initiated a class-action suit against Secretary of Defense William Laird, based on their First Amendment concerns. The district court had dismissed the case, but the D.C. Circuit Court of Appeals had reversed. Writing for the five-person majority, Chief Justice Warren E. Burger noted that the civilians could not point to any specific actions taken against them; they could point only to the existence of an intelligence-gathering program. Previous cases in which the Court had struck down activities that chilled freedom of expression had rested on actual “objective harm or a threat of specific future harm” that individuals experienced, rather than resting primarily on a “subjective” chill. Burger rejected the idea that the judiciary should act as a constant monitor of army surveillance activities. In a stinging dissent, Justice William O. Douglas described the army’s power to conduct civilian surveillance as “a cancer in our body politic.” He intoned,“[S]ubmissiveness is not our heritage. The First Amendment was designed to allow rebellion. . . . The Constitution was designed to keep government off the backs of the people.The Bill of Rights was
added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance.” In a separate dissent, William J. Brennan Jr. argued that the respondents had established the basis for a justiciable case. The case was controversial in part because Justice William H. Rehnquist refused to recuse himself, although he had been a member of the administration as head of the Office of Legal Counsel and had testified about the program to Congress before becoming a justice.This became an issue in his confirmation hearings for chief justice in 1986. See also Burger,Warren E.; Chilling Effect; Douglas,William O.
John R.Vile
furthe r reading Fisher, Linda E. “Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups.” Arizona Law Review 46 (Winter 2004): 621–675. Hudson, David L., Jr. The Rehnquist Court: Understanding Its Impact and Legacy. Westport, Conn.: Praeger, 2006.
Lamb’s Chapel v. Center Moriches Union Free School District (1993) In Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), the speech and religion provisions of the First Amendment intersected as the Supreme Court unanimously held that religious meetings where religious films are shown can take place on public school property during nonschool hours. At issue was a New York law that prohibited public school property from being used for religious purposes, even during nonschool hours. Lamb’s Chapel, an evangelical church,
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sought to show a film series produced by James Dobson of the Christian group Focus on the Family. The films depicted family issues from a Christian perspective. Although the school district allowed nonreligious groups to use its facilities, the school district denied Lamb’s Chapel’s request. Lamb’s Chapel lost at both the federal district and appeals court levels, but the Supreme Court overturned the lower courts’ rulings. Writing for the Court, Justice Byron R.White explained that banning religious groups but allowing other groups was an unconstitutional content-based restriction on speech and expression. Furthermore,White said that showing a religious film at the meetings did not violate any of the three prongs of the Lemon test, first articulated by Chief Justice Warren E. Burger in the case of Lemon v. Kurtzman (1971), because the action “has a secular purpose, does not have the principal or primary effect of advancing or inhibiting religion, and does not foster an excessive entanglement with religion.” In a nod to Justice Sandra Day O’Connor’s reformulated second prong of the Lemon test, White said that because all groups were allowed access, there was no realistic danger that the community would think the school district was “endorsing religion.” In a separate concurring opinion, Justice Antonin Scalia agreed that the meetings and films were permissible but lamented the Court’s use of the Lemon test. Comparing it to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad,” Scalia said,“Lemon stalks our Establishment Clause jurisprudence once again, frightening little children and school attorneys. . . .” He called for the test’s death and specifically criticized Justices White, O’Connor, and Anthony M. Kennedy for seemingly repudiating it in past cases only to use it again. Although the Court ruled on free speech grounds, the case epitomized the Court’s increasingly accommodationist stance toward cases that raised establishment issues under Chief Justice William H. Rehnquist, in sharp contrast to the more separationist decisions of the Earl Warren and Warren E. Burger courts. The Court relied on Lamb’s Chapel to allow a Christian group of students to meet at a public secondary school after school hours in Good News Club v. Milford Central School (2001).The Court again determined that the exclusion of a religious group violated its free speech rights. See also Burger, Warren E.; Content Based; Good News Club v. Milford Central School (2001); Kennedy, Anthony M.; Lemon Test;
Lemon v. Kurtzman (1971); O’Connor, Sandra Day; Rehnquist, William H.; Scalia, Antonin;White, Bryon R.
Artemus Ward
furthe r reading Brisbin, Richard A., Jr. Justice Antonin Scalia and the Conservative Revival. Baltimore: Johns Hopkins University Press, 1997. Greenawalt, Kent. Does God Belong in Public Schools? Princeton, N.J.: Princeton University Press, 2004. Maltzman, Forrest, James F. Spriggs II, and Paul J. Wahlbeck. Crafting Law on the Supreme Court: The Collegial Game. New York: Cambridge University Press, 2000.
Lamont v. Postmaster General (1965) The Supreme Court decision in Lamont v. Postmaster General, 381 U.S. 301 (1965), invalidated a statute allowing the Postmaster General to regulate the flow of “communist political propaganda” through the mails. Lamont was the first time the Supreme Court invalidated a federal statute under the speech and press clauses of the First Amendment, the first case to hold that the First Amendment includes a “right to receive,” and the first time a justice used the phrase “marketplace of ideas” in a judicial opinion. The law at issue in Lamont required the postmaster General to review postal matter sent from abroad and determine at his or her discretion which constituted “communist political propaganda.” If the postmaster general determined that the mail was indeed communist propaganda, the addressee of the material would receive a postcard instead of the mail.The addressee could return the postcard to the post office indicating a desire to receive the materials, upon receipt of which the post office would deliver them. If the addressee did not return the postcard, the post office would not deliver the withheld materials.The statute exempted sealed letters, materials sent pursuant to a subscription, and all mail sent to government agencies and educational institutions. Dr. Corliss Lamont, who engaged in publishing and distributing pamphlets, had been mailed a copy of the Peking Review #12. Rather than respond to the notice of mail detention, Lamont filed suit to enjoin enforcement of the statute. The Court invalidated the law because it “require[d] an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressees[’] First Amendment rights.” The Court concluded that the statute was “almost
Landmark Communications, Inc. v.Virginia (1978) certain to have a deterrent effect, especially as respects those who have sensitive positions,” and thus “amount[ed] to an unconstitutional abridgment of the addressee’s First Amendment rights.” Justice William O. Douglas wrote the Court’s unanimous opinion, and Justice William J. Brennan Jr. wrote a separate concurrence. Justice Brennan made explicit what had been implicit in the majority opinion, declaring that “the right to receive publications is . . . a fundamental right,” the protection of which is “necessary to make the express guarantees [of the First Amendment] fully meaningful.”Although mentioned in a concurrence only, the “right to receive” was clearly acknowledged by the entire Court because the Court premised its holding on the addressee’s, rather than the foreign speaker’s, constitutional claim in order to avoid the difficult question of whether foreign governments have First Amendment rights. Building on Justice Oliver Wendell Holmes Jr.’s use of the phrase “competition of the market” in his famous dissent in Abrams v. United States (1919), Justice Brennan stated in Lamont: “It would be a barren marketplace of ideas that had only sellers and no buyers.” By comparing the exchange of ideas to the exchange of goods in a marketplace, Justice Brennan highlighted the intrinsic necessity of buyers of goods and, analogously, the importance of a “right to receive” ideas. See also Abrams v. United States (1919); Mail; Marketplace of Ideas.
Anuj C. Desai
furthe r reading “Detention of Mail Deemed ‘Communist Propaganda.’ ” Harvard Law Review 79 (1965): 154–157. Lee, William E. “The Supreme Court and the Right to Receive Expression.” Supreme Court Review (1987): 303–344. Schwartz, Murray L. “The Mail Must Not Go Through—Propaganda and Pornography.” UCLA Law Review 11 (1964): 805–858. Sigler, Jay A.“Freedom of the Mails: A Developing Right.” Georgetown Law Journal 54 (1965): 30–54.
Landmark Communications, Inc. v. Virginia (1978) In Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), the Supreme Court found that the conviction of a newspaper owner for publishing information regarding the Virginia Judicial Inquiry and Review Commission violated the First Amendment’s freedom of the press clause.
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The newspaper had reported on a pending commission inquiry and had identified the state judge being investigated. The Virginia Supreme Court concluded that the law protected judges’ reputations against “adverse publicity which might flow from frivolous complaints,” maintained confidence in the judicial system by “preventing the premature disclosure of a complaint before the commission has determined that the charge is well founded,” and protected complaints and witnesses from “possible recrimination.”The state argued that confidentiality was essential to the effective working of the commission. In the opinion for six members of the Court, Chief Justice Warren E. Burger limited his review to the narrow question of “whether the First Amendment permits the criminal punishment of third persons who are strangers to the inquiry, including the news media, for divulging or publishing truthful information regarding confidential proceedings” (in this case, of the commission). He observed that the publication at issue “lies near the core of the First Amendment.” It involved governmental affairs and the public interest. Granting that confidentiality served “legitimate state interests,” the state still needed to show that such interests were “sufficient to justify the encroachment on First Amendment guarantees.” Burger cited a number of cases, beginning with New York Times Co. v. Sullivan (1964), in which the Court ruled that interest in protecting the reputations of public officials was insufficient to protect “speech that would otherwise be free.” Although the Virginia Supreme Court had sought to justify its ruling under the clear and present danger doctrine, Burger found that it had improperly accepted state legislative judgments on the issue rather than coming independently to such a conclusion. Precedents such as Bridges v. California (1941), Pennekamp v. Florida (1946), Craig v. Harney (1947), and Wood v. Georgia (1962) indicated that the threat would have to be greater than that in this case to constitute a clear and present danger. In a concurring opinion, Justice Potter Stewart argued that although the law did not violate the Constitution, such a law could not legitimately punish newspapers: “Though government may deny access to information and punish its theft, government may not prohibit or punish the publication of that information once it falls into the hands of the press, unless the need for secrecy is manifestly overwhelming.” Justices William J. Brennan Jr. and Lewis F. Powell Jr. did not participate.
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See also Bridges v. California (1941); Burger,Warren E.; Craig v. Harney (1947); New York Times Co. v. Sullivan (1964); Pennekamp v. Florida (1946); Stewart, Potter;Wood v. Georgia (1962).
John R.Vile
furthe r reading Coleman, Matthew J.“The ‘Ultimate Question’: A Limited Argument for Trafficking in Stolen Speech.” Oklahoma Law Review 55 (Winter 2002): 559–612.
Largent v. Texas (1943) In Largent v.Texas, 318 U.S. 418 (1943), the Supreme Court held that a Texas ordinance requiring a permit to solicit orders for books—in this case religious materials—was unconstitutional. Largent was one of a series of cases the Court decided in 1943 extending protections for religious freedom. The mayor of Paris,Texas, could issue permits for selling books or other activities if he or she deemed it “proper or advisable” to do so. Because Mrs. Daisy Largent had neither applied for nor received such a permit, police in Paris arrested her for offering books for sale. At the time she was cited Mrs. Largent was carrying a card of ordination from the Watchtower Bible and Tract Society, or Jehovah’s Witnesses. The society is dedicated to spreading its members’ religious faith through circulating books and pamphlets by house-to-house distribution. Witnesses offered these tracts and books to individuals and requested a donation, not to exceed twenty-five cents, to further the work of the society. If no donation was made, Mrs. Largent would still, consistent with the traditions of the society, offer to leave one or more pamphlets. After Mrs. Largent was convicted by the corporation court for the municipality of Paris, she appealed to the County Court of Lamar County.That court heard the case de novo. It convicted her in a bench hearing and fined her $100. Because higher Texas courts did not permit appeals for fines of $100 or less, Largent appealed to the U.S. Supreme Court. The State of Texas did not appear at the Supreme Court hearing.The Court reversed the county court’s decision and issued a terse opinion, delivered by Justice Stanley F. Reed. Reed argued that it was unnecessary to determine if the acceptance of donations represented the selling of pamphlets under the city ordinance. He chose instead to focus on how individuals could obtain permits. The ordinance vested this sole power in the mayor, who had to decide whether it was
“proper and advisable.” Reed called this approval by a government official “administrative censorship in its most extreme form.” Reed said it “abridges the freedom of religion, of the press and of speech guaranteed by the Fourteenth Amendment.” Also in 1943 the Court in Jones v. City of Opelika, Martin v. City of Struthers, and Murdock v. Pennsylvania limited the ability of governments to regulate the distribution of religious literature on commercial grounds as unconstitutionally intrusive on religious practice. See also Jehovah’s Witnesses; Jones v. City of Opelika (1942) (1943); Martin v. City of Struthers (1943); Murdock v. Pennsylvania (1943).
David A. May
furthe r reading O’ Brien, F. William. Justice Reed and the First Amendment:The Religion Clauses. Washington, D.C.: Georgetown University Press, 1958.
Larkin v. Grendel’s Den, Inc. (1982) In Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), the Supreme Court struck down a Massachusetts law permitting churches to veto applications for liquor licenses, finding that the establishment clause of the First Amendment forbids a state from delegating its power to a religious organization. Grendel’s Den, a popular Cambridge, Massachusetts, restaurant, was denied a liquor license following an objection by its next-door neighbor, the Holy Cross Armenian Catholic Church. Massachusetts law permitted churches and schools to veto liquor license applications if the applying business was within 500 feet of the church or school. Grendel’s Den sued. A federal appeals court affirmed the district court’s ruling that the Massachusetts law violated the establishment clause, and the Court affirmed with an 8-1 decision. Writing for the Court, Chief Justice Warren E. Burger applied the Lemon test he developed for the Supreme Court in Lemon v. Kurtzman (1971). He conceded that the state had a valid secular purpose in shielding churches and schools from the disruption associated with businesses selling liquor; however, Massachusetts erred by granting churches the power to veto license applications.The church’s unregulated veto meant that there was no way to prevent it from advancing “explicitly religious goals.” Finally, the law excessively entangled the church in the government process.
The Last Temptation of Christ In the sole dissent, Justice William H. Rehnquist found no such danger. The majority had suggested a flat ban on the sale of liquor as a constitutional alternative. Rehnquist viewed this as more protective of churches and therefore more intrusive on the establishment clause, causing him to question the logic of the majority’s decision. The Massachusetts law neither subsidized any religious group nor encouraged participation in religious activity. Larkin firmly settled the issue of whether the government can delegate sole authority over a public decision to a religious entity. Later cases struggled to establish a principled way to permit religious organizations to share in the benefits that properly flow from the state to its citizens without encouraging political divisions along sectarian lines. See also Burger, Warren E.; Lemon v. Kurtzman (1971); Rehnquist,William H.
Timothy O’Neill
furthe r reading Levy, Leonard. The Establishment Clause: Religion and the First Amendment. 2d ed. Chapel Hill: University of North Carolina Press, 1994.
Larson v. Valente (1982) In Larson v.Valente, 456 U.S. 228 (1982), the Supreme Court held that a Minnesota statute treating religious organizations differently based upon the percentage of contributions the organizations received from their members violated the establishment clause of the First Amendment. Minnesota’s Charitable Solicitation Act, which was designed to protect against fraudulent charities, required that religious organizations that received 50 percent or less of their total contributions from members and affiliated organizations had to register and file certain financial reports under the act. Religious organizations that received more than 50 percent of their contributions from members were exempt from the act’s registration and reporting requirements. Members of the Holy Spirit Association for the Unification of World Christianity (including Valente), which was required to register under the act, filed suit, and both the federal district court and the Eighth Circuit Court of Appeals held that the provision was unconstitutional. The Supreme Court, in a 5-4 decision, affirmed the lower courts’ rulings. After determining that the church members had prudential standing, the Supreme Court analyzed the “50 percent” provision using strict scrutiny because the law
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discriminated among religions instead of preferring religion over nonreligion. Writing for the majority, Justice William J. Brennan held that, although the state had a compelling governmental interest—protecting citizens from fraud—the 50 percent provision was not narrowly tailored to further that interest. Because the state had produced no evidence that members exercise supervision and control over an organization’s activities when their contributions exceed 50 percent; that such membership control, if it exists, provides an adequate safeguard against an organization’s abusive solicitation of the public; or that the need for public disclosure of an organization’s funding increases along with the percentage of nonmember contributions, the statute could not survive strict scrutiny. The Court noted that this statute illustrated the dangers of politicizing religion, although it did not apply the Lemon test (from Lemon v. Kurtzman [1971]) because this case involved discrimination among religious groups.The Court cited the legislative history of the provision, which clearly showed that the state legislature was targeting certain religious groups while exempting others. Justice William H. Rehnquist, joined by three other justices, dissented on the grounds that the church members did not have standing to challenge the 50 percent provision because the state required the association to register as a result of its status as a “charitable organization” and not as a religious organization. For the provision, which is contained in one of the act’s exemptions, to even apply to it, Rehnquist argued, the association would first have to prove that it is a religious organization as defined within the act. See also Compelling State Interest; Lemon v. Kurtzman (1971); Narrowly Tailored Laws.
Emilie S. Kraft
furthe r reading Braveman, Daan. “The Establishment Clause and the Course of Religious Neutrality.” Maryland Law Review 45 (1986): 352.
The Last Temptation of Christ The Last Temptation of Christ, a movie directed by Martin Scorsese and based on the book by Nikos Kazantzakis, provoked public outcry and denunciation from some conservative Christian groups due to its controversial portrayal of the life of Jesus. Universal Studios publicly defended its showing as a matter of First Amendment rights.
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Martin Scorsese’s 1988 Universal Pictures film The Last Temptation of Christ sparked protests from Christian groups across the nation who objected to the way the movie portrayed Jesus Christ. Here members of the fundamentalist Baptist Tabernacle of Los Angeles demonstrate against the film in front of Universal chairman Lew Wasserman’s Beverly Hills, California, home in July 1988.
In 1955, when Kazantzakis’s book was published, the Greek Orthodox Church excommunicated him, and the Catholic Church banned the book. The 1988 film adaption depicts Jesus being tempted by Satan to disavow his messianic nature, take Mary Magdalene for his wife, and live like a normal man. One controversial scene shows the newly married Jesus and Mary Magdalene having sex. Further controversy centered on the depiction of Judas as ethically strong and devout. Chief among organizations protesting the movie were the American Family Association and Campus Crusade for Christ (CCC). A boycott was called, and some theater chains refused to show the film. Bill Bright, founder of CCC, offered to buy all prints of the movie in order to destroy them. Universal Studios responded with an open letter in newspapers across the country stating it would not succumb to these protests and thereby infringe upon the First Amendment rights of Americans to see the film. The cities of Savannah, Georgia; New Orleans, Louisiana; Oklahoma City, Oklahoma; and Santa Ana, California, however, were able to enforce bans on the movie, and the movie rental chain Blockbuster refused to carry it. See also Blasphemy; Book Banning; Motion Picture Ratings.
Thurman Hart
furthe r reading WGBH. 1999. Culture Shock. “Flashpoints: Theater, Film, and Video.” WGBH Interactive: Boston. www.pbs.org/wgbh/cultureshock/ flashpoints.
Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890) In Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1 (1890), the Supreme Court extended its pronouncements against polygamy in Reynolds v. United States (1879) and Davis v. Beason (1890) and upheld the Edmunds-Tucker Act of 1887, which repealed the charter of the Church of Jesus Christ of Latter-day Saints and seized its property to use for educational purposes. This decision is credited with influencing the church to abandon its support and practice of polygamy. The government, in turn, returned confiscated property to the church in 1894 and 1896, while President Grover Cleveland pardoned polygamists who promised to obey the law (Gordon 2002: 220). Gillett (2000: 518) characterizes the Court’s ruling as “an unprecedented event in American history” that clearly violated the separation of church and state. Justice Joseph P. Bradley’s opinion for the Court affirmed that the Constitution and the idea of sovereignty vested Congress with power over the territories. Because the church was using its assets to advance polygamy—which Bradley described as a “barbarous practice,”“contrary to the spirit of Christianity and of the civilization which Christianity has produced,” and as “a nefarious system and practice”—Congress had a right to dissolve it. He dismissed the idea that the Constitution protected this practice as
Lavine v. Blaine School District (9th Cir. 2001) “altogether a sophistical plea.” He then cited numerous English and American precedents to show that when charitable gifts could not be devoted to one use, the state could divert them to another. Chief Justice Melville W. Fuller’s dissent, which Justices Stephen J. Field and Lucius Q. C. Lamar joined, accused the Court of improperly vesting Congress with “absolute power.” Fuller opined that Congress could extirpate polygamy in the territories by enacting a criminal code, but that it was “not authorized under the cover of that power to seize and confiscate the property of persons, individuals, or corporations, without office found, because they may have been guilty of criminal practices.” See also Church of Jesus Christ of Latter-day Saints; Davis v. Beason (1890); Polygamy; Reynolds v. United States (1879).
John R.Vile
furthe r reading Gillett, Todd M. “The Absolution of Reynolds: The Constitutionality of Religious Polygamy.” William and Mary Bill of Rights Journal 8 (2000): 497–534. Gordon, Sarah Barringer. The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 2002.
Lavine v. Blaine School District (9th Cir. 2001) In Lavine v. Blaine School District, 257 F.3d 981 (9th Cir. 2001), the Ninth Circuit Court of Appeals ruled that school officials did not violate a student’s First Amendment right of free expression when they temporarily expelled him for submitting a violent-themed poem to his English teacher. This federal appeals court decision symbolizes the delicate balance between protecting students’ free expression rights and respecting school officials’ duty to provide a safe learning environment in a post-Columbine environment. The case involved high school student James Lavine from Blaine School District in Washington state, who wrote a poem about a school shooter after the shooting at Thurston High School in Springfield, Oregon. Lavine’s poem, entitled “Last Words,” examines the mindset of a student who kills his classmates and then expresses remorse. Lavine took the poem to school in October 1998 to show his English teacher, who had encouraged her students to write creatively on their own time. After Lavine’s teacher expressed concern that the student might harm himself or be crying out
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for help, school officials decided to “emergency expel” James for fear that he might cause harm to himself or other students at school. Lavine and his father sued in federal court, contending that school officials violated his First Amendment rights by punishing him for the content of his poem. Lavine also claimed that school officials violated his free expression rights by refusing to remove negative documentation about the incident in his student file. In 1999 a federal district court ruled in favor of the Lavines on both counts.The district court determined that the school officials overreacted and that they should not maintain any negative documentation about James as a result of the incident. A three-judge panel of the Ninth Circuit reversed in 2001, reasoning that the case must be understood against the backdrop of Columbine and other school shootings. The appeals court applied the Supreme Court’s test from Tinker v. Des Moines Independent Community School District (1969), which asks whether school officials could reasonably forecast that the student expression might cause a substantial disruption of school activities, against the “totality” of the surrounding facts, which included James’s past disciplinary record, a domestic dispute he had with his father, and the violent content of the poem. The Court concluded that “Taken together and given the backdrop of actual school shootings . . . these circumstances were sufficient to have led school authorities reasonably to forecast substantial disruption of or material interference with school activities— specifically, that James was intending to inflict injury upon himself or others.” The appeals court did uphold the district court’s injunction against maintaining negative documentation about James as a result of the incident. “The school need not permanently blemish James’s record and harm his ability to secure future employment,” the court wrote. The Lavines sought en banc review, but the Ninth Circuit denied it in Lavine v. Blaine School District (9th Cir. 2001). Three judges dissented from the denial of review, including Judge Andrew Kleinfeld, who feared that the decision would force students to “hide their art work.” He opined: School officials may now subordinate students’ freedom of expression to a policy of making high schools cozy places, like daycare centers, where no one may be made uncomfortable by the knowledge that others have dark thoughts, and all the art is of hearts and smiley faces. The court has adopted a
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new doctrine in First Amendment law, that high school students may be punished for nonthreatening speech that administrators believe may indicate that the speaker is emotionally disturbed and therefore dangerous. The Lavines petitioned for Supreme Court review, but it denied cert on June 28, 2002. See also School Violence; Students, Rights of;Tinker v. Des Moines Independent Community School District (1969);True Threats.
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. The Silencing of Student Voices: Preserving Free Speech in America’s Schools. Nashville, Tenn.: First Amendment Center, 2003. ———. “Fear of Violence in Our Schools: Is “Undifferentiated Fear” in the Age of Columbine Leading to a Suppression of Student Speech?” Washburn Law Journal 42 (2002): 79–105.
Lawson, Evan Evan T. Lawson (1943– ) is a Boston-based attorney who has successfully argued two First Amendment cases before the Supreme Court: Smith v. Goguen (1974) and 44 Liquormart, Inc. v. Rhode Island (1996). In Goguen, the Supreme Court invalidated a Massachusetts flag misuse statute because it was too vague. In 44 Liquormart, the Court struck down Rhode Island provisions that banned liquor price advertising because they violated commercial free speech rights. Born in 1943 in New York City, Lawson obtained his law degree in 1967 from Boston University School of Law. He worked as an assistant attorney general under U.S. Attorney General Elliot Lee Richardson and later entered private practice in the Boston area. In 1973 he helped found the law firm bearing his name, Lawson and Weitzen. While his Supreme Court successes have involved First Amendment issues, Lawson’s practice as a senior partner at Lawson and Weitzen includes real estate, personal injury, zoning, and intellectual property. See also 44 Liquormart, Inc. v. Rhode Island (1996); Smith v. Goguen (1974).
David L. Hudson Jr.
furthe r reading Lawson and Weitzen, www.lawson-weitzen.com.
Law Student Research Council v. Wadmond (1971) The Supreme Court in Law Student Research Council v. Wadmond, 401 U.S. 154 (1971), upheld a rule of the New York Bar requiring an applicant to provide proof that he or she “believes in the form of the government of the United States and is loyal to such a government.”The Court specifically held that the bar did not violate the First Amendment by asking a series of questions, including whether an applicant had ever been a member of a group that advocated overthrow of a sitting government and could affirm loyalty to the Constitution of the United States “without any mental reservation.” In the opinion for the majority, Justice Potter Stewart repeatedly emphasized that the petitioners could not show where anyone had been denied admittance to the bar because of answers to the required questions.The Court further accepted the respondent’s extremely narrow interpretation of the New York rule whereby loyalty was interpreted to mean a commitment to the U.S. Constitution and a willingness to take the oath in good faith. In evaluating the specific questions, the Court stated that consistent with Scales v. United States (1961), individuals advocating upheaval of the government may be punished. Regarding the constitutional loyalty question, Stewart argued that it is no different from the oath required of U.S. civil servants.The Court appeared more broadly to be sympathetic to a system completely void of initial screening. As Stewart noted, however, “the choice between systems . . . rests with the legislatures and other policymaking bodies of the individual states. New York has made its choice.To disturb it would be beyond the power of this Court.” Three justices wrote separate opinions. Justice John Marshall Harlan II authored a brief concurrence noting the lack of evidence to support opinion-based discrimination against individual bar applicants. Justice Hugo L. Black dissented, arguing that the questions posed by the New York Bar risked allowing other lawyers to screen out their potential competition. He characterized such deprivation as tantamount to taking property from an individual that should be rejected. Black also argued that the decision violated precedent set by several previous Court decisions. Justice Thurgood Marshall, in a separate dissent, disapproved of the narrow interpretation of the bar’s rule. He argued that prior attempts by the bar to examine the political beliefs of appli-
Least Restrictive Means cants undermined the likelihood that the narrow interpretation would be maintained. The decision in Law School Research Council was in tension with decisions the Court delivered the same day in Baird v. State Bar of Arizona (1971) and In re Stolar (1971), which limited the ability of state bar associations to ask certain questions about political activity on bar exams. See also Baird v. State Bar of Arizona (1971); Bar Admissions; In re Stolar (1971); Scales v. United States (1961).
Ryan C. Black
furthe r reading Burrell-Jones, Brendalyn. “Bar Applicants: Are Their Lives Open Books?” Journal of the Legal Profession 21 (1996–1997): 153–164. Fieman, Colin A. “A Relic of McCarthyism: Question 21 of the Application for Admission to the New York Bar.” Buffalo Law Review 42 (Winter 1994): 47–76.
Leach v. Carlile (1922) Although the Supreme Court decision in Leach v. Carlile, 258 U.S. 138 (1922), upheld a fraud order issued by the postmaster general directed to a business advertising through the mails, it is best known for a dissent by Justice Oliver Wendell Holmes Jr. that emphasized that the First Amendment free press clause was designed to prevent prior restraints on both spoken and written words. Fred Leach, through his “Organo Product Company,” was using the mails to sell tablets alleged to treat “nervous weakness, general debility, sexual decline or weakened manhood and urinary disorders . . . sleeplessness and run-down system” and other ailments. Carlile, the postmaster general, effected a fraud order against Leach, prohibiting the delivery of his mail or payment of money orders. The district court refused the injunction, and the Seventh Circuit Court of Appeals affirmed. The case then made its way to the Supreme Court, which affirmed the lower courts’ decisions. Writing for the majority, Justice John H. Clarke observed that the order had been issued after “an elaborate hearing” and was based on the factual issue of whether Leach was perpetuating “a fraud upon the public.” Clarke observed that, in contrast to American School of Magnetic Healing v. McAnnulty (1902), the lower court review had determined not that Organo was “entirely worthless as a medicine” but that “it was so far from being the panacea which he was advertising it through the mails to be, that by so advertising it he was perpetuating a fraud upon the public.” He said that
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the law had settled that the courts would not review decisions made by an executive department head when the law entrusted the official with power and it had been “fairly arrived at and has substantial evidence to support it.” Justice Holmes wrote a dissent, joined by Justice Louis D. Brandeis, acknowledging that precedents supported the majority decision but raising the presumption, which the Court would later highlight in Near v. Minnesota (1931), against prior restraint of publication. He thought that written words were as entitled to protection as spoken ones, and even those who interpreted the First Amendment strictly agreed “that it was intended to prevent previous restraint.” Holmes also was troubled that in both law and as a matter of practicality, it was difficult to advertise apart from the mail and thought that the First Amendment should be interpreted especially broadly in such circumstances. See also American School of Magnetic Healing v. McAnnulty (1902); Holmes, Oliver Wendell, Jr.; Mail; Near v. Minnesota (1931); Prior Restraint.
John R.Vile
furthe r reading White, G. Edward. “Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension.” California Law Review 80 (1992): 391–467.
Least Restrictive Means The least restrictive means test provides extensive protection for freedom of expression. This test is part of the “strict scrutiny” applied by the courts to a law that restricts First Amendment or other constitutionally guaranteed rights, when government interest must be weighed against constitutional rights. To pass the test, a law must use the least speech-restrictive means possible to achieve a compelling state interest. For example, in United States v. Playboy Entertainment Group (2000) the Court struck down a federal law requiring cable operators to fully scramble sexually explicit programming or relegate it to late-night hours.The Court ruled that this content-based law failed to meet strict scrutiny requirements because there was a less restrictive means of ensuring that minors did not access sexually explicit programming. The less restrictive alternative was another provision of the federal telecommunications law that cable operators must block individual channels if a parent-subscriber makes such a request.
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Leathers v. Medlock (1991)
Not all justices on the Supreme Court have embraced the least restrictive means test or even other formulations of strict scrutiny. For example, Chief Justice William H. Rehnquist utilized a balancing approach referred to as “minimal scrutiny,” wherein the government need only show a “legitimate” or “rational” basis for a law infringing on freedom of expression. This approach has provided less protection for individuals’ freedom of expression than the least restrictive means test. There has been a trend in Supreme Court decision making, especially in the area of freedom of religion, from the least restrictive means test toward the balancing approach. In 1963 Justice William J. Brennan Jr. outlined a threefold inquiry in presenting the majority opinion in Sherbert v. Verner, where the Court established a high level of protection for religious freedom: (1) Does the government law impose a burden on religious freedom? (2) If a burden exists, then it must be asked whether the law is justified by a compelling state interest. And, finally, (3) even if a compelling state interest exists, could the interest be achieved in an alternative way without violating religious freedom? In more recent decisions, however, such as Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Supreme Court limited the application of the least restrictive means test by holding that neutral and generally applicable laws—laws that do not specifically target a religious practice but apply across the board—should be judged according to minimal scrutiny. In 1993 Congress passed legislation titled the Religious Freedom Restoration Act in an attempt to return all freedom of religion cases to the least restrictive means test, but the Supreme Court struck down the application of this law to states as unconstitutional in City of Boerne v. Flores (1997) on the grounds that Congress had violated the separation of powers principle by interpreting the meaning of the First Amendment. See also Brennan,William J., Jr.; City of Boerne v. Flores (1997); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Rehnquist,William H.; Religious Freedom Restoration Act of 1993; Sherbert v.Verner (1963).
Scott Johnson
furthe r reading Abrams, Floyd. Speaking Freely:Trials of the First Amendment. New York: Penguin, 2006. Seidman, Louis M., Cass R. Sunstein, Mark V. Tushnet, and Pamela S. Karlan. The First Amendment. New York: Aspen, 2003.
Sykes,Alan O.“The Least Restrictive Means.” University of Chicago Law Review 70 (2003): 403–419.
Leathers v. Medlock (1991) The Supreme Court decision in Leathers v. Medlock, 499 U.S. 439 (1991), firmly established the principle that a generally applicable tax that may fall harder on one form of media than others does not violate the First Amendment right of freedom of expression or the equal protection clause. The case involved the Arkansas Gross Receipts Act, which imposed a 4 percent tax on receipts from sales of services, including cable television, but exempted receipts for newspaper and subscription magazine sales. Daniel Medlock, a cable television subscriber, and others filed a class-action suit, asserting that the case should be governed by decisions such as Arkansas Writers’ Project, Inc. v. Ragland (1987), which determined that selective taxation of the press offended the First Amendment. Writing for the majority, Justice Sandra Day O’Connor made a distinction between Leathers and Arkansas Writers’ Project, Inc. noting that the gross receipts law “does not single out the press and does not therefore threaten to hinder the press as a watchdog of government activity.” She found “no indication in these cases that Arkansas has targeted cable television in a purposeful attempt to interfere with its First Amendment activities.” O’Connor found support in Regan v. Taxation With Representation of Washington (1983) for the “proposition that a tax scheme that discriminates among speakers does not implicate the First Amendment unless it discriminates on the basis of ideas.”The Court concluded that the challengers put forward no proof that the intent of the law was to censor cable television. In his dissent, Justice Thurgood Marshall, joined by Justice Harry A. Blackmun, wrote, “I believe that the First Amendment prohibits the State from singling out a particular information medium for heavier tax burdens than are borne by like-situated media.” See also Arkansas Writers’ Project, Inc. v. Ragland (1987); Marshall,Thurgood; O’Connor, Sandra Day; Regan v.Taxation With Representation of Washington (1983).
David L. Hudson Jr.
furthe r reading Graefe, Jeffery T. “Differential Taxation of the Media: Leathers v. Medlock: Prejudicial or Profitable?” Oklahoma Law Review 46 (1993): 713–728.
Lee v.Weisman (1992) Lombard, Benjamin,“First Amendment Limits on the Use of Taxes to Subsidize Selectively the Media.” Cornell Law Review 78 (1992): 106–138.
Lee v. International Society for Krishna Consciousness (1992) In Lee v. International Society for Krishna Consciousness, 505 U.S. 830 (1992), the Supreme Court ruled that banning the distribution of literature in airport terminals violates the First Amendment.The decision was linked to the Court’s ruling in International Society for Krishna Consciousness v. Lee (1992), in which the Court allowed a prohibition on solicitation, arguing that the airport terminal was not a public forum because its primary purpose was to facilitate airline travel. Justices Sandra Day O’Connor, Anthony M. Kennedy, David H. Souter, Harry A. Blackmun, and John Stevens affirmed in the per curiam opinion, relying on the opinions of O’Connor, Kennedy, and Souter in International Society for Krishna Consciousness v. Lee. O’Connor argued that speech cannot be completely restricted simply because airports are not public forums. Quoting Perry Education Association v. Perry Local Educators’Association (1983), she wrote that speech restrictions must be reasonable and “not an effort to suppress expression merely because public officials oppose the speaker’s view.” O’Connor viewed the airport as a “multipurpose environment” because it contained shopping, restaurants, banks, and so on, in addition to facilitating air travel, and did not see leafleting as incompatible with such an environment. In a separate concurrence, Kennedy, Blackmun, Souter, and Stevens designated airports as public forums. Kennedy compared the airport terminal to streets and parks, while pointing out that the “principal purpose” of streets is clearly to facilitate transportation, while still serving as a public forum. In a similar vein, although air transportation is the principal purpose of airports, they should still be considered public forums, particularly since they are now a common gathering place for citizens: “One of the places left in our mobile society that is suitable for discourse is a metropolitan airport,” he wrote. Kennedy identified airports as “one of the few government-owned spaces where many persons have extensive contact with other members of the public.” Chief Justice William H. Rehnquist joined Justices Antonin Scalia, Byron R.White, and Clarence Thomas in a separate dissent. Rehnquist compared the leafleting ban to the solicitation ban, because both present similar problems of congestion. In addition, leafleting would burden travelers
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and encourage littering, while also causing additional monitoring costs to the airport to ensure that only leafleting (and not solicitation) was occurring. See also International Society for Krishna Consciousness v. Lee (1992); O’Connor, Sandra Day; Perry Education Association v. Perry Local Educators’ Association (1983); Rehnquist,William H.
Ronald Kahn
furthe r reading “Freedom of Speech, Press, and Association.” In “The Supreme Court, 1991 Term: Leading Cases.” Harvard Law Review 106 (1992): 279–289. Goldberger, David. “Judicial Scrutiny in Public Forum Cases: Misplaced Trust in the Judgment of Public Officials.” Buffalo Law Review 32 (1983): 175–220.
Lee v. Weisman (1992) In the Supreme Court decision Lee v.Weisman, 505 U.S. 577 (1992), a slim majority broadly interpreted the First Amendment’s establishment clause, limiting the role religion plays in public schools by prohibiting prayer at school-sponsored activities. In 1989 Principal Robert E. Lee invited Rabbi Leslie Gutterman to deliver a nonsectarian invocation and benediction at a middle school graduation ceremony in Providence, Rhode Island. Deborah Weisman was among the graduates. Her father, Daniel, unsuccessfully sought a temporary restraining order to prevent the rabbi from speaking, and the Weismans attended the ceremony. In the benediction, Rabbi Gutterman said, “O God, we are grateful to You for having endowed us with the capacity for learning. . . . We give thanks to You, Lord, for keeping us alive, sustaining us, and allowing us to reach this special, happy occasion.” Weisman then filed for a permanent injunction preventing local school officials from inviting clergy to recite prayers at school ceremonies. He argued the practice constituted governmental endorsement of religion and thus violated the First Amendment’s establishment clause. The school district responded that the prayers did not demonstrate a state endorsement of religion because they were nonsectarian, participation in the prayer itself was voluntary, and the practice was deeply rooted in American history. After the lower courts ruled for Weisman, the district appealed to the U.S. Supreme Court, where it was joined by the George H. W. Bush administration as amicus curiae. There, both the district and the administration urged the Court to use the case to overrule the three-pronged Lemon
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test, which had controlled the establishment clause cases since Lemon v. Kurtzman (1971). Writing for the Court, Justice Anthony M. Kennedy stated that “it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried out by the government, and that is what the school officials attempted to do.” Noting the possibility of psychological coercion, Kennedy stated,“The Constitution forbids the State to exact religious conformity from a student at the price of attending her own high school graduation.” Moreover, the Court declined the invitation to revisit Lemon, concluding that previous school prayer cases provided ample precedent for the case. Justice Antonin Scalia’s dissent, joined by Chief Justice William H. Rehnquist, Justice Byron R. White, and Justice Clarence Thomas, ridiculed the majority’s rejection of history and tradition in favor of “the changeable philosophical predilections of the Justices of this Court” and branded the majority’s coercion test “psychology practiced by amateurs.” Many observers were surprised at the decision, believing that the Rehnquist Court would use its first major school prayer case to overrule bans on school-sponsored prayer and the Lemon test and bring a more accommodationist perspective to the Court’s establishment clause jurisprudence. According to the papers of Justice Harry A. Blackmun, the Court was poised to uphold the practice’s constitutionality until Justice Kennedy reconsidered his vote. Since its decision in Lee v. Weisman, the Court has remained skeptical of school prayer’s constitutionality even as it has increasingly accommodated other forms of governmental involvement with religion. See also Abington School District v. Schempp (1963); Engel v.Vitale (1962); Kennedy, Anthony M.; Lemon Test; Prayer at Public School Events; Santa Fe Independent School District v. Doe (2000); Scalia, Antonin.
Brett Curry
furthe r reading Alley, Robert S. 1994. School Prayer: The Court, the Congress, and the First Amendment. Buffalo, N.Y.: Prometheus Books, 1994.
material based on a police officer’s personal observations is not constitutional, lacking judicial inquiry into the factual basis of the officer’s assertions. The Lee Theatre opened as a neighborhood movie house in Richmond, Virginia in 1935, but declining box office receipts in the 1960s prompted the owner to switch to adult films and live nude dancers. The films, declared to be obscene, led to the conviction of the theater’s operator; the Supreme Court of Appeals of Virginia denied a writ of error. The Supreme Court reversed the conviction, finding that a single officer’s “conclusory assertions,” without further judicial scrutiny, was not a procedure “designed to focus searchingly on the question of obscenity” and did not meet constitutional requirements for necessary sensitivity to freedom of expression.The Court cited Marcus v. Search Warrant (1961) as its authority. Instead of focusing on the case’s procedural question, however, Justices Hugo L. Black, William O. Douglas, and Potter Stewart, while concurring with the Court’s judgment, declared the films were not obscene according to Redrup v. New York (1967). Redrup suggested that sexually explicit communication not involving juveniles, obtrusive distribution or displays making exposure difficult to avoid, or indications of “pandering” were protected under the First Amendment.The films seized at the Lee Art Theatre did not meet any of these criteria. Lee Art Theatre raised the issue as to whether an adversarial hearing prior to the seizure of obscene material was required. Five years later, a more conservative Supreme Court ruled in Heller v. New York (1973) that such hearings were unnecessary. See also Heller v. New York (1973); Marcus v. Search Warrant (1961); Obscenity and Pornography; Redrup v. New York (1967).
Roy B. Flemming
furthe r reading Teeter, Dwight L. and Don R. Pember. 1969. “The Retreat from Obscenity: Redrup v. New York.” Hastings Law Journal 21 (November): 175.
Lee Art Theatre v. Virginia (1968)
Legal Services Corp. v. Velazquez (2001)
The Supreme Court’s per curiam reversal in Lee Art Theatre v. Virginia, 392 U.S. 636 (1968), extended greater protection to written materials by ruling that a warrant to seize obscene
The Supreme Court established limits on the government speech doctrine in Legal Services Corp. v.Velazquez, 531 U.S. 533 (2001).The Court ruled that a provision—the Omnibus
Lehman v. City of Shaker Heights (1974) Consolidated Rescissions and Appropriations Act of 1996— violated the First Amendment’s free speech clause because it was a viewpoint-based regulation of private speech, it interfered with the traditional role of lawyers, and it restricted the access of indigent persons to the resources of the legal system. In 1974 Congress enacted the Legal Services Corporation Act, creating the nonprofit Legal Services Corporation (LSC), which was responsible for distributing congressional funds to local grantee organizations that provide legal assistance to indigent persons involved in noncriminal cases.The Omnibus Consolidated Rescissions and Appropriations Act prohibited any grantee from using LSC funds to represent clients in cases that challenged the constitutionality of, or sought to change, existing welfare law. The LSC challenged the restriction as an unconstitutional viewpoint-based restriction on free speech. A federal district court rejected the group’s challenge, but a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled in LSC’s favor. On appeal, the Supreme Court held 5-4 that the restriction violated the First Amendment. The Court distinguished the case from Rust v. Sullivan (1991), in which it upheld a regulation limiting the provision of federal family planning funds to facilities that did not provide or discuss abortion-related services. Subsequent cases have clarified that Rust stands for the principle that the government may impose speech restrictions on private organizations that receive government funds, intended to convey a certain message, as long as the restrictions serve to clarify the content of this message.This helps to ensure that the public is not misinformed about elected representatives’ policies. In Velazquez (who was the respondent), the Court concluded, restrictions were not being placed on governmental speech. Writing for the Court, Justice Anthony M. Kennedy said that the LSC program was “designed to facilitate private speech” because when a lawyer is representing his or her client(s), he or she is not “the government’s speaker.” The majority found a prohibition aimed at the private speech of the legal profession to be troublesome for two reasons. First, it “distorts the legal system by altering the traditional role of the attorneys.” By restricting their ability to raise challenges to statutes during the course of litigation, the law prevented LSC-funded attorneys from raising “all the reasonable and well-grounded arguments” necessary to represent their clients properly. Second, the 1996 law’s restriction on speech presented a fundamental challenge to the separation of government powers. It required any LSC-
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funded attorney to withdraw from ongoing litigation, at any stage, if the litigation raised a question about the validity of welfare law. This, the Court observed, had the effect of “insulat[ing] the Government’s laws from judicial inquiry,” a consequence inconsistent with Chief Justice John Marshall’s famous statement in Marbury v. Madison (1803) that “[i]t is emphatically the province and the duty of the judicial department to say what the law is.” In the dissent, Justice Antonin Scalia wrote that the case was not distinguishable from Rust. He also did not see as realistic the concern, identified by the Court, that the 1996 prohibition was especially burdensome for indigent litigants because they were less likely than other clients to be able to find legal representation other than that funded by the LSC. Although Velazquez was concerned with protecting the speech of legal aid attorneys, where to draw the line between private and government speech remains a contentious issue in controversial areas such as abortion regulation. See also Kennedy,Anthony M.; Rust v. Sullivan (1991);Viewpoint Discrimination.
Helen J. Knowles
furthe r reading Jacobs, Leslie Gielow.“Who’s Talking? Disentangling Government and Private Speech,” University of Michigan Journal of Law Reform 36 (Fall 2002): 35–113.
Lehman v. City of Shaker Heights (1974) In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), the Supreme Court affirmed that city-owned public transportation is not a public forum and that a rule prohibiting political advertisements in these spaces does not violate a candidate’s free speech or equal protection rights. Harry J. Lehman, a political candidate, sought to advertise on the public transit of Shaker Heights, Ohio, but his advertisement was rejected under a rule that no political advertising could be placed in the cars. He challenged the rule on free speech and equal protection grounds. The Ohio Supreme Court held that the prohibition did not violate a candidate’s First or Fourteenth Amendment rights, and the U.S. Supreme Court affirmed. Writing for the majority, Justice Harry A. Blackmun argued that the city was engaged primarily in commerce and thus should be treated much like a newspaper or radio show,
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Lehnert v. Ferris Faculty Association (1991)
which need not accept every sort of advertisement.The only additional standard that the city must meet is that its allocation of advertisement space “must not be arbitrary, capricious, or invidious.” Blackmun wrote that the city’s decision to exclude political advertising was in this case legitimate because it has reasonable objectives of “minimiz[ing] chances of abuse, the appearance of favoritism, and the risk of imposing on a captive audience.” In his concurring opinion, Justice William O. Douglas emphasized the problem of the captive audience and the constitutional “right of commuters to be free from forced intrusions on their privacy.” In dissent, Justice William J. Brennan Jr. argued that the prohibition on political advertisements was a content-based violation of free-speech guarantees. He wrote that the majority’s ruling “reverse[s] the traditional priorities of the First Amendment” by preferring commercial speech over “ ‘uninhibited, robust, and wide-open’ debate on public issues.” The case does seem to break the mold of prior First Amendment cases, which typically placed political speech over economic speech, asked observers of offensive speech to merely “avert their eyes” (that is, Cohen v. California [1971]), and rejected distinctions based on the content of speech. The Court applied the standard of Lehman in other cases. For example, in Greer v. Spock (1976), the Court upheld a rule against political speech on military bases because “the business of a military installation [is] to train soldiers, not to provide a public forum,” at least when there is no discrimination among political ideas but the regulation is against all political speech. As in Lehman, Greer defines the primary purpose of a particular area as something that does not involve speech (that is, the purpose of buses is commerce, the purpose of military bases is the training of soldiers) and then decides that the area is not a public forum. Both cases also emphasize that by distinguishing between political and nonpolitical speech, but by not distinguishing between political viewpoints, rules such as these do not run afoul of the Fourteenth Amendment. See also Cohen v. California (1971); Commercial Speech; Greer v. Spock (1976); Public Forum Doctrine.
Ronald Kahn
furthe r reading Wells, Michael and Walter Hellerstein. “The GovernmentalProprietary Distinction in Constitutional Law.” Virginia Law Review 66 (October 1980): 1073–1141.
Lehnert v. Ferris Faculty Association (1991) Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991), is one of many Supreme Court decisions that address the limits First Amendment protections for freedom of expression impose on the expenditure of contributions that states require nonunion members to pay to the union for benefits. Michigan’s Public Employment Relations Act required James Lehnert and other members of Ferris State College to participate in an “agency-shop” arrangement whereby they paid a “service-fee” to the union that represented state employees, even though they were not members.The Court previously had upheld some elements of this act in Abood v. Detroit Board of Education (1977), but in Railway Employees’ Department v. Hanson (1956) and International Association of Machinists v. Street (1961) it had limited the use of such contributions to nonpolitical purposes. Looking at these cases, Justice Harry A. Blackmun, writing for the majority, formulated a three-part test to determine what activities a union could charge to nonunion members.This test required “that chargeable activities (1) be ‘germane’ to collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor peace and avoiding ‘free riders’; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.” In applying this test, Blackmun found that the state could not require nonunion employees “to subsidize legislative lobbying or other political union activities outside the limited context of contract ratification or implementation.” Blackmun decided that a union could charge nonunion members for “their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates” without giving “a local union carte blanche to expend dissenters’ dollars for bargaining activities wholly unrelated to the employees in their union.” He rejected union attempts to require nonmembers to support the cost of a Preserve Public Education Program that was not directly related to “the ratification or implementation of petitioners’ collective-bargaining agreement” or to “extra-unit litigation.” He struck down expenditures on public relations expenses while upholding assessments for information support services. By contrast, he upheld the chargeability of expenses incident to preparation for a strike, although he acknowledged that the state would not
Leland, John have permitted use of funds for the strike itself, which was illegal under state law. Justice Thurgood Marshall wrote a partial concurrence and partial dissent in which he said that he would have upheld assessments for lobbying costs, public relations, litigation, and de minimus publication costs to explain this litigation. In a partial dissent and concurrence, Justice Antonin Scalia (joined at some points by Justices Sandra Day O’Connor and David H. Souter), questioned the court’s three-part test and sought to justify only those dues that arose “solely from the union’s statutory duties.” He would thus not support public relations activities, lobbying expenses, the costs of sending delegates to national conventions, the costs of preparing for an illegal strike, or the like. In another partial concurrence and partial dissent, Justice Anthony M. Kennedy questioned the “malleable” nature of the Court’s test. He agreed, however, that the strike preparation activities were “indistinguishable in substance from other expenses of negotiating a collective bargaining agreement.” See also Abood v. Detroit Board of Education (1977); Blackmun, Harry A.; Kennedy, Anthony M.; International Association of Machinists v. Street (1961); Marshall,Thurgood; Railway Employees’ Department v. Hanson (1956); Scalia, Antonin.
John R.Vile
furthe r reading Siemer, Calvin. “Comment: Lehnert v. Ferris Faculty Association: Accounting to Financial Core Members: Much A-Dues About Nothing?” Fordham Law Review 60 (April 1992): 1057–1083.
Leland, John Baptist preacher John Leland (1754–1841) helped provide religious foundation for ideas espoused by Thomas Jefferson, James Madison, and other founders concerning the appropriate relationship between government and religion. Born on May 14, 1754, in Grafton, Massachusetts, Leland was an indefatigable preacher, purportedly delivering eight thousand sermons by his eightieth birthday in 1834. Leland is known not only for his fiery sermons and evangelical zeal, but also for his opposition to slavery and his advocacy of strict separation between government and religion. Leland preached freedom in all aspects of life, exhorting his listeners to be free from sin, to oppose slavery and free others from physical bondage, and to be free from the “spiritual tyranny” of state-established religion. Leland was a friend to both Jefferson and Madison; he and his fellow Baptists supported Jefferson’s initial bill to
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ensure religious liberty in Virginia, and later took up the cause when Madison reintroduced it some years later. Tensions arose between Madison and Leland over the introduction of similar protections in the federal constitution. Madison did not initially think that additional amendments were needed to protect religious liberty, while Leland and his Baptist followers sharply disagreed. In the aftermath of this split, Leland, who was then living in Virginia, had more votes than Madison for the Orange County seat at the Virginia Convention on ratifying the Constitution, despite the fact that Madison had drafted much of the Constitution. Eventually, Leland agreed to drop out of contest for the seat if Madison would work to include a religious liberty provision as an amendment to the Constitution. Madison then won out over his other opponents to attend the state ratifying convention. Leland’s ideas of separation were eventually included in the Connecticut, Massachusetts, and Virginia state constitutions. In a July 4, 1802, sermon, Leland bluntly expounded his beliefs about separation of religion and government:“Never promote men who seek after a state-established religion; it is spiritual tyranny—the worst of despotism. It is turnpiking the way to heaven by human law, in order to establish ministerial gates to collect toll. It converts religion into a principle of state policy, and the gospel into merchandise. Heaven forbids the bans [sic] of marriage between church and state; their embraces therefore, must be unlawful.” Leland had little patience for those who would use religion as an election issue. In the same Fourth of July sermon, Leland warned,“Guard against those men who make a great noise about religion, in choosing representatives. It is electioneering. If they knew the nature and worth of religion, they would not debauch it to such shameful purposes. If pure religion is the criterion to denominate candidates, those who make a noise about it must be rejected; for their wrangle about it, proves that they are void of it. Let honesty, talents and quick despatch, characterise the men of your choice.” Leland died January 14, 1841, in Cheshire, Massachusetts. His tombstone proclaimed, “Here lies the body of John Leland, who labored 67 years to promote piety and vindicate the civil and religious rights of all men.” See also Baptists; Bill of Rights; Jefferson,Thomas; Madison, James; Separation of Church and State.
John E. Ferguson Jr.
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furthe r reading Dawson, J. M. Baptists and the American Republic. Nashville, Tenn.: Broadman Press, 1956. Esbeck, Carl H. “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic.” Brigham Young University Law Review no. 4 (2004): 1385–1592.
Lemon v. Kurtzman (1971) The landmark Supreme Court case Lemon v. Kurtzman, 403 U.S. 602 (1971), established a tripartite test to determine violations of the First Amendment establishment clause.The Court found that two states violated the establishment clause by making state financial aid available to “church-related educational institutions.” Pennsylvania and Rhode Island enacted legislation permitting tax-funded reimbursement to church-affiliated schools, covering expenses such as teacher salaries and the costs of textbooks and other instructional materials. Because educational costs were rapidly increasing, subjecting parochial schools to increasing budget constraints, the states offered financial assistance programs in an effort to secure the quality of education at church-affiliated schools. In response to the payments, the plaintiff taxpayers filed suits in federal courts alleging the states violated the First Amendment by “respecting” an establishment of religion. After district courts delivered conflicting decisions, the Supreme Court granted certiorari and consolidated the cases for review. Chief Justice Warren E. Burger wrote the Court’s unanimous decision, reviewing the language and history of establishment clause jurisprudence and observing,“A law may be one ‘respecting’ the forbidden objective [the establishment of religion] while falling short of its total realization.”After noting the vague constitutional language of the First Amendment, the Court turned to the question of creating a workable doctrine to determine whether an establishment had taken place. To discern a violation, the majority identified and combined three distinct approaches previously used in establishment clause controversies: the secular purpose doctrine, which it took from Abington School District v. Schempp (1963); the principal or primary effects doctrine, citing Board of Education v.Allen (1968); and the excessive entanglement test, citing Walz v.Tax Commission (1970).This three-part doctrine is known as the Lemon test, and although questioned by some justices on the Court, it remains the dominant jurisprudential rule for establishment clause cases.The Court voids laws in which it finds a violation of any of these elements.
Applying the secular purpose prong of the three-part test to the Pennsylvania and Rhode Island programs, the Court found no inadmissible legislative purpose; the reimbursement plans were designed to ensure the quality of student education, not to promote religious education. The Court did not apply the second “principal or primary effect” prong, however, because it found a violation of the excessive entanglement doctrine, ruling that “[a] comprehensive, discriminating, and continuing state surveillance will inevitably be required” to certify that state funds are not being used to advance religious teachings at the schools. The Court has applied the Lemon doctrine inconsistently, and it modified the test in Agostini v. Felton (1997). The Agostini decision announced that the entanglement test is not an independent and distinct test, but it should be viewed in concert with other factors as part of the effects test. Some justices advocate abandoning the Lemon test in favor of looking at whether the government improperly forced or coerced someone into some religious activity (the coercion test) or improperly endorsed religion (the endorsement test). See also Abington School District v. Schempp (1963); Agostini v. Felton (1997); Board of Education v. Allen (1968); Lemon v. Kurtzman (1973); Lemon Test;Walz v.Tax Commission (1970).
Geoff McGovern
furthe r reading Choper, Jesse H., Richard H. Fallon Jr., Yale Kamisar, and Steven Shiffrin. Constitutional Law. 9th ed. St. Paul, Minn.: West Group, 2001. Gunther, Gerald, and Kathleen Sullivan. Constitutional Law. 13th ed. New York: Foundation Press, 1997. Richards, Mark, and Herbert Kritzer. “Jurisprudential Regimes in Supreme Court Decision Making.” American Political Science Review 96 (2002): 305–320.
Lemon v. Kurtzman (1973) The Supreme Court decision Lemon v. Kurtzman, 411 U.S. 192 (1973), is commonly referred to as Lemon II because it affirms an earlier ruling in Lemon v. Kurtzman (1971) or Lemon I.The Lemon II ruling allowed Pennsylvania to reimburse religion-affiliated schools for costs and services accrued prior to such payments being invalidated in Lemon I as a violation of the First Amendment’s establishment clause. In the 1971 case, the Court developed the Lemon test to overturn state laws aiding parochial schools. Specifically, the Court found that the laws had the impermissible effect of creating “excessive entanglement” between church and state.
Lemon Test On remand, the district court enjoined any payments made under the reimbursement program but allowed Pennsylvania to reimburse the schools for services rendered before the Lemon I decision. Appellants challenged the ruling, but the Supreme Court affirmed. Lemon II modified the impact of the first case by denying that it needed to be retroactively applied to payments a state had already promised to parochial schools for mandated services. Chief Justice Warren E. Burger’s opinion for the majority observed the difficulty of reconciling new rules “with reliance interests founded upon the old.” He further stressed the broad discretion that the Supreme Court generally extended to lower courts in such circumstances. In this case, payment of funds for past programs would require a minimal audit that did not present the “risk of significant intrusive administrative entanglement, since only a final post-audit remains and detailed state surveillance of the schools is a thing of the past.” Moreover, it enabled the state to make up for “the expenses incurred by the schools in reliance on the state statute.” Burger observed that the appellants in the case had not initially questioned past payments but only made the claim after their success in Lemon I. In a federal system, institutions could not expect to cease dealings with, or reliance on, states until federal courts approved their laws. Justice William O. Douglas wrote a dissent, which Justices William J. Brennan Jr. and Potter Stewart joined. Citing James Madison’s Memorial and Remonstrance, Brennan said that the ban on state monies going to parochial schools should be complete, and he saw nothing in past precedents that should have given states any confidence that such payments would be upheld. New York v. Cathedral Academy (1977) refused to extend this decision beyond the date of Lemon I. See also Aid to Parochial Schools; Burger, Warren E.; Douglas, William O.; Federalism; Lemon v. Kurtzman (1971); Lemon Test; Memorial and Remonstrance; New York v. Cathedral Academy (1977).
John R.Vile
furthe r reading Quinn, Brian. “Comment: Michigan’s Civil Retroactivity Jurisprudence: A Proposed Framework.” Law Review of Michigan State University—Detroit College of Law 2002 (Spring): 933.
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Lemon Test The Supreme Court often uses the three-pronged Lemon test when it evaluates whether a law or governmental activity violates the establishment clause of the First Amendment. Establishment of religion cases tend to involve government aid to religion, such as aid to parochial schools, or the introduction of religious observances into the public sector, such as school prayer. The Court measures the aid or program against the prongs of the test. The Lemon test, considered aptly named by its critics, derives its name from the landmark decision in Lemon v. Kurtzman (1971). Lemon represented the refinement of a test the Supreme Court announced in Walz v. Tax Commission (1970). Writing for the majority in Walz, Chief Justice Warren E. Burger took the traditional purpose and effect test the Court had been using since Everson v. Board of Education (1947) and added the excessive government entanglement prong to the test. Under these guidelines, the Court would examine the proposed aid to the religious entity and ensure that it had a clear secular purpose. The Court also would determine if the primary effect of the aid would advance or inhibit religion. For the third prong, added in the Walz case, the Court would examine whether the aid would create an excessive governmental entanglement with religion. In Lemon v. Kurtzman Burger, again writing for the unanimous Court, attempted to clarify some of the confusion regarding the meaning of the excessive governmental entanglement prong of the test. To determine whether the program created an impermissible entanglement between religion and government, there were three factors the Court had to weigh. The Court would look at the character and purpose of the institution that benefited, the nature of the aid the state was providing, and the resulting relationship between the government and the religious institution. If the program failed any single part of the test, it would render the aid an unconstitutional violation of the establishment clause. The Court expressed concern regarding the question of political division. According to Burger, the “potential for political divisiveness” of religious programs was “a principal evil” the First Amendment was designed to prevent. In applying the test to various programs under review, the Court generally concedes the first prong, refusing to secondguess the legislature’s purpose. Only a handful of programs fail to meet the “effect” part of the test.The key provision of the test normally lies in the excessive governmental entanglement prong.
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Levitt v. Committee for Public Education and Religious Liberty (1973)
If, as is believed, Burger intended this to be a relatively accommodationist test, he would be disappointed. For about two decades, the test generally was used by the Court to erect a wall of separation between church and state. Ultimately, excessive entanglement is in the eye of the beholder. Justices who favor separation can use the test to find a violation of the establishment clause, whereas supporters of accommodation could use the same test to uphold the practice or program in question. Indeed, critics of the Court’s jurisprudence have argued that application has exhibited a great deal of inconsistency, which filters to the legislatures that pass such programs and the lower courts that have to evaluate them. Both justices and legal analysts have attacked the Lemon test. As the Court became more conservative, the move to accommodation gained momentum. In Lee v. Weisman (1992), the Court considered whether a nondenominational prayer could be offered at a high school graduation ceremony. Chief Justice William H. Rehnquist argued for a nonpreferentialism test, Justice Sandra Day O’Connor advocated a religious endorsement test, and Justice Antonin Scalia continued to advance a noncoercive test; however, Justice Anthony M. Kennedy, who wrote the opinion in Lee, joined those who supported the preservation of the Lemon test. Many analysts had predicted the demise of Lemon. In the 1993 decision Lamb’s Chapel v. Center Moriches Union Free School District, Scalia famously observed that “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again.” In Agostini v. Felton (1997), the Court modified the Lemon test by folding the entanglement prong into the primary effects prong. The repeated criticisms and modifications of Lemon, in addition to other tests used by the justices in the establishment clause area, mean that the test has an uncertain future. See also Accommodationism and Religion;Aid to Parochial Schools; Burger, Warren E.; Endorsement Test; Everson v. Board of Education (1947); Lee v.Weisman (1992); Lemon v. Kurtzman (1971); Lemon v. Kurtzman (1973); Wall of Separation; Walz v. Tax Commission (1970).
Richard L. Pacelle Jr.
furthe r reading Kobylka, Joseph. “The Mysterious Case of Establishment Clause Litigation: How Organized Litigants Foiled Legal Change.” In Contemplating Courts, ed. Lee Epstein. Washington, D.C.: Congressional Quarterly.
Urofsky, Melvin. The Continuity of Change: The Supreme Court and Individual Liberties, 1953–1986. Belmont, Calif.:Wadsworth, 1991.
Levitt v. Committee for Public Education and Religious Liberty (1973) In Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472 (1973), the Supreme Court held that lumpsum payments by a state government to religious schools for administrative costs violate the establishment clause of the First Amendment. The case was a companion to Committee for Public Education and Religious Liberty v. Nyquist (1973), in which the Court held that a state statute providing monetary grants to religious schools for the maintenance and repair of school facilities violated the establishment clause. The New York Legislature, under comptroller Levitt and Commissioner of Education Nyquist, appropriated $28 million dollars to reimburse private schools for expenses the schools might incur for testing and other administrative tasks.The funds were specifically intended to reimburse private schools for performing services the state mandated. For example, the statute provided funds for private schools to administer standardized tests. Nyquist interpreted the statute to include religious schools as potential beneficiaries of the funds. Writing for the Court, Chief Justice Warren E. Burger explained that the establishment clause of the First Amendment bars reimbursement of religious schools for administrative costs.The statute’s provision of funds for testing, for example, made no attempt to “assure that internally prepared tests are free of religious instruction.” Although providing funds for textbooks and state-prepared tests may be constitutionally permissible, Chief Justice Burger explained, teacher-produced tests (which are prevalent in nonpublic schools) were suspect because a teacher’s handling of the subjects that textbooks introduce cannot reliably be controlled. Because there is a “substantial risk that these examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church,” the use of public funds to administer those examinations constituted impermissible aid to religion. Justice Byron R.White, the only dissenter, did not file an opinion.
Lewis v. City of New Orleans (1974) See also Aid to Religious Colleges and Universities; Burger,Warren E.; Committee for Public Education and Religious Liberty v. Nyquist (1973).
Winston E. Calvert
furthe r reading Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. Chapel Hill: University of North Carolina Press, 1994.
Levy, Leonard Leonard W. Levy (1923–2006) was an influential scholar and historian whose works on the Constitution and Bill of Rights have been widely read, cited, debated, and discussed. He wrote nearly forty books, including the controversial Legacy of Suppression: Freedom of Speech and Press in Early American History (1960), Origins of the Fifth Amendment: The Right against Self-Incrimination (1969), Emergence of a Free Press (1985), and The Establishment Clause: Religion and the First Amendment (1994). Born in Toronto in 1923, Levy obtained his undergraduate degree from the University of Michigan and his Ph.D. from Columbia University. His academic career took him to Brandeis University, Claremont Graduate School, and Southern Oregon State College. He won a Pulitzer Prize for his Origins of the Fifth Amendment in 1969. His Legacy of Suppression work caused controversy because Levy concluded that the nation’s founders (including Thomas Jefferson, whom he credited in other works with furthering the idea of separation of church and state) intended only limited protection for freedom of speech and press under the First Amendment. He later revised his views in Emergence of a Free Press. The Supreme Court has cited Levy’s work in numerous First Amendment decisions. For example, the Court cited Legacy of Suppression in the following free expression decisions: Braden v. United States (1961), New York Times Co. v. Sullivan (1964), Curtis Publishing Co. v. Butts (1967), Time, Inc. v. Hill (1967), Gertz v. Robert Welch, Inc. (1974), and First National Bank of Boston v. Bellotti (1978).The Court cited his Emergence of a Free Press in Ward v. Rock against Racism (1989), and McIntyre v. Ohio Elections Commission (1995). Writing on Levy’s passing at the age of eighty-three in 2006, First Amendment scholar Ronald K. L. Collins called Levy “one of the great constitutional scholars of our time.” See also Collins, Ron; Curtis Publishing Co. v. Butts (1967); Jefferson,Thomas; New York Times Co. v. Sullivan (1964).
David L. Hudson Jr.
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furthe r reading Collins, Ronald K. L. “Famed First Amendment Scholar Leonard W. Levy Dies.” First Amendment Center, August 30, 2006. www.first amendmentcenter.org/analysis.aspx?id=17336. Liptak, Adam. “Leonard Levy, 83, Expert on Constitutional History.” New York Times, September 1, 2006, p. C11.
Lewis v. City of New Orleans (1974) In Lewis v. City of New Orleans, 415 U.S. 130 (1974), the Supreme Court struck down a New Orleans ordinance making it unlawful and a breach of the peace to curse, revile, or use obscene or abusive language to a police officer in the line of duty, finding it overbroad and in violation of the First Amendment right of protected speech and the Fourteenth Amendment. On January 3, 1970, Mallie Lewis and her husband were in a truck following a police car in which their young son, just arrested, was being driven to a police station to be booked. A police officer in another patrol car stopped the Lewis’s truck, got out of his car, and asked to see Mr. Lewis’s driver’s license. Ms. Lewis allegedly got out of the truck and exchanged words with the officer, but their testimonies differ about who said what.The officer testified that Ms. Lewis yelled at him, calling him “god damn m. f. police” and threatening to report him to the chief of police. She denied using profanity toward the officer. As she was getting back into the truck, the officer tried to arrest her. She resisted, and it took two police officers to subdue her. She was arrested, charged, and convicted for resisting arrest and for reviling a police officer in violation of the city ordinance. She appealed only her conviction of reviling a police officer. After the Court had previously remanded this case to the Louisiana Supreme Court in light of its decision in Gooding v.Wilson (1972), the Louisiana Court had once again upheld the conviction. By contrast, the U.S. Supreme Court found that the ordinance did not meet the Court’s definition of fighting words under Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson and thus was overbroad and violated the First and Fourteenth Amendments.Words that are merely vulgar and offensive are protected speech, as the Court determined in Cohen v. California (1971) and Terminiello v. Chicago (1949). Justice William J. Brennan Jr. wrote the majority opinion, in which Justices William O. Douglas, Potter Stewart, Byron R. White, and Thurgood Marshall joined. Justice Lewis F. Powell Jr. wrote a concurring opinion.
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Lewis Publishing Company v. Morgan (1913)
In the dissent, joined by Chief Justice Warren E. Burger and Justice William H. Rehnquist, Justice Harry A. Blackmun wrote that the Court’s recent jurisprudence regarding the overbreadth and vagueness doctrines was being applied indiscriminately.They would have upheld the ordinance. See also Brennan, William J., Jr.; Chaplinsky v. New Hampshire (1942); Cohen v. California (1971); Fighting Words; Gooding v. Wilson (1972); Profanity;Terminiello v. Chicago (1949).
Judith Haydel
furthe r reading Friedlieb, Linda. “The Epitome of an Insult: A Constitutional Approach to Designated Fighting Words.” University of Chicago Law Review 72 (2005): 385–415. Hudson, David L., Jr. “Fighting Words: Overview.” First Amendment Center. www.firstamendmentcenter.org/speech/personal/topic .aspx?topic=fighting_words. (accessed July 11, 2006). O’Neil, Robert M.“Enduring and Empowering:The Bill of Rights in the Third Millennium: Rights in Conflict:The First Amendment’s Third Century.” Law & Contemporary Problems 65 (2002): 7.
Lewis Publishing Company v. Morgan (1913) A consolidation of two cases, the Supreme Court in Lewis Publishing Company v. Morgan; Journal of Commerce and Commercial Bulletin v. Burleson, 229 U.S. 288 (1913), unanimously found that a provision of the U.S. Post Office act did not violate the First Amendment rights of freedom of the press and due process. The two cases involved the constitutionality of a provision of the Post Office Appropriation Act of August 24, 1912, which required editors of newspapers and similar periodicals to furnish the Post Office with the names and addresses of the editors and major shareholders and further required that any editorials for which payments were made be clearly labeled as advertisements.The newspapers attacked these provisions as violations of freedom of the press and due process but lost their case in a U.S. district court in New York and appealed to the U.S. Supreme Court. Writing for the Court, Chief Justice Edward D. White observed that the Post Office had long discriminated in favor of the dissemination of news by designating newspapers as second-class mail, which it charged substantially less to send. He found the regulations at issue to be consistent with the government’s interest in ensuring that those to whom it was extending such benefits legitimately qualified
for them. He found that the governmental requirements were incidental to its power to regulate the mails. He observed that the government was not attempting to regulate the press in general but “solely and exclusively with the right on behalf of the publishers to continue to enjoy great privileges and advantages at the public expense, a right given to them by Congress upon condition of compliance with regulations deemed by that body incidental and necessary to the complete fruition of the public policy lying at the foundation of the privilege accorded.” Author Michael Gibson observed that the decision “was a sheep in wolf ’s clothing for the press.” He explained that “[t]he newspaper lost its case but the press as a whole gained Supreme Court approval of its mail subsidy and the seeds of modern content-neutrality doctrine” (1986: 301). See also Mail.
John R.Vile
furthe r reading Gibson, Michael T. “The Supreme Court and Freedom of Expression from 1791 to 1917.” Fordham Law Review 55 (1986): 263–333.
Libel and Slander Libel, as defined in Black’s Law Dictionary, is “any publication that is injurious to the reputation of another.” Slander, on the other hand, is the “speaking of base and defamatory words tending to prejudice another in his reputation, office, trade, business, or means of livelihood.” Thus, libel is written defamation; slander is spoken. Until the second half of the twentieth century, defamation was not protected by the First Amendment. Laws regulating libel and slander can be traced to preNorman times, when the church in medieval England assumed the primary role of resolving disputes over alleged damage to reputation.When libel or slander was proven, the most frequent remedy was a public apology. The church’s role continued after the Norman Conquest in 1066, when ecclesiastical courts were created to hear matters involving spiritual wrongs. During the ensuing centuries, the jurisdiction of the church gradually gave way to that of the British judicial system, first to the Court of the Star Chamber—which primarily heard cases of seditious libel—and eventually to common law courts. As the British common law developed, a person complaining of libel or slander needed to prove only
Libel and Slander that another person made a defamatory statement about him and that the statement injured his reputation. If the statement accused the person of a crime, of suffering from a contagious disease, or of being unfit for his work because of dishonesty or incompetence, however, injury to reputation could be presumed. The person who made the statement could escape liability if he could prove his statement was true. These common law concepts provided the bases for libel and slander laws in the United States until well into the twentieth century.While these laws varied from state to state, they generally provided that a libel or slander plaintiff needed to prove four elements to prevail: (1) that the defendant made a statement of fact to one or more other persons; (2) that the statement was about the plaintiff; (3) that the statement was defamatory; and (4) that the statement injured the plaintiff ’s reputation. In most states, the law presumed the defamatory statement to be false but allowed the defendant to defeat the claim by proving the statement true. Under the common law, it also usually was irrelevant whether the defendant was careful, negligent, or reckless in making the statement. Until 1964, courts included libel and slander in the types of speech that were not protected by the First Amendment. In Chaplinsky v. New Hampshire (1942), the Court spoke of categories of speech “the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In 1964, however, the Court in New York Times Co. v. Sullivan for the first time found a “Constitutional problem” in subjecting speech about public officials to common law defamation liability. In Sullivan, L. B. Sullivan, the commissioner in charge of the police department of Montgomery, Alabama, sued the Times over an advertisement decrying abuses suffered by southern black students during the civil rights movement. The ad contained several factual errors, particularly in describing events involving the Montgomery police department. No one at the newspaper, however, had attempted to verify the content of the ad. Under Alabama common law, falsity and injury to reputation were presumed. In light of the factual errors in the ad, the Times could not prove truth. The jury awarded Sullivan $500,000, a verdict later upheld by the Alabama Supreme Court.
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In reversing the orders of the Alabama courts, the U.S. Supreme Court held that the common law of Alabama (and thus of all other states as well) was “constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.” These safeguards are necessary, the Court said, to protect and advance the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” To protect this commitment adequately, the Court said, it is necessary to protect the erroneous statements about public officials that are “inevitable in free debate.” Otherwise, critics of public officials will self-censor their speech for fear of potentially unlimited liability. To prevent this chilling effect on speech, the Court declared that “constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice,” or “with knowledge that it was false or with reckless disregard of whether it was false or not.” Three years later, in two companion cases, Curtis Publishing Co. v. Butts and Associated Press v. Walker (1967), a sharply divided Court extended the protection of the actual malice standard to cases brought by public figures. The Court’s rationale was explained most clearly in a concurring opinion written by Chief Justice Earl Warren, who wrote that “Increasingly in this country, the distinctions between governmental and private sectors are blurred” and that, as a result, many persons who are not public officials are “intimately involved in the resolution of important public questions” and “often play a role in ordering society.” The public debate about these persons, the Court held, accordingly should be as robust and wide-open as that about public officials. The Court examined the public figure issue in detail in Gertz v. Robert Welch, Inc. (1974). In the course of holding that Elmer Gertz, a prominent Chicago attorney, was not a public figure, the Court created three categories of public figures.The first is the “all-purpose” public figure, the person who occupies a position of such “persuasive power and influence” or has such “pervasive fame or notoriety” that he or she is deemed a public figure “for all purposes and in all contexts.” The second is the “voluntary, limited-purpose”
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public figure, who voluntarily thrusts himself or herself “to the forefront of particular public controversies in order to influence the resolution of the issues involved.”The third is the “involuntary” public figure, who through no “purposeful action” of his or her own is “drawn into a particular public controversy.” All-purpose public figures, the Court held, must prove actual malice to recover for any defamatory statement made about them. Limited-purpose and involuntary public figures, however, need only prove actual malice if the statement at issue involves the public controversy that made the person a limited-purpose or involuntary public figure.While a state’s common law can permit a private figure to recover without proving actual malice, the law must require the private figure to prove at least negligence in order to recover compensatory damages. To recover punitive damages, even private figures must prove actual malice. The Court’s constitutionalization of libel and slander law continued in Philadelphia Newspapers, Inc. v. Hepps (1986), in which it clarified that plaintiffs must prove falsity of allegedly defamatory statements, and in Milkovich v. Lorain Journal Co. (1990), in which it held that “a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” While the burden of proof for libel and slander plaintiffs is much higher today than it was under the common law, defendants enjoy greater defenses, as well. Even if a plaintiff can prove falsity, for example, a defendant can avoid liability by proving the statement was substantially true. State laws typically protect fair reports of meetings of public bodies and all statements made in judicial, legislative, and administrative proceedings. Defendants also occasionally can persuade a court that the plaintiff ’s reputation is so poor that was is impossible to libel or slander the plaintiff any further. The balancing of reputational and First Amendment interests, however, probably never will be fully settled. Issues never dreamed of by the Court when it decided Sullivan— such as the rights and responsibilities of Internet publishers, bloggers, and Web sites that post comments of third persons—likely will challenge judges and legislators for some time. As the common law of libel and slander evolved for centuries, so too will the constitutional law that replaced it. See also Actual Malice; Associated Press v. Walker (1967); Chaplinsky v. New Hampshire (1942); Curtis Publishing Co. v. Butts (1967); Gertz v. Robert Welch, Inc. (1974); Milkovich v. Lorain
Journal Co. (1990); New York Times Co. v. Sullivan (1964); Philadelphia Newspapers, Inc. v. Hepps (1986); Public Figures and Officials; Star Chamber.
Douglas E. Lee
furthe r reading Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991. Sack, Robert D., ed. Sack on Defamation: Libel, Slander and Related Problems. 3d ed. New York: Practising Law Institute, 1999.
Liberty Legal Institute Begun in 1997 by Texas attorney Kelly Shackleford, Liberty Legal Institute (LLI) is the legal arm of the Free Market Foundation and has been described as the “flip side to the ACLU.” A 501(c)(3) corporation based in Plano, Texas, it provides free legal services and support to those dealing with religious liberty issues. Supported by donations and through awards of attorney’s fees from cases, LLI claims a network of over 120 attorneys across Texas. LLI’s mission statement declares that its goals are “[t]o achieve expanded religious freedom and family autonomy through litigation and education designed to limit the government’s power, increase the religious rights of citizens and promote parental rights.” LLI’s parent company, the Free Market Foundation, was founded in 1972 with the mission “[t]o protect freedoms and strengthen families throughout Texas by impacting our legislature, media, grassroots, and courts with the truth.To do this we are guided by the principles, which limit government, promote free enterprise and Judeo-Christian values.” Associated in 1989 with Dr. James Dobson’s Focus on the Family, the Free Market Foundation serves as Focus on the Family’s public policy base in Texas. In 1997 Shackelford, a graduate of Baylor Law School, became president of the Free Market Foundation and set up LLI after his tenure as an attorney for the Rutherford Institute. LLI’s cases have included Barrow v. Greenville Independent School District (5th Cir. 2003) and HEB Ministries v. Texas Higher Education Coordinating Board (Tex. App. 2003), which was brought before the Supreme Court of Texas in January 2005. In Barrow, a teacher was denied a promotion to principal because her children attended a private religious school. It was alleged that the district superintendent, citing district policy that all principals and administrators enroll their children in public school, told Ms. Barrow she would not be promoted until she complied. LLI intervened and after a trial
Liberty Model court found for the district, Shackleford appealed to the Fifth Circuit Court of Appeals.The appeals court found for Ms. Barrow and awarded LLI attorney fees. In HEB Ministries v. Texas Higher Education Coordinating Board, LLI took up the cause of religious schools that were fined by the state for calling themselves “seminaries” without first meeting certain state requirements and won the case before the Texas Supreme Court (2005). LLI purports to have either won or settled every case it has accepted. While supporters applaud LLI’s willingness to support certain issues, others argue that LLI promotes a dogmatic, right-wing agenda that is hurting schools and communities. Shackelford’s response to those who claim he is hurting public schools with LLI’s lawsuits and associated legal fees is that this is merely the cost of government not doing the right thing in the first place. While LLI focuses primarily on litigation, it also provides educational resources. Its guides cover such controversial topics as politics in the pulpit, religious speech in the workplace, and religious expression in public places. LLI also produces a Texas voter’s guide for Focus on the Family. See also American Civil Liberties Union; Religious Right.
John E. Ferguson Jr.
furthe r reading Liberty Legal Institute, www.libertylegal.org. Free Market Foundation, www.freemarket.org.
Liberty Model Law professor C. Edwin Baker developed the “liberty model” of the First Amendment as an alternative to the model of the “marketplace of ideas,” which the Supreme Court has often cited in its decisions. Baker (1989) believes that the marketplace model, which he largely traces to John Stuart Mill’s On Liberty, is unpersuasive because it rests on unproven ideas that truth is objective and discoverable, that people are basically rational, and that this rationality would enable individuals to judge such truths (pp. 6–7). Baker similarly rejects the idea that the First Amendment was primarily designed to protect “political speech”; indeed, he argues that this is simply an attempt to adapt the marketplace of ideas approach to the political arena (p. 28). Baker says that in his liberty model,“Speech or other selfexpressive conduct is protected not as a means to achieve a collective good but because of its value to the individual” (p.
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5). Baker describes his model as embracing the idea “that the first amendment protects a broad realm of nonviolent, noncoercive, expressive activity” (p. 47). He believes such non violent, noncoercive speech serves two primary values, namely, “self-fulfillment” and “self-realization” (p. 47). Democracies properly promote policies that promote “equal respect for persons as autonomous agents” (p. 49). With such an understanding, it is possible to restrain three distinct types of speech. These are “speech involved in an actual or attempted taking of, or physical injury to, another’s person or property” (p. 59); speech “not chosen by the speaker and which, therefore, cannot be attributed to the speaker’s manifestation of her substantive values” (p. 59; Baker includes most commercial speech in this category); and “speech designed to disrespect and distort the integrity of another’s mental processes or autonomy” (pp. 59–60).The latter includes such “speech activities such as fraud, perjury, blackmail, espionage, and treason” (p. 60). With the exception of these three categories of expression, however, Baker’s theory does provide a rationale for the protection of nonviolent symbolic speech (such as wearing arm bands or other political symbols). Although Baker does not believe that constitutional literalism or reliance on the intentions of the framers is an adequate method of constitutional interpretation, he maintains that advocates of First Amendment absolutism have often come closer to protecting First Amendment values than have advocates of “balancing.” Baker believes that his model of free speech gives greater coherence to the First Amendment: “first amendment protections of speech, assembly, and free exercise of religion are merely different markers bounding a single realm of liberty of self-expression and self-determination” (p. 5). Baker points out that Thomas Emerson, a noted First Amendment scholar, treats freedom of the press somewhat differently, defending what he calls “the ‘fourth estate’ theory of the press” that he attributes to Justice Potter Stewart (p. 225). This theory, which in turn dates back to a comment by the English philosopher Edmund Burke, notes the role of the press as a “Fourth Estate” (balancing the three estates—clergy, nobility, and commoners—represented within Parliament). Baker recognizes special rights for the press that allow it to defend itself. Arguing that his theory “justifies only ‘defensive’ constitutional rights” for the press, he observes that “despite their instrumentalist foundation, [these rights] should generally take an absolute form” (p. 225).
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See also Absolutists;Ad Hoc Balancing; Baker, C. Edwin; Emerson, Thomas; Marketplace of Ideas; Mill, John Stuart; On Liberty; Stewart, Potter.
John R.Vile
furthe r reading Baker, C. Edwin. Advertising and a Democratic Process. Princeton, N.J.: Princeton University Press, 1994. ———. Human Liberty and Freedom of Speech. New York: Oxford University Press, 1989. ———. Media, Markets, and Democracy. Cambridge; New York: Cambridge University Press, 2002. Greenawalt, Kent.“Free Speech Justifications.” Columbia Law Review 89 (1989): 119–155.
Libraries and Intellectual Freedom The First Amendment’s right to freedom of expression encompasses intellectual freedom, which includes an individual’s right to receive information on a wide range of topics from a variety of viewpoints. Publicly funded libraries play an important role in facilitating free and open access to information. In 1948 the American Library Association promulgated the Library Bill of Rights, which affirms the principle that libraries protect the First Amendment and intellectual freedom. As agents of the state, public librarians and state and local governing boards make and implement library policy under the Tenth Amendment’s recognition of state powers to protect the health, safety, welfare, and morals of their citizens. Setting library policy includes deciding what material to include in the collection; developing guidelines on library Internet use; and protecting patron confidentiality. Librarians and their governing boards have wide discretion when selecting library material. Such decisions are typically influenced by the library’s mission, funding, available space, and other factors. Once material is included in a collection it can be removed for several reasons. For example, librarians legitimately can remove outdated, damaged, or unused material. These decisions are content-neutral. Removing library material solely on the basis of its content may amount to censorship in violation of the First Amendment. Public school libraries are particularly vulnerable to challenges regarding library material because schools educate children and instill in them community values. Public libraries also face these challenges, but to a much lesser extent. Members of a community can object to library material they consider inappropriate on the basis of their
religious, political, or other beliefs. Most challenges are made by those opposed to a specific book, such as The Adventures of Huckleberry Finn, or a category of subject matter, such as homosexuality. The most frequent challenges are from parents, and the most frequent reasons for these challenges are claims that the material either is sexually explicit or contains obscene or offensive language to which they do not want their children exposed. Although challenges have increased since the 1950s, few end up in court (see Burress 1989; American Library Association, “Challenges”). However, there are legal precedents for resolving these challenges. In Board of Education, Island Trees Union Free School District v. Pico (1982), a plurality of Supreme Court justices affirmed that students have a First Amendment right to receive information and school boards cannot remove books from school libraries for political reasons. The Court did add that school boards could remove books that were “pervasively vulgar.” Providing Internet access in libraries also poses problems. It is expensive, and many libraries must rely on federal funding to purchase and install computers and to maintain Internet access. Limited physical space can force libraries to place Internet access computers in areas where children can view inappropriate material that adults have a First Amendment right to access. Public officials have the power to regulate library Internet use to protect minors from viewing inappropriate material, but doing so entails placing content-based restrictions on Internet use. At the end of 2007, twenty-one states had enacted Internet filtering laws that apply to public schools and libraries.These laws vary in their scope and content (see Web site of the National Conference of State Legislatures). Congress has also enacted several laws to protect minors from accessing indecent and inappropriate material via the Internet. To pass First Amendment muster, these content-based restrictions must be narrowly tailored to serve a legitimate government interest. Not all laws have passed this test. However, in United States v. American Library Association (2003), the Supreme Court upheld the part of the Children’s Internet Protection Act of 2000 that requires libraries to install filters on Internet computers in order to qualify for federal funding and discounts for computers and computer access. Without a reasonable expectation of privacy regarding the material they check out of a library and their Internet use in a library, individuals’ intellectual freedom is compromised. But sometimes such expectation of privacy can conflict with government attempts to protect national security. For exam-
Licensing Laws ple, although the USA Patriot Act prohibits investigations that intrude on First Amendment rights, Title 18 of the U.S. Code, section 2709, grants the Federal Bureau of Investigation authority to issue national security letters requiring the recipients (including corporations, doctors, or libraries) to turn over business, medical, and other personal information pertaining to their clients. The act encompasses records of library patrons’ Internet use and other personal information. Section 2709(c) places a “gag order” on the recipients, precluding them from disclosing the fact that they received the letters. In May of 2008, members of the American Civil Liberties Union and the Electronic Frontier Foundation were able to use a 2006 amendment to the Patriot Act protecting libraries to get the Federal Bureau of Investigation to withdraw a national security letter that it had issued to the Internet Archive (“FBI Withdraws . . .” 2008). See also American Library Association; Ashcroft v. American Civil Liberties Union (2002) (2004); Ashcroft v. Free Speech Coalition (2002); Board of Education, Island Trees Union Free School District v. Pico (1982); Book Banning; Censorship; Child Online Protection Act of 1998; Children’s Internet Protection Act of 2000; Privacy; United States v. American Library Association (2003); USA Patriot Act of 2001.
Judith Haydel
furthe r reading American Library Association. “Challenges by Initiator, Institution, Type, and Year.” www.ala.org/ala/oif/bannedbooksweek/ bbwlinks/challengesinitiator.htm. ———.“Library Bill of Rights.” www.ala.org/ala/oif/statementspols/ statementsif/librarybillrights.htm. Burress, Lee. Battle of the Books: Literary Censorship in Public Schools, 1950–1985. Metuchen, N.J.: Scarecrow Press, 1989. Electronic Frontier Foundation. “FBI Withdraws Unconstitutional National Security Letter after ACLU and EFF Challenge.” http://www.eff.org/press/archives/2008/05/06. National Conference of State Legislatures.“Children and the Internet: Laws Relating to Filtering, Blocking and Usage Policies in Schools and Libraries.” www.ncsl.org/programs/lis/cip/filterlaws.htm. Rubin, Richard E. Foundations of Library and Information Science. New York: Neal-Schuman, 2000.
License Plates See Specialty License Plates
Licensing Laws The theory of license has its origins in antiquity and is derivative of the authority of the sovereign. The Oxford English Dictionary defines license as “a permit from an authority to
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own, use, or do something.” Anglo-American common law tradition includes sovereign authorization of exclusive rights through patents, copyrights, licenses, issuances, permits, proprietaries, prerogatives, and other privileges. In the United States, the power to grant and require licenses is balanced by the constitutional protections of federalism. Under the First Amendment, such licenses require carefully crafted legislation and administrative regulations to ensure that their impingement upon guaranteed rights is minimized while the promotion of targeted public policies is maximized. Licensing powers are concurrently exercised in the United States by federal, state, and local governments. The licensure of business operations through permits is traditionally a state or local power, while regulation of corporate activities is primarily a federal power based on the commerce clause. The regulation of inventions and creative works through copyrights and patents is primarily a federal power enumerated in Article 1, section 8, of the Constitution. This federal power is complemented by state regulation of trade secrets, rights of publicity, and to the extent not limited by federal power, common law copyright protection. Trademarks and trade secrets are regulated by a combination of federal and state authority.The federal government derives from the commerce clause its authority to regulate these types of intellectual property. The licensing of actions not commonly associated with expression is given little, if any, First Amendment scrutiny.As the Supreme Court noted in City of Lakewood v. Plain Dealer Publishing Co. (1988), “Laws of general application that are not aimed at conduct commonly associated with expression and do not permit licensing determinations to be made on the basis of ongoing expression or the words about to be spoken, carry little danger of censorship.” The licensing of expressive acts, however, must be carefully reviewed. In cases where regulations discriminate on the basis of the content of speech, the Court will apply a strict scrutiny standard that it would not apply in the case of content-neutral regulations. A federal appeals court thus observed in Bery v. City of New York (2d Cir. 1996), “A content-neutral regulation may restrict time, place, and manner of protected speech, provided it is ‘narrowly tailored to serve a significant governmental interest’ and ‘leaves open ample alternative channels for communication.’ ” The Supreme Court has upheld the right of the federal government to regulate businesses and individuals engaged in interstate and international communication despite First Amendment concerns. In Federal Communications Commission
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v. Pottsville Broadcasting Co. (1940), the Court upheld the regulation of radio frequencies on the grounds of “public convenience, interest, or necessity” and in National Broadcasting Co. v. United States (1943) asserted,“The facilities of radio are limited and therefore precious; they cannot be left to wasteful use without detriment to the public interest.” Similar regulation now extends to television, wire, satellite, and cable communications. State and local entities have established the right to regulate adult bookstores and related businesses engaging in expressive activities through the issuance of licenses, although such businesses clearly have First Amendment protections. This right to regulate, however, is not unfettered. The licensing laws must have procedural safeguards against censorship; as the Court held in FW/PBS, Inc. v. City of Dallas (1990),“the licensor must make the decision whether to issue a license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied.” Furthermore, governments “cannot make arbitrary distinctions based on the manner of speech or the media used for publication,” as stated in Forsalebyowner.com v. California Department of Real Estate (E.D. Cal. 2004). Governmental entities also may require licenses regulating individuals engaging in clearly expressive acts—such as parades and other public demonstrations—but as the Supreme Court held in Shuttlesworth v. Birmingham (1969),“a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.” Licenses must not be “contingent upon the uncontrolled will of an official,” and “a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.” The courts recognize that there is a legitimate state interest in controlling the access and movement of traffic on streets and sidewalks, but as determined in Cox v. Louisiana (1965), a licensing authority merely has the authority to specify the “time, place, duration, or manner” of a parade or public demonstration. Governmental entities can also grant licenses, or property rights, to individuals allowing them to exclude others from the use of certain works. Although such exclusionary rights implicate the free speech rights of others, the scope of such licenses must be limited and carefully tailored to
advance certain public policies, such as the promotion of science and the arts, the protection of consumers, and the prevention of unfair business practices. Congress has developed different sets of laws relating to different types of intellectual property. A patent owner is granted the right to exclude others from selling, making, or using an invention for the term of the patent. Although the granting of patents can result in First Amendment concerns, the state interest in promoting invention and progress in science outweighs such concerns. Congress has carefully developed a series of administrative regulations that the United States Patent and Trademark Office (USPTO) uses for all patent applicants so that it may confirm that all patents issued actually promote this state interest. The USPTO requires that all patent applicants first demonstrate sufficient novelty, utility, and enablement and carefully comply with detailed administrative procedures and requirements for a patent to be granted. Copyright law grants authors and their heirs or assignees the right to control reproduction or use of their works for a limited duration. This grant is limited by a number of legislative and judicial concepts, including the fair use exception, the idea-expression dichotomy (recognizing that ideas cannot be copyrighted, but their particular expression can be), the first sale doctrine, and certain compulsory licenses. The fair use exception allows the public to benefit from use of a copyrighted work for certain limited purposes, including the right to comment upon, criticize, or parody the copyrighted work, as illustrated in the case Sony Corp. v. Universal City Studios (1984). The first sale doctrine allows the owners of a copy of a copyrighted work to sell, rent, or destroy their copy of the work without obtaining permission of the copyright owner. Compulsory licenses—which allow an owner’s protected material to be used without the owner’s permission under certain circumstances in return for royalties or a fee—apply to mechanical reproduction of musical compositions and to some vital pharmaceuticals. Trademark protections comprise another category of licenses that state and federal governments grant. Laws generally allow trademark owners to prevent the use of their trademark in a manner that is likely to result in consumer confusion. Not all names or logos, however, can be protected as a trademark. Trademarks must be either “strong,” that is, inherently distinctive, or have developed sufficient consumer awareness or secondary meaning associated with the sale and advertisement of particular goods or services.The trademark owner must then comply with various federal and state leg-
Lilburne, John islative and administrative requirements, including actual or intended use in commerce, in order to maintain trademark rights. In a manner similar to the practice in copyright law, trademark owners are also subject to legislative and judicial restrictions, such as the fair use doctrine. Court rulings in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. (2004) and TMI Inc. v. Maxwell (5th Cir. 2004) illustrate these points, and the TMI holding notes that the Anticybersquatting Consumer Protection Act of 1999 does not preclude the defense of fair use of another’s trademark for noncommercial purposes in an Internet domain name. The protection of trade secrets constitutes another form of governmentally granted license. Most states have adopted in large part the Uniform Trade Secrets Act. It allows entities to reap the rewards of their labor and to maintain standards of business ethics. A California court ruled in DVD Copy Control Association, Inc. v. Bunner (2003) that a “trade secret neither involves a matter of public concern nor implicates the core purpose of the First Amendment.” State courts have accordingly ordered nondisclosure of trade secret information. See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); City of Lakewood v. Plain Dealer Publishing Co. (1988); Copyright; Cox v. Louisiana (1965); Federal Communications Commission; Federalism; Shuttlesworth v. Birmingham (1969);Ward v. Rock against Racism (1989).
Lynnette Noblitt and Michael W. Hail
furthe r reading Johnson, Herbert A. American Legal and Constitutional History. San Francisco: Austin and Winfield, 1994. Pavlick, Michael A. “No News (Racks) Is Good News? The Constitutionality of a Newsrack Ban.” Case Western Law Review 40 (1990): 451–489. Redish, Martin.“The Proper Role of the Prior Restraint Doctrine in First Amendment Law.” Virginia Law Review 70 (1984): 53–100.
Lilburne, John The Englishman John Lilburne (1615–1657), widely known as “Free-born John” during much of his adult life, was a prominent defender of religious liberties and free speech and a celebrated political prisoner. Supreme Court Justice Hugo L. Black cited the influence of Lilburne’s essays on the philosophies of U.S. constitutional framers in his dissent in Adamson v. California (1947). In a 1960 lecture at the New York University School of Law, Black cited a Lilburne essay as a source of principles both for early state constitutions and for the federal constitution. Lilburne had argued that a new
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English constitution needed to be legally superior to common statutes in order to promote continuity in government and to protect the free exercise of religion, speech, and press. He was one of the leaders of the Leveller movement during the English Civil War opposing King Charles I, but fell out of favor with Oliver Cromwell and Parliament during the Protectorate when he accused that government of oppressing natural rights. Lilburne gained national notoriety in 1638 when he became the first person before the Privy Council and the Star Chamber to refuse to swear an oath affirming he would tell the truth during his inquisition, on the grounds that no man should be compelled to testify against himself. Charles I had granted the Star Council broad powers to punish those subversive to the crown, and the head of the Council, Archbishop William Laud, sentenced Lilburne to a public whipping, a £500 fine, and a prison sentence.As news of his refusal to take the oath and subsequent conviction spread throughout England, the public celebrated Lilburne as “Free-born John.” During his whipping, the executioner is reported to have said, “I have whipped many a Rogue before, but now I shall whip an honest man.” During his initial imprisonment, Lilburne was held in solitary confinement. He still managed to write and to have published several tracts while he was being held, and dozens more after he was moved into the common yard, most of them attacking the court that had convicted him. After Charles I reconvened Parliament two and a half years after Lilburne was imprisoned, Oliver Cromwell secured Lilburne’s release. Near the end of the first civil war against Charles I, in January 1645, Lilburne spoke out against Parliament’s establishment of Presbyterianism with no allowance for religious toleration. Lilburne’s complaint was not with a state-sponsored church but with Parliament’s refusal to allow the free exercise of nonadherents’ beliefs. For the next twelve years, Lilburne wrote extensively regarding the individual’s inherent right to the free exercise of religious beliefs and, consistent with his own continued pamphleteering, freedom of the press. In 1649 Lilburne published two pamphlets accusing Cromwell of treason. Lilburne was acquitted in an initial trial for treason, but was convicted in 1652 for criminal libel and exiled. In defiance of Parliament, he returned the next year. Vowing to “break [Lilburne] into pieces,” Cromwell had him charged with violating an act of Parliament that had forbidden his return, under pain of death. In a public spec-
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tacle of a trial, Lilburne was acquitted after four days. Fresh charges were soon brought against him, but Lilburne was again acquitted. Cromwell nonetheless kept him imprisoned, and he remained either in prison or on parole until his death in 1657. See also Black, Hugo L.; Star Chamber.
Patrick Chinnery
furthe r reading Ayler, G. E., ed. The Levellers in the English Revolution. Ithaca, N.Y.: Cornell University Press, 1975. Brailsford, Henry N. The Levellers and the English Revolution, ed. Christopher Hill. Stanford, Calif.: Stanford University Press, 1961. Frank, Joseph. The Levellers. New York: Russell and Russell, 1969. Gregg, Pauline. Free-born John: A Biography of John Lilburne. London: Phoenix Press, 2001.
Liles v. Oregon (1976) The Supreme Court denied a petition for writ of certiorari to hear Liles v. Oregon 425 U.S. 963 (1976), an obscenity case that raised First and Fourteenth Amendment issues the Court had addressed already in Miller v. California (1973). This illustrates controversies inherent in the Supreme Court’s embrace of the so-called “passive virtues.” Liles consists of one dissent from the Court’s denial of certiorari and one concurrence. Together, these two opinions total merely 721 words. Their significance transcends their brevity. First, the dissent represents ongoing rejection of the constitutional analysis of “obscenity” adopted by the meager Miller majority. Justice William J. Brennan Jr., who wrote the Liles dissent (and was joined by Potter Stewart and Thurgood Marshall), had dissented from Miller. Brennan’s Miller dissent is based on his dissent in a companion 1973 obscenity decision, Paris Adult Theatre I v. Slaton, in which he abandoned the Court’s 16-year attempt to grapple with the “vexing problem of reconciling state efforts to suppress sexually oriented expression with the protections of the First Amendment.” Brennan wrote, “[O]ur efforts . . . demonstrate that agreement on the existence of something called ‘obscenity’ is still a long and painful step from agreement on a workable definition of the term.” Alternatively, Brennan proposed that “in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually
oriented materials on the basis of their allegedly ‘obscene’ contents.” Second, the two Liles opinions reveal divergent views of the judicial role. Although Justice John Paul Stevens agreed, in principle, with Justice Brennan’s view of Miller’s flaws, he concurred with the Liles outcome because of the core norm of the “passive virtues”—protecting the Court’s legitimacy. Although the three Liles dissenters implicitly linked legitimacy to their repeated, principled disagreement, Stevens saw repetition, especially in the face of a majority no less “adamant,” as damaging. Two years after Liles, writing for Singleton v. Commissioner (1978), Justice Stevens made clear his worry: continued published dissents from denials of certiorari “may . . . give rise to misunderstanding or incorrect impressions about how the Court actually works . . . [and] tend[s] to compromise the otherwise secret deliberations in our Conferences.” See also Brennan, William J., Jr.; Miller v. California (1973); Obscenity and Pornography; Stevens, John Paul.
James C. Foster
furthe r reading Bickel, Alexander M. “The Supreme Court, 1960 Term: The Passive Virtues.” Harvard Law Review 75 (1961): 40. Gunther, Gerald. “The Subtle Vices of the ‘Passive Virtues’—A Comment on Principle and Expediency in Judicial Review.” Columbia Law Review 64 (January 1964): 1.
Lincoln, Abraham Although Abraham Lincoln (1809–1865) is one of the most revered figures in American history, presidential scholars are sometimes critical of his record on civil liberties. Throughout the Civil War, Lincoln restricted civil liberties, including First Amendment press freedoms and other freedoms of expression. Lincoln was born in a log cabin in Kentucky to Nancy Hanks and Thomas Lincoln. After a brief formal education, he was largely self-educated. He was elected to the Illinois legislature as a member of the Whig Party for four terms (1834–1842), serving as leader of the Whigs in 1838. During this time, he taught himself law and was admitted to the Illinois bar in 1837. He then became a law partner with John T. Stuart. As a member of the U.S. House of Representatives, from 1847 to 1849, Lincoln adamantly opposed President James K. Polk and spoke candidly against Polk’s policy leadership
Lincoln, Abraham
Abraham Lincoln
in the Mexican War (1846–1848). When his congressional term expired, Lincoln refocused his attention on the practice of law until he reentered the political scene to protest the Kansas-Nebraska Act of 1854. This act, supported by President Franklin Pierce, aggravated the already contentious slavery issue and split the Whig Party, which reemerged as the Republican Party later that year. Lincoln ran unsuccessfully for a seat in the U.S. Senate in 1854 and again in 1858. In the 1858 election he ran against Democrat Stephen Douglas. A series of debates pitted the two candidates against each other, and despite Lincoln’s oratorical skills, Douglas won the Senate seat. As the 1860 presidential election approached, disagreement and internal strife split the Democratic Party. Douglas ran for president as a Northern Democrat and John Breckinridge as a Southern Democrat. John Bell ran on the ticket of the Constitutional Union Party. Lincoln, who ran as a Republican and opposed the expansion of slavery, had a bare plurality of the popular vote but won the Electoral College overwhelmingly. Late in 1860 South Carolina
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seceded from the Union, followed over the next months by several other Southern states. The nation was split between the North (Union) and the South (Confederacy). One month after Lincoln’s inauguration, in March 1861, the Confederate army opened fire on Fort Sumter in Charleston, South Carolina, marking the beginning of the Civil War. Later that month Lincoln suspended the writ of habeas corpus, an important safeguard of individual liberty. In other wartime actions that affected freedom of expression, Lincoln seized the telegraph lines and issued an order prohibiting the printing of war news about military movements without approval. Journalistic dispatches, U.S. mail, and telegraphs were all routinely censored as part of the administration’s war efforts. People were arrested for wearing Confederate buttons and for singing Confederate songs. Government officials shut down the Chicago Times for excessively criticizing the Lincoln administration. Editors were arrested, papers were closed, and correspondents were banned from the fields of battle. A military governor with the approval of the secretary of war, Edwin M. Stanton, destroyed the office of the Sunday Chronicle, a Washington, D.C., newspaper. During Lincoln’s administration, Clement L. Vallandigham, a prominent Democratic member of Congress from Ohio, was arrested for making an anti-war political speech in his home state. After his conviction by a military tribunal, Vallandigham was sentenced to prison. Lincoln, however, changed the punishment to banishment. Lincoln’s contempt for slavery grew throughout the war. In June 1862 he signed a law that prohibited slavery in the territories. Six months later, on January 1, 1863, Lincoln issued his famous Emancipation Proclamation, which declared all slaves in Confederate territories free. Lincoln won reelection in the presidential election of 1864, which was held despite the raging war. Early in 1865 the Confederate army suffered casualties to the extent that surrender was imminent. On April 9, Gen. Robert E. Lee surrendered to Gen. Ulysses S. Grant at Appomattox Courthouse,Virginia.Two days after the surrender, Lincoln made his final public speech, in which he addressed the process of postwar reconstruction. On the night of April 14, John Wilkes Booth, a Southern secessionist, shot Lincoln as he sat in the presidential box at Ford’s Theatre in Washington. Lincoln died early the next morning. Vice President Andrew Johnson succeeded him as president. During the Reconstruction era several constitutional amendments surfaced to challenge antebellum orthodoxy—namely, the Thirteenth Amendment, which prohibited slavery (1865), the Fourteenth
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Amendment, which provided due process and equal protection of the law (1868), and the Fifteenth Amendment, which prohibited discrimination against voters on the basis of race. See also Abolitionists and Free Speech; Civil War, U.S.
Daniel Baracskay
furthe r reading Basler, Roy, ed. Abraham Lincoln: His Speeches and Writings. Cleveland: World Publishing Company, 1946. Donald, David Herbert. Lincoln. New York: Simon and Schuster, 1995. Hasseltine,William B. Lincoln’s Plan of Reconstruction. Gloucester: Peter Smith, 1963. Holzer, Harold, ed. The Lincoln-Douglas Debates. New York: HarperCollins, 1993. Hudson, David. “The First Amendment: A Wartime Casualty?” First Amendment Center, February 15, 2002. www.freedomforum.org/ templates/document.asp?documentID=15746. Kunhardt, Philip B., Jr., Philip B. Kunhardt III, and Peter W. Kunhardt. Lincoln. New York: Knopf, 1992. Miller, William Lee. Lincoln’s Virtues: An Ethical Biography. New York: Knopf, 2003. Oates, Stephen B. Abraham Lincoln: The Man behind the Myths. New York: Harper and Row, 1984. Strozier, Charles B. Lincoln’s Quest for Union: A Psychological Portrait. 2d ed. Philadelphia: Paul Dry Books, 2001.
Lincoln Federal Labor Union v. Northwestern Iron and Metal Co. (1949) In Lincoln Federal Labor Union v. Northwestern Iron and Metal Co., 335 U.S. 525 (1949), the Supreme Court rejected labor union challenges and affirmed that anti–closed shop laws were not in violation of First Amendment rights of speech, assembly, or petition and did not interfere with the equal protection clause of the Fourteenth Amendment.The Court decided this case along with Whitaker v. North Carolina and on the same day as American Federation of Labor v. American Sash and Door Co. (1949). Lincoln Federal upheld a Nebraska constitutional amendment, and Whitaker upheld a North Carolina law, both of which prohibited “closed shops,” limiting employment to union members. Both state supreme courts had upheld these laws. Writing for the Court, Justice Hugo L. Black, after summarizing the First Amendment claims in the case, concluded the following: There cannot be wrung from a constitutional right of workers to assemble to discuss improvement of
their own working standards, a further constitutional right to drive from remunerative employment all other persons who will not or can not participate in union assemblies.The constitutional right of workers to assemble, to discuss and formulate plans for furthering their own self interest in jobs cannot be construed as a constitutional guarantee that none shall get and hold jobs except those who will join in the assembly or will agree to abide by the assembly’s plans. Black cited a number of precedents to dismiss the claim under the contract clause and also dismissed equal protection arguments. He tied the Court’s decision to the renunciation of the line of cases beginning with Allegeyer v. Louisiana (1897), continuing through Adair v. United States (1908), Lochner v. New York (1905), and ending with Coppage v. Kansas 1915), in which it had enforced extraconstitutional ideas of due process to limit economic regulations. Justice Felix Frankfurter wrote a concurring opinion included at the end of American Federation of Labor in which he stressed the merits of judicial deference to the other two elected branches of government. Justice Wiley B. Rutledge also included a concurring opinion in the accompanying case, joined by Justice Frank W. Murphy, indicating that he did not think the cases settled the issue as to whether a union might call a strike in order not to have to work with nonunion men. See also American Federation of Labor v. American Sash and Door Co. (1949); Black, Hugo L.; Frankfurter, Felix.
John R.Vile
furthe r reading Gardbaum, Stephen. “New Deal Constitutionalism and the Unshackling of the States.” University of Chicago Law Review 64 (1997): 483–566.
Linmark Associates, Inc. v. Township of Willingboro (1977) In Linmark Associates, Inc. v.Township of Willingboro, 431 U.S. 85 (1977), the Supreme Court found unanimously that a law limiting certain signage violated the fundamental First Amendment principle that people have a right to receive information and ideas and to decide for themselves the best course of action. This decision contributed to the development of other First Amendment principles, such as com-
Linn v. United Plant Guard Workers of America (1966) mercial speech, secondary effects, and the counterspeech doctrine. The case involved an ordinance in Willingboro Township, New Jersey, that limited “For Sale” signs on all property except for model homes. The township enacted the ordinance in order to stem the perceived problem of “white flight”—whites leaving neighborhoods increasingly populated by minorities. The township contended that it had a strong interest in promoting integrated housing. Linmark Associates, a real estate company, challenged the law on First Amendment grounds. A federal district court declared the ordinance unconstitutional, but the U.S. Court of Appeals for the Third Circuit upheld it. On appeal, the Supreme Court invalidated the ordinance 8-0 (Justice William H. Rehnquist did not participate). Writing for the Court, Justice Thurgood Marshall cited the Court’s recent commercial speech decision in Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976), stating that consumers and sellers have an interest in the free flow of commercial information. He also emphasized that in First Amendment law, government officials often may not restrict the most effective method of communication—in this case, “For Sale” signs in the selling of homes. Marshall also rejected the township’s argument that its ordinance was not designed to suppress free expression but to address the harmful secondary effect of segregated housing. He rejected the secondary-effects analysis of Young v. American Mini Theatres (1976), noting that Willingboro “has proscribed particular types of signs based on their content because it fears their ‘primary’ effect that they will cause those receiving the information to act on it.” Marshall wrote that the city can promote integrated housing through its own counterspeech by giving “widespread publicity through ‘Not For Sale’ signs or other methods.” See also Counterspeech Doctrine; Marshall, Thurgood; Secondary Effects Doctrine;Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council, Inc. (1976); Young v. American Mini Theatres (1976).
David L. Hudson Jr.
furthe r reading Carpenter, Dale. “The Antipaternalism Principle in First Amendment Law.” Creighton Law Review 37 (2004): 579–651.
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Linn v. United Plant Guard Workers of America (1966) In Linn v. United Plant Guard Workers of America, 383 U.S. 53 (1966), the Supreme Court overturned lower federal court rulings to decide that the National Labor Relations Act (NLRA) does not bar civil libel actions in cases where plaintiffs can show that statements were made with malice and resulted in injury. It thus affirmed that libel is not protected by the First Amendment. Linn, an officer of an employer that the defendant union was seeking to unionize, said that he had been libeled during the labor dispute.The U.S. district court dismissed Linn’s complaint on the basis that the National Labor Relations Board (NLRB) had exclusive jurisdiction, and the Sixth Circuit Court of Appeals affirmed. Justice Tom C. Clark wrote the opinion on statutory, rather than constitutional, grounds for five members of the Court.Acknowledging that labor disputes were often “heated affairs” with correspondingly heated language, he did not think that the NLRA had intended to preclude state attempts to preserve domestic peace through the initiation of libel actions.The NLRB itself had not interpreted the law to give “either party license to injure the other intentionally by circulating defamatory or insulting information known to be false.” New York Times Co. v. Sullivan (1964) had established that, however wide open debate should be, the First Amendment did not protect “malicious libel” made with knowledge of, or with reckless disregard as to, its truth or falsity. Although the NLRB punished statements that were false or coercive, it did nothing specifically to “compensate” victims or “vindicate” their reputations. Individuals who could show such harm had the right to vindicate their claims in state courts. At the end of his opinion, however, Clark left open the possibility that the Court might later reverse itself if it found a greater need to curtail such suits. Justice Hugo L. Black’s dissent accused the Court of tossing “a monkey wrench into the collective bargaining machinery Congress set up to try to settle labor disputes.” He thought the possibility of such suits was more likely to fuel violence than to promote peace. He reiterated his view from Sullivan that libel laws were inconsistent with the First Amendment. In a separate dissent, joined by Chief Justice Earl Warren and Justice William O. Douglas, Justice Abe Fortas charged
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that the decision “opens a major breach in the wall which has heretofore confined labor disputes to the area and weaponry defined by federal labor law, except where violence or intimidation was involved.” He thought the standard of “malice” was “largely subjective” and observed that “injury” would not be “limited to tangible trauma.” Fortas believed that the decision “threatens the degree of equilibrium which has been achieved.” He would, however, have permitted libel suits in cases where libelous statements made during the course of labor disputes were not confined to issues, parties, or agents involved in the disputes. See also Actual Malice; Black, Hugo L.; Fortas, Abe; Libel and Slander; New York Times Co. v. Sullivan (1964).
John R.Vile
furthe r reading Getman, Julius. “The National Labor Relations Act: What Went Wrong; Can We Fix It?” Boston College Law Review 45 (2003): 125–146.
Lloyd Corporation, Ltd. v. Tanner (1972) The Supreme Court’s decision in Lloyd Corporation, Ltd. v. Tanner, 407 U.S. 551 (1972), which emerged from the divisive debates that surrounded the Vietnam War, specified the limits to free speech on private property. On November 14, 1968, Donald Tanner, Betsy Wheeler, and Susan Roberts went inside the Lloyd Center mall in Portland, Oregon, to distribute notices of a meeting of the “Resistance Community” to protest the draft and the war in Vietnam. A mall security guard told the protesters that they were trespassing and that they would be arrested unless they stopped distributing leaflets within the Lloyd Center. They departed and filed suit, claiming that their ejection from the mall violated their First Amendment right to free speech. The district court noted that the Lloyd Center “is open to the general public,” found that the mall is “the functional equivalent of a public business district,” and held that the Lloyd Center’s “rule prohibiting the distribution of handbills within the Mall violates . . . First Amendment rights.” The district court finding of fact derived from two Supreme Court precedents. In Marsh v. Alabama (1946), the Supreme Court overturned the trespassing conviction of Jehovah’s Witnesses who were arrested for distributing religious literature in the company town of Chickasaw,
Alabama. In that case, Justice Hugo L. Black equated company-owned Chickasaw with “any other town and shopping center.” Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968), involving disputed picketing at a nonunion grocery store, extended the Marsh view that “[t]he shopping center here is clearly the functional equivalent of the business district of Chickasaw. . . .” The Supreme Court’s 5-4 decision rejected this analysis and reversed the holding. Writing for the majority, Justice Lewis F. Powell Jr. observed that the “[r]espondents’ argument . . . misapprehends the scope of the invitation extended to the public.The invitation is to come to the Center to do business with the tenants. . . . There is no open-ended invitation to the public to use the Center for any and all purposes.” See also Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968); Marsh v. Alabama (1946); Powell, Lewis, Jr.; Private Property, Expression on;Vietnam War.
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furthe r reading Alexander, Mark C.“Attention, Shoppers:The First Amendment in the Modern Shopping Mall.” Arizona Law Review 41 (Spring 1999): 1–47. Friedelbaum, Stanley H. “Private Property, Public Property: Shopping Centers and Expressive Freedom in the States.” Albany Law Review 62 (1999): 1229–1262.
Locke v. Davey (2004) In Locke v. Davey, 540 U.S. 712 (2004), the Supreme Court ruled that a scholarship program in Washington state that did not allow a student to use his publicly funded scholarship to major in theology did not violate his First Amendment rights of free exercise of religion or free speech. In 1999 Washington implemented a new scholarship program. Designed to provide post-secondary educational opportunities in the state, the Promise Scholarships provided $1,000 to $1,500 to high-performing students who pursue their higher education in the state of Washington. The program otherwise excluded only students pursuing a “degree in theology” because, much like the constitutions in thirty-seven other states, the Washington state constitution prohibits any public funding for religious “worship, exercise or instruction.” After receiving notification of award of this scholarship, Joshua Davey, a freshman at Northwest College, was told that he must either change his major (pastoral ministries) or lose his $1,500 scholarship. Mr. Davey elected to forego his
Locke, John scholarship and remain a theology major, but he also filed a lawsuit claiming several violations of his religious liberties. After the state won in the district court and Davey won at the Ninth Circuit Court of Appeals, the Supreme Court ultimately upheld the statute. Writing for the seven-member majority, Chief Justice William H. Rehnquist wrote that the exclusions found in Washington’s scholarship program were acceptable because they fell into the “play in the joints” between state and federal constitutional overlap. Rehnquist further explained that although Washington could have allowed theology students to receive the scholarship without running afoul of the U.S. Constitution’s establishment clause, nothing in the free exercise clause required the exception’s removal.This moved the analysis back to the state constitutional requirements, which state courts had repeatedly interpreted as requiring such restrictions of public funding of religious instruction. Justices Antonin Scalia and Clarence Thomas dissented, arguing that the Promise Scholarship exclusions amounted to a targeted discrimination against religious conduct and therefore violated the free exercise clause of the First Amendment. Scalia argued that the “play in the joints” argument ignored decades of jurisprudence that disallowed such looseness when confronting fundamental rights. Taken together with the Court’s 2002 decision in Zelman v. Simmons-Harris (2002), which upheld the use of public money for school vouchers even for students attending religious schools, the legal framework for the voucher controversy becomes clearer. Although states may create carefully crafted voucher programs that allow public moneys eventually to end up at religious schools, the federal religious liberty clauses do not require states to implement such voucher programs, nor are states necessarily required to allow religious schools to participate even if voucher programs are in place. See also Blaine Amendments; Rehnquist, William H.; Scalia, Antonin; School Vouchers; Thomas, Clarence; Zelman v. SimmonsHarris (2002).
John E. Ferguson Jr.
furthe r reading Berg, Thomas C. and Douglas Laycock. “The Funding of Religious Institutions in Light of Locke v. Davey: The Mistakes in Locke v. Davey and the Future of State Payments for Services Provided by Religious Institutions.” Tulsa Law Review 40 (2004): 227–252. McCarthy, Martha. “Room for ‘Play in the Joints’—Locke v. Davey.” Journal of Law and Education 33 (2004): 457–474.
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Locke, John The American revolutionary generation drew many of its ideas from the English philosopher John Locke (1632–1704). Often credited as a founder of modern “liberal” thought, Locke pioneered the ideas of natural law, social contract, religious toleration, and the right to revolution that proved essential to both the American Revolution and the U.S. Constitution that followed. Locke was born into a prosperous family that held parliamentary sympathies during the English Civil War.Trained in medicine at Oxford, he worked as a family physician and adviser for Anthony Ashley Cooper (later to be the Earl of Shaftesbury), who emerged as the most prominent leader of the Whig opposition after the “Restoration” of the Stuart monarchy in 1660. During political exile in Holland, Locke refined his most famous works of philosophy and political theory: the Essay concerning Human Understanding and the Two Treatises of Government, respectively. Both works are based on the premise that since human beings are capable of exercising reason, they can be trusted to manage their own affairs without the “paternal” supervision of government, as he argues in his Second Treatise (1952 edition: 30). Locke published these works only after the Glorious Revolution of 1688, when Parliament had deposed the absolutist James II in favor of a constitutional monarchy, and even then he kept the authorship of the Treatises anonymous.Whereas the First Treatise dismantles the philosophy of the “divine right of kings,” the more influential Second Treatise lays out Locke’s positive theory of government. It proved essential to the American founders, although later historians have engaged in wide-ranging debates as to whether Locke was chiefly a radical libertarian, an apologist for capitalism, a social democrat, a moral individualist, an atheistic hedonist, or a deeply religious reformer. The core ideas in the Second Treatise are deceptively simple. To understand government, Locke begins with mankind’s “original” condition, which he describes as a prepolitical “state of nature”: men and women in “a state of perfect freedom to order their actions and dispose of their persons and possessions as they think fit, within the bounds of the law of nature, without asking leave or depending upon the will of any other man.” This is also a state of equality: absent any natural hierarchy, each and every human being is born with equal rights to “life, liberty, and estate,” all of which qualify as “property,” the most essential natural right (1952: 48). Nonetheless, the state of nature is an undesirable
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condition; as creatures of passion, individuals tend to be biased in their own favor and lack both a neutral “umpire” to decide disputes and an impartial enforcer to carry out natural law (1952: 49). When the state of nature descends into a “state of war,” these free and equal individuals rationally choose to form a social contract, one grounded in mutual “consent” and guided by the “determination of the majority” (1952: 55). Individuals give up their natural rights to judge disputes and enforce the law of nature, and in thus giving up their individual rights they create the original powers of government: the legislative and executive, a distinction that Locke uses to justify a fundamental separation of powers. If either branch exceeds its proper authority, the people retain a right to revolt after a “long train of abuses” (1952: 126). American revolutionaries often drew a direct line between Locke’s principles and their own. They frequently cited him during the Stamp Act protests and the Pamphlet War. Thomas Jefferson, describing his writing of the Declaration of Independence, commented that “All its authority rests then upon the harmonizing sentiments of the day,” taken from “the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.” (1999 edition of his Political Writings: 148). Although Locke’s name was invoked less often during the framing of the Constitution, his concerns about the protection of “life, liberty, and estate” were universally shared by the delegates in Philadelphia, who worried that the state governments had failed in this basic Lockean task. Prominent Anti-Federalists, disappointed by the initial lack of a bill of rights, appealed to Locke’s philosophy as well. As Richard Henry Lee wrote, “There are certain unalienable and fundamental rights, which in forming the social contract, ought to be explicitly ascertained and fixed” (1985 edition: 232). Locke’s most direct contribution to the First Amendment lies in his defense of religious toleration.Although toleration in the American colonies predates Locke, especially in the pluralistic middle colonies and in the writings of Rhode Island’s Roger Williams, Locke lent considerable support to the cause in his Letter concerning Toleration (1689). As a Christian rationalist, Locke renounced the ideas that faith can be forced and that piety demands a particular organizational or doctrinal orthodoxy. If government exists simply to secure property, it can have no say over religion:“the Care of Souls is not committed to the Civil Magistrate, any more than to other Men. . . . Nor can any such Power be vested in the Magistrate by the consent of the People; because no man
can so far abandon the care of his own Salvation, as blindly to leave it to the choice of any other” (1983 edition: 26). He added that “the Church itself is a thing absolutely separate and distinct from the Commonwealth. The boundaries of both are fixed and immovable. He jumbles Heaven and Earth together . . . who mixes these two” (1983: 33). Although Locke, responding to the fevered religious battles of his day, conceded the impracticality of extending tolerance to atheists, who he thought lacked morality, or Catholics, who he felt despised the rule of law, he still sought to distance religious belief from the coercive and corrupting force of the state. For in Locke’s opinion, it was politically imposed unity, rather than religious diversity, that caused conflict. See also Bill of Rights; Declaration of Independence; Jefferson, Thomas; Madison, James; Sidney, Algernon.
Robb A. McDaniel
furthe r reading Appleby, Joyce. Liberalism and Republicanism in the Historical Imagination. Cambridge, Mass.: Harvard University Press, 1992. Huyler, Jerome. Locke in America: The Moral Philosophy of the Founding Era. Lawrence, Kan.: University Press of Kansas, 1995. Jefferson,Thomas. Political Writings, ed. Joyce Appleby and Terence Ball. New York: Cambridge University Press, 1999. Kramnick, Isaac. Republicanism and Bourgeois Radicalism: Political Ideology in Late Eighteenth-Century England and America. Ithaca, N.Y.: Cornell University Press, 1990. Lee, Richard Henry. “Letters from the Federal Farmer to the Republican.” In Free Government in the Making. 4th ed., ed. Alpheus T. Mason and Gordon E. Baker, 230–236. New York: Oxford University Press, 1985. Locke, John. A Letter concerning Toleration, ed. James Tully. Indianapolis, Ind.: Hackett, 1983. ———. The Second Treatise of Government, ed. Thomas P. Peardon. New York: Macmillan, 1952.
Loitering Laws Loitering laws, which make it an offense for an individual to be in a public place for no apparent reason, have been attacked on the grounds of both vagueness and overbreadth, and have generally been determined to be unconstitutional. Challenges citing vagueness are usually based on the due process clause of the Fifth and Fourteenth Amendments, while challenges concerning the overly broad language of the laws are usually based on First Amendment concerns. Unlike vagrancy laws that are aimed at individuals who live on the streets, have no visible means of support, and may beg for money from passers-by, loitering laws do not define a loi-
Lo-Ji Sales, Inc. v. New York (1979) terer other than by mere presence and the lack of any discernible intent. America’s loitering laws were patterned after England’s Elizabethan “Poor Laws.” By the 1600s, English itinerant workers and the unemployed were roaming the country’s village and city streets in increasing numbers. As they increased, so did the crime rate. Treating the problem as an effect of England’s depressed economic conditions, Parliament’s Poor Laws included “vagrancy” laws, which normally included the act of loitering. Unlike most of the offenses under the economically motivated Poor Laws, vagrancy was a criminal offense. Historically, U.S. anti-loitering laws have emphasized the crime prevention aspect of the English vagrancy laws.Today, local statutes against loitering are common throughout the nation’s cities. But they have been attacked on the grounds of having become a useful law enforcement tool for maintaining public order by ridding the streets of society’s less desirable, as well as criminal, elements. Although the laws may have been intended to address prostitution, gang activities, and drug dealing, police have been accused of also using loitering laws to arrest loafers, pilferers, and the homeless; thus such laws are laid open to charges of vagueness and overbreadth. A statute can be declared “void for vagueness” if it fails to inform the average person of what it is that the law prohibits in a clear and objective manner or fails to provide law enforcement officials with clear and objective standards for its implementation. And it may be declared unconstitutional due to overbreadth of intent and application if it prohibits activities unprotected by the Constitution but might also be used to prohibit constitutionally protected activities. The first significant challenge to general loitering laws was Papachristou v. City of Jacksonville (1972). Jacksonville, Florida, passed a law that prohibited loitering and defined loiterers as “persons wandering or strolling around from place to place without any lawful purpose or object.” Based on Jacksonville’s definition of loitering, the U.S. Supreme Court declared in a decision written by William O. Douglas that the law was simply too vague to allow the average person to discern what is prohibited and what is not.Taking a daily walk could be considered loitering, subjecting an innocent person to arrest. Such vagueness in the law raises a second concern: “the net is cast large,” resulting in the individual police officer having virtually unlimited discretion to decide who is loitering and who is taking a walk.With no objective standards of guilt, the law not only permitted but even encouraged
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police to apply the law in an arbitrary and discriminatory manner against “the poor and the unpopular.” The Court also found the laws to be overly broad.While the First Amendment does not specifically mention the right to walk or loiter, it does protect a right to free speech, a right to assemble, and a right to petition the government. Jacksonville’s definition of loitering was so broad that it could be used to either deny these rights or to have a “chilling effect” on their exercise by threatening an arrest. As a result of Papachristou, most loitering laws were rewritten to include specific offenses associated with loitering— “loitering-plus” ordinances. Nevertheless, those revised laws are subject to the same judicial scrutiny as the previous, more generalized, loitering laws.The Court invalidated a Chicago gang loitering ordinance in City of Chicago v. Morales (1999) as unduly vague, but upheld a trespassing statute applied to nonresidents of public housing in Virginia v. Hicks (2003) against facial overbreadth charges while leaving open the possibility that it could be challenged on an “as-applied” basis. See also Chilling Effect; City of Chicago v. Morales (1999); Least Restrictive Means; Narrowly Tailored Laws; Overbreadth; Vagueness; Virginia v. Hicks (2003).
Alex Aichinger
furthe r reading Poulos, Peter W. “Chicago’s Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws.” California Law Review 83 (January 1995): 379–417. Rossi, Michael J. “Striking a Balance: The Effects of One Massachusetts City to Draft an Effective Anti-Loitering Law within the Bounds of the Constitution.” Suffolk University Law Review 39 (2006): 1069–1088.
Lo-Ji Sales, Inc. v. New York (1979) In Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), the Supreme Court reversed the obscenity convictions of a New York business, finding that the search and seizure of the adult business violated the First Amendment freedoms of speech and press and the Fourth Amendment protections for search warrants and resembled the infamous general warrant/writs of assistance of the eighteenth century. The case began after a New York State Police investigator purchased two films from an adult bookstore. He then took the films to a town justice, who issued a warrant authorizing a search of the business. The search—which was conducted
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by the town justice and numerous other authorities—turned into a roving expedition that resulted in the seizure of 23 films, 397 magazines, and 431 reels and the virtual shutdown of the business for an entire day. The business unsuccessfully sought to suppress the warrant on First and Fourth Amendment grounds.The business pursued its constitutional claim on appeal that the warrant was not conducted in a constitutional manner. The state argued that it acted in compliance with Heller v. New York (1973). In Heller, the Court had approved the seizure of a single film before an adversary hearing on obscenity.Writing for a unanimous Court, Chief Justice Warren E. Burger distinguished that case from Lo-Ji, writing that “Heller does not permit the kind of activities revealed by this record.” Burger concluded that society could better “tolerate the admittedly pornographic business of petitioner than return to the general warrant era. . . .” See also A Quantity of Books v. Kansas (1964); Burger,Warren E.; Heller v. New York (1973); Obscenity and Pornography.
David L. Hudson Jr.
furthe r reading Berger, Suzanne. “Searches of Private Papers: Incorporating First Amendment Principles into the Determination of Objective Reasonableness.” Fordham Law Review 51 (1983): 967–990.
London, Ephraim Ephraim London (1911–1990) was a leading constitutional law attorney who successfully argued First Amendment cases before the Supreme Court, including Burstyn v. Wilson (1952); Kingsley International Pictures v. Board of Regents (1959); Jacobellis v. Ohio (1964); and Ashton v. Kentucky (1966). Born in Brooklyn, London followed his father and uncle into the practice of law. He obtained his law degree from New York University.After serving in World War II, London became a highly successful private practitioner. His most famous First Amendment case was Burstyn, in which the Supreme Court established that film is a form of expression protected by the First Amendment. The Court ruled that New York authorities could not declare the movie The Miracle sacrilegious or blasphemous. Kingsley and Jacobellis respectively involved issues arising from attempts to restrict books and movies, whereas Ashton involved Kentucky’s criminal libel laws. London also represented comedian Lenny Bruce in a celebrated obscenity case.
London wrote the two-volume The World of Law, published by Simon and Schuster in 1960, and taught courses on constitutional law and law and literature at his alma mater, New York University Law School. He died in June 1990, at the age of seventy-eight. See also Ashton v. Kentucky (1966); Bruce, Lenny; Burstyn v. Wilson (1952); Jacobellis v. Ohio (1964).
David L. Hudson Jr.
furthe r reading Fowler, Glenn. “Ephraim London, 78, a Lawyer Who Fought Censorship, Is Dead.” New York Times, June 14, 1990, p. B13.
Lorain Journal Co. v. United States (1951) The Supreme Court decision in Lorain Journal Co. v. United States, 342 U.S. 143 (1951), upheld an injunction against a newspaper publisher, finding that its conduct was an attempt to monopolize interstate commerce in violation of the Sherman Anti-Trust Act, and not an illegal prior restraint infringing on the First Amendment freedom of the press. The Journal, the only newspaper published in Lorain, Ohio, had attempted to deny advertising space to anyone who also advertised on a newly created radio station in the area.The United States brought civil action against the publishers in the District Court for the Northern District of Ohio, alleging that the publishers were attempting to restrain and monopolize interstate commerce in violation of the Sherman Anti-Trust Act. The district court did not issue a temporary injunction, but after the trial the court found that the publishers were indeed attempting a monopoly as charged. The court enjoined them from continuing the attempts, and the defendants appealed to the Supreme Court. Writing for the seven-member majority, Justice Harold H. Burton argued that this conduct was an attempt to monopolize interstate commerce and that the newspaper’s attempt to force its own advertisers to boycott the radio station violated the Sherman Anti-Trust Act. The newspaper had no unqualified right to select its customers in cases where it was using this selection to drive a competing medium out of business.The injunction did not constitute an illegal “prior restraint” of publication but simply “applies to a publisher what the law applies to others.” Burton further upheld the injunction that the district court had issued as “reasonably consistent with the requirements of the case.”
Lorillard Tobacco Co. v. Reilly (2001) Justices Tom C. Clark and Sherman Minton did not participate. See also Media Concentration; Prior Restraint.
furthe r reading Robinson, Glen O. “Refusing to Deal with Rivals.” Cornell Law Review 87 (2002): 1177–1232.
Lorillard Tobacco Co. v. Reilly (2001) In Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), the Supreme Court decided the degree to which state restrictions on tobacco advertising had been pre-empted by the Federal Cigarette Labeling and Advertising Act (FCLAA) and the degree to which those that had not been pre-empted survived First Amendment scrutiny. The Court affirmed lower court rulings in part and reversed them in part, finding that some regulations targeting specific cigarette advertising and sales practices violated the First Amendment. Massachusetts’s attorney general Thomas F. Reilly had promulgated a comprehensive set of regulations relative to tobacco sales and advertising. A group of tobacco manufacturers and retailers challenged the tobacco regulations, claiming that they were pre-empted by the FCLAA and violated the First and Fourteenth Amendments. The District Court upheld the regulations in part—finding they do not violate the First Amendment—and reversed in part—finding they are not pre-empted by the FCLAA. The First Circuit Court of Appeals found that the FCLAA pre-empts any “requirement or prohibition based on smoking and health . . . with respect to the advertising or promotion of . . . cigarettes.” Writing for the majority, Justice Sandra Day O’Connor agreed with the First Circuit Court of Appeals regarding the FCLAA pre-emption, but the Court also had to address whether Massachusetts’ regulations limiting advertising within 1,000 feet of schools and similar regulations were justified as proper zoning regulations or regulations designed to protect youth. She decided that “the Attorney General’s outdoor and point-of-sale advertising regulations targeting cigarettes are pre-empted by the FCLAA.” The Court found that other state regulations were subject to the test the Court developed for commercial speech in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), which required governments to show
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that a speech restriction directly and materially advances an asserted interest and that there is a reasonable fit between the legislative ends and means chosen to accomplish them. Although O’Connor found sufficient reason for the regulations, she found that many did not meet the last part of the Central Hudson test. She also found that the proposed restrictions on outdoor advertising would have prevented advertising in many of Massachusetts’ main cities. Similarly, she invalidated rules requiring that stores put cigarettes on shelves higher than five feet from the floor. By contrast, she upheld provisions placing tobacco products behind counters and prohibiting their sale through self-service machines as being “narrowly tailored to prevent access to tobacco products by minors.” She observed that such rules aimed specifically at regulating “conduct” rather than at “the communication of ideas.” Justice Anthony M. Kennedy wrote a brief concurrence focusing on the overbreadth of the outdoor advertising restrictions. Justice Clarence Thomas wrote a longer concurring opinion, arguing that the Court should give greater protection to commercial speech than it had done in Central Hudson and previous cases. He wanted the Court to apply “strict scrutiny” to all such regulations—a position he had advocated in his concurring opinion in 44 Liquormart, Inc. v. Rhode Island (1996).Thomas observed that a decision that would uphold widespread restrictions on tobacco might just as easily be applied to food advertising (connected to the problem of obesity) and alcohol. He noted: “No legislature has ever sought to restrict speech about an activity that it regarded as harmless and inoffensive. Calls for limits on expression always are made when the specter of some threatened harm is looming. . . . It is therefore no answer for the State to say that the makers of cigarettes are doing harm; perhaps they are. But in that respect they are no different from the purveyors of other harmful products, or the advocates of harmful ideas. When the State seeks to silence them, they are all entitled to the protection of the First Amendment.” Justice David H. Souter and Justice John Paul Stevens wrote partial dissents. Stevens argued that the intent of federal law in pre-empting state regulation was not as convincing as the majority thought, accepted the majority’s view that Massachusetts had not properly tailored its outdoor advertising rules, but argued that the Court should have remanded the case for further evidence for the determination of other issues.
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See also Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; 44 Liquormart, Inc. v. Rhode Island (1996); O’Connor, Sandra Day; Thomas, Clarence; Tobacco Advertising.
John R.Vile
furthe r reading Kave, Jamie Peal. “Note: The Limits of Police Power: State Action to Prevent Youth Cigarette Use After Lorillard v. Reilly.” Case Western Reserve Law Review 53 (Fall 2002): 203–235.
Los Angeles Police Department v. United Reporting Publishing Co. (1999) In Los Angeles Police Department v. United Reporting Publishing Co., 528 U.S. 32 (1999), the Supreme Court rejected a facial challenge—one in which claimants contend that a law is unconstitutional as written and thus applies to everyone, as opposed to an as-applied challenge, which pertains only to the litigants challenging a law in a given case—to a California law that prohibited the release of arrestees’ addresses for commercial purposes. The Court’s reversal found that the California law did not unduly burden commercial speech. United Reporting—a company that sold arrestee information to attorneys, insurance companies, and others— pointed out that the law seemingly discriminated against commercial speech by allowing the release of the arrestee information if used for scholarly, journalistic, political, or governmental purposes. A federal district court and the Ninth Circuit Court of Appeals had determined that the California law unduly burdened commercial speech. The government, in its appeal to the Supreme Court, contended that the law was a constitutional way to regulate access to information. The Supreme Court ruled 7-2 in favor of the government.Writing for the majority, Justice William H. Rehnquist said that for purposes of this facial challenge “what we have before us is nothing more than a governmental denial of access to information in its possession.” Citing Houchins v. KQED (1978), Rehnquist reasoned that “California could decide not to give out arrestee information at all without violating the First Amendment.” Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote a concurring opinion, emphasizing that the Court’s decision did not foreclose an as-applied (rather than a facial) challenge to the statute.
Justice Ruth Bader Ginsberg—joined by Justices Sandra Day O’Connor, David H. Souter, and Stephen G. Breyer— also wrote a concurring opinion. She emphasized that the state could choose to “support some speech without supporting other speech” as long as the decision was not “based on an illegitimate criterion such as viewpoint.” Justice John Paul Stevens, joined by Justice Anthony M. Kennedy, wrote a dissenting opinion, arguing that United Reporting had made both a facial and as-applied challenge to the statute. He reasoned that the state law was unconstitutional “because at its core it relies on discrimination against disfavored speech.” See also As-applied Challenges; Facial Challenges; Houchins v. KQED (1978); Rehnquist,William H.; Stevens, John Paul.
David L. Hudson Jr.
furthe r reading Coker, Sarah. “Access Denied: How State Laws Limiting Access to Government Reports Result in an Unfair Restriction on Commercial Speech.” Brandeis Law Journal 43 (2005): 667–684.
Louisiana ex rel. Gremillion v. NAACP (1961) In Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961), the Supreme Court decided that requiring an organization to submit its membership lists to the state, if this disclosure can reasonably be expected to result in discrimination against the members, violates First Amendment free association rights. To do business in Louisiana, “non-trading” organizations were required to submit an affidavit stating that they were not affiliated with any out-of-state associations having links to communist or subversive organizations or communists on their board. In addition, any nontrading organization affiliated with any out-of-state association was required to submit its membership list to the state of Louisiana. For failure to comply with these laws, Louisiana sued the NAACP (National Association for the Advancement of Colored People) in state court to stop it from operating in Louisiana. The NAACP had the case moved to federal district court, which enjoined the state from enforcing either of the statutes, and Louisiana appealed to the Supreme Court. Writing for a unanimous Court, Justice William O. Douglas affirmed the decision of the lower federal court. Douglas agreed that it is virtually “impossible” to require
Lovejoy, Elijah officers in the Louisiana NAACP to swear that no board members in the national or other local chapters have affiliations with communist or other subversive organizations. Such a requirement is “not consonant with due process” because it requires “a person to swear to a fact that he cannot be expected to know” or to “refrain from a wholly lawful activity”—to organize people with like-minded interests. The second statute required an organization to submit an annual list of members, complete with addresses. Noncomplying organizations were prohibited from meeting in Louisiana, and officers and members could face criminal charges.The Court noted that Louisiana enacted this law in 1924 to curb the Ku Klux Klan (KKK) and that it has never been enforced against any other organization until the present case. Although the state denied all allegations of discrimination, members and officers of several local Louisiana affiliates of the NAACP testified in lower court that after they complied with the law, they were “subjected to economic reprisals.” Douglas asserted that although the issue of reprisals was in question and would be resolved through future hearings, the NAACP did have standing in this case. Citing NAACP v.Alabama (1958), Douglas wrote that the Louisiana case was similar because it dealt with “a constitutional right, since freedom of association is included in the bundle of First Amendment rights made applicable to the States by the Due Process Clause of the Fourteenth Amendment.” If compliance with the law “results in reprisals against and hostility to the members, disclosure is not required.” Such a law would have a chilling effect on both the rights of association and of speech. To illustrate, Douglas relied on Shelton v. Tucker (1960), which struck down an Arkansas law requiring all public school teachers to submit a list of all organizations in which they were members or to which they contributed money. Although the stated purpose of the law was legitimate—to ensure the competence of public teachers—“that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Douglas concluded, however, that states may have legitimate and compelling governmental interests in regulating speech and behavior. Citing a variety of cases dealing with restrictions on distribution of literature within a community, the Court conceded that such regulations have been upheld when they do not adversely affect the exercise of otherwise constitutional rights.
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See also Chilling Effect; Civil Rights Movement; Disclosure Requirements; Douglas, William O.; NAACP v. Alabama (1958); Overbreadth; Shelton v. Tucker (1960); Time, Place, and Manner Restrictions.
Karen Aichinger
furthe r reading Emerson, Thomas. “Freedom of Association and Freedom of Expression.” Yale Law Journal 74 (1964): 1–35. Gutmann, Amy, ed. Freedom of Association. Princeton, N.J.: Princeton University Press, 1989.
Lovejoy, Elijah The newspaper editor Elijah Lovejoy (1802–1837), who died at the hands of a mob incensed by his anti-slavery views, is considered something of a martyr both in the cause of abolitionism and in that of First Amendment expressive rights. Lovejoy was born in Albion, Maine, on November 9, 1802. He graduated from Colby College in 1826, then taught school for a brief period before deciding to follow his father into the ministry. In 1833 he was ordained by the Philadelphia Presbyterian Church. However, he spent little time in the pulpit. Lovejoy, who had previously taught in St. Louis, returned to Missouri, a slave state, to begin an anti-slavery newspaper, the St. Louis Observer. Lovejoy, a follower of abolitionist William Lloyd Garrison, believed that the exposure of slavery’s evils would lead to its abolition.As a pacifist, he did not encourage violence against slave owners, but rather sought to influence public opinion against slavery. Lovejoy attacked slavery and a racial system that allowed human rights abuses to go unpunished. He reached a critical point in St. Louis with his coverage of the May 5, 1836, lynching of a mulatto sailor charged with killing a white deputy. Lovejoy condemned the killers and the judge who showed leniency on them. St. Louis did not welcome a man of Lovejoy’s views, but he did not back down. He strongly believed in his constitutionally given right to protest and to criticize slavery. Faced with the choice of moderating his views or leaving the city, Lovejoy fled St. Louis but only went across the Mississippi River to Alton, Illinois. A proslavery mob followed him and destroyed his printing press as it stood on the dock. Illinois initially welcomed Lovejoy. The people of Alton promised to replace his press but also declared their discomfort with abolitionism. Although Illinois was a free state,
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many people there supported slavery. Lovejoy’s Alton Observer held to the same staunchly abolitionist character as its predecessor, and it soon attracted local opposition. On July 4, 1837, the newspaper called for an anti-slavery meeting in Alton to consider establishing a state branch of the American Anti-Slavery Society. The society formed on October 26. At this point, citizens began openly discussing violence as a response to Lovejoy’s activism. His press was destroyed three times by mobs.With the last attack, Lovejoy decided to arm himself.When the fourth press arrived from Ohio, Lovejoy and a group of armed supporters confronted a mob intent on destroying the machine. Shots were fired and Lovejoy fell dead. Lovejoy became a hero.Abolitionists held angry meetings throughout the nation to denounce his killing.Thousands of men and women were inspired to join the anti-slavery cause. As a result of his death, northern antagonism to abolition diminished, and anti-slavery forces enjoyed a more permissive atmosphere in which to meet, speak, publish, and agitate.
Writing for the Court, Chief Justice Charles Evans Hughes wrote that the ordinance was “invalid on its face” because “it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship.” The license requirement served as an unconstitutional “prior restraint,” which defenders of the press from John Milton forward had condemned. Pamphlets and leaflets, like newspapers and periodicals, were included within the freedom of the press protected by the First and Fourteenth Amendments. This freedom protected “distribution” as well as “publication” of such materials. After retreating from this decision in the case of Jones v. City of Opelika (1942), the Supreme Court returned to it in Murdock v. Pennsylvania (1943) and Jones v. City of Opelika II (1943); each case involved Jehovah’s Witnesses. In the latter cases, the Court rested its decisions not only on freedom of the press but also on freedom of speech and free exercise of religion. Justice Benjamin N. Cardozo did not participate in the decision for Lovell v. City of Griffin.
See also Abolitionists and Free Speech; Civil War, U.S.
See also Door-to-Door Solicitation; Facial Challenges; Jehovah’s Witnesses; Jones v. City of Opelika (1942) (1943); Licensing Laws; Milton, John; Murdock v. Pennsylvania (1943); Prior Restraint.
Caryn E. Neumann
furthe r reading Dillon, Merton L. Elijah P. Lovejoy, Abolitionist Editor. Urbana: University of Illinois Press, 1961.
Lovell v. City of Griffin (1938) Although the Court had rejected an almost identical claim in a short per curiam opinion the previous year in Coleman v. Griffin (1937), this relatively early decision in Lovell v. City of Griffin, 303 U.S. 444 (1938), overturned the conviction of a Jehovah’s Witness who had gone door to door selling pamphlets and magazines.While affirming that First Amendment rights applied to the states via the Fourteenth Amendment, this case focused almost exclusively on freedom of the press. Alma Lovell, a member of the Jehovah’s Witnesses, had been convicted in the Recorder’s Court for the city of Griffin, Georgia, for selling a pamphlet and a magazine in violation of the city’s ordinance prohibiting the distribution of any kinds of literature without the prior permission of the city manager. The Georgia Superior Court, its court of appeals, and its supreme court had all refused to review the decision.The U.S. Supreme Court unanimously reversed the lower courts’ decisions.
John R.Vile
furthe r reading McAninch, William Shepard. “A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court.” University of Cincinnati Law Review 55 (1987): 997–1077. Peters, Shawn Francis. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Lawrence: University Press of Kansas, 2000. Whitehead, John W. “The Conservative Supreme Court and the Demise of the Free Exercise of Religion.” Temple Political & Civil Rights Law Review 7 (Fall 1997): 1–71.
Lowe v. Securities and Exchange Commission (1985) In Lowe v. Securities and Exchange Commission, 472 U.S. 181 (1985), the Supreme Court further emphasized the strong presumption against prior restraint under the free press provision of the First Amendment by reversing a decision by the Second Circuit Court of Appeals and holding that the Securities and Exchange Commission (SEC) could not, under the Investment Advisers Act of 1940, restrain the publication of a periodical containing investment advice simply because its authors were not registered as investment advisors under the 1940 law.
Loyalty Oaths The SEC had issued an order revoking the registration of Christopher Lowe’s Management Corporation and ordering him to disassociate from any investment adviser role after he was convicted of misappropriating funds and other investment-related offenses. The SEC had subsequently sought and received an injunction from a federal appeals court preventing Lowe from publishing his “Investment and Financial Letter,” which gave out general market advice. Justice John Paul Stevens based his decision for the Supreme Court on an interpretation of the Investment Advisers Act of 1940. He believed the law was designed only to regulate person-to-person advice rather than advice given in general periodicals. He said such general publications fit under the law’s exclusion of “the publisher of any bona fide newspaper, newsmagazine or business or financial publication of general and regular circulation.” Stevens did not believe that Congress would have purposely adopted a law that contravened the Court’s protection for freedom of the press in Near v. Minnesota (1931) and Lovell v. City of Griffin (1938). He observed,“The mere fact that a publication contains advice and comment about specific securities does not give it the personalized character that identifies a professional investment adviser.”The requirement that a publication be “bona fide” was designed to “describe the publication rather than the character of the publisher.” Justice Byron R. White wrote a concurring opinion, joined by Chief Justice Warren E. Burger and Justice William H. Rehnquist, arguing that the Court had improperly construed the statute so as to exclude the publication at issue but that the publication should be protected under the First Amendment. Reviewing a number of cases that dealt with the licensing of professionals, White concluded that such regulations were acceptable “if they ‘have a rational connection with the applicant’s fitness or capacity to practice’ the profession.” Although the Court had recognized some limitations on commercial speech, it had concluded that “a flat prohibition on prior restraint on speech is, applied to fully protected speech, presumptively invalid and may be sustained only under the most extraordinary circumstances.” He observed that “even where mere ‘commercial speech’ is concerned, the First Amendment permits restraints on speech only when they are narrowly tailored to advance a legitimate governmental interest.”While the governmental interest of keeping “investors from falling into the hands of scoundrels and swindlers” was valid, “the means chosen . . . is extreme.”
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See also Commercial Speech; Lovell v. City of Griffin (1938); Near v. Minnesota (1931); Overbreadth; Prior Restraint; Stevens, John Paul;White, Byron R.
John R.Vile
furthe r reading Kry, Robert. “The ‘Watchman for Truth’: Professional Licensing and the First Amendment.” Seattle University Law Review 23 (2000): 885–976.
Loyalty Oaths A loyalty oath is a declaration by an individual of allegiance to a government and its institutions and a disavowal of support for foreign ideologies or associations.The constitutionality of loyalty oaths is part of the larger struggle between the power of government to regulate perceived threats to national security and the First Amendment rights of citizens to speak and associate freely. When the United States became a self-governing republic, oaths of loyalty to the new political system became an important tool in helping sustain it. Article 2, 1, cl. 8 of the U.S. Constitution requires the President to take an oath of office. Article 4, cl. 3 requires oaths of office for members of the U.S. Congress; the federal judiciary; and officers of state legislative, executive, and judicial branches of government. Loyalty oaths also play an important part in the naturalization process. Persons born in the United States are citizens by birth, but resident aliens who wish to become citizens must first swear an oath of allegiance to the United States. Loyalty oaths have been regarded as essential tools in the defense of the United States from its enemies from both within and outside the country, especially in times of war. During and after World Wars I and II and during the cold war, widespread fear of communism, fascism, and socialism, and the concomitant anxiety of ensuring that Americans were and would remain loyal to the United States, led federal and state governments to enact legislation to weed out subversive organizations and those who supported them. Congress aggressively investigated the loyalty of citizens, notably through the special House Un-American Activities Committee (HUAC) and the Senate Permanent Investigation Subcommittee, chaired by U.S. senator Joseph McCarthy (R-WI). It also enacted statutes—such as the Smith Act of 1940 and the McCarran Act of 1950—seeking to stem the rise of communism in the United States. Individual states had similar laws. Both federal and state governments also enacted security programs that included
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Students salute the U.S. flag in 1892. The Supreme Court in West Virginia State Board of Education v. Barnette (1943) declared that state laws requiring students to salute the flag and recite the Pledge of Allegiance in public schools were a violation of the First Amendment.
loyalty oaths for government employees and members of labor unions and professional organizations. The Pledge of Allegiance is a form of loyalty oath. State laws requiring students to salute the American flag and recite the Pledge of Allegiance in public schools led to the Supreme Court’s landmark decision in West Virginia State Board of Education v. Barnette (1943), striking down West Virginia’s mandatory flag salute statute as a violation of the First Amendment. The continued popularity of the Pledge of Allegiance as an avowal of patriotism is apparent in the ongoing conflict over its wording. The Court has decided many cases involving public employee loyalty oaths, but not all were decided solely on First Amendment grounds. Some were based on due process rights, and others were based on the Fifth Amendment’s privilege against self-incrimination. In fact, when the Supreme Court first interpreted the constitutionality of loyalty oaths right after the Civil War, it declared them ex post facto laws and bills of attainder. In loyalty oath cases involving the First Amendment, the Court applied the “clear and present danger” test, articulated by Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis in Schenck v. United States (1919) and refined by the Court in succeeding years.
Government can constitutionally require loyalty oaths of public employees, but the wording of the oath is all important.To survive constitutional muster, the oath must specifically define and punish behavior that constitutes a clear and present danger to a substantial government interest. Three noteworthy cases are Baggett v. Bullitt (1964), Elfbrandt v. Russell (1966), and Keyishian v. Board of Regents (1967), in which the Court struck down state loyalty oaths as unconstitutionally vague. Many cases dealing with loyalty oaths arose in academic settings, where the issues of academic freedom and the freedom to teach and to learn were paramount. In Cole v. Richardson (1972), the Court set out four conditions an oath must meet to survive constitutional muster: it may not infringe on First or Fourteenth Amendment rights; employment may not be conditioned on an oath that one has not engaged in, or will not engage in, protected speech activities; employment may not be conditioned on an oath denying past or abjuring future associational activities protected by the Constitution; and an oath must not be so vague that persons of ordinary intelligence must guess at its meaning. See also Academic Freedom; Baggett v. Bullitt (1964); Clear and Present Danger Test; Cole v. Richardson (1972); Elfbrandt v. Russell (1966); House Un-American Activities Committee; Keyishian v.
Lynch v. Donnelly (1984) Board of Regents (1967); McCarran Act of 1950; McCarthyism; Public Employees; Schenck v. United States (1919); Smith Act of 1940;Vagueness;West Virginia State Board of Education v. Barnette (1943).
Judith Haydel
furthe r reading Chin, Gabriel J., and Saira Rao. “Pledging Allegiance to the Constitution:The First Amendment and Loyalty Oaths for Faculty at Private Universities.” Pittsburgh Law Review 64 (2003): 431–481. Gallancy, Laurie Allen. “Teachers and the Pledge of Allegiance.” University of Chicago Law Review 57 (1990). Hyman, Harold M. To Try Men’s Souls: Loyalty Tests in American History. Berkeley: University of California Press, 1959. Levinson, Sanford. Constitutional Faith. Princeton, N.J.: Princeton University Press, 1988.
Lucas v. Arkansas (1974) The single-sentence Supreme Court decision in Lucas v. Arkansas, 416 U.S. 919 (1974), vacated and remanded this case, along with Kelly v. Ohio, Rosen v. California, and Karlan v. City of Cincinnati, to a state court for further consideration in light of the Court’s opinion in Lewis v. City of New Orleans (1974). Lewis had overturned a New Orleans ordinance on the basis that it violated the First and Fourteenth Amendments by being overbroad in its attempt to prohibit vulgar and offensive speech and “fighting words,” as recognized in Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson (1972). In Lucas individuals had been arrested and convicted for breach of the peace after directing several derogatory comments to a North Little Rock, Arkansas, policeman who was on routine patrol. The Supreme Court of Arkansas confirmed the convictions, and the U.S. Supreme Court granted certiorari, vacated the state’s judgment, and remanded the case for further consideration. Justice Harry A. Blackmun, joined by Chief Justice Warren E. Burger and Justice William H. Rehnquist, wrote a dissenting opinion. Blackmun said that Arkansas had already narrowed its own statute to “fighting words,” which it defined as language that in “ordinary acceptation is calculated to give offense and to arouse to anger.” Blackmun believed that the state could properly punish “language which in its ordinary acceptation is calculated to cause a breach of the peace.” He further disputed the relevance of the decisions in Cantwell v. Connecticut (1940) and Terminiello v. Chicago (1949), which Justice William O. Douglas cited in his separate dissent in Karlan.
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Douglas’s dissent, which applied to all four cases, favored overturning all the convictions on the basis that the laws under which they were justified were overly broad by including speech that was merely “vulgar” or “profane” along with genuine fighting words. See also Blackmun, Harry A.; Cantwell v. Connecticut (1940); Chaplinsky v. New Hampshire (1942); Douglas, William O.; Fighting Words; Gooding v. Wilson (1972); Lewis v. City of New Orleans (1974); Overbreadth; Profanity; Terminiello v. Chicago (1949).
John R.Vile
furthe r reading Caine, Burton. “The Trouble with ‘Fighting Words’: Chaplinsky v. New Hampshire Is a Threat to First Amendment Values and Should be Overruled.” Marquette Law Review 88 (Winter 2004): 441–562.
Lynch v. Donnelly (1984) The Supreme Court decision Lynch v. Donnelly, 465 U.S. 668 (1984), upheld the constitutionality of a seasonal holiday display that included a manger scene, or crèche, on government property, finding that it was not in violation of the establishment clause of the First Amendment. The city of Pawtucket, Rhode Island, co-sponsored with local merchants a Christmas display during the holiday season. The display was erected in a public park and included, among other items, “a Santa Claus House, reindeer pulling Santa’s sleigh . . . cutout figures representing such characters as a clown, an elephant, and a teddy bear . . . and the crèche.” Residents of the city and the local affiliate of the American Civil Liberties Union filed suit in federal court, challenging the inclusion of the crèche in the display. The district court ruled for the plaintiffs, and a divided First Circuit court affirmed. Pawtucket then successfully appealed for certiorari. Writing for the Court, Chief Justice Warren E. Burger cited Christmas and Thanksgiving as national holidays and noted that “Government has long recognized—indeed it has subsidized—holidays with religious significance.”That tradition of recognizing the country’s religious roots was distinguished from the First Amendment’s proscription of endorsing and establishing a religion. Noting the difficulty of establishment clause jurisprudence and implicitly questioning the usefulness of the three-part Lemon test, which the Court often applied to establishment clause cases, the chief justice argued that, “In
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each case, the inquiry calls for line-drawing; no fixed per se rule can be framed.” Such an approach ensures the Court’s continued role in adjudicating church-state controversies. As a result, Burger’s opinion advocated viewing establishment clause cases with a contextual approach, focusing in this case on the context of the holiday season. Finding error with the district court’s primary concern with the crèche as a per se religious symbol and not as a component within a larger display, the Court recast the argument in this way: “The narrow question is whether there is a secular purpose for Pawtucket’s display of the crèche.” Burger found the secular purpose within tradition and context, likening the display to the paid chaplaincies of the U.S. Congress, which the Court upheld in Marsh v. Chambers (1983). Justice Sandra Day O’Connor filed a separate concurrence advocating an endorsement test, although she also concluded that the inclusion of a crèche did not communicate a government endorsement of Christianity.Through the years, the Court has used O’Connor’s endorsement analysis in other cases. Justice William J. Brennan Jr. dissented, joined by Justices Thurgood Marshall, Harry A. Blackmun, and John Paul Stevens. For Brennan, the sectarian nature of the crèche could not be denied, and the government maintenance and ownership of the display could not be overlooked. Brennan wrote that the majority’s contextual analysis was an attempt to “explain away the clear religious importance of the crèche.” See also American Civil Liberties Union; Burger, Warren E.; Endorsement Test; Lemon v. Kurtzman (1973); Marsh v. Chambers (1983).
Geoff McGovern
furthe r reading Gunther, Gerald, and Kathleen Sullivan. Constitutional Law. 13th ed. New York: Foundation Press, 1997. Lupu, Ira C. 1994. “The Lingering Death of Separationism.” George Washington Law Review 62 (1994): 230. Stone, Geoffrey R., Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet, and Pamela S. Karlan. Constitutional Law. 5th ed. New York: Aspen, 2005. Swanson, Wayne R. The Christ Child Goes to Court. Philadelphia: Temple University Press, 1992.
Lyng v. International Union, UAW (1988) The Supreme Court ruling in Lyng v. International Union, UAW, 485 U.S. 360 (1988), reversed a lower court decision, finding that a provision of the Omnibus Budget Reconciliation Act of 1981 limiting food stamps for individuals with family members who were on strike did not violate either the First Amendment rights of association or expression or the equal protection component of the due process clause of the Fifth Amendment. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and union members sued in federal district court, stating that the provision was unconstitutional.The court issued a summary judgment for the appellees, holding that the statute is unconstitutional in that it interferes with associational and expressive rights granted in the First Amendment and violates the equal protection component of the due process clause of the Fifth Amendment. The secretary of agriculture appealed directly to the Supreme Court. Justice Byron R. White wrote the opinion of the Court and observed that the Court’s decision in Lyng v. Catillo (1986), deferring to the congressional definition of “household” in respect to food stamps, covered this case. He said that the amended law did nothing to “order” any individuals not to dine together:“It does not ‘order’ appellees not to associate together for the purpose of conducting a strike, or for any other purpose, and it does not ‘prevent’ them from associating together or burden their ability to do so in any significant manner.” White noted that in Regan v. Taxation With Representation of Washington (1983), the Court had decided “that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” White further distinguished the case from Abood v. Detroit Board of Education (1977), in which nonunion employees had successfully resisted a requirement that they pay a fee that went toward propagation of views with which they disagreed. In contrast, this law “does not require appellees to participate in political activities or support political views with which they disagree. It declines to extend additional food stamp assistance to striking individuals merely because the decision to strike inevitably leads to a decline in their income.” White thought that the Court’s stance should be highly deferential to legislative judgments. He believed the government could justify its limits on food stamps as a way
Lyon, Matthew of limiting federal expenditures, as a way of directing assistance where it was most needed, and as a way of seeing that it did not “provide one-sided support for labor strikes.” Justice Thurgood Marshall wrote a dissenting opinion, joined by William J. Brennan Jr. and Harry A. Blackmun, in which he denied that the law could even be justified through use of the deferential rational basis test. He focused on what he considered to be a denial of equal protection by treating those unemployed because they were participating in a strike differently from those who were unemployed for other reasons. He also observed that the government had provided aid to employers whose workers were on strike. See also Abood v. Detroit Board of Education (1977); Marshall, Thurgood; Regan v. Taxation With Representation of Washington (1983); Unconstitutional Conditions;White, Byron R.
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is not a good measure of whether religious activities are protected under the free exercise clause and that the building of the road would destroy the tribes’ religion. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court further denied that governments needed to show a “compelling interest” when passing general laws that disproportionately affected religious practices. See also Employment Division, Department of Human Resources of Oregon v. Smith (1990); O’Connor, Sandra Day.
John R. Hermann
furthe r reading Brown, Brian Edward. “Religion, Law, and Land: Native Americans and the Judicial Interpretation of Sacred Land.” Journal of Law and Religion 16 (2001): 743–750.
John R.Vile
furthe r reading Epstein, Richard A. “The Supreme Court 1987 Term: Unconstitutional Conditions, State Power, and the Limits of Consent.” Harvard Law Review 102 (November 1988): 5–104.
Lyng v. Northwest Indian Cemetery Protective Association (1988) In Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), the Supreme Court held that the free exercise clause of the First Amendment does not prohibit the federal government from timber harvesting or constructing a road through a portion of a national forest that is considered a sacred religious site by three Native American tribes. The case began when three Native American tribes tried to prevent the federal government from building a road through an area central to their religious activities.After losing in the lower courts, the secretary of agriculture appealed to the Supreme Court, claiming that the building of the road did not violate the tribes’ free exercise rights. The Court sided with the secretary of agriculture, reasoning that the Native American tribes were not “coerced by the Government’s actions into violating their religious beliefs.”The Court, moreover, held that the federal government’s programs must treat religious and nonreligious individuals alike. Writing for the majority, Justice Sandra Day O’Connor said,“However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires.” In dissent, Justice William J. Brennan Jr. held that coercion
Lyon, Matthew Matthew Lyon (1749–1822) was the first person to be prosecuted under the Sedition Act of 1798. Born on July 14, 1749, in Wicklow County, Ireland, Lyon was apprenticed to a printer and then sailed for America in 1764 as an indentured servant. By 1772, he had acquired a sufficient income to buy land in Cornwall, Connecticut. He later moved to the frontier region between New York and New Hampshire. During the American Revolutionary War, Lyon served as a colonel in the Green Mountain Boys and played an important part in the capture of Fort Ticonderoga in 1775. After the signing of the Declaration of Independence, he joined the Continental Army and served as a second lieutenant under General George Washington. When Vermont declared its independence from New York and became a state in 1776, Lyon became a member of revolutionary Vermont’s government. After the war, he settled down with his family and became a prosperous businessman. Lyon won a seat in the U.S. House of Representatives in 1796.A symbol of frontier democracy, Lyon warned his constituents of the pro-British sympathies of the Federalists. He aimed most of his attacks at President John Adams and wrote a series of public letters that attacked Adams for seeking power, thirsting for pomp and adulation, demonstrating avarice, and dismissing meritorious men from office because of their independence of thought. Vermont Federalists charged Lyon with being criminally guilty of acting in opposition to the president.They alleged that he had Jacobinic (or French Revolutionary) principles.
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This 1798 paper etching portrays the fight on the floor of Congress between Reps. Matthew Lyon of Vermont (holding fireplace tongs) and Roger Griswold of Connecticut (holding cane). After being imprisoned for violating the Sedition Act, Lyon won landslide reelection to the House of Representatives.
On October 6, 1798, Lyon was arrested. The warrant charged that he was “a malicious and seditious person, and of a depraved mind and a wicked and diabolical disposition.” Lyon had difficulty finding an attorney and settled for an old rival who was running against him in the current election. In fact, Lyon acted as his own attorney during the trial that began on October 9. He cross-examined witnesses and pleaded his own defense. Lyon argued the general Republican position that the seditious libel laws were the exclusive province of state legislation. He challenged the constitutionality of the Sedition Act on the grounds that it violated the First Amendment’s protection of freedom of speech. Although the records of the case are spotty, one of the judges reasoned that the government must defend itself without appealing to a state and that Lyon’s offense was against the United States. The humorous highlight of the trial came when Lyon called witnesses to prove that Adams
dined in luxury, demonstrating that the definition of simplicity meant one thing to a frontiersman like Lyon and another to the eminent judge that he examined. The jury deliberated for an hour before finding Lyon guilty.The judge sentenced him to four months’ imprisonment and to further confinement until he had paid the costs of the prosecution and a fine of $1,000. Instead of silencing Lyon, prison made a martyr of him. After forcing Lyon to take a circuitous route to the jail in order to display him triumphantly before the town citizens, the marshal assigned Lyon to a common cell that he shared with many other inmates. (One of Lyon’s judges was imprisoned for debt during Lyon’s term of imprisonment and was given a room of his own in the same jail.) The people of western Vermont responded to all of this by giving Lyon a landslide victory in his reelection campaign.The Vermonters also petitioned Adams to pardon Lyon and remit his fine, to no avail. When Lyon left jail, he returned to Congress, where, helping to resolve the presidential election of 1800, he cast the tie-breaking vote for Thomas Jefferson over Aaron Burr. Lyon’s imprisonment had made civil liberties one of the major campaign issues of the election. His jailing illustrated the extent to which the Federalists were stifling the right to dissent. Jefferson’s victory gave him some vindication. Lyon moved to Kentucky in 1800 and continued to serve in the House until 1811. He died on August 1, 1822. See also Adams, John; Jefferson,Thomas; Sedition Act of 1798.
Caryn E. Neumann
furthe r reading Austin, Aleine. Matthew Lyon: “New Man” of the Democratic Revolution, 1749–1822. University Park: Pennsylvania State University Press, 1981.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
Mabee v. White Plains Publishing Co. (1946) The Supreme Court decision in Mabee v. White Plains Publishing Co., 327 U.S. 178 (1946), emphasized that First Amendment protections for freedom of the press, although they shield newspapers against special taxes or regulations designed to impede their mission, do not exempt them from general governmental regulations that apply to them as businesses. The respondent published a daily newspaper with a circulation of about 9,000 to 11,000 copies, of which only about one half of one percent went to out-of-state subscribers. Some of the newspaper’s employees sued in New York courts to recover overtime pay, liquidated damages, and counsel fees pursuant to the Fair Labor Standards Act of 1938.A trial court in the New York state court system found for the petitioners, but the Appellate Division reversed and ordered that the complaint be dismissed, and the court of appeals affirmed without a written opinion. The case then proceeded to the U.S. Supreme Court. Justice William O. Douglas’s opinion for the Court focused chiefly on interpreting the intent of Congress in adopting the Fair Labor Standards Act. He observed that Congress had specifically exempted weekly or semi-weekly newspapers with a circulation of less than 3,000 copies but made no similar exception for daily papers. In contrast to the situation the Court had addressed in Grosjean v.American Press Co. (1936), the regulations at issue were “not a ‘deliberate and calculated device’ to penalize a certain group of newspapers.” Douglas opined, “As the press has business aspects, it has no
special immunity from laws applicable to business in general.” Congress intended to put papers “on a parity with other small town enterprises.” Being “engaged in the production of goods for commerce,” it is subject to the law. Justice Frank W. Murphy did not base his solitary dissent on First Amendment grounds but on his view that Congress had not intended to apply the law to a business with so little effect on interstate commerce. In Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983), the Court later invalidated a state tax that it thought discriminated against newspapers in general. See also Douglas, William O.; Grosjean v. American Press Co. (1936); Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983).
John R.Vile
furthe r reading Madris, Richard. “Recycled Newsprint Law and Differential Taxation of the Press.” University of Chicago Law Review 62 (1994): 1069–1090.
MacKinnon, Catharine Catharine MacKinnon (1946– ), one of America’s foremost feminist legal scholars and theorists, is a passionate advocate of women’s rights. Her book Sexual Harassment of Working Women (1979) helped lay the foundations of sexual harassment law in the United States. Her most controversial work has dealt with pornography. In MacKinnon’s view, there exists a tension, embodied in the pornography debate, between the First Amendment’s guarantee of free speech and the Fourteenth Amendment’s guarantee of equal protection.
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Born in Minneapolis, Minnesota, MacKinnon graduated from Smith College. She earned a law degree and a doctorate in political science from Yale University. Currently, she serves as the Elizabeth A. Long Professor of Law at the University of Michigan and is a visiting professor at the University of Chicago. In her writings, MacKinnon argues that pornography— along with sexual violation, physical violence, and prostitution—helps perpetuate the dominance of men over women in society. Pornography harms women in two ways. First, the women who appear in pornographic films are debased by the filming itself. Most of them are forced to do so by pimps or because of drug abuse, past sexual abuse, or lack of other avenues for income—not by free choice. Second, pornography conveys the message that women exist not as equal human beings but as things to satisfy men’s sexual appetites; it teaches and encourages men to treat women as inferior. MacKinnon argues that pornography is a form of sex discrimination, and sex equality becomes impossible unless pornography is eliminated. MacKinnon’s opposition to pornography brings her into conflict with advocates of free speech, including many feminists. MacKinnon does not dispute that free speech has great value; however, it is only one of many values, and social equality is another. She notes that the courts have said that free speech is not unlimited and argues that it should give way to the greater good of equality for women. Indeed, under established sexual harassment law, it is not inconsistent with the First Amendment to ban certain forms of expression in the workplace because they interfere with women’s equal employment rights. Moreover, she considers pornography to be hate speech, not free speech. Finally, since women are trapped in a subordinate sociopolitical position, they cannot be said to have the same free speech rights as men. Therefore, pornography should be banned—not as a question of morality but as a matter of women’s equal rights. Although the courts have ruled, in Miller v. California (1973), that materials may be banned if they are found to be obscene, MacKinnon finds the Miller test deficient on two grounds. First, the test has proved in practice to be so vague as to be almost useless. Second, even if not obscene, a work may still convey the message of female subordination that perpetuates inequality between the sexes. Even if enforceable, the Miller test fails to achieve MacKinnon’s goal of creating equality between the sexes. MacKinnon’s ideas found practical application when the city of Indianapolis passed an anti-pornography ordinance
that she and Andrea Dworkin had drafted.The law provided for civil penalties for those distributing pornography, which it defined as “[t]he graphic sexually explicit subordination of women through pictures and words that also includes women being sexually used and abused, for example being dehumanized as sexual objects who enjoy pain, humiliation or rape, bound, mutilated, dismembered, in positions of servility or submission or display, or penetrated by objects or animals.”(MacKinnon distinguishes pornography from erotica, which she defines as sexually explicit materials showing men and women as equals in giving and receiving pleasure.) A group of adult bookstores challenged the ordinance. The Seventh Circuit Court of Appeals, in American Booksellers Association v. Hudnut (7th Cir. 1985), affirmed a lower court’s decision overturning the law. Although it accepted the argument that pornography can influence behavior, the court ruled that the law was overly broad and was a content-based restriction on speech and was therefore unconstitutional. MacKinnon’s approach to pornography has sparked controversy. Her critics argue that her definition is overly inclusive and would ban many works considered to be art; that the practical meaning of terms such as subordination and objectification are subjective; and that her approach would limit women’s ability to express their sexuality.Although no other laws have incorporated her approach, the debate between MacKinnon and free speech advocates continues. See also American Booksellers Association v. Hudnut (7th Cir.1985); Dworkin, Andrea; Hate Speech; Miller v. California (1973); Obscenity and Pornography; Sexual Harassment Laws.
Steve Robertson
furthe r reading Dworkin, Andrea, and Catharine A. MacKinnon. In Harm’s Way: The Pornography Civil Rights Hearings. Cambridge, Mass.: Harvard University Press, 1998. Rodgers, Gillian, and Elizabeth Wilson, eds. Pornography and Feminism: The Case against Censorship. London: Lawrence and Wishart, 1991.
Madigan v. Telemarketing Associates, Inc. (2003) In Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003), the Supreme Court held that the First Amendment right to free speech allows nonprofit organizations and telemarketers to engage in charitable solicitation, but it does not shield against fraudulent use of subsequent donations.
Madison, James Telemarketing Associates, Inc. was a for-profit company that provided fundraising services for nonprofit charities, including a veterans group called VietNow National Headquarters. The attorney general of Illinois, James Ryan, brought legal action against Telemarketing Associates, Inc. and another company for fraudulently representing that a significant amount of the money raised would go for charitable purposes, although the contract between VietNow and the company specified that the charity would keep only 15 percent of the funds raised.Telemarketing Associates, Inc. argued that the suit should be dismissed because several previous Supreme Court decisions held that nonprofit fundraising was protected speech under the First Amendment.The state trial court granted the motion to dismiss, and that ruling was affirmed by both the Illinois appellate and supreme courts. On appeal to the U.S. Supreme Court, Lisa Madigan had replaced Ryan as state attorney general, leading to the change in the name of the Court’s decision. Writing the opinion for the Court, which unanimously voted to reverse the decisions of the Illinois courts, Justice Ruth Bader Ginsburg said,“States may maintain fraud actions when nonprofits directly or through a fundraiser make false or misleading representations designed to deceive donors about how their donations will be used.”The Court distinguished between a fundraiser’s failure to disclose information and a failure to disclose combined with “intentionally misleading statements designed to deceive.” The decision represents a major setback to telemarketing companies relying on First Amendment protections to repel governmental attempts to regulate their fundraising activities. Previously the Supreme Court had ruled against state laws that limited the percentage of donations that could be kept by for-profit companies in such cases as Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984), and Riley v. National Federation of the Blind (1988). In each case the Court found government restrictions on the percentage of funds kept by solicitors to be an unconstitutional violation of free speech. The Court held that such restrictions did not adequately serve their intended purpose and were overly intrusive. However, the Court made clear that the previous rulings did not provide protections for fraudulent activities, and the First Amendment does not protect such speech. See the Donaldson v. Read Magazine (1948) and Schneider v. State (1939) cases and the Varat article (2006). In Madigan deliberate misrepresentation was the central issue.The government argued that the companies’ cut of 85
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percent amounted to fraud because they did not disclose their substantial take, yet made clear statements indicating that most of the funds would be spent for charitable purposes. Justice Antonin Scalia’s concise concurrence noted that the scope of the company’s deception was crucial for distinguishing between permissible omissions in charitable solicitation versus impermissible fraud.The framework identified by Scalia still provides latitude for companies to engage in questionable solicitation, and the ruling has implications for other forms of fraudulent commercial speech. Overall, the importance of this decision is that nonprofits are no longer shielded by the First Amendment from fraud claims when making solicitations for donations or contributions. See also Donaldson v. Read Magazine (1948); Ginsburg, Ruth Bader; Riley v. National Federation of the Blind (1988); Schaumburg v. Citizens for a Better Environment (1980); Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984).
Tara W. Stricko-Neubauer
furthe r reading Hall, Jacqueline K. 2006. “United States v. Schiff: Commercial Speech Regulation or Free Speech Infringement?” Seton Hall Law Review 36 (2006): 551–589. Oberman, Michelle. “Precious Commodities: The Supply & Demand of Body Parts: When the Trust is Not Enough: Tissue Donation, Altruism, and the Market.” DePaul Law Review 55 (Spring 2006). Richards, Neil M. “Reconciling Data Privacy and the First Amendment.” UCLA Law Review 52 (2005): 1149–1222. Varat, Jonathan D. “Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship.” UCLA Law Review 53 (2006): 1107–1141.
Madison, James James Madison (1751–1836), the chief author of the Bill of Rights and thus of the First Amendment, was the foremost champion of religious liberty, freedom of speech, and freedom of the press in the founding era. Madison played a central role in drafting, explaining, and ratifying the Constitution; after it was ratified he sought to reassure its critics by adding guarantees of fundamental liberties. His life’s work, as statesman and as political theorist, was to secure the American revolutionary experiment by guarding against its own potential weaknesses and excesses. Republican government was endangered, he believed, if unrestrained majorities violated the rights of individuals or if elected officials were immune from the scrutiny of a free press. Madison was born to a well-established Virginia planter family. In 1769 he enrolled at the College of New Jersey
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(later Princeton) and came under the intellectual and political influence of the college’s new president, John Witherspoon, whose stated goal was to foster a spirit of liberty and free enquiry and who opened the curriculum to currents of religious and political dissent. After returning to Virginia, Madison joined passionately in the political ferment of the impending revolution. In the spring of 1776 he served on a committee preparing a Declaration of Rights for Virginia’s new constitution. He amended draft language on religious liberty to remove the weaker word toleration and instead to declare “that all men are equally entitled to enjoy the free exercise of religion, according to the dictates of conscience.” Madison served in the Continental Congress from 1780 to 1783, where he learned firsthand the weaknesses of the federal government under the Articles of Confederation. He then served in the Virginia Assembly, where, in 1785, he produced his first great political pamphlet, the “Memorial and Remonstrance against Religious Assessments.”The target of the pamphlet was a bill before the Virginia Assembly supported by Gov. Patrick Henry that would have laid a general tax to pay Christian teachers a modest salary. The bill would not have established any one denomination (all Christian churches were eligible for the funds), but it would have made Christianity the established religion of the state. Madison considered the bill a “dangerous abuse of power”; he reasoned that if government could establish Christianity over other religions, then it would also have the power to elevate one Christian group over another. Madison believed that religion was a matter of individual conscience and that giving legislators control over religious belief would inevitably lead to violation of other basic rights: “It is proper to take alarm at the first experiment on our liberties.” Madison succeeded in defeating the religious assessment bill and then spearheaded passage, in 1786, of Thomas Jefferson’s Virginia Statute for Religious Freedom. Madison played a crucial role in calling the Constitutional Convention of 1787, in Philadelphia, and in shaping deliberations during the convention. Like most other delegates, he sought to remedy the weaknesses of the federal government under the Articles of Confederation. But Madison was equally concerned with remedying the internal injustices of states, the tendency of state-level majorities to violate the rights of individuals and minorities. Despite his concerns, Madison failed in his attempt to include in the Constitution a federal veto on state laws in order “to secure individuals against encroachments on their rights.” Nevertheless, during
the ratification debate Madison claimed that the federal government under the proposed Constitution would better protect the rights of individuals and minorities, because (as he argued in Federalist No. 10) national legislation would be crafted by more political parties and interests than existed within the states, making it more difficult for any one faction to carry out its “plans of oppression.” Madison was especially concerned with violation of property rights, but he also spoke of religious zeal as a dangerous source of conflict and oppression. One of the most influential objections to the proposed Constitution was that it lacked a bill of rights. Thomas Jefferson raised this issue in a December 1787 letter to Madison. Several states, including Virginia, appended to their ratification of the Constitution a long list of recommended amendments, including protection of basic rights and liberties. When the First Congress convened in April 1789, North Carolina and Rhode Island had not yet ratified the Constitution, and many citizens in the eleven ratifying states still feared this new federal government was a threat to liberty. Despite his commitment to individual liberties, Madison opposed making inclusion of a bill of rights a precondition for ratification of the Constitution. He also doubted that mere “paper barriers” against violating basic rights were sufficient protection. A combination of electoral politics and a change in Madison’s own thinking, however, turned him into an active proponent of a federal bill of rights. In a hardfought 1788 campaign for a seat in the First Congress, Madison promised to support a bill of rights, and in June 1789 he introduced in Congress a series of proposed amendments that formed the core of what became the Bill of Rights in the Constitution. In introducing his proposed amendments, Madison particularly emphasized the role of public opinion in a republic. Even if the Constitution did not actually threaten liberty, many people believed it might have that effect, and it was important to allay their fears. Moreover, the wide support for a bill of rights expressed in state ratifying conventions promised to enlist public opinion in support of individual liberties. Paper barriers alone would not prevent violation of rights. But if basic rights were declared in the Constitution, they would influence public opinion against their abridgement and help restrain intolerant majorities. Madison’s proposal for what eventually became the First Amendment is broadly consistent with the final product but in some respects more descriptive:
Madison, James The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances. In one important respect what Madison proposed was very different from what ultimately made it into the Bill of Rights. Madison’s fifth resolution, which he thought was the most important amendment of all, would have provided that “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” The Bill of Rights as ultimately ratified restricted only the federal government. Madison envisioned a bill of rights that would have prevented both the federal government and the states from violating basic liberties. In this respect Madison anticipated the Fourteenth Amendment (1868) and the subsequent process of incorporation whereby key Bill of Rights protections were made binding on the states. During the 1780s Madison had believed the principal threats to basic liberties came from the states, not from the federal government. Events of the 1790s persuaded him that an unchecked federal government was equally dangerous. He subsequently became identified with the DemocraticRepublican Party, which opposed many policies of the first two Federalist presidents. In 1798 the Federalist-dominated Congress, responding to fears of foreign subversion and intense domestic partisanship, passed the Alien and Sedition Acts. The Sedition Act made it a crime to “write, print, utter or publish . . . any false, scandalous, and malicious writing or writings” that would have the effect of bringing office holders “into contempt or disrepute” in the opinion of “the good people of the United States.” Supporters of the law, citing English common law precedent, claimed that the First Amendment prohibition on abridging the freedom of the press forbade only “previous restraint on printed publications,” not subsequent punishment for what one had printed. The Sedition Act also provided that those charged were absolved if they
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could prove the truth of what they had asserted in their publications. In his Virginia Resolutions of 1798, and in the Report of 1800 that further explained those resolutions, Madison denounced the Sedition Act, and its restrictions on freedom of speech and press, as a flagrant violation of the First Amendment and as a fundamental threat to republican government. Madison denied that the First Amendment’s guarantee of freedom of the press meant only freedom from prior restraint on publications. English common law understandings of press liberty, Madison argued, were inapplicable to a republic like the United States founded on the principle that “the people, not the government, possess the absolute sovereignty.” In order to hold public officers responsible in a republic, people must be able freely to discuss public officials and their policies. If office holders have violated the people’s trust, they should not be able to shield themselves from criticism by restricting the press. Madison argued that the opportunity to prove that one’s writings were true was inadequate protection. First, it is extremely difficult for anyone to demonstrate “the full and formal truth” of every publication, and, second, the obvious purpose of the law was to punish political opinions, not to correct misstatements of fact. Madison admitted that freedom of the press could be abused, but he thought it was better to leave a few “noxious branches” than to cut away the “proper fruits.” In the early days of the republic, Madison served as secretary of state under Thomas Jefferson. He then served as president himself for two terms. His presidency (1809–1817) was clouded by his failure adequately to prepare the country for the War of 1812, but he demonstrated his commitment to the First Amendment by refusing to muzzle the press despite intense domestic opposition to the war. He also vetoed two pieces of legislation that he considered unconstitutional financial support for religious institutions. During his long retirement Madison became the last surviving major figure of the founding generation. He selfconsciously assumed the role of guardian and interpreter of the revolutionary experiment—or what he had once named “the sacred fire of liberty”—for a new and turbulent generation of Americans. Madison’s records of the debates of the Constitutional Convention, published after his death, remain the single-most important source for detailing these deliberations.
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See also Anti-Federalists; Bill of Rights; Constitutional Convention of 1787; Federalists; Henry, Patrick; Jefferson, Thomas; Mason, George; “Memorial and Remonstrance”; Sedition Act of 1798; Virginia and Kentucky Resolutions; Virginia Declaration of Rights; Virginia Report of 1800; Virginia Statute for Religious Freedom; Witherspoon, John.
James H. Read
furthe r reading Alley, Robert S., ed. James Madison on Religious Liberty. Buffalo, N.Y.: Prometheus Books, 1985. Banning, Lance. The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic. Ithaca: Cornell University Press, 1995. Ketcham, Ralph. James Madison:A Biography. Charlottesville: University Press of Virginia, 1990. Labunski, Richard. James Madison and the Struggle for the Bill of Rights. Oxford: Oxford University Press, 2006. McCoy, Drew R. The Last of the Fathers: James Madison and the Republican Legacy. Cambridge: Cambridge University Press, 1989. Read, James H. Power versus Liberty: Madison, Hamilton, Wilson, and Jefferson. Charlottesville: University Press of Virginia, 2000. Smith, James Morton. Freedom’s Fetters:The Alien and Sedition Law and American Civil Liberties. Ithaca: Cornell University Press, 1956. Vile, John R., William Pederson, and Frank Williams, eds. James Madison: Philosopher, Founder, and Statesman. Athens: Ohio University Press, 2008.
Madsen v. Women’s Health Center, Inc. (1994) In Madsen v.Women’s Health Center, Inc., 512 U.S. 753 (1994), the Supreme Court addressed the conflict between the First Amendment rights of antiabortion protestors and women’s constitutional right to abortions. The Court reversed an injunction in part and affirmed it in part, finding that the buffer zone on a public street excluding abortion protestors was constitutional, but several other provisions were not. The case arose out of demonstrations against the Aware Woman Center for Choice in Melbourne, Florida. Protestors blocked doors and marched on the street, using bullhorns to spread their message.They approached patients to try to convince them not to get an abortion and followed staff to their homes to demonstrate their opposition to abortion. Responding to the Center’s suit against the protestors, in September 1992 a state court judge ordered the protestors not to trespass on Center property, block its entrances, or physically abuse anyone entering or leaving the clinic; the judge specifically noted that the order was not intended to limit protestors from exercising their First Amendment rights.
About six months later, after the protestors violated the court order, the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery. Additionally, the court created a 300-foot zone that barred protestors from approaching patients without their consent and a 300foot barrier for demonstrations and picketing at the homes of clinic staff. The Florida Supreme Court unanimously upheld the order, declaring that the protestors’ activities conflicted with the state’s concern for public safety and women’s right to abortion.When the case reached the U.S. Supreme Court, it focused on the constitutionality of the 36-foot buffer zone, with the protestors claiming the state court order violated the First Amendment. Opponents argued that the court order targeted antiabortion expression because pro-choice demonstrators were allowed in the buffer zone.The Center contended that the order promoted a variety of interests including public safety, properly regulated the manner of the protest, and was unrelated to opinions on abortion. The Court’s 6-3 ruling, announced by Chief Justice William H. Rehnquist, held that the injunction was contentneutral and applied to all persons engaged in clinic protests, regardless of their message. The Court asked whether the burden imposed by the order was greater than that required to further an important government end.Applying this standard, it upheld the 36-foot buffer zone around the clinic entrances and driveway to preserve access to and from the clinic and to allow street traffic; it also allowed the noise restrictions. The Court also found, however, that the restrictions imposed on private property at the back and side of the clinic and those forbidding protestors to show images to clients were unjustified because they imposed a greater burden on speech than was necessary. Similarly, the 300-feet zone around the clinic and at staff residences was too broad to allow the protestors to express their views peacefully and burdened their speech beyond the permissible limits of the government’s interest in ensuring access to the clinic and preventing intimidation of the patients and staff. The Court’s decision in Madsen did not end First Amendment challenges to court injunctions or state laws limiting antiabortion protestors. The Court later decided Schenck v. Pro-Choice Network of Western New York (1997) and Hill v. Colorado (2000).
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See also Abortion Protests; Bray v. Alexandria Women’s Health Clinic (1993); Feminist Theory; Free Speech Zones; Hill v. Colorado (2000); RICO Laws; Scheidler v. National Organization for Women (2006); Schenck v. Pro-Choice Network of Western New York (1997).
Susan Gluck Mezey
furthe r reading Hare, Ivan. “Method and Objectivity in Free Speech Adjudication: Lessons from America.” International & Comparative Law Quarterly 54 (2005): 49–87. Hagan, Melanie C. “The Freedom of Access to Clinic Entrances Act and the Nuremberg Files Web Site: Is the Site Properly Prohibited or Protected Speech?” Hastings Law Journal 51 (2000): 411–444. Keast, Tiffany. “Injunction Junction: Enjoining Free Speech after Madsen, Schenck, and Hill.” American University Journal of Gender, Social Policy & the Law 12 (2004): 273–307. Mezey, Susan Gluck. Elusive Equality:Women’s Rights, Public Policy, and the Law. Boulder, Colo.: Lynne Rienner Publishers, 2003. Zick, Timothy. “Speech and Spatial Tactics.” Texas Law Review 84 (2006): 581–651.
Magna Carta The Magna Carta, or Great Charter, is a series of concessions that English noblemen extracted from King John I at Runnymede, England, in 1215, and that some later monarchs reissued. The document’s preamble and sixty-three clauses remain an important foundation for the rights claimed by English citizens, including those who immigrated to the United States. Although Britain continues to operate according to the principle of parliamentary sovereignty and has never adopted a single written document, such as one resembling the U.S. Constitution, British citizens still look to the Magna Carta, as well as the later Petition of Right (1628) and English Bill of Rights (1689), as establishing fundamental principles that the government dare not violate. John Locke and William Blackstone were among the English legal theorists who expanded the principles of liberty in the Magna Carta. In America’s colonial days, the most significant principle of the Magna Carta was that the king had no power to tax persons who were not represented in the government. Colonists cited this principle of “no taxation without representation” in the Declaration of Independence and in other documents that asserted colonial privileges. Before the Revolutionary War, the colonists viewed the charters issued to them by the king in the same way that they viewed the Magna Carta—as providing protections for their rights. Many of these protections were later incorporated into state
In this steel engraving, King John of England reluctantly signs the Magna Carta in 1215. The charter, which established fundamental rights for British citizens, was an important influence on the Declaration of Independence and the U.S. Constitution and its Bill of Rights.
constitutions before being expanded and incorporated into the U.S. Constitution and its Bill of Rights. Clause 29 of the Magna Carta prevented the English government from jailing or punishing an individual “except by the lawful judgment of his peers and by the law of the land.” This clause is generally understood to provide the foundation of the due process clause of the U.S. Constitution’s Fifth and Fourteenth Amendments. The idea that nobles could meet with the king and present him with a set of grievances arguably foreshadowed both the peaceable assembly and petition provisions of the First Amendment.The provision of the Magna Carta that appears closest to the First Amendment is in Clause 1:“The English Church shall be free, and shall have her rights entire, and her liberties inviolate.” This text hardly prevents the establishment of a national church (Britain continues to recognize the Episcopal Church as the established church), as does the
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First Amendment, but it does acknowledge a sphere in which religious claims should be free of state supervision and control. Moreover, claims once associated specifically with the nobility have been widened both within Britain and the United States to include all citizens. See also Blackstone,William; Declaration of Independence; English Bill of Rights; Locke, John.
John R.Vile
furthe r reading Anastaplo, George. Reflections on Freedom of Speech and the First Amendment. Lexington: University Press of Kentucky, 2007. The Bill of Rights and the Founders. Washington, D.C.: Bill of Rights Institute, 2000.
Mail Throughout U.S. history, the mail has played a crucial role in shaping jurisprudence on free expression, but its impact on the First Amendment has diminished in recent years, along with its importance as a medium of communication. Beginning in the colonial period, the post office and the press were interconnected in ways that shaped the First Amendment. In the early eighteenth century, postmasters printed the first colonial newspapers. By the outbreak of the American Revolution, they were publishing most of the colonies’ newspapers. Benjamin Franklin, for example, was both a postmaster and a newspaper publisher. When the Continental Congress established an independent U.S. post office in 1775, it took over the postal network established by newspaperman William Goddard. It was in part this intimate relationship between mail delivery and the press that prompted Congress to allow newspapers to benefit from extremely cheap (and highly subsidized) mailing rates in the country’s first comprehensive postal statute, which was passed in 1792, just months after ratification of the First Amendment. Until World War I and the emergence of a variety of First Amendment issues, many of the most important First Amendment disputes involved the mail. Because the powers of the federal government were far narrower than they are today, Congress’s power over the mail was often its principal means of regulating speech, press, and religion. An early example of the way in which legislative attempts to control the mail led to a First Amendment clash was the abolitionist mail controversy of 1835–1836. At the time, northern abolitionists were using the mail to send anti-slav-
ery pamphlets to the South. Congress debated several proposals to bar the pamphlets from the mail, but most members considered the proposals unconstitutional, in part because they were thought to abridge freedom of the press. None of the proposals ever became law. The establishment clause and the mail came in conflict in the early nineteenth century. In 1810 Congress passed a law requiring that post offices open at least one hour a day, including Sunday. On and off from 1810 to 1831, religious leaders and others petitioned Congress to change the law. But among the arguments in defense of the law was the claim that a federal law that explicitly recognized the Sabbath would violate the principle of separation of church and state. During the 1850s, Sunday postal service died a slow death, and it effectively ceased altogether after the Civil War (although the 1810 law was not repealed until 1912). The mail continued to be a crucial First Amendment battleground in the post–Civil War years, when Congress passed laws (such as the Comstock Act) banning obscene publications and lottery advertisements from the mail.These laws prompted the Supreme Court to review various cases, but the Court was largely deferential to Congress in its interpretations of the First Amendment during this period. The seminal decision was Ex parte Jackson (1877), which both upheld the constitutionality of the law banning lottery advertisements from the mail and ruled that the obscenity law was constitutional. The only successful free speech claims during this era were those in which the Court interpreted statutes narrowly. Examples of such interpretations are In re Chase (1890), in which the Court reversed an obscenity conviction on the grounds that the word writings in the obscenity statute did not apply to sealed letters, and Swearingen v. United States (1896), in which the Court ruled that an article that used epithets in attacking an individual was not “obscene.” More typical were cases such as Rosen v. United States (1896), in which the Court affirmed an obscenity conviction based on the mailing of a newspaper with sexually explicit pictures. The mail was crucial to federal regulation of the press during World War I. The Espionage Act of 1917 included a provision that prohibited mailing materials that interfered with the war effort (for example, a publication that tended to “obstruct” the draft). In Masses Publishing Co. v. Patten (S.D.N.Y. 1917), Judge Learned Hand, a federal trial court judge who later served on the U.S. Supreme Court, attempted to limit the law’s reach to materials that expressly “incited” violation of the law. Although Hand’s opinion, which
Mann, Horace enjoined the postmaster from barring a newspaper from the mail, was simply a narrow interpretation of the statute and although the decision was reversed on appeal, Masses Publishing is now viewed by many scholars as a turning point in free speech jurisprudence. The mail provisions of the Espionage Act also produced another important case, United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921). In that case, the Supreme Court upheld an order by the postmaster general denying the newspaper rate (which was cheaper than ordinary mail) to a socialist newspaper on the ground that the paper had violated the Espionage Act. Justices Louis D. Brandeis and Oliver Wendell Holmes Jr. dissented, and Justice Holmes’s dissent contains the memorable aphorism that “[t]he United States may give up the [post office] when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues.” Twenty-five years later, the Court overruled the Burleson case. During the cold war, the mail again became the subject of a serious First Amendment controversy when Congress passed a law requiring recipients of foreign “communist political propaganda” to return a reply card to the post office indicating a desire to receive the materials. In Lamont v. Postmaster General (1965), the Court invalidated the statute under the First Amendment—the first time the Court struck down a federal statute on free speech/free press grounds. Throughout the 1950s and 1960s, many of the seminal obscenity cases involved prosecutions of those who mailed allegedly obscene materials—after all, the mail was still the principal means by which the federal government regulated speech and the press. Among those important cases were Roth v. United States (1957), the first case in which the Court explicitly held that obscenity was not protected by the First Amendment; Manual Enterprises v. Day (1962); and Ginzburg v. United States (1966). Although some more recent First Amendment cases involve the mail, the focus of such cases has largely shifted to other media. See also Abolitionists and Free Speech; Blount v. Rizzi (1971); Comstock, Anthony; Comstock Act of 1873; Espionage Act of 1917; Ex parte Jackson (1877); Franklin, Benjamin; Ginzburg v. United States (1966); Hand, Learned; Lamont v. Postmaster General (1965); Manual Enterprises v. Day (1962); Masses Publishing Co. v. Patten (S.D.N.Y. 1917); Obscenity and Pornography; Rosen v. United States (1896); Roth v. United States (1957); Rowan v. U.S. Post Office Department (1970); Sunday Mail; Swearingen v. United States
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(1896); United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921).
Anuj C. Desai
furthe r reading Curtis, Michael Kent. “The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835–37.” Northwestern University Law Review 89 (1995): 785–870. Desai, Anuj C. “Media, Institutions, and the First Amendment: The Post Office as a Communications Network and First Amendment Institution.” Social Science Research Network, www.ssrn.com. Deutsch, Eberhard P.“Freedom of the Press and of the Mails.” Michigan Law Review 36 (1938): 703–751. Fowler, Dorothy Ganfield. Unmailable: Congress and the Post Office. Athens: University of Georgia Press, 1977. John, Richard. Spreading the News: The American Postal System from Franklin to Morse. Cambridge, Mass.: Harvard University Press, 1998. Pool, Ithiel de Sola. Technologies of Freedom. Cambridge, Mass.: Belknap Press, 1983. Rabban, David. Free Speech in Its Forgotten Years. Cambridge, Mass.: Cambridge University Press, 1997. Schwartz, Murray L. “The Mail Must Not Go Through—Propaganda and Pornography.” UCLA Law Review 11 (1964): 805–858. Schwartz, Murray L., and James C. N. Paul. “Foreign Communist Propaganda in the Mails: A Report on Some Problems of Federal Censorship.” University of Pennsylvania Law Review 107 (1959): 621–666. Sigler, Jay A.“Freedom of the Mails: A Developing Right.” Georgetown Law Journal 54 (1965): 30–54.
Mann, Horace Known as the “father of American education,” Horace Mann (1796–1859), a major force behind establishing unified school systems, worked to establish a varied curriculum that excluded sectarian instruction. His vision of public education was a precursor to the Supreme Court’s eventual interpretation of the establishment clause and church-state separation principles in public schools. Mann attended Brown University and the Litchfield Law School in Connecticut. After graduation, he built a successful legal career and was subsequently elected to the state house in 1827 and the state senate in 1833. In 1837 Mann played a key role in establishing the Massachusetts State Board of Education, and he went on to become the board’s first secretary of education. As secretary, Mann advocated for “common schools,” institutions that would be available to everyone, regardless of their ability to pay tuition. Mann believed that universal education would allow the United States to avoid the rigid class systems of Europe. In his twelfth (and last) annual
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report for the Massachusetts school board, Mann wrote that education “is the great equalizer of the conditions of men—the balance-wheel of the social machinery.” He also argued that universal education would allow the United States to maintain a democracy; all Americans, he thought, “must, if citizens of a Republic, understand something of the true nature and functions of the government under which they live.” In establishing public common schools, Mann opposed sectarian instruction and in its stead advocated instruction in universal Christian principles and values that would allow students to make their own moral judgments. Mann’s nonsectarian approach to public education was criticized at the time (and is still viewed by some today) as hostile to religion and detrimental to both individual and social morals. Some leaders of the Roman Catholic Church, for example, argued that the common schools, while professing to be nonsectarian, in fact embodied general Protestant principles, contrary to the First Amendment. By the 1960s, in cases like Engel v. Vitale (1962) and Abington School District v. Schempp (1963), in which the Court invalidated school-sponsored prayer and Bible readings in public schools on establishment clause grounds, the Supreme Court had begun to use the establishment clause of the First Amendment to strike prayer and devotional Bible reading (usually from the King James Bible that many Protestants preferred) from the public schools. In defense of nonsectarian schools in his last school board report, Mann argued that the common school “earnestly inculcates all Christian morals,” and “in receiving the Bible, it allows it to do what it is allowed to do in no other system,—to speak for itself. But here it stops . . . because [the common school] disclaims to act as an umpire between hostile religious opinions.” See also Abington School District v. Schempp (1963); Engel v.Vitale 1962); Catholics, Roman.
David Carleton
furthe r reading Cremin, Lawrence A., ed. Republic and the School: Horace Mann on the Education of Free Man. New York:Teachers College Press, 1957. Fraser, James W. Between Church and State: Religion and Public Education in a Multicultural America. New York: St. Martin’s Griffin, 2000. Hayes,William. Horace Mann’s Vision of the Public Schools. Lanham, Md.: Rowman and Littlefield, 2006. Winship, Albert E. Horace Mann: The Educator. Whitefish, Mont.: Kessinger, 2007.
Manual Enterprises v. Day (1962) In Manual Enterprises v. Day, 370 U.S. 478 (1962), the Supreme Court held that three homoerotic physique magazines—MANual,Trim, and Grecian Guild Pictorial—were not obscene and could not be barred from the mails. Presenting themselves as celebrations of “Greek” culture or healthy outdoor living, these magazines featured nude or semi-nude men in modeling and weight-lifting poses. The post office’s administrative board ruled that the magazines were obscene and that because the magazines carried advertisements telling readers how to obtain obscene photographs, they were also unmailable under the Comstock Act of 1873, 18 U.S.C. 461.The publishers unsuccessfully sought injunctive relief in federal district court to prevent J. Edward Day, the postmaster general, from implementing these rulings. The district court ruling was affirmed by the D.C. Circuit Court, but the Supreme Court reversed. In a plurality opinion, Justice John Marshall Harlan II (joined by Justice Potter Stewart) reasoned that obscenity includes two elements: “(1) patent offensiveness; and (2) ‘prurient interest’ appeal.” The magazines, although “dismally unpleasant, uncouth, and tawdry,” were not patently offensive. Harlan continued,“[T]hese portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates.” As for the advertisements, Harlan concluded that the government had not shown that the publishers knew the advertisers were selling obscene photographs. Harlan’s “patent offensiveness” requirement became part of the three-part test the Court later formulated in Miller v. California (1973). Concurring, Justice William J. Brennan Jr. (joined by Chief Justice Earl Warren and Justice William O. Douglas) painstakingly tracked the Comstock Act through its various incarnations since 1865 and concluded that the post office lacked the authority to craft regulations to restrict the circulation of obscene matter. Justice Hugo L. Black concurred without writing, and Justices Felix Frankfurter and Byron R. White took no part in the decision. Justice Tom C. Clark dissented. Like the concurrence, Clark ignored the question of the magazines’ obscenity. He concluded that the publishers’ knowledge of the advertisements was irrelevant and that the post office had congressional authority to regulate nonmailable material. Manual Enterprises, arguably the first gay rights victory in the Supreme Court, had a significant impact on gay and lesbian magazine and book publishing over the following
Marcus v. Search Warrant (1961) decades.The papers of the lead petitioner, Herman Womack, are now at the Cornell University Library. See also Comstock Act of 1873; Harlan, John Marshall, II; Mail; Miller v. California (1973); Obscenity and Pornography.
Simon Stern
furthe r reading Streitmatter, Rodger, and John C. Watson. “Herman Lynn Womack: Pornographer as First Amendment Pioneer.” Journalism History 28 (2002): 56–65.
Mapplethorpe, Robert Robert Mapplethorpe (1946–1989), a highly regarded if controversial photographic artist, gained notoriety for his portrayal of sexually explicit images. Although many of his works—including exquisitely lighted images of flowers—are uncontroversial, a series of homoerotic and other sexually explicit photographs made him posthumously a political target and a central figure in a First Amendment clash over the legal meaning of art and obscenity. Mapplethorpe was born in Floral Park, New York. He was trained in art at the Pratt Institute and, after receiving a BFA in 1970, continued to work in New York City. In 1990 a planned exhibit of his photographs at the Corcoran Gallery in Washington, D.C., was abruptly cancelled. Because the exhibit, including the erotic images, had been partially sponsored by federal funds, the artist, his work, and the National Endowment for the Arts were all excoriated by politicians across the country.The controversy eventually underpinned an effort to pull back all federal funding from support of the arts and led to other offensives against alleged obscenity. A short time later, the director of the Cincinnati Art Museum was indicted on obscenity charges for mounting an exhibit of Mapplethorpe’s photographs that only a few weeks before had been hanging at a nearby university without incident.The photos included men displaying their genitals and engaged in sex acts. In a two-week trial, the defense counsel, led by noted First Amendment attorney H. Louis Sirkin, argued successfully to a jury that the photographs did not meet the legal definition of obscenity. The Supreme Court had said, in Miller v. California (1973), that for a work to be denied First Amendment protection it must lack “serious literary, artistic, political, or scientific value.” The jury took only two hours to acquit the director of obscenity charges. Although the experience of the Mapplethorpe exhibit indicates the First Amendment may protect artists and their
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exhibitors from criminal sanctions, it also indicates that the Constitution can do little to protect them from political consequences. See also Government Funding and Free Speech; Miller v. California (1973); Obscenity and Pornography; Sirkin, H. Louis.
James L.Walker
furthe r reading Morrisroe, Patricia. Mapplethorpe. New York: Random House, 1995.
Marcus v. Search Warrant (1961) In Marcus v. Search Warrant, 367 U.S. 717 (1961), the Supreme Court reversed lower court decisions, finding that the seizure of material considered obscene violated the First Amendment and the Fourteenth Amendment’s due process clause. At issue was a seizure from retail newsstands by Kansas City police officers of magazines and other materials believed to be obscene.Without holding a hearing, without seeing any of the publications in question, and without specifying any particular publication, the trial judge issued a search warrant, authorizing officers to search appellants’ homes and seize all material that, in their judgment, was obscene. After a seizure of approximately 11,000 copies of 280 publications taken from six places, a judge found 100 of the 280 items to be obscene. He ordered these to be kept as evidence for prosecution or burned and the rest to be returned. The appellants—including William Marcus— argued that this was an invalid search and seizure and was a violation of their First and Fourteenth Amendments rights. The state supreme court sustained the ruling, and the case made its way to the U.S. Supreme Court. Writing for the Court, Justice William J. Brennan Jr. first reviewed the facts and then looked at the case in its historical context, observing that “[h]istorically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power” and that “[t]he Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”Although Roth v. United States (1957) had established that “obscenity is not within the area of constitutionally protected speech or press,” the state’s powers were still “limited by the constitutional expressions for free expression.” In this case, the Missouri law allowed
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for procedures that “sweep so broadly and with so little discrimination.” Brennan said that the Missouri court had relied improperly on Kingsley Books, Inc. v. Brown (1957). That law had named particular publications and had avoided catch-all restraints against the distribution of all “obscene” materials; it had not allowed vested police officers with the discretion to engage in the wholesale removal of materials from book shops and had provided for more expedited review. Given Missouri’s lack of safeguards, the condemnation of the 100 periodicals could not be sustained, and the Court had “no occasion to reach the question of the correctness of the finding that the publications are obscene.” Justice Hugo L. Black issued a concurring opinion, joined by William O. Douglas, focusing on the unreasonableness of what he considered to have been a general warrant in this case. Like the Supreme Court’s later decision in Stanford v.Texas (1965), the Marcus v. Search Warrant decision involves the intersection between the First and Fourth Amendments. In Stanford, the Court held that states may not issue general warrants that do not include “with particularity the things to be seized,” and the state must give the “most scrupulous exactitude” to the Fourth Amendment’s guarantee against invasion by the states. The Marcus decision established that state officials must adhere to procedural safeguards before seizing expressive materials suspected of being obscene. See also Black, Hugo L.; Brennan,William J., Jr.; Kingsley Books, Inc. v. Brown (1957); Obscenity and Pornography; Roth v. United States (1957); Stanford v.Texas (1965); Star Chamber;Wilkes, John.
John R.Vile
furthe r reading Trachtman, Jeffrey S. “Note: Pornography, Padlocks, and Prior Restraints: The Constitutional Limits of the Nuisance Power.” New York University Law Review 58 (1983): 1478–1529.
Marketplace of Ideas Marketplace of ideas refers to the belief that the test of the truth or acceptance of ideas depends on their competition with one another and not on the opinion of a censor, whether one provided by the government or by some other authority. This concept draws on an analogy to the economic marketplace, where, it is claimed, through economic competition superior products sell better than others.Thus the economic marketplace uses competition to determine winners
and losers, whereas the marketplace of ideas uses competition to judge truth and acceptability. This theory of speech therefore condemns censorship and encourages the free flow of ideas as a way of viewing the First Amendment. Perhaps the origins of translating market competition into a theory of free speech was John Stuart Mill’s 1859 publication On Liberty. In Chapter 2, Mill argues against censorship and in favor of the free flow of ideas. Asserting that no one alone knows the truth, or that no one idea alone embodies either the truth or its antithesis, or that truth left untested will slip into dogma, Mill claims that the free competition of ideas is the best way to separate falsehoods from fact. The first reference to the marketplace of ideas was by Justice Oliver Wendell Holmes Jr. in Abrams v. United States (1919). Dissenting from a majority ruling that upheld the prosecution of an anarchist for his anti-war views under the Espionage Act of 1917, Holmes stated:“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” Since this first appeal to the marketplace of ideas as a theory of free expression, it has been invoked hundreds if not thousands of times by the Supreme Court and federal judges to oppose censorship and to encourage freedom of thought and expression. In recent years, the phrase was invoked in McCreary County v. American Civil Liberties Union (2005) to strike down a religious display of the Ten Commandments in front of a courthouse, in Randall v. Sorrell (2006) to invalidate expenditure limits for candidates for political office, and in Reno v. American Civil Liberties Union (1997) to bar enforcement of the Communications Decency Act in censoring the content of material distributed on the Internet and the Web. Overall, the marketplace of ideas analogy has become a powerful idea, underpinning much of First Amendment jurisprudence. See also Censorship; Holmes, Oliver Wendell, Jr.; McCreary County v. American Civil Liberties Union (2005); Mill, John Stuart; On Liberty; Randall v. Sorrell (2006); Reno v. American Civil Liberties Union (1997).
David Schultz
Marsh v. Alabama (1946) furthe r reading Shiffrin, Steven H. The First Amendment, Democracy, and Romance. Princeton: Princeton University Press, 1990.
Marks v. United States (1977) In Marks v. United States, 430 U.S. 188 (1977), the Supreme Court found that it violated due process to apply the stricter standards for obscenity articulated in Miller v. California (1973) rather than the looser standards of Memoirs v. Massachusetts (1966), which were the only ones in force at the time of the alleged offense. Petitioners were convicted of transporting obscene materials through interstate commerce in violation of a federal statute. The conduct occurred before the Miller case was decided; thus, in district court the petitioners argued that jury instructions should be based on Memoirs rather than Miller. The district court overruled, and the Sixth Circuit Court of Appeals affirmed.The Supreme Court then reversed. In writing the opinion for the Court, Justice Lewis F. Powell Jr. observed that the third part of the Memoirs test had protected expressive material unless it was “utterly without redeeming social value.” By contrast, the Miller test had asked “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Because Miller “casts a significantly wider net than Memoirs,” applying Miller would violate the due process clause “much as retroactive application of a new statute to penalize conduct innocent when performed would violate the Constitution’s ban on ex post facto laws.” Such retroactive application denied “fair warning” to those who might be subject to criminal penalties. Although the decision in Memoirs had been a plurality, rather than a majority, decision, lower courts had still interpreted it as reigning law, and it would be unfair to subject film marketers to a new standard for conduct they engaged in when the old standard was in place. Powell accordingly reversed the lower court judgment and remanded the case for consideration under the Miller standards. Justice William J. Brennan Jr. wrote an opinion concurring in the Court’s decision against retroactive application of the Miller standards but objecting to a new trial on the basis that the statute at issue was “clearly overbroad and unconstitutional on its face.” Similarly, Justice John Paul Stevens, in another partial concurrence and partial dissent, would have dismissed the case also. He observed that the statute governs materials that implicate First Amendment values; that it punished people for distributing materials that, under Stanley v.
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Georgia (1969), they had a right to possess; and that the standards in such prosecutions “are so intolerably vague that evenhanded enforcement of the law is a virtual impossibility.” He observed that “my brief experience on the Court has persuaded me that grossly disparate treatment of similar offenders is a characteristic of the criminal enforcement of obscenity laws.” The case is also significant because it established the socalled Marks rule in constitutional interpretation—that when no single opinion captures a majority of the Court, the holding of the Court rests in the opinion decided on the narrowest grounds. Powell explained in his opinion: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” See also Brennan,William J., Jr.; Memoirs v. Massachusetts (1966); Miller v. California (1973); Obscenity and Pornography; Powell, Lewis F., Jr.; Stanley v. Georgia (1969); Stevens, John Paul.
John R.Vile
furthe r reading Morrison, Trevor W. “Fair Warning and the Retroactive Judicial Expansion of Federal Criminal Statutes.” Southern California Law Review 74 (January 2001): 455–521. Stearns, Maxwell L.“Symposium:The Canon(s) of Constitutional Law: The Case for Including Marks v. United States in the Canon of Constitutional Law.” Constitutional Commentary 17 (Summer 2000): 321–338.
Marsh v. Alabama (1946) In Marsh v. Alabama, 326 U.S. 501 (1946), the Supreme Court held that a person distributing religious literature on the sidewalk of a “company town” was protected by the First Amendment rights of freedom of the press and religion and could not be arrested for trespass. The “company town” is largely a thing of the past, but in the early 1920s much of the U.S. coal mining population lived in company-owned homes, as did many southern cotton mill workers. Company towns comprised a small, but not insignificant, percentage of traditional public space. Around this time, the Gulf Shipbuilding Corporation built homes for its workers, streets, sewers, and a downtown business district in Chickasaw, Alabama (a suburb of Mobile). Gulf did not prohibit individuals from neighboring areas from entering Chickasaw, driving on its streets, and shopping
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in the business district. When Grace Marsh, a Jehovah’s Witness, began passing out religious literature on the sidewalk in front of the post office, however, she was told she would not be given a permit to distribute the literature and was asked to leave. Marsh refused. She was arrested and charged under state law with trespass on Gulf property. Marsh’s conviction was affirmed by the state appellate court and the Alabama Supreme Court. In the trial court and throughout the appellate process, Marsh argued that her individual constitutional rights of freedom of press and freedom of religion should not be trumped by the private property owner’s right to exclude. The U.S. Supreme Court examined the manner in which the Gulf-owned property functioned in the community. Writing for a 5-3 majority, Justice Hugo L. Black noted that “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” The Court continued,“Whether a corporation or a municipality owns or possesses the town[,] the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.” Accordingly, the Court reversed Marsh’s conviction, concluding that the state could not use a trespass law to punish Marsh for distributing religious literature on the sidewalk of a company town. Three justices—Stanley F. Reed, Harold H. Burton, and Chief Justice Frederick M.Vinson—dissented. Reed wrote, “The rights of the owner, which the Constitution protects as well as the right of free speech, are not outweighed by the interests of the trespasser, even though he trespasses in behalf of religion or free speech.” Although Marsh was decided at the end of the era of company towns, its central holding has remained a guiding principle of constitutional law. Two decades later, the Civil Rights Act of 1964 limited private property owners’ ability to refuse entry or service to individuals on the basis of race, color, religion, or national origin in places of public accommodation. Additionally, Marsh became the conceptual foundation for PruneYard Shopping Center v. Robins (1980) and other cases in which individuals claimed First Amendment rights of speech and free exercise in shopping malls, airports, and other quasi-public spaces. See also Black, Hugo L.; Jehovah’s Witnesses; PruneYard Shopping Center v. Robins (1980).
Kristi Bowman
furthe r reading Balkin, Jack M. “Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds.” Virginia Law Review 90 (2004): 2043–2098. Fee, John. “The Formal State Action Doctrine and Free Speech Analysis.” North Carolina Law Review 83 (2005): 570–619. Newton, Merlin Owen. Armed with the Constitution: Jehovah’s Witnesses in Alabama and the U.S. Supreme Court. Tuscaloosa: University of Alabama Press, 1995. Peters, Shawn Francis. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Lawrence: University Press of Kansas, 2000. Siegel, Steven. “The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years After Marsh v.Alabama.” William and Mary Bill of Rights Journal 6 (1998): 461–563.
Marsh v. Chambers (1983) The Supreme Court decision in Marsh v. Chambers, 463 U.S. 783 (1983), found that the longstanding practice by which Nebraska hired a chaplain to open each legislative day with prayer did not violate the establishment clause of the First Amendment. Since 1965 the legislature had employed Presbyterian minister Robert Palmer to offer the opening prayer. Ernest Chambers, a longstanding member of the Nebraska legislature, filed a lawsuit seeking to enjoin the practice. The Eighth Circuit Court of Appeals ruled that the practice violated the establishment clause of the First Amendment. The Supreme Court reversed 6-3 in a majority opinion written by Chief Justice Warren E. Burger. Noting that this practice was “deeply embedded in the history and tradition of this country,” Burger traced the practice back to the Continental Congress and to the First Congress under the Constitution, which approved the appointment of a chaplain three days before agreeing to the language of the Bill of Rights. In Nebraska, the practice actually preceded statehood. Although acknowledging that “[s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guarantees,” Burger thought that this history helped verify that the practice posed no real threat of the establishment of religion. Burger pointed out that the participants involved were adults and that the prayers in question were “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” Burger dismissed concerns generated by the fact that the chaplain had held his job for almost 20 years, that he was paid at public expense, and that the prayers were in the Judeo-Christian tradition. He further cited the Court’s dictum in Abington School
Marshall, John District v. Schempp (1963), about distinguishing “between real threat and mere shadow.” In dissent, Justice William J. Brennan Jr. (joined by Justice Thurgood Marshall) indicated that he had changed his thoughts on the subject since his concurring opinion in Abington. He believed that Nebraska’s practice violated all three prongs of the Lemon test—the primary purpose and primary effect of the practice were to advance religion, and it excessively involved the state both in “monitoring and overseeing religious affairs” and in creating the possibility of political divisiveness. Brennan further argued that the practice trenched on the principles of “separation” of church and state and “neutrality” that he believed the establishment clause represented. He believed that these principles further served four purposes: guaranteeing “the individual right to conscience,” keeping the state “from interfering in the essential autonomy of religious life,” preventing the “trivialization and degradation of religion by too chose an attachment to the organs of government,” and avoiding religious battles in the political arena. Rather than simply acknowledging the importance of religion to the people, Brennan argued that the state was actually sponsoring a religious practice. Brennan had three responses to the majority’s historical arguments. First, it did not directly focus on the legislative history of the establishment clause itself. Second, he thought that the First Amendment represented not only the sentiment of Congress, but also of the states.Third, he thought the Court should not interpret the Constitution as a static document, but as one that was addressing “a vastly more diverse people than were our forefathers.” Legislative prayer was too important to classify it simply as a de minimis violation. In a separate dissent, Justice John Paul Stevens expressed concern that a democratically elected legislature was always likely to select clergy of those denominations that are in the ascendancy. Marsh v. Chambers is an example of a Supreme Court decision that accommodates a religious practice largely on the basis of history and tradition. See also Abington School District v. Schempp (1963); Accommodationism and Religion; Brennan, William J., Jr.; Burger, Warren E.; Lemon v. Kurtzman (1971); Lemon Test.
John R.Vile
furthe r reading Cox, Kenneth Mitchell. “The Lemon Test Soured: The Supreme Court’s New Establishment Clause Analysis.” Vanderbilt Law Review 37 (October 1984): 1175–1203.
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Davis, Derek H. Religion and the Continental Congress, 1774–1789. New York: Oxford University Press, 2000.
Marshall, John John Marshall (1755–1835), the fourth chief justice of the United States, served on the Supreme Court for thirty-four years; he remains one of the most honored members in Court history. During his tenure (1801–1835), the Court vastly expanded the role of the national government at the expense of states’ rights advocates and broadly interpreted the legislative, executive, and judicial powers that the founders had enumerated in the Constitution. Even though the Court under Marshall’s leadership limited the reach of the First Amendment (and other provisions of the Bill of Rights) to actions of the national government, by establishing the role of the Court as a co-equal branch of government, Marshall laid the groundwork for this institution to protect First Amendment rights in the future, after they were also applied to the states through the due process clause of the Fourteenth Amendment. Born in Germantown, Virginia, to Thomas and Mary Marshall, John Marshall was one of fifteen children. He was largely educated by his father at home. He briefly attended a series of law lectures at the College of William and Mary and passed the Virginia bar in 1780. This brief period of instruction reinforced the knowledge he had gained earlier in life through reading books and interacting with political leaders. As a soldier in the American Revolution, Marshall worked extensively with George Washington and held the rank of captain when he left the Continental Army in 1781. He served in the Virginia House of Delegates at various times between 1782 and 1796 and was a recorder for the Richmond City Hustings Court from 1785 to 1788. He worked with James Madison and other delegates at the Virginia Ratifying Convention in 1788 in support of the new Constitution. Marshall was among the more prominent members of the Federalist Party who opposed the adoption of the Sedition Act of 1798. He also served as a minister to France (1797–1798), as a member of the U.S. House of Representatives (1799–1800), and as President John Adams’s secretary of state (1800–1801). Adams appointed Marshall as chief justice of the United States in 1801 after Oliver Ellsworth resigned and John Jay declined the position. As chief justice, Marshall projected a sense of power and stature in leading the high court that had been absent until then. He wrote many of the Court’s deci-
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sions during his tenure as chief justice. He also strongly encouraged other justices to refrain from writing separate opinions from the decision of the Court. Marshall’s ingenious legal interpretations had two effects. First, they strengthened the Court’s position as a coequal with the legislative and executive branches of government, and they established the Court’s power of judicial review in the political system. In a landmark case, Marbury v. Madison (1803), Marshall ruled that acts of Congress can be reviewed and struck down if the Court deems them to be unconstitutional. This power of judicial review allowed Marshall to substantiate the Court’s power by ruling that section 13 of the Judiciary Act of 1789 was void and violated Article 3 of the Constitution.Without this power, the provisions within the First Amendment and elsewhere in the Bill of Rights would not have had nearly the impact they have had in American history. Marshall’s legal skill further reinforced the national government’s power over the states. The Supreme Court’s decision in McCulloch v. Maryland (1819), upholding the constitutionality of the national bank, broadly interpreted the “necessary and proper” clause of Article 1, section 8 of the Constitution. Marshall believed this clause provided the basis for additional “implied powers” to belong to Congress, and he did not believe that states had the power to frustrate such powers by taxing federal institutions. When Marshall was chief justice, the First Amendment and other provisions of the Bill of Rights were understood to limit only the national government. Marshall affirmed this understanding in Barron v. Baltimore (1833), where he argued that the purpose of the Bill of Rights had been to limit the national government rather than the states. The Fourteenth Amendment and the doctrine of selective incorporation have extended the vast majority of the provisions in the Bill of Rights, including all provisions of the First Amendment, to state and local governments. The Marshall Court set precedents for numerous other issues, while at the same time maintaining this dual theme of enhancing the Court’s position and reinforcing national supremacy. Several cases dealt with the commerce clause in Article 1 of the Constitution, which vests all powers to regulate commerce in Congress. For instance, the Fletcher v. Peck (1810) decision was a blow against states’ rights advocates, while at the same time it established the precedent for protecting individual property rights and contracts. Dartmouth College v.Woodward (1819) reaffirmed the Fletcher decision by ruling that the Supreme Court could strike down state laws, but it focused on those specifically related to states’ regula-
tion of corporations. In Gibbons v. Ogden (1824), the Court bolstered the commerce clause by prohibiting states from passing any laws that might interfere with the transportation of goods across state lines. One of Marshall’s most notable commentaries comes from Marbury v. Madison: ”The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” See also Adams, John;Anti-Federalists; Barron v. Baltimore (1833); Bill of Rights; Federalists; Sedition Act of 1798.
Daniel Baracskay
furthe r reading Baker, Leonard. John Marshall: A Life in Law. New York: Macmillan, 1974. Faulkner, Robert Kenneth. The Jurisprudence of John Marshall. Princeton: Princeton University Press, 1968. Loth, David. Chief Justice: John Marshall and the Growth of the Republic. New York: Greenwood Press, 1949. Morse, John T., Jr. John Marshall. New York: AMS Press, 1972. Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State University Press, 2001.
Marshall, Thurgood Thurgood Marshall (1908–1993), the first African American to serve on the Supreme Court, consistently championed First Amendment and other individual rights. He viewed the amended Constitution, in the words of his biographer Juan Williams, as “essentially a manifesto of individual liberty” (p. 400). Marshall was born in Baltimore, Maryland. He earned an undergraduate degree from Lincoln University in 1930 and a law degree from Howard University Law School in 1933. At Howard, where he was first in his class, he was mentored by Charles Houston, a professor and leader of the NAACP (the National Association for the Advancement of Colored People). Marshall later became chief counsel for the NAACP and argued numerous civil rights cases before the Supreme Court. Most significant was Brown v. Board of Education (1954), a landmark case that provided for racial desegregation of public schools. President Lyndon B. Johnson appointed Marshall to the U.S. Court of Appeals for the Second Circuit in 1961 and in 1965 to the position of solicitor general.Two years later, Johnson nominated him to the Supreme Court. He was confirmed by the Senate in 1967.
Martin v. City of Struthers (1943) On the Court, Marshall displayed great sensitivity to First Amendment freedoms and regularly voted to protect the free speech rights of employees. He wrote the Court’s seminal decision on free speech rights of public employees, Pickering v. Board of Education (1968). In that case he ruled that public school officials violated the First Amendment rights of an Illinois teacher, Marvin Pickering, when they terminated him for writing a letter criticizing school board policies to the editor of a local newspaper. Marshall, in his opinion for the Court, wrote,“The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” He also wrote the Court’s majority opinion in Rankin v. McPherson (1987), in which the Court ruled, 5-4, that a Texas constable violated the First Amendment rights of a clerical employee for making an intemperate remark about President Ronald Reagan after John Hinckley Jr. shot and wounded the president. Marshall wrote, “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” Marshall’s powerful language in Police Department of Chicago v. Mosley (1972) ushered in the Court’s content discrimination principle, which became the Court’s chief methodological tool for deciding free expression cases. The content discrimination principle determined whether a regulation discriminated against speech because of the content of its message. In Mosley, which dealt with a city law that targeted labor picketing near local schools, Marshall wrote, “But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Marshall’s commitment to the First Amendment extended to prison inmates. In his concurring opinion in Procunier v. Martinez (1974), a case examining the constitutionality of California’s prison mail regulations, Marshall emphasized the importance of freedom of expression to the human spirit: “The First Amendment serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression. . . . To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.” One of Marshall’s most controversial First Amendment opinions was Stanley v. Georgia (1969), which ruled that the
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government could not criminalize the private possession of obscenity.“If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch,” Marshall wrote. “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Marshall also was a staunch advocate of freedom of the press. He wrote the Court’s opinion in Arkansas Writers’ Project, Inc. v. Ragland (1987), which invalidated a state law taxing general-interest magazines but not newspapers and professional trade journals. He noted that “the basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine’s tax status depends entirely on its content.” In Florida Star v. B.J.F. (1989), he ruled that the First Amendment prohibited the state from imposing damages on a newspaper for reporting a rape victim’s name it had lawfully obtained in its police reports section. Marshall’s was a consistent liberal voice on a Court that was increasingly conservative. He retired from the Court in 1991 and was replaced by Justice Clarence Thomas. See also Arkansas Writers’ Project, Inc. v. Ragland; Content Based; Florida Star v. B.J.F. (1989); Pickering v. Board of Education (1968); Police Department of Chicago v. Mosley (1972); Procunier v. Martinez (1974); Rankin v. McPherson (1987); Stanley v. Georgia (1969).
David L. Hudson Jr.
furthe r reading Goldman, Roger, with David Gallen. Thurgood Marshall: Justice for All. New York: Carroll and Graf, 1992. Wells, N. Douglas. “Thurgood Marshall and ‘Individual SelfFulfillment’ in First Amendment Jurisprudence.” Tennessee Law Review 61 (1993): 237–287. Williams, Juan. Thurgood Marshall: American Revolutionary. New York: Times Books, 1998.
Martin v. City of Struthers (1943) In Martin v. City of Struthers, 319 U.S. 141 (1943), the U.S. Supreme Court overturned an Ohio Supreme Court ruling that upheld the conviction of a door-to-door religious solicitor in a case focusing on freedom of speech and the press. The Court maintained that such religious solicitation advanced vital freedoms of speech and the press. Thelma Martin, a Jehovah’s Witness, was convicted in an Ohio state trial court of distributing a flyer advertising an upcoming religious meeting.The Ohio Supreme Court dis-
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missed her appeal, but the U.S. Supreme Court accepted her petition. Justice Hugo L. Black authored the 5-4 decision that overturned the conviction. Black argued that American practice left the decision about whether individuals would listen to visiting colporteurs (distributors of religious literature) to occupants of the houses rather than to governments, although the government could determine reasonable time, place, and manner restrictions. In his opinion, Black also signaled support for model legislation proposed by the National Institute of Municipal Law Officers that would make it illegal for individuals to call on a house where the householders themselves had previously indicated a desire not to be called on. Justice Francis W. Murphy’s concurring opinion focused on the free exercise claims involved in this case. Like Black, he argued that the Struthers law went beyond reasonable time, place, and manner restrictions of such expression. Justice Felix Frankfurter’s dissent emphasized that this law was a response to invasions of personal privacy and peace and counseled deference to the City of Struthers. In another dissent, joined by Justice Owen J. Roberts and Robert H. Jackson, Justice Stanley F. Reed argued that the long-standing acceptance of such solicitations did not elevate the practice to a constitutional right. He wrote that the city law was justified by changing conditions. The Supreme Court has reaffirmed Martin in other cases, such as Watchtower Bible and Tract Society v.Village of Stratton (2002), which rejected a similar Ohio city ordinance limiting door-to-door activities of Jehovah’s Witnesses. See also Black, Hugo L.; Door-to-Door Solicitation; Jehovah’s Witnesses; Time, Place, and Manner Restrictions; Watchtower Bible and Tract Society v.Village of Stratton (2007).
John R.Vile
Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg (1970) In Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970), the Supreme Court unanimously affirmed that in settling church disputes, courts do not raise First Amendment concerns as long as they do not inquire about church doctrine. The case involved an effort by the general eldership of a church to prevent two secessionist congregations from taking church property. Relying on state statutory law relative to religious corporations, language in the deeds, charters, and pertinent provisions in the constitution of the general eldership, the lower courts had resolved the controversy in favor of the secessionists. In an opinion joined by Justices William O. Douglas and Thurgood Marshall and concurring with the Court’s per curiam judgment, Justice William J. Brennan Jr. affirmed that a state could pursue any of three paths in resolving church disputes without inquiry into doctrinal issues. First, a state can, following Watson v. Jones (1871), vest property in a majority of members of congregational polities or follow the judgment of the highest authority within a hierarchical policy, where the property conveyance instrument does not expressly provide otherwise. Second, a state can follow Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) and apply “neutral principles of law,” as in “studying deeds, reverter clauses, and general state corporation laws.” Third, a state can adopt special statutes on the matter as long as these statutes do not interfere with religious doctrine. See also Brennan,William J., Jr.; Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969);Watson v. Jones (1871).
furthe r reading Hudson, David L. Jr. “Why the Jehovah Witnesses Should Win Their Supreme Court First Amendment Challenge to a City AntiCanvassing Ordinance.” http://writ.news.findlaw.com/commentary/ 20020110_hudson.html. McAninch, William Shepard. “A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court.” University of Cincinnati Law Review 55 (1987): 997–1077.
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furthe r reading Gerstenblith, Patty. “Civil Court Resolution of Property Disputes among Religious Organizations.” American University Law Review 39 (Spring 1990): 513–572.
Maryland Toleration Act of 1649 Long before the First Amendment was adopted, the assembly of the Province of Maryland passed “An Act Concerning
Mason, George Religion,” also called the Maryland Toleration Act of 1649. The act was meant to ensure freedom of religion for Christian settlers of diverse persuasions in the colony. The law made it a crime to blaspheme God, the Holy Trinity, the Virgin Mary, or the early apostles and evangelists. It also forbade one resident from referring to another’s religion in a disparaging way and it provided for honoring the Sabbath. Maryland was settled by George Calvert, Lord Baltimore, who was a Roman Catholic, so the law has sometimes been interpreted as a means of providing Roman Catholics with religious freedom. However, the law was adopted by an Anglican majority, and according to Dargo (1996), it has been described less as “a product of the liberalism of theory” than as “a practical device for making Maryland more attractive to settlers of diverse religious persuasions” (p. 346). Maryland nullified this law from 1654 to 1661 and from 1692 to the end of the Revolutionary period, indicating that Maryland was not always a model of religious toleration during this period. See also Blasphemy; Catholics, Roman; Established Churches in Early America; Sunday Blue Laws.
John R.Vile
furthe r reading Dargo, George.“Religious Toleration and Its Limits in Early America.” Northern Illinois University Law Review 16 (1996): 341–370. Holmes, David L. The Faiths of the Founding Fathers. New York: Oxford University Press, 2006. “Maryland Toleration Act of 1649: September 21, 1649.” www.yale.edu/ lawweb/Avalon/amerdoc/Maryland_toleration.htm.
Mason, George George Mason IV (1725–1792), a Virginia planter, statesman, and one of the founders of the United States, is best known for his proposal of a bill of rights at the Constitutional Convention of 1787. An Anti-Federalist, he believed that a strong national government without a bill of rights would undermine individual freedom. Mason also significantly contributed to other documents that advanced the development of the First Amendment. Born on a plantation in Fairfax County,Virginia, Mason never traveled farther outside Virginia than he did when he attended the Constitutional Convention in Philadelphia. He was an early proponent of independence from Great Britain and worked throughout his life for the settlement of the
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western frontier, where he had invested in a land company. Involved in early efforts in Virginia to boycott British goods in reaction to improper taxation, Mason was elected to the legislature that was entrusted with writing the Virginia Constitution in 1776. Part of this responsibility involved drafting the Virginia Declaration of Rights. In part at the insistence of James Madison, the Virginia declaration came to include a strong guarantee of religious liberty (and not simply religious toleration as Mason had first proposed) that is similar to the free exercise clause later included in the First Amendment. It also contained a provision protecting freedom of the press, although it did not include a comparable protection for freedom of speech. Thomas Jefferson borrowed from and refined Mason’s assertion that “all men are born equally free and independent” when he wrote the Declaration of Independence. Although not formally trained as a lawyer, Mason served for much of his life as a justice of the Fairfax County Court; he missed more sessions than most of his colleagues and often used his poor health and family circumstances (his first wife died leaving him with nine children) to turn down opportunities to serve in the state or national legislatures. Initially appointed to a commission to rewrite the laws of Virginia, he resigned leaving the majority of the work to Jefferson. He did attend the Constitutional Convention of 1787, however, and was among the more effective delegates. Mason, who was suspicious of governments at all levels, was a consistent advocate of republicanism. In the end, he was one of three remaining delegates who refused to sign the Constitution. One of several reasons that he offered in explanation was the absence of a bill of rights, for which he had helped to pave the way by consistently supporting a formal amending process. Curiously, Mason opposed the provision within the Constitution prohibiting ex post facto laws, and he seems to have conceived of the Bill of Rights more as a way of educating citizens than as a series of enforceable judicial restraints. Although he owned slaves, he also gave an impassioned speech against the “peculiar” institution. Mason subsequently served as a member of the Virginia House of Delegates, and a neighboring county elected him as a delegate to Virginia’s ratifying convention. Sometimes overshadowed among the Anti-Federalists by Patrick Henry, Mason played a constructive role in pointing to perceived flaws in the new document and in recommending subsequent amendments. Although his opposition to the Constitution largely ended his relationship with George Washington, Mason remained on good terms with Anti-
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Federalist James Monroe and with constitutional supporters Jefferson, Madison, and John Marshall. Despite initial concerns over the amendments that would be offered, Mason warmed to the Constitution after the Bill of Rights was ratified in 1791. He died at his Virginia estate, Gunston Hall. See also Anti-Federalists; Bill of Rights; Constitutional Convention of 1787; Declaration of Independence; Federalists; Henry, Patrick; Jefferson, Thomas; Madison, James; Virginia Declaration of Rights; Washington, George.
John R.Vile
furthe r reading Broadwater, Jeff. George Mason: Forgotten Father. Chapel Hill: University of North Carolina Press, 2006. Ganter, Herbert Lawrence.“The Machiavellianism of George Mason.” William and Mary College Quarterly Historical Magazine 17 (April 1937): 239–264. Senese, Donald J., ed. George Mason and the Legacy of Constitutional Liberty: An Examination of the Influence of George Mason on the American Bill of Rights. Fairfax County, Va.: Fairfax County Historical Commission, 1989.
Massachusetts v. Oakes (1989) The Supreme Court decision in Massachusetts v. Oakes, 491 U.S. 576 (1989), vacated and remanded a decision by the Supreme Judicial Court of Massachusetts overturning a conviction under a state law that criminalized photographing a child younger than age 18 years in a state of nudity. The law was applied to a stepfather, Douglas Oakes, who had been sentenced to 10 years in jail for taking pictures of his partially nude 14-year-old daughter, who was in modeling school. Oakes was convicted of violating a Massachusetts statute prohibiting adults from exhibiting minors in a “state of nudity” for visual reproduction. The state supreme court reversed the conviction on First Amendment grounds. The case then proceeded to the U.S. Supreme Court. After the Court granted review, the state amended the statute by adding a “lascivious intent” requirement to the anti-nudity statute. Justice Sandra Day O’Connor wrote the judgment for the Court and was joined by Chief Justice William H. Rehnquist and Justices Byron R. White and Anthony M. Kennedy. O’Connor focused on the argument that the law was overly broad, observing, “The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground
that it may be unconstitutionally applied to others.” In Bigelow v.Virginia (1975), the Court had established that such analysis was inappropriate in cases in which a challenged law had been “amended or repealed.” Because the “lascivious intent” requirement had been added, it could not chill protected expression and the overbreadth claim was now moot. This left it to the Massachusetts court to decide on the asapplied challenge. In a partial concurrence and partial dissent written by Justice Antonin Scalia and joined in part by Justices William J. Brennan Jr. and Thurgood Marshall, Scalia thought it odd that “a conviction initially invalid can be resuscitated by a postconviction alteration of the statute under which it was obtained.” Scalia did not, however, believe that the law was overly broad. He observed that the law already had exceptions for scientific, medical, educational, and cultural purposes. All that remained would be family photos of naked toddlers, and Scalia thought the court could deal with such cases as they arose, which he thought would be infrequently. Justice Brennan wrote a separate dissent, joined by Marshall and John Paul Stevens.Although Brennan acknowledged the states’ ability to regulate child pornography, he thought the law was overly broad and invalid because it applied to nude exhibits of children, even when they were not participating in sexual conduct. Because he thought family photos of nude children were fairly common, he believed the law needed to be overturned on its face. Had Massachusetts chosen, it could have limited the law to “lewd exhibition of the genitals,” but it had not done so. Brennan argued that the law as written contravened the Court’s distinction between mere nudity and pornography that it had established in Erznoznik v. City of Jacksonville (1975). See also Bigelow v.Virginia (1975); Brennan,William J., Jr.; Child Pornography; Erznoznik v. City of Jacksonville (1975); O’Connor, Sandra Day; Obscenity and Pornography; Overbreadth; Scalia, Antonin.
John R.Vile
furthe r reading Prentiss, David M. “Comment: The First Amendment Overbreadth Doctrine and the Nature of the Judicial Review Power.” New England Law Review 25 (1991): 989–1017.
Masses Publishing Co. v. Patten (S.D.N.Y. 1917) Although the U.S. district court decision by Judge Learned Hand in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y.
Masson v. New Yorker Magazine (1991) 1917), was overturned by a federal appeals court, it stands as testament to his attempt to maintain First Amendment freedoms during World War I. At issue was a decision by the New York City postmaster—Thomas G. Patten—to suppress distribution of a magazine named Masses that he believed violated the Espionage Act of 1917 by encouraging resistance to the draft. Hand acknowledged that Congress had authority under its war powers to forbid use of the mails for materials that discouraged the successful prosecution of the war, but he thought that courts had to judge the legislation according to the standards that Congress set. Although the act had forbidden statements that were willfully false, Hand did not find that the publication at issue spread false rumors but that it expressed anti-war opinions that its authors sincerely believed. Similarly, although Hand agreed that criticism of the war might cause insubordination, he thought that the government needed to distinguish “the keys of persuasion” from “the triggers of action.” Although the publication praised those who were conscientiously opposed to the draft, he found no evidence that it actually advocated that they resist it. Similarly, he argued that “to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the toleration of all methods of political agitation which in normal times is a safeguard of free government.” He observed that “[i]f one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation.” Finally, Hand argued that the provision of the Espionage Act that prohibited individuals “from willfully obstructing the recruiting or enlistment service of the United States” had to be limited “to the direct advocacy of resistance to the recruiting and enlistment service.” Although articles and poems praising those who oppose the war might “have a tendency to arouse emulation in others,” Hand did not see evidence that they actually “counsel[ed] others to follow these examples.” He admonished that the “tradition of English-speaking freedom has depended in no small part upon the merely procedural requirement that the state point with exactness to just that conduct which violates the law.” Although the Second Circuit Court of Appeals overturned Hand’s ruling in Masses Publishing Co. v. Patten (1917), this case reflects principles—upholding speech that does not actually incite violence—that are now widely accepted in dealing with First Amendment freedoms of speech and press.
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The Masses decision influenced the Supreme Court’s ultimate adoption of the “incitement test” for advocacy of illegal activity in Bradenburg v. Ohio (1969). Hand is believed to have influenced decisions by Oliver Wendell Holmes Jr. and others in this area in a more liberal and tolerant direction. See also Bradenburg v. Ohio (1969); Espionage Act of 1917; Hand, Learned; Holmes, Oliver Wendell, Jr.; Mail;World War I.
John R.Vile
furthe r reading Gunther, Gerald. Learned Hand: The Man and the Judge. New York: Alfred A. Knopf, 1994. Stone, Geoffrey. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W. W. Norton and Co., 2004.
Masson v. New Yorker Magazine (1991) In Masson v. New Yorker Magazine, 501 U.S. 496 (1991), the Supreme Court ruled that deliberately altering an interviewee’s words yet placing them in quotation marks did not constitute libel under the standards articulated in New York Times Co. v. Sullivan (1964) and Gertz v. Robert Welch, Inc. (1974), unless the alterations resulted in a material change in the meaning conveyed by the statement. In 1980 psychoanalyst Jeffrey Masson became projects director of the Sigmund Freud Archives. Shortly thereafter, he became disillusioned with Freud’s theories and advanced his own theories about Freud. He was fired. In 1982 journalist Janet Malcolm interviewed him at length about his experiences with the Archives, taping many, but not all, of the interviews. She then wrote an unflattering portrayal of him in a two-part series in The New Yorker magazine the following year. In 1984 Alfred A. Knopf, Inc. published the series as a book, In the Freud Archives. That same year Masson published The Assault on Truth: Freud’s Suppression of the Seduction Theory. He also filed a libel suit against the The New Yorker, alleging that Malcolm misquoted him in several instances by altering his words yet placing them in quotation marks as if he had said them. These alterations, he argued, defamed him. The U.S. District Court for the Northern District of California ruled that the allegedly fabricated quotes were either substantially true or reasonable interpretations of the conversations and thus were entitled to constitutional protection under the First Amendment. The Ninth Circuit
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Court of Appeals affirmed, and Masson appealed to the Supreme Court, which affirmed the lower court rulings. In his majority opinion for the Court, Justice Anthony M. Kennedy reasoned that a deliberate alteration of a person’s comments could constitute actual malice under traditional libel law standards if it led to a “material change in meaning.” He explained: “We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity . . . unless the alteration results in a material change in the meaning conveyed by the statement.” Whether Malcolm acted with “requisite knowledge of falsity or reckless disregard as to the truth or falsity” was an issue for a jury to decide. After the Court’s ruling, two jury trials vindicated The New Yorker, and the Ninth Circuit Court of Appeals ended the dispute by affirming the judgment of the district court and ruling that Masson was barred from re-litigating these issues against The New Yorker. However, the issue of how far a journalist can go in deliberately altering a speaker’s words under the concept of narrative journalism without running afoul of the First Amendment remains controversial. See also Gertz v. Robert Welch, Inc. (1974); Kennedy,Anthony M.; Libel and Slander; New York Times Co. v. Sullivan (1964).
Judith Haydel
The Mayflower Compact was written aboard the Mayflower as it sailed to the New World.
furthe r reading Forde, Kathy Roberts. “How Masson v. New Yorker Has Shaped the Legal Landscape of Narrative Journalism.” Communication Law and Policy 10 (2005): 101–133. Hiemstra, Nathalie L. “Masson v. New Yorker Magazine, Inc.: A ‘Material Alteration.’ ” University of Miami Entertainment & Sports Law Review 10 (1993): 283–301. Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991. Malcolm, Janet. In the Freud Archives. New York:Alfred A. Knopf, 1984.
Mayflower Compact The Mayflower Compact—once called the “Plymouth Combination”—is the first constitution known to have been written in the New World. Drafted aboard the Mayflower before the Pilgrims from Holland and their fellow travelers landed in North America, it was signed on November 11, 1620, by the forty-one men on the ship. Pilgrim leader William Bradford was worried that some of the settlers were planning to “use their owne libertie” to ignore common rules (Foner and Garraty 1991: 708). Whereas England has an unwritten constitution that embodies the principle of parliamentary sovereignty, one of America’s most important contributions to the idea of government by law is that of the written constitution,
McCarran Act of 1950 unchangeable by ordinary legislative means. The roots of such constitutions, to which bills of rights were later added, can be traced to the biblical idea of a covenant between God and man, which more secular thinkers such as John Locke later portrayed as a social compact among individuals themselves. After citing their common loyalty to King James I, the signatories to the Mayflower Compact pledged to “covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid: And by Virtue hereof to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience.” The Mayflower Compact was regarded as law until 1686. Colonies, states, and in time the nation as a whole continued to rely on written documents both to create their own identities and to limit government powers. See also Locke, John; Puritans.
John R.Vile
furthe r reading Foner, Eric, and John A. Garraty, eds. The Reader’s Companion to American History. Boston: Houghton Mifflin, 1991. Frohnen, Bruce. The American Republic: Primary Sources. Indianapolis, Ind.: Liberty Fund, 2002. Lutz, Donald S.“From Covenant to Constitution in American Political Thought.” Publius 10 (1980): 1–34. Vile, John R. “Mayflower Compact.” In The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America’s Founding. 2 vols. Santa Barbara, Calif.: ABC-CLIO, 2006.
McAuliffe v. Mayor of New Bedford (Mass. 1892) The McAuliffe v. Mayor of New Bedford, 155 Mass. 216; 29 N.E. 517 (Mass., 1892), decision by the Supreme Judicial Court of Massachusetts limited a public employee’s First Amendment free expression rights, articulating a limited view of employee rights that stood until the U.S. Supreme Court granted more protection to public employees in the 1960s. The mayor of New Bedford, Massachusetts dismissed police officer John J. McAuliffe for violating a city rule that provided: “No member of the department shall be allowed to solicit money or any aid, on any pretence, for any political purpose whatever.” The mayor also cited McAuliffe for
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belonging to a political committee. McAuliffe filed a petition of mandamus to the state high court. The state high court, in an opinion by Justice Oliver Wendell Holmes Jr., upheld the mayor’s actions. He denied that there was anything in the constitution (presumably that of the state because the Supreme Court had not yet applied the Bill of Rights to the states) or state statutes preventing the city from enforcing such a rule. Holmes observed: The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of this contract.The servant cannot complain, as he takes the employment on the terms which are offered to him. On the same principle, the city may impose any reasonable condition upon holding offices within its control. Holmes further argued that the mayor had provided the policeman with an adequate hearing. Although the Hatch Act of 1939 and other laws continue to regulate political activities of governmental officials, modern Supreme Court decisions, such as Pickering v. Board of Education (1968) and its progeny, have established that public employees do not forfeit all their free expression rights when they accept public employment. See also Hatch Act of 1939; Holmes, Oliver Wendell, Jr.; Pickering v. Board of Education (1968); Public Employees; Unconstitutional Conditions.
John R.Vile
furthe r reading Hudson, David L., Jr. Balancing Act: Public Employees and Free Speech. Nashville, Tenn.: Freedom Forum, 2002. www.firstamendment center.org/PDF/FirstReport.PublicEmployees.PDF. White, G. Edward. “Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension.” California Law Review 80 (1992): 391–467.
McCain Feingold Act See Bipartisan Campaign Reform Act of 2002
McCarran Act of 1950 Congress passed the McCarran Internal Security Act of 1950, which critics believed posed a risk to First Amendment rights of freedom of speech and association, over the
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veto of President Harry Truman four months into the Korean War.The author, Sen. Pat McCarran, D-Nev., was a supporter of Sen. Joseph McCarthy and chaired the Judiciary Committee during the late 1940s and early 1950s, when fear of communism was particularly rampant. The act had three main components. First, it created a Subversive Activities Control Board (SACB), which on the petition of the attorney general could order an organization it determined to be communist to register with the Justice Department and submit information concerning membership, finances, and activities. Second, the act made it a felony to take any steps that might contribute substantially to the establishment of a totalitarian dictatorship in the United States. Third, it authorized the president, in an emergency (defined as invasion, declaration of war, or insurrection in aid of a foreign enemy), to arrest and detain persons who he believed might engage in espionage or sabotage. The preventive detention provision was not part of McCarran’s original bill. Its authors, including Democrat Hubert Humphrey of Minnesota, had hoped to sabotage the bill by making it even tougher on communism.They miscalculated, however; the “poison pill” was accepted. The act required the Communist Party and the twentyfour other organizations charged as communist to register with the Justice Department, but none did. Although the Supreme Court in 1961 upheld a SACB order requiring the Communist Party to register, in Communist Party of the United States v. Subversive Activities Control Board (1961), courts later ruled that individual members could not be compelled to register the party, as in Communist Party v. United States (1963). The Supreme Court refused to review such decisions in United States v. Communist Party (1964) and Albertson v. SACB and Proctor v. SACB (1965). The Court held the provision denying passports to communists was too broad and therefore “unconstitutional on its face” in Aptheker v. Secretary of State (1964). By 1968 the SACB had virtually ceased to function, and appointments to the board were viewed as sinecures. Congress amended the McCarran Act to eliminate self-registration requirements. The SACB was authorized only to maintain a public list of organizations and individuals it found to be communist. The preventive detention provision was repealed in 1971. It had been opposed by organizations of Japanese Americans, who had been relocated from the West Coast and detained in camps during World War II. In 1972 Congress slashed the SACB’s budget by 50 percent, and
President Richard Nixon’s 1973 budget message omitted all funds for it.The board ceased its operations in 1973. See also Attorney General’s List of Subversive Organizations; Communist Party of the United States; House Un-American Activities Committee; McCarthyism; Red Scare; USA Patriot Act of 2001.
Martin Gruberg
furthe r reading Ybarra, Michael J. Washington Gone Crazy: Senator Pat McCarran and the Great American Communist Hunt. Hanover, N.H.: Steerforth Press, 2004.
McCarthyism McCarthyism was a term coined to describe activities associated with Republican senator Joseph R. McCarthy of Wisconsin. He served in the Senate from 1947 to 1957. In the American political lexicon, the term has its origin in a March 1950, Washington Post editorial cartoon by Herbert Block, who depicted the four leading Republicans trying to push an elephant to stand on a teetering stack of ten tar buckets.The topmost Republican in the cartoon was labeled “McCarthyism.” The term McCarthyism soon evolved to describe the practice of publicly accusing government employees of political disloyalty or subversive activities and using unsavory investigatory methods to prosecute them. The practice held sway between 1950 and 1954, a period of intense suspicion during which the U.S. government was actively engaged in countering communism—in particular, the Communist Party of the United States of America (CPUSA). As evidenced by congressional passage of the Subversive Activities Control Act of 1950, which made up Title 1 of the Internal Security Act of 1950 (also called the McCarran Act), a majority of Congress also shared the belief that CPUSA constituted an active conspiracy that was secretive and loyal to a foreign power and dedicated to the clandestine infiltration of U.S. cultural and political institutions.The Supreme Court’s 6-2 decision in United States v. Dennis (1951) upholding the constitutionality of the convictions of CPUSA leaders Eugene Dennis, William Z. Foster, and ten others for advocating the violent overthrow of the U.S. government in many ways also lent constitutional support to this belief. Although most scholars consider McCarthyism to be an outgrowth of the Palmer raids and the red scare of the 1920s and the Smith Act of 1940, which made it illegal to advo-
McCarthyism cate, abet, or teach the desirability of overthrowing the U.S. government, it was for the most part synonymous with Sen. Joseph McCarthy. As chair of the Senate Committee on Government Operations and the Permanent Subcommittee on Investigations, McCarthy spearheaded investigations of Communist Party members and sympathizers employed either in the U.S. government or by government contractors. Anti-McCarthyites would later refer to these congressional investigations as “witch hunts.” During his ten years in the Senate, McCarthy and his staff gained notoriety for making outlandish accusations that, though initially directed to government employees, would later include Americans from all walks of life. Because he systematically engaged in the practice of public accusations of political disloyalty or subversion with little regard for evidence and the use of unfair investigatory methods, Senator McCarthy would later himself be accused of victimizing those who appeared before his committee and suppressing basic civil rights and liberties. The men and women accused in both the Senate Permanent Subcommittee on Investigations and the House Un-American Activities Committee (HUAC) hearings had little chance to exonerate themselves once their identities were revealed to the public. Simply being accused of communist sympathies was sufficient to damage or end many careers, because those accused could not otherwise argue their innocence.The widespread persecution of communists and communist sympathizers began to abate only after Senator McCarthy’s testimony in the so-called ArmyMcCarthy Hearings in 1954 produced an unfavorable backlash. In 1957 the Supreme Court decision in Yates v. United States put an end to the Smith Act prosecutions by requiring that the government prove that a defendant actually took concrete steps toward the forcible overthrow of the government; merely advocating it in theory would not suffice. Because McCarthyism rested largely on smearing people’s reputations and careers rather than presenting factual evidence that supported the allegations, the Yates decision effectively put an end to such a practice. The criticisms of McCarthyism, and of Senator McCarthy in particular, are threefold. First, he ruined the reputations and lives of many people by accusing them without credible evidence. Second, he used accusations of communist sympathies to counterattack anyone who criticized his methods.And, third, he argued against freedom of speech because much of his rhetoric assumed that any discussion of the ideas underlying communism was dangerous and un-
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American.The victims of McCarthyism—that is, those who were called by the Senate Permanent Subcommittee on Investigations and the House Un-American Activities Committee—were either denied employment in the private sector or failed government security checks. In the film industry alone, over three hundred actors, writers, and directors were denied work in the industry through the informal Hollywood blacklist, which prompted some to go into exile overseas. From the viewpoint of McCarthy supporters, at the time it was essential to identify foreign agents and suppress “radical organizations.” McCarthy and his followers believed subversive elements posed a danger to the national security of the country and so justified such extreme measures, even if they included the denial of civil liberties. Today, McCarthyism is synonymous with any perceived government activity that suppresses unfavorable political or social views by limiting or undermining vital civil rights and liberties under the pretext of maintaining national security. As understood, it is a means of government harassment that includes blacklisting with intent to pressure people to follow popular political beliefs. Thus anyone who makes insufficiently supported accusations or engages in unbalanced investigations against persons in an attempt to silence or discredit them is said to be practicing McCarthyism.This practice in effect represents both a denial of due process and a fundamental breach of civil liberties, thereby violating the First and Fourteenth Amendments to the Constitution. See also Communist Party of the United States; McCarran Act of 1950; Smith Act of 1940;Yates v. United States (1957).
Marc-Georges Pufong
furthe r reading de Antonio, Emile, and Daniel Talbot. Point of Order! A Documentary of the Army-McCarthy Hearings. New York: W. W. Norton and Co., 1964. Fried,Albert. McCarthyism,The Great American Red Scare:A Documentary History. New York: Oxford University Press, 1997. Fried, Richard M. Nightmare in Red: The McCarthy Era in Perspective. New York: Oxford University Press, 1990. Herman, Arthur. Joseph McCarthy: Reexamining the Life and Legacy of America’s Most Hated Senator. New York: Free Press, 1999. McCarthy, Joseph. Major Speeches and Debates of Senator Joe McCarthy Delivered in the United States Senate, 1950–1951. Washington, D.C.: Government Printing Office, 1953. Oshinsky, David M. A Conspiracy So Immense:The World of Joe McCarthy. New York: Simon and Schuster, 1985. ———. Senator Joseph McCarthy and the American Labor Movement. Columbia: University of Missouri Press, 1976.
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Watkins, Arthur Vivian. Enough Rope:The Inside Story of the Censure of Senator Joe McCarthy by His Colleagues, the Controversial Hearings That Signaled the End of a Turbulent Career and a Fearsome Era in American Public Life. Upper Saddle River, N.J.: Prentice Hall, 1969.
McCollum v. Board of Education (1948) See Illinois ex rel. McCollum v. Board of Education (1948)
McConnell v. Federal Election Commission (2003) In McConnell v. Federal Election Commission, 540 U.S. 93 (2003), a sharply divided Supreme Court upheld the major provisions of the McCain–Feingold campaign finance law, officially known as the Bipartisan Campaign Reform Act (BCRA) of 2002. This finding rejected opponents’ claims that the act stifled First Amendment rights of free speech and association. The dangers of the amassed wealth and improper use of stockholder and union member moneys have long concerned reformers. However, laws restricting the political activities of corporations were not passed until the Progressive era, and restrictions were not placed on labor unions until World War II.The Watergate scandal that afflicted President Richard Nixon’s administration gave rise to the next wave of significant reforms. Congress required fuller disclosure of and imposed limits on campaign contributions and expenditures in the 1974 amendments to the Federal Election Campaign Act (FECA). The Supreme Court struck down many of FECA’s key provisions in Buckley v.Valeo (1976).Although upholding the cap on campaign contributions on the grounds that it served a “compelling governmental interest” in “limiting the actuality or the appearance of corruption,” the Court held that limits on independent expenditures unconstitutionally burdened the right to political speech.The Court also narrowed the disclosure rules so that only political advertisements that used expressed words of advocacy (so-called “magic words” such as “vote for” or “vote against”) were regulated. Candidates and organized interests soon exploited loopholes in the contribution and disclosure laws. Continuing public concern about the potentially corrupting influence of money on elections prompted Congress to try to reimpose meaningful contribution limits and disclosure rules. However, only after Congress was energized by allegations of favoritism toward soft money donors during the
Clinton and Bush administrations did it enact BCRA in March 2002. BCRA prohibited the national, state, and local political parties from using soft money to affect federal elections. All funds used must be heavily regulated “hard money,” complying with federal election restrictions on contributions and requirements for disclosure. The law also prohibited corporations, unions, and individuals from using their own funds to pay for election-related broadcast radio or television commercials that target candidates for federal office thirty days before a primary or sixty days before a general election. It eliminated Buckley’s distinction between campaign (“Vote for Smith”) and issue advocacy (“Smith is soft on terrorism”) commercials. Stricter disclosure rules about who funded the permitted commercials were imposed. Sen. Mitch McConnell (R-KY), the most prominent congressional opponent to BCRA, and 84 organizations with such diverse political agendas as the American Civil Liberties Union, the Republican National Committee, the California Democratic Party, and the National Rifle Association challenged BCRA within days of its passage. Anticipating such challenges, BCRA contained provisions accelerating lawsuits against it so that its constitutionality could be settled before the 2004 elections. A special threejudge federal court met and issued a 1,638-page ruling. It struck down some of the bans on soft money but upheld the restrictions on political commercials. The Supreme Court interrupted its summer recess to hold a special four-hour oral argument. On December 10, 2003, the Court issued a 298-page decision. Justices Sandra Day O’Connor and John Paul Stevens held that Congress’s authority to regulate the impact of money on federal elections permitted bans on unregulated (“soft money”) donations to political parties from individuals, corporations, and unions and allowed new limits on campaign political advertising. The majority ruled that provisions banning soft money and the “sham” issue advocacy commercials were appropriately designed to combat a widespread perception that large contributors exercise undue influence over government. They applied a relaxed “sufficiently important interest” standard, rather than the normal “strict scrutiny” test applied when a First Amendment right is contested, because the BCRA limits only marginally affected core political speech and association. O’Connor and Stevens did apply the stricter standard to the political advertising provisions because the provisions regulate explicit political expression. Nonetheless, these provisions met the compelling governmental interest
McConnell, Michael requirement because Congress had not banned all commercials, regulating only how such commercials were funded and the disclosure of their sponsors. The four dissenters—Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy, and Chief Justice William H. Rehnquist—feared that BCRA was “an incumbency protection plan” because bans on soft money inevitably favor incumbents who already possess powerful advantages, such as name recognition, over challengers.They also saw BCRA as affecting core political speech in an unprecedented manner. Justice Scalia wondered how a court that had recently struck down restrictions on “virtual child pornography . . . tobacco advertising . . . dissemination of illegally intercepted communications . . . and sexually explicit cable programming” could affirm “a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” Justice Thomas once again called for the Court to overrule Buckley and accord political campaign speech greater First Amendment protection. BCRA’s short-term impact was less dramatic than its supporters had hoped and its opponents had feared. The cost, conduct, and competitiveness of the 2004 election seemed little affected. It is clear that members of the Court, like the Congress, fundamentally disagree about how a well-functioning democracy should operate. Where the majority saw the potential for corruption in the everyday favoritisms and influence between public officials and interest groups, the dissenters saw it more narrowly focused on the explicit exchange of legislative votes for money. The change in the Court’s composition with John G. Roberts Jr. as chief justice led to a different outcome in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), in which the Court invalidated a provision in the BCRA related to corporations’ election ads. Some view this decision as at least a partial reversal of the McConnell v. FEC decision. Time will tell where jurisprudence will go in this contentious area. Given this division and the past history of successful circumventions of campaign laws, the battle over campaign finances will inevitably reappear before Congress and the Court. See also Buckley v. Valeo (1976); Campaign Regulation; Electioneering; Federal Election Campaign Act of 1971; Federal Election Commission v. Wisconsin Right to Life, Inc. (2007); O’Connor, Sandra Day; Stevens, John Paul.
Timothy J. O’Neill
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furthe r reading Corrado, Anthony, Daniel R. Ortiz, Thomas E. Mann, and Trevor Potter. The New Campaign Finance Sourcebook. Washington, D.C.: Brookings Institution Press, 2005. Malbin, Michael J., ed. The Election After Reform. Lanham, Md.: Rowman and Littlefield, 2006. Urofsky, Melvin I. Money and Free Speech. Lawrence: University of Kansas Press, 2005.
McConnell, Michael Michael W. McConnell (1955– ), a judge on the Tenth Circuit Court of Appeals, is a leading scholar of the two religion clauses of the First Amendment. Before serving on the Tenth Circuit, McConnell argued a number of religion cases before the Supreme Court. Born in Louisville, Kentucky, McConnell earned an undergraduate degree at Michigan State University and a law degree at the University of Chicago before clerking for J. Skelly Wright of the D.C. Circuit Court of Appeals and for U.S. Supreme Court justice William J. Brennan Jr. He then served as assistant general counsel to the Office of Management and Budget and as assistant to the solicitor general of the Justice Department before teaching law at the University of Chicago and University of Utah. President George W. Bush appointed McConnell to the Tenth Circuit Court of Appeals in 2001, and the Senate confirmed him the next year. Often mentioned as a possible nominee for the Supreme Court, McConnell received the support of 300 legal scholars when he was nominated to the Tenth Circuit. McConnell believes in seeking the original intent of the framers of the Constitution and its amendments, which he believes supports the Court’s desegregation decision in Brown v. Board of Education (1954). He is attentive to federalism concerns and believes that lower court judges should be attentive to precedent. He has argued against what he considers to be extreme views of separation of church and state. He also believes that governments can fund vouchers that students can use in parochial schools. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), McConnell successfully argued before the Supreme Court on behalf of funding for an evangelical publication. He helped to defend the right of the Boy Scouts to expel a gay scout master in Boy Scouts of America v. Dale (2000). He has critiqued the position on free exercise of religion that Justice Antonin Scalia announced in City of Boerne v. Flores (1997), which provides only minimal scrutiny to general criminal laws that disproportionally affect certain religious practices, as
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well as the Court’s decision in Bob Jones University v. United States (1983), denying tax-exempt status to a religious college. McConnell wrote a concurring opinion in a case involving the right of religious adherents to use hallucinogenic tea; the Supreme Court upheld the ruling in Gonzales v. O Centro Espírita Beneficente União Do Vegetal (2006). See also Bob Jones University v. United States (1983); Boy Scouts of America v. Dale (2000); Brennan,William J., Jr.; City of Boerne v. Flores (1997); Gonzales v. O Centro Espírita Beneficente União Do Vegetal (2006); Rosenberger v. Rector and Visitors of the University of Virginia (1995); School Vouchers.
John R.Vile
furthe r reading Amar, Akhil Reed, and Vickram David Amar. “More on McConnell: Why the Senate Judiciary Committee Should Support Michael McConnell’s Nomination to the U.S. Court of Appeals for the Tenth Circuit.” November 1, 2002. http://writ.news.findlaw.com/ amar/20021101.html. Bazelon, Emily, and David Newman. “The Supreme Court Shortlist: The Views of the Likely Candidates.” Slate, July 1, 2005. www.slate.com/id/2121270. “Michael W. McConnell.” S. J. Quinney College of Law, University of Utah. www.law.utah.edu/profiles/default.asp?PersonID=78&name =McConnell,Michael.
McCreary County v. American Civil Liberties Union (2005) In McCreary County v.American Civil Liberties Union, 545 U.S. 844 (2005), the Supreme Court, relying heavily on the history behind the exhibited images in question, held 5-4 that Ten Commandment displays in two Kentucky county courthouses violated the establishment clause of the Fourteenth Amendment. The Court decided this case the same day as another Ten Commandment case in Texas, Van Orden v. Perry (2005), in which the Court ruled 5-4 that a monument of the Ten Commandments in a Texas public park did not violate the establishment clause. The American Civil Liberties Union of Kentucky sued two Kentucky counties for displaying framed copies of the Ten Commandments taken from the King James version of the Bible. The courthouse displays were readily visible to those using the courthouse.After the district court ruled the displays were in violation of the establishment clause, the counties modified the displays to include a variety of other documents. Each of the new documents mentioned God, and some documents were edited to include only religious references.
The Sixth Circuit Court of Appeals affirmed the ruling, so the counties posted a third version of the displays, which included fuller versions of some of the documents contained in the second display and some additional documents that did not reference God. The new displays also included a “prefatory document” that claimed the displays contained “documents that played a significant role in the foundation of our system of law and government.” The case moved to the Supreme Court, which affirmed that the purpose of the displays was to advance religion—a violation of the First Amendment. The Supreme Court litigation focused only upon the displays in two counties—McCreary County and Pulaski County. Writing for the majority, Justice David H. Souter focused on the history of the display and the lack of a secular purpose evinced by that history. The Court’s secular purpose analysis invoked the Lemon test from Lemon v. Kurtzman (1971), explaining that the purpose analysis in that test is meant to ensure government neutrality regarding religion. The Court also applied endorsement analysis, explaining that when government favors religion, it sends a message to “nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members” of the political community.The Court further clarified the secular purpose test by holding that “[t]he eyes that look to purpose belong to an ‘objective observer’ . . . who takes account of the traditional external signs that show up in the ‘text, legislative history, and implementation of the . . . official act.” According to the Court, if an objective observer would perceive the predominant purpose behind a government action as religious, the government is “taking religious sides.” In this regard the history and context of the display—of which the observer is presumed to be aware—are important. The Court held that there is no per se rule against displaying the Ten Commandments. Yet when the text of the commandments is present, the religious message is “hard to avoid” absent a context that suggests the display is not meant to promote religion. Additionally, surrounding the text with other historical documents, whose main connection is that they contain religious references, would only make a reasonable observer more likely to perceive a religious purpose. The counties’ third display ostensibly was intended to represent the foundations of American law, but in light of the history of the displays and the odd choices of the historical documents included in them, the display did not have a secular purpose. The Court found attempts to link the Ten
McDonald v. Smith (1985) Commandments, with their divine origin, and the Declaration of Independence, which derives governmental power from the people, especially strange. Justice Sandra Day O’Connor filed a concurring opinion. Justice Antonin Scalia filed a dissenting opinion. See also County of Allegheny v. American Civil Liberties Union (1989); Lemon v. Kurtzman (1971); Lemon Test; Lynch v. Donnelly (1984); Souter, David H.; Stone v. Graham (1980); Ten Commandments.
Frank S. Ravitch
furthe r reading Ravitch, Frank S. “Religious Objects as Legal Subjects.” Wake Forest Law Review 40 (Winter 2005): 1011–1085.
McDaniel v. Paty (1978) The Supreme Court decision in McDaniel v. Paty, 435 U.S. 618 (1978), ruled that a Tennessee law prohibiting clergy members from serving as political delegates violated the free exercise clause of the First Amendment. Selma Cash Paty, a candidate for delegate to a constitutional convention in Tennessee, attempted to invoke a state constitutional provision and a state statute that barred members of the clergy from serving as delegates; her opponent, Paul A. McDaniel, was a Baptist minister. Tennessee restrictions on office-holding by members of the clergy dated to its original constitution of 1796, which was in turn based on English precedents. John Locke and Thomas Jefferson (who later changed his mind) had both advocated such restrictions, although James Madison and John Witherspoon (the only clergyman to sign the Declaration of Independence) had opposed them. Eleven of the thirteen states originally had such prohibitions, but by 1978 Tennessee remained the only state with such prohibitions in effect. Chief Justice Warren E. Burger reviewed this history in writing the Court’s plurality decision. He argued that “the right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions” and that Tennessee had encroached on this right, contrary to the precedent in Sherbert v. Verner (1963), by conditioning “the availability of benefits” on his willingness “to violate a cardinal principle of [his] religious faith.” Burger cited the decision in Torcaso v.Watkins (1961) prohibiting test oaths but did not think it governed because McDaniel was not being excluded because of his “belief ” but because of his “conduct and activity.” Burger thought
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that only the interests of highest order could outweigh free exercise claims and that Tennessee had failed to show that such a restriction was necessary to prevent the establishment of religion. Burger observed that “many clergymen vigorously opposed any established church.” Justice William J. Brennan Jr. wrote a concurring opinion, joined by Justice Thurgood Marshall, arguing, “One’s religious belief surely does not cease to enjoy the protection of the First Amendment when held with such depth of sincerity as to impel one to join the ministry.” Brennan thought that Tennessee’s restriction was close to the religious test that the Court had invalidated in Torcaso. Brennan also thought the Sherbert precedent was relevant. Brennan concluded that “government may not as a goal promote ‘safe thinking’ with respect to religion and fence out from political participation those, such as ministers, whom it regards as overinvolved in religion. Religionists no less than members of any other group enjoy the full measure of protection afforded speech, association, and political activity generally.” Justice Potter Stewart also wrote a concurring opinion arguing that Torcaso controlled. See also Brennan, William J., Jr.; Burger, Warren E.; Jefferson, Thomas; Locke, John; Madison, James; Sherbert v.Verner (1963); State Constitutional Provisions on Religion; Torcaso v. Watkins (1961); Witherspoon, John.
John R.Vile
furthe r reading Laska, Lewis L. The Tennessee State Constitution:A Reference Guide. New York: Greenwood Press, 1990.
McDonald v. Smith (1985) In one of its few pure petition cases, the Supreme Court held in the 8-0 decision in McDonald v. Smith, 472 U.S. 279 (1985), that the petition clause of the First Amendment, which guarantees Americans the right to petition the government for redress of grievances, does not endow individuals with absolute immunity from charges of slander and libel. The case arose from a dispute in which Robert McDonald, a Virginia businessman, wrote two letters to President Ronald Reagan, with copies directed to other government officials, to protest the appointment of Judge David Smith as United States attorney to the Middle District of North Carolina. In the letters to the president, McDonald accused Smith of violating the civil rights of several individuals who appeared before him as a sitting judge
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of the North Carolina Superior Court. He also accused Smith of fraud, conspiracy to commit fraud, extortion, blackmail, and unprofessional conduct. Smith contended that the letters contained “false, slanderous, libelous, inflammatory and derogatory statements” and insisted that McDonald knew the charges were not based on fact. Nevertheless, Smith lost the appointment in question. McDonald claimed that his right to redress of grievances as protected by the First Amendment rendered him immune to charges of slander and libel from Judge Smith, who had demanded both compensatory and punitive damages amounting to $1 million. Because the case involved citizens of different states, it was channeled to the federal court system. Both the district and appeals courts denied that the right to redress of grievances granted absolute immunity from defamatory statements about government officials. In its affirmation of the lower court decisions, the Supreme Court referred to its 1845 holding in White v. Nicholls, which stipulated that the “express malice” needed to prove slander or libel was defined according to whether the accused had lied without probable cause. Generally, defamation cases heard by the Court deal with statements appearing in the media, and issues of slander and libel are complicated by the Court’s adherence to the First Amendment’s protection of a free press. Conversely, McDonald v. Smith dealt with privately written alleged defamations of a government official by a private citizen. Rather than dealing with the traditional issue of whether public officials were protected from defamatory statements by the First Amendment, an issue covered in Rosenblatt v. Baer (1966), in McDonald v. Smith the Court dealt only with the narrow question of possible immunity granted by the petition clause. Although acknowledging the importance of the petition clause as expressed in United States v. Cruikshank (1876), the Court expressed its reluctance to elevate the petition clause to the “strict scrutiny” evaluation to which alleged violations of the First Amendment’s protections of speech, press, and religion are generally exposed. Instead, the Court upheld the position articulated in the landmark slander/libel case New York Times Co. v. Sullivan. (1964). In Sullivan, the Court contended that defamation of government officials exists only when the statement in question is made with “knowledge of its falsity or with reckless disregard of whether it was true or false.”
Chief Justice Warren E. Burger delivered the opinion of the Court, and Justices William J. Brennan Jr., Thurgood Marshall, and Harry A. Blackmun joined in a single concurring opinion. Justice Lewis F. Powell Jr. took no part in the decision. See also Burger,Warren E.; Libel and Slander; New York Times Co. v. Sullivan (1964); Rosenblatt v. Baer (1966); United States v. Cruikshank (1876);White v. Nicholls (1845).
Elizabeth R. Purdy
furthe r reading Hamburger, Philip A. “Natural Rights, Natural Law, and American Constitutions.” Yale Law Journal 102 (January 1993): 907–960. Kim, Gyong Ho. “Evidentiary Behaviors Constituting Reckless Disregard for the Truth.” Communications and the Law 20 (December 1999). Lewis, Anthony. Make No Law: The Sullivan Law and the First Amendment. New York: Knopf, 1991. Rosenberg, Norman L. Protecting the Best Men:An Interpretive History of the Law of Libel. Chapel Hill: University of North Carolina Press, 1986. Schnapper, Eric.“ ‘Libelous’ Petitions for Redress of Grievances—Bad Historiography Makes Worse Law.” Iowa Law Review 74 (January 1989): 303–349.
McGowan v. Maryland (1961) McGowan v. Maryland, 366 U.S. 420 (1961), is one of the leading Supreme Court decisions involving Sunday blue laws that limit the businesses that can operate on Sundays. The Court found that the laws did not violate the establishment clause, setting the precedent that laws with religious origins are constitutional if they have a secular purpose. The case, decided on the same day as Two Guys From Harrison-Allentown, Inc. v. McGinley (1961), Braunfeld v. Brown (1961), and Gallagher v. Crown Kosher Super Market of Massachusetts (1961), arose when seven employees, including Margaret M. McGowan, of a discount department store in Maryland were arrested for selling forbidden items on a Sunday. At the time, the state maintained a statute prohibiting retail of all but a few items on a Sunday. McGowan and the other defendants were convicted in a state trial court. The Maryland Court of Appeals affirmed the convictions. The defendants then appealed to the Supreme Court, which granted review. Writing for the majority, Chief Justice Earl Warren denied that the laws requiring the Sunday closing of a discount department store (or limiting the sale of most items) violated the establishment clause of the First Amendment or
McIntyre v. Ohio Elections Commission (1995) the equal protection clause of the Fourteenth Amendment. Because the individuals challenging the law had not provided evidence of their religious beliefs, Warren denied that they had standing under the free exercise clause, but he did think they had standing to bring a case under the establishment clause, and he addressed the majority of his opinion to this issue. Warren’s opinion is notable for recognizing that the early purpose and effect of Sunday blue laws were to aid religion, but he noted that over time more secular objections had prevailed and that such laws were now often supported by “labor groups and trade associations” and by Christian religious groups. He found it significant that such laws had continued in Virginia even after the adoption of the Virginia Statute for Religious Liberty that Thomas Jefferson and James Madison had advocated. After reviewing this history, he said that he accepted the determination of the Maryland Supreme Court “that the statutes’ present purpose and effect is not to aid religion but to set aside a day of rest and recreation.” Justice Felix Frankfurter filed a concurring opinion, joined by John Marshall Harlan II, which is perhaps more notable for its extensive length and exhaustive attention to historical precedents (the Court’s own headnote calls the opinion “elaborate”) than for advancing new arguments. Frankfurter did grapple somewhat more directly with arguments that blue laws unfairly penalized those who set aside another day for worship. Justice William O. Douglas wrote a stinging dissent, giving this issue even more attention. Starting from the assumption that the First Amendment applied equally to state and national governments, Douglas said, “I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors.” Citing the majority’s distinction between beliefs and conduct, he observed that “it is a strange Bill of Rights that makes it possible for the dominant religious group to bring the minority to heel because the minority, in the doing of acts which intrinsically are wholesome and not antisocial, does not defer to the majority’s religious beliefs.” He thought that the law created an improper establishment of religion because it had “the sanction of law behind it.” See also Braunfeld v. Brown (1961); Douglas, William O.; Frankfurter, Felix; Gallagher v. Crown Kosher Super Market of Massachusetts (1961); Sunday Blue Laws;Two Guys from Harrison-
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Allentown, Inc. v. McGinley (1961); Vagueness; Virginia Statute for Religious Freedom;Warren, Earl.
John R.Vile
furthe r reading Laband, David and Deborah Hendry Heindbuch. The History, Politics and Economics of Sunday Closing Laws. Lanham, Md.: Lexington Books, 1987.
McIntyre v. Ohio Elections Commission (1995) In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Supreme Court ruled that an Ohio statute requiring identification of authors on all election- and issuerelated publications violated the First Amendment by unduly restricting the ability of individuals to disseminate their views anonymously. The case arose when Margaret McIntyre (who had died by the time the case reached the high court) distributed leaflets advocating the defeat of a proposed school tax levy and signed it “Concerned Parents and Taxpayers.” She was fined $100 for violating an Ohio code that prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing it. The Court of Common Pleas reversed the fine, but the Ohio Court of Appeals and the state supreme court reversed and affirmed the fine. The U.S. Supreme Court reversed the fine 7-2. In his majority opinion, Justice John Paul Stevens noted that the practice of publishing anonymously was part of the American political tradition and deserved First Amendment protection. Accordingly, any statute purporting to protect a state’s interest while burdening an individual’s First Amendment right to be anonymous must be narrowly tailored because it serves to regulate the content of the message as applied and is subject to strict judicial scrutiny. In his concurring opinion, Justice Clarence Thomas found that a review of the practices of the founders and their contemporaries regarding anonymous publications compelled a result in favor of McIntyre. He provided a detailed account of how the events he selected demonstrated that “Founding-era Americans” opposed attempts to require anonymous authors to reveal themselves in newspapers. Justice Thomas later attempted to embed this analytical method by citing himself in his dissent in McConnell v. Federal Election Commission (2003) to support his view that election law disclosure
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McKinney v. Alabama (1976)
requirements should be unconstitutional when based on similar grounds as the statute at issue in McIntyre. Justice Ruth Bader Ginsburg saw this decision as a mundane application of First Amendment principles. However, her concurring opinion suggested that states have the opportunity to craft laws that may properly require the speaker to reveal one’s identity—without providing any guidance as to what that law might look like. Justice Antonin Scalia’s dissent, joined by Chief Justice William H. Rehnquist, found that the Court should have deferred to state law and posited that the majority opinion had actually created the right to be anonymous. His dissent found that the law did not regulate content but merely required identification of the speaker. Justice Scalia also found that the law focused more on the mechanics of the electoral process and therefore was within the state’s compelling interest because the author of the document would be required to reveal his or her name, making it less likely that the author would lie. Such information would make it easier for the public to evaluate the veracity of the author. The dissent also predicted that the opinion would open the floodgates to litigation at the state and federal levels attacking any law requiring disclosure of anonymous speakers in the political forum. States scrambled to change their disclosure laws in light of the McIntyre opinion. In Doe v. Mortham (1998), the Florida Supreme Court used the reasoning in McIntyre to fashion a narrower construction of the state’s disclosure law to save it from being unconstitutional. The decision is important because it reaffirms the principle of Talley v. California (1960) that the First Amendment provides much protection for anonymous speech. See also Anonymous Speech; McConnell v. Federal Election Commission (2003); Narrowly Tailored Laws; Stevens, John Paul; Talley v. California (1960).
Cleveland Ferguson III
furthe r reading Ohio Elections Commission.“History.” http://elc.ohio.gov/History.stm. Whitt, Mark A. “McIntyre v. Ohio Elections Comm’n: “A Whole New Boutique of Wonderful First Amendment Litigation Opens its Doors.” Akron Law Review 29 (1996: 423–445).
McKinney v. Alabama (1976) In McKinney v. Alabama, 424 U.S. 669 (1976), the Supreme Court found that the defendant’s First Amendment right to freedom of expression and Fourteenth Amendment right of
due process had been violated because he was not allowed to contest the obscenity of the materials in question. Chester McKinney, a bookstall operator, was charged with distributing materials known to have been determined as “obscene” by a civil court and was convicted.An Alabama appellate court upheld the conviction, and McKinney appealed to the Supreme Court. The case centered on whether McKinney’s First and Fourteenth Amendment rights were violated by the courts because he was not allowed to show the publication in question to the jury at trial. He contended a violation of both his First Amendment free expression and Fourteenth Amendment due process rights. McKinney based the defense of his trial around the fact that he did not think that the magazine was obscene and that he was within his rights to sell it. He also thought that he could not be found guilty of selling obscene material unless those trying the case thought the magazine was obscene based solely on contemporary standards.The overseers of the trial declined to put forward this defense and then banned the jury from seeing the magazine. Justice William H. Rehnquist, in delivering the opinion of the Court, stated, “While there can be no doubt under our cases that obscene materials are beyond the protection of the First Amendment . . . those decisions have also consistently recognized that the procedures by which a State ascertains whether certain materials are obscene must be ones which ensure ‘the necessary sensitivity to freedom of expression.’ ” The Alabama statute, he wrote, did not do this. Therefore, McKinney’s First and Fourteenth Amendment rights were violated, and the ruling of the lower court was overturned. By not allowing members of the jury to see the magazine and determine for themselves if it was obscene, the petitioner was put at a disadvantage because he could not adequately defend himself. The jury was told not to worry about determining the obscenity of the magazine and could only consider that the publication had already been determined to be obscene by the courts in a previous proceeding. In concurring, Justice William J. Brennan Jr. pointed to the questionable constitutionality of a number of issues in this case.Among them were the practice of determining the nature of a suspected obscene publication in a civil proceeding prior to the criminal trial, what the burden of proof should be in making such a determination, and other issues stemming from the use of such civil proceedings in preparation for subsequent criminal prosecution of accused offenders.
Media Concentration See also Brennan, William J., Jr.; Obscenity and Pornography; Rehnquist,William H.
Kaitlyn Kerr Menego with Walter Huber
furthe r reading Bradley, Craig, ed. The Rehnquist Legacy. Cambridge, England: Cambridge University Press, 2006.
McMasters, Paul K. Paul K. McMasters (1942– ), an authority on freedom of information and free expression issues, was the First Amendment ombudsman for the Freedom Forum, a nonpartisan foundation that promotes First Amendment rights, until he retired in 2007. From that position, he achieved national prominence by testifying before Congress and lecturing across the country on the First Amendment. Born in Dade County, Missouri, McMasters earned undergraduate and master’s degrees from Southwest Missouri State (now Missouri State University). He began his career in newspaper journalism in Springfield, Missouri, before becoming managing editor of the Coffeyville (Kansas) Journal. In 1982 he joined USA Today and later served as associate editor of the editorial page. In 1992 he became executive director of the First Amendment Center in Nashville,Tennessee, which seeks to preserve and defend the rights of free expression. In 1995 he became the Freedom Forum’s First Amendment ombudsman. As ombudsman, McMasters organized an annual freedom of information day, gathering together experts on the Freedom of Information Act of 1966 (FOIA) to discuss open-government issues and developments. He wrote a nationally syndicated column on the First Amendment. He served as president of the Society of Professional Journalists and of its educational arm, the Sigma Delta Chi Foundation. He was also president of the Virginia Coalition for Open Government. McMasters’s long service to free expression values garnered for him many awards, including the John Peter and Anna Catherine Zenger First Amendment Award and the Wells Key, the highest honor bestowed by the Society of Professional Journalists. In 1996 he was inducted into the National Freedom of Information Act Hall of Fame as a charter member. See also First Amendment Center; Freedom of Information Act of 1966.
David L. Hudson Jr.
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furthe r reading Biography of Paul K. McMasters. www.firstamendmentcenter.org/ biography.aspx?name=mcmasters.
Media Concentration Media concentration is the ownership of the mass media by fewer individuals. Critics of this trend contend that media concentration threatens the marketplace of ideas and poses a threat to First Amendment freedoms. When the Declaration of Independence (1776), the Constitution (1787), and the Bill of Rights (1789) were written, the mass media did not exist. The press referenced in the First Amendment consisted of pamphleteers and locally owned newspapers. It was not until the end of the nineteenth and beginning of the twentieth centuries that national newspapers emerged, and it was not until the widespread availability of radio and then television in the twentieth century that national broadcast networks emerged alongside national newspapers and news services. After World War II and particularly through the 1960s and 1970s, local newspapers began to close or merge as readership declined and audiences gravitated to television news; as a result, ownership of newspapers consolidated. A study by media analyst Ben Bagdikian has charted this consolidation over a thirty-year period. Bagdikian’s 2004 analysis indicates that Americans are served by 1,468 daily newspapers, 6,000 assorted magazines, 10,000 radio stations, 2,700 television and cable stations, and 2,600 book publishers that are under the aegis of five major multinational corporations (16). First Amendment expert C. Edwin Baker (2005) wrote,“The key goal, the key value, served by ownership dispersal is that it directly embodies a fairer, more democratic allocation of communicative power” (p. 735). Bagdikian also maintains that the increasing concentration of control of information is a major threat to a nation’s desire to give its citizens a “broad choice” of media. Critics of centralization argue also that it facilitates censorship. Some point to Internet censorship in China as one example, noting in particular how Google has cooperated with the government there to block access to some Web sites. Others worry that as the media become increasingly corporate and for-profit, other forms of self-censorship, such as covering only the news that brings in large audiences, will follow. Not everyone agrees that media concentration is a threat to the First Amendment. James Hamilton (2006), for exam-
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Media Exemption to Antitrust Laws
ple, argues that media concentration has made it possible to develop niche marketing and serve specific interests more effectively than in the past. The ubiquity of the Internet, blogs, and other new media has opened up many new forms of communication, which are credited with providing news that the mainstream media do not cover. In addition, new media and patterns of ownership make it profitable to provide a diversity of communication forums, thereby protecting the ability of many voices to speak. The U.S. government has sought to regulate media ownership through antitrust laws. Legislators have also enacted laws to permit joint operating agreements of newspapers to prevent communities from being served by only one daily paper.The Telecommunications Act of 1994 and rules issued by the Federal Communications Commission do permit media concentration, but Congress continues to scrutinize the FCC rules in an attempt to minimize the threat to the marketplace of ideas. See also Baker, Edwin; Marketplace of Ideas; Media Exemption to Antitrust Laws.
John O. Omachonu and David Schultz
furthe r reading Albarran, Alan B. Management of Electronic Media. Belmont, Calif.: Wadsworth, 1997. Albarran, Alan B., Sylvia M. Chan-Olmsted, and Michael O. Wirth. Handbook of Media Management and Economics. Mahwah, N.J.: Erlbaum, 2006. Bagdikian, Ben H. The New Media Monopoly. Boston: Beacon Press, 2004. Baker, C. Edwin. “Media Structure, Ownership Policy and the First Amendment.” Southern California Law Review 78 (2005): 733–762. Hamilton, James T. All the News That’s Fit to Sell: How the Market Transforms Information into News. Princeton: Princeton University Press, 2006. McChesney, Robert W. Rich Media, Poor Democracy: Communication Politics in Dubious Times. Urbana: University of Illinois Press, 1999. Schultz, David. It’s Show Time: Essays in Media, Politics, and Popular Culture. New York: Peter Lang, 2000.
Media Exemption to Antitrust Laws The U.S. news media are sometimes treated differently in the application of antitrust laws in order to promote a diverse marketplace of ideas under the First Amendment. Thus in some situations the media receive specific legal exemptions from the normal application of antitrust laws to the ownership of news services such as television, radio, and newspapers.
Over the years, Congress has adopted legislation to discourage the concentration of business ownership in the United States. In 1890 that body passed the Sherman Antitrust Act, which made it illegal to monopolize or engage in practices that restrain trade. The Clayton Antitrust Act, adopted by Congress in 1914, made it illegal to engage in price fixing or discrimination, to bring about mergers of businesses or corporations that reduce competition, or to allow directors of one corporation to sit on the board of another. These acts were intended to ensure that economic competition would prevent any business from using its economic power illegally to manipulate prices for its products or to prevent new competitors from entering the marketplace. Although a significant debate surrounds the wisdom, policy, and economics of the Sherman and Clayton acts, their application to the media has raised some particularly unique issues because of the media’s important function in a democratic society—providing citizens with the information they need to make informed decisions, as well as serving as a check on public officials. Just as monopolies pose problems in the economic marketplace, the concentration of media ownership poses problems in the marketplace of ideas. Since the days of the Revolutionary War, each community has often had more than one locally owned newspaper. During his travels around the United States, French political thinker Alexis de Tocqueville, whose now-famous Democracy in America was published in 1835 and 1840, noted that the diversity of opinion and democratic spirit of the United States rested in part on the many newspapers dotting the country.Thus a diversity of ownership is often considered a proxy for a diversity of opinion and, in turn, a vibrant marketplace of ideas. According to First Amendment scholars such as C. Edwin Baker, should the ownership of the news services fall into the hands of a very small number of persons, freedom of speech and press might well be threatened. Thus, when the media become a big business, the issue is how to apply antitrust laws to promote both economic competition and a diversity of opinion in American society. The Supreme Court first wrestled with the application of the antitrust laws to the media in Associated Press v. United States (1945) and Turner Broadcasting System, Inc. v. Federal Communications Commission (1994). In Associated Press, the Court upheld the application of the Sherman Act to a limit imposed by the Associated Press (AP) on new members joining its service and a prohibition on its members selling AP news to nonmembers. The majority, and Justice Felix
Media Exemption to Antitrust Laws Frankfurter in his concurrence, argued that the limits imposed by the AP on access to ideas endangered the marketplace of ideas. However, in his dissent, Justice Owen J. Roberts expressed his fear that the application of antitrust laws to the media constituted an unjustified intervention of the government into the dissemination of ideas that could threaten freedom of the press. At issue in Turner Broadcasting was the constitutionality of a provision of the 1992 Cable Act that contained a “mustcarry” requirement. Under this provision, cable operators with more than three hundred subscribers and twelve channels had to set aside up to one-third of their channels for local commercial broadcast stations. In affirming the mustcarry provisions, the Supreme Court ruled that these provisions furthered important government interests in promoting a diversity of opinions and ideas. Conversely, like the dissenters in Associated Press, the minority in Turner Broadcasting worried about the effects that government intervention into the media would have on the free flow of ideas. Both the Associated Press and Turner Broadcasting cases, then, raise important questions about what impact government regulation—more specifically, antitrust laws—can have on the media and the First Amendment. To address issues of media concentration, Congress has adopted specific laws that often exempt or apply special rules to the news media industry. For example, media mergers are usually examined under section 7 of the Clayton Act, as amended in 1950 by the Celler-Kefauver Act. This act prevents the stock purchase or acquisition of one business by another, even if they are not competitors. It would apply when, for example, a company that owns a newspaper in a community seeks to buy a local television channel. This application was made more specific to the media in 1975 when the Federal Communications Commission (FCC) issued its cross-ownership ban that precluded the joint ownership of newspapers and broadcast television stations in the same geographic markets and ordered the divestiture of certain “egregious” combinations already in existence. These rules were adopted to promote diversity of ownership of the media and presumably diversity of ideas.The Supreme Court upheld these rules in Federal Communications Commission v. National Citizens Committee for Broadcasting (1978). Although government regulation of the news media industry is one tactic for promoting the marketplace of ideas, advocates of deregulation believe it also might increase competition. A specific exemption to the antitrust rules for the media is the Newspaper Preservation Act of 1970. This act
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allows two or more newspapers to form a joint operating agreement (JOA) under circumstances of economic distress at all but one of the papers. Recognizing that it is often difficult for more than one newspaper to operate in a community because of declining readership and competition for advertising revenue with television and radio, the Newspaper Preservation Act makes it possible for two papers to merge some operations. However, in permitting the JOA the government is still required to examine the impact the merger would have on editorial content and diversity of opinions. In addition, through the Telecommunications Act of 1996 Congress directed the FCC to reconsider its rule on crossownership. The FCC complied, and in 2002 it issued new rules that would have allowed more cross-ownership within specific markets and across the country. However, many members of Congress and citizens, already alarmed by the rise of large media corporations and mergers such as Clear Channel Communications and Time Warner, opposed the loosening of the rules. Eventually, a federal court voided the rules on technical grounds. The problem of media ownership and antitrust laws remains vexing. Media analysts Dean Alger and Ben Bagdikian, among others, have noted how since the 1990s the number of independent news outlets has fallen as media corporations have continued to merge. They believe the application of antitrust laws is critical to preserving a marketplace of ideas. Others, however, reach the opposite conclusion; granting the media exemptions to antitrust laws will preserve the economic health of news services. This economic health, they contend, is the best way to ensure a competitive marketplace of ideas. How the antitrust rules now apply to the new media, including the Internet, raises even more questions about the application of these rules to the news industry. See also Associated Press v. United States (1945); Federal Communications Commission v. National Citizens Committee for Broadcasting (1978); Marketplace of Ideas; Media Concentration; Turner Broadcasting System, Inc. v. Federal Communications Commission (1994) (1997).
David Schultz
furthe r reading Alger, Dean. Megamedia: How Giant Corporations Dominate Mass Media, Distort Competition, and Endanger Democracy. Lanham, Md.: Rowman and Littlefield, 1998. Bagdikian, Ben. The Media Monopoly. Boston: Beacon Press, 1992.
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Media Institute
Baker, C. Edwin. Media Concentration and Democracy: Why Ownership Matters. Cambridge, Mass.: Cambridge University Press, 2006.
Media Institute The Media Institute is a Washington, D.C.–based nonprofit organization that specializes in First Amendment issues in the communications arena. Founded in 1979, the group’s self-described mission is to pursue three goals: “freedom of speech, a competitive media and communications industry, and excellence in journalism.” The institute publishes a host of books and position papers covering a wide range of First Amendment issues. It also prepares regulatory filings before administrative agencies such as the Federal Communications Commission and the Food and Drug Administration. In addition, it files amicus briefs in a variety of First Amendment cases dealing with commercial speech. Past examples are Greater New Orleans Broadcasting Association v. United States (1999) and Nike v. Kasky (2003) Among the institute’s current projects is “Content Wars,” an online forum on broadcast indecency, violence, and censorship. The Media Institute also hosts eight times a year in Washington a luncheon program called the “Communications Forum” in order to give government and communication industry newsmakers an opportunity to address important public issues. See also Commercial Speech; Federal Communications Commission; Greater New Orleans Broadcasting Association v. United States (1999); Nike v. Kasky (2003).
David L. Hudson Jr.
furthe r reading Media Institute, www.themediainstitute.org.
Media Law Resource Center The Media Law Resource Center (MLRC) is a New York–based nonprofit organization that was formed by media groups “to monitor developments and promote First Amendment rights in the libel, privacy and related legal fields.” Originally founded in November 1980 as the Libel Defense Resource Center, the organization changed its name in 2003 to reflect its work and research in areas beyond libel, including privacy, newsgathering, fair use, Internet law issues, and international law.
The MLRC’s publications are designed to assist attorneys and others in the defense of libel, privacy, and other claims against the media. The group issues annual volumes of its fifty-state survey books on media libel, media privacy, and employment libel and privacy; these include detailed overviews of the relevant area of law in each state written each year by a media-law attorney from that state. The MLRC also publishes a quarterly report, a monthly publication, and a daily electronic newsletter concerning media law. In addition, the group publishes a variety of reports and articles about various aspects of libel and privacy law. See also Fair Use; Libel and Slander; Privacy.
David L. Hudson Jr.
furthe r reading Kaufman, Henry R.“Twenty-five years ago this Saturday,” Media Law Resource Center, November 9, 2005. www.medialaw.org/ Content/NavigationMenu/About_MLRC/History/History _1.htm. Media Law Resource Center, www.medialaw.org.
Meek v. Pittenger (1975) The Supreme Court decision in Meek v. Pittenger, 421 U.S. 349 (1975), concerns an establishment clause challenge to Pennsylvania statutes that permitted its public schools to lend resources and services to both nonpublic school students and the academic institutions that they attend (including religious ones). In February 1973, three individuals—Sylvia Meek, Bertha Myers, and Charles Weatherley—and four organizations—the American Civil Liberties Union, the National Association for the Advancement of Colored People, the Pennsylvania Jewish Community Relations Council, and Americans United for Separation of Church and State— challenged two Pennsylvania laws on establishment clause grounds.The lead defendant was John C. Pittenger, the secretary of education in Pennsylvania. Specifically, the statutes permitted (1) nonpublic school students to borrow public school textbooks on secular subjects that were also taught in public schools and (2) nonpublic schools to make use of instructional materials (e.g., maps, etc.), equipment, and public school employees and the services they provided (e.g., counseling, remedial instruction, etc.). A panel of three federal judges in the district court upheld both statutes.The plaintiffs then appealed to the U.S. Supreme Court, which reversed in part and affirmed in part.
Meese v. Keene (1987) In the plurality opinion, written by Justice Potter Stewart and joined by two other justices, the Court upheld the textbook loan provision because it was constitutionally indistinguishable from a similar New York textbook policy held by the Court to be constitutional in Board of Education v. Allen (1968). Like it did in Allen, the Court argued in Meek that the textbook loan program did not violate the establishment clause because it provided directly and free of charge to private school students, and not directly to the schools, the same nonreligious texts these children would have received without cost if they had attended public schools. However, the Court held that the other programs violated the establishment clause. The instructional materials and equipment, unlike the textbooks, did not go directly to the students but went directly to the nonpublic schools, three fourths of which were religious. This, according to the Court, substantially advanced religion. In addition, the services were performed by state employees on the campuses of the religious schools at the request of the schools’ administrators. Because the public employees working at these religious schools were monitored by public authorities to ensure that the instruction or counseling was nonideological, the Court held that the policy involved unconstitutional church-state entanglement. Finally, because these programs were supported by legislative appropriations and thus likely would involve religious schools lobbying and politicking for these tax dollars, these programs have the potential for infusing and fostering religious divisiveness in the political arena. Six justices dissented in part and agreed in part with the majority, but they disagreed among themselves on what portions of the statutes should have passed constitutional muster. Three of the six would have held that the entire policy violated the establishment clause. They argued that the potential for religious divisiveness in the political arena, which the plurality had claimed makes the nontextbook portions of the statutes unconstitutional, was no less present in the textbook loan program.The remaining three agreed with the plurality’s upholding of the textbook loan program, but unlike the plurality, they would have upheld the entire policy as constitutional. They argued that there was no difference between the textbook loan program and the other programs and that there was no evidence in the record that the other programs had the potential for religious divisiveness in the political arena as the other six justices had maintained. The U.S. Supreme Court overruled much of Meek v. Pittenger years later in Mitchell v. Helms (2000).
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See also Aid to Parochial Schools; Board of Education v. Allen (1968); Mitchell v. Helms (2000); Stewart, Potter.
Francis J. Beckwith
furthe r reading Hopson, Mark P. “State Aid to Parochial Schools: A Quantitative Analysis.” Georgetown Law Journal 71 (1983): 1063–1089.
Meese v. Keene (1987) The Supreme Court’s 5-3 decision in Meese v. Keene, 481 U.S. 465 (1987), affirmed the authority of the federal government to classify, and to regulate the dissemination of, foreign political films.The Court held that the enabling statute at issue did not abridge, but enhanced, the First Amendment’s freedom of expression regarding the exhibition and content of films. Although films constitute protected speech according to the Court’s decision in Burstyn v.Wilson (1952), the Foreign Agents Registration Act (FARA) of 1938 empowers the attorney general to categorize films and other communications produced by a foreign government for dissemination in the United States as “political propaganda.” In 1982 the Department of Justice classified three Canadian films, two concerning acid rain and a third examining the effects of nuclear war, as political propaganda.Two lawsuits challenged the constitutionality of the designations on First Amendment grounds. A. Mitchell Block, sole distributor of one of the films, claimed infringement of the First Amendment right to disseminate ideas. Barry Keene, a California senator, argued that the classification compelled him to choose between risking damage to his reputation for showing films identified as political propaganda or surrendering his First Amendment right to exhibit the films. In Block v. Meese (1986), the United States Court of Appeals for the District of Columbia Circuit upheld the constitutionality of the government’s classification scheme, and the Supreme Court denied review. Instead, the Supreme Court overturned the decision of the United States District Court for the Eastern District of California in Keene v. Meese (1985). In the latter case, the district court had concluded that classifying a foreign film as propaganda was pejorative; that the classification deterred exhibitors from showing the films, thus rendering them unavailable to American citizens as a means of personal expression; and that the classification process was unjustified because of the absence of a compelling state interest. The district court enjoined FARA’s designation of communications as political propaganda.
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The majority in Meese v. Keene focused narrowly on the classification process itself. Justice John Paul Stevens argued for the majority that the government imposed no restraint on distribution of materials, but rather “required the disseminators . . . to make additional disclosures that would better enable the public to evaluate” the propaganda. Instead, the court injunction “withholds information from the public” by denying to consumers the information that the films are classifiable as political propaganda. Justice Stevens also appealed to the history of FARA to support the claim that its definition of political propaganda “is a broad, neutral one rather than a pejorative one.” He denied “any adverse impact on the distribution of foreign advocacy materials” as a consequence of classification. In dissent, Justice Harry A. Blackmun argued that the purpose of FARA was to discourage the dissemination of foreign political films and that their classification as political propaganda was pejorative and deterred exhibition. Justice Blackmun concluded that FARA’s classification system unconstitutionally restricted political communications. See also Blackmun, Harry A.; Burstyn v.Wilson (1952); Stevens, John Paul.
Richard Parker
furthe r reading Castello, Brian C. “The Voice of Government as an Abridgment of First Amendment Rights of Speakers: Rethinking Meese v. Keene.” Duke Law Journal 3 (1989): 654–685. Jhabvala, Farrokh. “The ‘Political Propaganda’ Label under FARA: Abridgment of Free Speech or Legitimate Regulation?” University of Miami Law Review 41 (1987): 591–625. Parker, Richard A. “The Guise of the Propagandist: Governmental Classification of Foreign Political Films.” In ed. Bruce A. Austin, Current Research in Film: Audiences, Economics, and Law, Vol. 5: 135–146. Norwood, N.J.: Ablex Publishing, 1991.
Meiklejohn, Alexander The philosopher Alexander Meiklejohn (1872–1964), a passionate advocate for free speech, wrote extensively on both educational theory and the First Amendment. He argued that the First Amendment’s primary purpose is to ensure that voters are free to engage in uninhibited debate and discussion in order to make informed choices about their self-government. His theories were influential in his time and are still widely discussed today. Born in England, Meiklejohn moved with his family to Rhode Island when he was a child. After earning two
degrees from Brown University, he received a Ph.D. in philosophy from Cornell in 1897. He was hired as a philosophy teacher at Brown and in 1901 was named dean of the university. He served as president of Amherst College from 1913 to 1924. He then founded an experimental college at the University of Wisconsin, where he was a professor, and in 1938 moved to the San Francisco School of Social Studies. Meiklejohn also served for many years on the national committee of the American Civil Liberties Union. In 1963 he was awarded the Presidential Medal of Freedom. The core of Meiklejohn’s understanding of the First Amendment is that a commitment to self-governance is the bedrock principle that justifies freedom of speech. As he wrote in “The First Amendment Is an Absolute” (Supreme Court Review [1961]), Meiklejohn believed that the “revolutionary intent of the First Amendment” was to “deny to all subordinate agencies,” such as Congress or the president, any “authority to abridge the freedom of the electoral power of the people.” In “What Does the First Amendment Mean” (University of Chicago Law Review 20 [Spring 1953]), he explained further that the First Amendment guarantees the political freedom of the people of the United States by ensuring that they are presented with open discussions of all issues, even from unpopular viewpoints. The value in free speech, therefore, is that it produces informed voters. Critics believe that Meiklejohn’s focus on the role of the First Amendment in promoting democracy undervalues speech and expression that is unrelated to politics. Meiklejohn argued that speech that was related to self-government was protected by the First Amendment, while private expressions that did not deal with matters of public concern were protected only by the Fifth Amendment’s due process clause. Critics argue that such a division is unjustified by the text of the Constitution and that such an understanding fails to protect art or other forms of self-expression. Meiklejohn attempted to counter such criticism by arguing that voters are informed by an extremely wide range of expressions, including literature and the arts. See also American Civil Liberties Union; Self-government Rationale.
Dara Purvis
furthe r reading Nelson, Adam R. Education and Democracy: The Meaning of Alexander Meiklejohn, 1872–1964. Madison: University of Wisconsin Press, 2001.
Membership Lists
Melton v.Young (6th Cir. 1972) The federal appeals court decision in Melton v. Young, 465 F.2d 1332 (6th Cir. 1972), represents one of the early times an appeals court had to grapple with the troubling question of regulating Confederate flag clothing in public schools. A divided court ruled that school officials could suspend a student for wearing Confederate flag clothing without violating the First Amendment because the flag had led to disruptions of school activities. The question arose when student Rod Melton wore a jacket with a Confederate flag to his Chattanooga, Tennessee, high school.The school, which had only recently integrated in 1966, had witnessed a series of racial incidents the previous year, including citywide disturbances and school closings. School officials recently had stopped using the Confederate flag as a school symbol and Dixie as a school pep song.The school then adopted a code of conduct and a dress code policy that banned “provocative symbols on clothing.” Melton and his parents sued after he was ordered to remove the jacket or leave school. Melton asserted that he had a First Amendment right to wear the jacket. School officials countered that the Confederate flag was disruptive in the school environment given racial tensions in the school. A federal district court ruled the ban on “provocative symbols” was unconstitutional but that school officials could prohibit the Confederate flag because it was disruptive. On appeal, a three-judge panel of the Sixth Circuit Court of Appeals ruled 2-1 in favor of school officials and against Melton.Writing for the majority, Judge Damon Keith recognized that this was a “troubling case” that presented a clash between freedom of expression and school officials’ authority. Applying the substantial disruption test from the Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District, Keith determined that given the history of racial tension in the school and surrounding community, the school officials could prohibit the Confederate flag on student clothing. Keith reasoned that the racial history made it reasonable for school officials to believe that Confederate flag clothing could disrupt school activities. Judge William E. Miller dissented, writing that the school principal overreacted and acted out of what the Supreme Court called in Tinker “undifferentiated fear or apprehension of disturbance.” He focused on the fact that the racial tensions in the school and community had not been caused by students wearing Confederate flag clothing.
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See also Confederate Flag; Dress Codes; Tinker v. Des Moines Independent Community School District (1969).
David L. Hudson Jr.
furthe r reading Dyer, Edgar. “The Banning of Confederate Symbols in the Public Schools: Preventing Disruption or Avoiding Discomfort.” Education Law Reporter 125 (1998): 1019. Hudson, David L., Jr. The Silencing of Student Voices: Preserving Free Speech in America’s Schools. Nashville,Tenn.: Freedom Forum, 2003. ———. “Confederate Flag tests the limits of free expression.” First Amendment Center, March 20, 1998. www.firstamendment center.org/news.aspx?id=9172.
Membership Lists The free speech and freedom of association clauses of the First Amendment generally prevent the government from requiring nonprofit, private, or political associations to disclose their members’ names.The reasoning is that forced disclosure of membership lists would inhibit people from joining some organizations. Just after World War II, two events led many in Congress and elsewhere to inquire into the membership of various groups. The first event was the cold war with the Soviet Union, which prompted the House Un-American Activities Committee (HUAC) and Sen. Joseph R. McCarthy, R-Wis., to hold hearings to determine whether some groups had been infiltrated or were dominated by communists.Any group suspected of having communist ties was placed on the attorney general’s list of subversive organizations by means of an executive order issued by President Harry S.Truman. The second event provoking an interest in the membership of organizations was the emergence in the 1950s of the civil rights movement in the South. The southern states, in an effort to weaken or intimidate groups working for civil rights for African Americans, such as the National Association for the Advancement of Colored People (NAACP), sought disclosure of membership lists as a way to scare people away from joining the groups. For example, in 1956 Alabama used its law requiring foreign corporations to register with the state to try to force the NAACP, a nonprofit corporation that was incorporated outside of the state, to turn over certain documents, including its list of members in the state. The NAACP objected and sought to prevent enforcement of the law and provision of the documents. After an Alabama circuit court ordered the NAACP to produce the
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membership list, it twice sought to appeal the decision to the state supreme court, but was unsuccessful. However, the U.S. Supreme Court granted certiorari, and in NAACP v.Alabama (1958) ruled that the request for the membership list was unconstitutional. Writing for a unanimous Court, Justice John Marshall Harlan II reasoned that the request for the membership list posed a potential restraint upon the freedom of association extended by the First Amendment to members of the NAACP. According to the Court, prior revelations of the “identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.” Thus the Court ruled that, at least in the current circumstances, the First Amendment protected the membership lists of a nonprofit organization from government disclosure. A few years later, however, the Supreme Court reached a contrary conclusion in Communist Party of the United States v. Subversive Activities Control Board (1961). In this case, Justice Felix Frankfurter, in his opinion for a 5-4 Court, upheld a provision of the Subversive Activities Control Act of 1950 that required communist organizations to register with the government and provide it with their membership lists. Frankfurter rejected claims that this requirement violated the First Amendment. He argued that First Amendment rights had to be balanced against Congress’s judgment about how best to address national security needs, and in this case the Court would defer to Congress in upholding the registration and disclosure requirements. Although the Supreme Court has not officially overturned Communist Party of the United States, lower courts have questioned its validity. For example, in Familias Unidas v. Briscoe (5th Cir. 1980) the Fifth Circuit Court of Appeals invalidated a state law requiring the registration and disclosure of members of any organization deemed to be interfering with the operation of public schools. Familias Unidas, a group advocating for Hispanics in Texas, was facing disclosure of its membership.The court, citing NAACP v.Alabama, ruled that the First Amendment protected the identity of the group’s members. In its decision, the court also distinguished the facts of the case from Communist Party of the United States, claiming that in that case the government had met its bur-
den in drafting a narrowly tailored law to require provision of the membership list. Even though the membership lists of nonprofit organizations and many other groups are generally protected, the Court has made some exceptions for political organizations. In Buckley v. Valeo (1976), the Supreme Court upheld the provisions of the Federal Election Campaign Act calling for the disclosure of contributors to political campaigns. It did so by arguing that concerns about deterring corruption justified the disclosure and that the law again met the burden of being narrowly tailored. However, the Court did not rule on whether party members as opposed to donors had to be disclosed, and in view of the NAACP v. Alabama decision, it is questionable that the Court would uphold a law with such a requirement today. Overall, then, subject to some narrow exceptions, the membership lists of most organizations are protected under the First Amendment. See also Attorney’s General’s List of Subversive Organizations; Buckley v.Valeo (1976); Civil Rights Movement; Communist Party of the United States v. Subversive Activities Control Board (1961); House Un-American Activities Committee; NAACP v. Alabama (1958).
David Schultz
furthe r reading Kalven, Harry, Jr. A Worthy Tradition: Freedom of Speech in America. New York: Harper and Row, 1988.
Memoirs v. Massachusetts (1966) In Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Supreme Court held that the book John Cleland’s Memoirs of a Woman of Pleasure was not obscene. Before reaching its decision, the Court revisited its obscenity test—specifically, the requirement it had established in Roth v. United States (1957) that an obscene work must be “utterly without redeeming social value.” In the underlying litigation, the Supreme Judicial Court of Massachusetts had held that the novel, more familiarly known as Fanny Hill, was obscene because it had only “minimal literary value,” and Roth did not specify that “a book . . . must be unqualifiedly worthless before it can be deemed obscene.” The novel’s publisher, G. P. Putnam’s Sons, had presented expert testimony by various English professors to demonstrate the book’s literary, historical, and social value, but the Massachusetts court had rejected those efforts as “strained.”
“Memorial and Remonstrance” In the ruling, Justice William J. Brennan Jr., writing for a three-member plurality that included Chief Justice Warren E. Burger and Justice Abe Fortas, explained that reversal was appropriate because “a book cannot be proscribed unless it is utterly without redeeming social value” (emphasis in original). Social value, Brennan explained, must be evaluated “independently” of the other criteria, and therefore “can neither be weighed against nor cancelled by [the book’s] prurient appeal or patent offensiveness.” This view of social value was later expressly rejected in Miller v. California (1973). Justices Hugo L. Black and Potter Stewart concurred, citing their dissents in earlier obscenity opinions. Justice William O. Douglas, in a separate concurrence, argued that “the First Amendment does not permit the censorship of expression not brigaded with illegal action,” and that, in any event, there had been no demonstration of obscenity in the Massachusetts litigation. Moreover, in the face of the defense experts put on by Putnam’s, “[t]he prosecution made virtually no effort to prove that the book was ‘utterly without redeeming social importance.’ ” Douglas explained that judges are “incompetent to render a judgment” as to literary worth, and so the record compelled the conclusion that the book was not obscene. Three justices—Tom C. Clark, Byron R.White, and John Marshall Harlan II—wrote separate dissents. Clark noted that Roth had defined obscenity as having “such slight social value . . . that any benefit . . . is clearly outweighed by the social interest in order and morality.” Clark objected that the plurality’s “new test” effectually eliminated any ban on obscenity by treating “social value” as an independent criterion.To support his argument, Clark gave a detailed description of the novel—in fact, so detailed that the New York Times said his “disapproving but remarkably vivid condensation of the story” would serve as an advertisement to new readers. Taking a view similar to Clark’s, White observed that if a book “here and there contains a passage descriptive of character, geography or architecture, the book would not be ‘obscene’ under the social importance test.” He argued that “social importance” was “relevant only to determining the predominant prurient interest of the material.” Harlan reasoned that federal obscenity laws should be limited to “hardcore pornography” (a category that did not cover the Memoirs), but that the states were entitled to more latitude in regulation of pornography. See also Brennan, William J., Jr.; Fanny Hill; Miller v. California (1973); Obscenity and Pornography; Roth v. United States (1957).
Simon Stern
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furthe r reading Rembar, Charles. The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill. New York: Random House, 1968.
“Memorial and Remonstrance” James Madison’s “Memorial and Remonstrance Against Religious Assessments,” a document presented to the Virginia General Assembly in 1785, argued for complete religious liberty and against government support of religion in any form. Madison’s target was an assessment bill that would have imposed a general tax on Virginians to pay “teachers of the Christian religion” a modest salary. His efforts not only helped defeat the bill, but also created a political climate in Virginia that enabled him to secure passage the next year of the Virginia Statute for Religious Freedom, the first unreserved guarantee of religious liberty and full separation of church and state in U.S. history. The “Memorial” also reveals Madison’s thinking about religious freedom four years before he introduced a national Bill of Rights in 1789. The Anglican Church had been the established church of Virginia since 1606 and the privileged recipient of public funds. Dissenters were subject to franchise restrictions and sometimes harsher penalties. By the eve of the Revolutionary War, however, the church had lost many parishioners to dissenting churches and was suffering financial hardship. In his home state of Virginia, Madison had been an early and forceful advocate of religious liberty and an opponent of religious establishments. In June 1776, he served on a committee charged with preparing a Declaration of Rights to be included in Virginia’s new constitution. The chair of the committee, George Mason, had prepared a draft that spoke of “the fullest Toleration in the Exercise of Religion.” Madison successfully moved to amend the declaration to remove the word ”toleration,” which suggested a secondclass status for dissenters, and instead to declare “that all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” Madison was unsuccessful, however, in securing acceptance of his proposal that “no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges,” which would have clearly prohibited any religious establishment in Virginia. The assessment bill introduced in the Virginia General Assembly in 1784 would have required all taxpayers to “pay
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a moderate tax or contribution annually for the support of the Christian religion, or of some Christian church.” The bill would not have established any particular Christian denomination (all Christian denominations were eligible for the funds) and did not penalize anyone for failing to believe in or to practice Christianity. Sponsored by Patrick Henry, a hero of the colonial resistance, the bill was supported by many influential Virginians. Richard Henry Lee argued that religion, as “the guardian of morals,” must be protected from the “avarice” that would destroy religion “for want of legal obligation to contribute something to its support.” Madison, however, considered the bill a “dangerous abuse of power” and a direct violation of the guarantee of religious liberty in the Virginia Declaration of Rights. A mild religious establishment was still an establishment: “Distant as it may be in its present form from the Inquisition, it differs from it only in degree.” Many of Madison’s arguments in the “Memorial” closely followed those of John Locke’s in “A Letter Concerning Toleration” (1689). But Madison was arguing for a much wider range of religious freedom and a much more complete separation of church and state than anything Locke had envisioned. Madison’s fundamental argument was that religion “must be left to the conviction and conscience of every man,” because it depended on “the evidence contemplated by their own minds” and “cannot follow the dictates of other men.” For that reason, religious conviction was an inalienable right over which no government, including government based on majority rule, could have legitimate power. The bill falsely presupposed “that the Civil Magistrate is a competent Judge of Religious Truth,” and that the same illegitimate authority used to “establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects.” Moreover, Madison argued, Christianity flourished best without the support of government. Religious establishments bred “pride and indolence in the clergy,” and the assumption that Christianity could not survive without the patronage of government was “adverse to the diffusion of the light of Christianity.” Finally, Madison contended that the right of free exercise of religion “is held by the same tenure with all our other rights.” If legislators were given power to control religious belief, they may equally control the press or abolish the right of trial by jury or even “erect themselves into an independent and hereditary Assembly.” To give government any authority over religion violated the fundamental principle of
the American Revolution: “It is proper to take alarm at the first experiment on our liberties.We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution.” Madison’s ”Memorial” was widely circulated throughout the state, and with the support of Baptists and Methodists, who distrusted religious establishments from long experience, the assessment bill was defeated. Madison used the political momentum of the assessment contest to secure passage in 1786 of the Virginia Statute for Religious Freedom, originally drafted by Thomas Jefferson, who in 1786 was serving as a diplomat in France. Madison wrote to Jefferson that passage of the bill has “extinguished forever the ambitious hope of making laws for the human mind.” Jefferson had the bill listed on his tombstone as one of the three great accomplishments of his life. See also Bill of Rights; Henry, Patrick; Jefferson, Thomas; Locke, John; Madison, James; Mason, George;Virginia Declaration of Rights; Virginia Statute for Religious Freedom.
James H. Read
furthe r reading Alley, Robert S., ed. James Madison on Religious Liberty. Buffalo, N.Y.: Prometheus Books, 1985. Banning, Lance. The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic. Ithaca, N.Y.: Cornell University Press, 1995. Ketcham, Ralph. James Madison:A Biography. Charlottesville: University Press of Virginia, 1990.
Metro Broadcasting, Inc. v. Federal Communications Commission (1990) In Metro Broadcasting v. Federal Communications Commission, 497 U.S. 547 (1990), the Supreme Court, by a vote of 5-4, upheld the power of Congress to pass affirmative action policies favoring African Americans and other minorities in broadcast licensing in order to promote programming diversity. Although the Court had previously sustained affirmative action programs, Metro Broadcasting was the first case in which the justices upheld affirmative action for a reason other than to remedy past discrimination. Because broadcasters use the public airwaves and space on the broadcast spectrum is limited, the government, through the Federal Communications Commission (FCC), determines who receives licenses to broadcast. The process is
Metromedia, Inc. v. City of San Diego (1981) competitive, and when Metro Broadcasting was denied a license in favor of a minority broadcaster, it brought suit. In the cases leading up to Metro Broadcasting, the justices had largely invalidated racial quotas, or set-aside programs. But they also allowed affirmative action policies in which race was taken into account as one factor among many. For example, in Regents of the University of California v. Bakke (1978) the Court struck down a public medical school admissions policy that set aside a specific number of seats for racial minorities, but it permitted the school to consider race as a “plus factor” in admissions decisions to promote diversity in both education and the medical profession, each of which had a history of past discrimination. Similarly, Metro Broadcasting dealt with the issue of whether increasing minority ownership of broadcast licenses would promote diversity in programming. Justice William J. Brennan Jr. delivered the majority opinion for the Court. He noted that congressional and FCC findings had revealed that more diverse programming would likely follow from increased minority ownership. Brennan said that because the racial classification was benign—that is, designed to aid racial minorities—the government policy needed only to meet the requirements of intermediate scrutiny, which required the government to demonstrate an important interest. According to Brennan, invidious racial classifications—that is, those that disadvantaged or harmed racial minorities—were subject to the much more skeptical strict scrutiny standard, which required the government to demonstrate a “compelling” interest. Brennan cited the Communications Act of 1934, which mandated diversification in the broadcast industry, as support for the FCC policy. The dissenting justices were skeptical of the link between minority ownership and programming diversity, believing that minority owners would structure their programs in the same way that nonminority owners did: with the goal of maximizing profit. Justice Sandra Day O’Connor’s dissent rejected Brennan’s benign-invidious dichotomy, explaining that all racial classifications should be judged under strict scrutiny. She stopped short, however, of saying that all affirmative action programs were unconstitutional. Her dissent was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy. Brennan’s opinion in this case was his last; he retired in 1990. His departure was followed the next year by that of Justice Thurgood Marshall, who also retired.With subsequent appointments, the Court became more conservative, and ultimately Metro Broadcasting was largely overruled in Adarand
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Constructors v. Pena (1995). Justice O’Connor’s majority opinion in Adarand closely mirrored her dissent in Metro Broadcasting. Yet even though O’Connor and the majority in Adarand and later affirmative action cases such as Grutter v. Bollinger (2003) rejected the benign-invidious dichotomy, they continued to allow affirmative action policies when they could pass the stringent strict scrutiny standard. See also Brennan, William J., Jr.; Federal Communications Commission; O’Connor, Sandra Day.
Artemus Ward
furthe r reading Ball, Howard. The Bakke Case: Race, Education, and Affirmative Action. Lawrence: University of Kansas Press, 2000. Spann, Girardeau A. Race against the Court: The Supreme Court and Minorities in Contemporary America. New York: New York University Press, 1993. Wasby, Stephen L. Race Relations Litigation in an Age of Complexity, Charlottesville: University Press of Virginia, 1995.
Metromedia, Inc. v. City of San Diego (1981) In Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), the Supreme Court invalidated a San Diego ordinance that generally prohibited “outdoor advertising display signs.” The Court’s reasoning was that the city law regulating billboards reached “too far into the realm of protected speech.” The ordinance banned outdoor signs in general, but it contained many exceptions, including government signs, signs at public bus stops, religious symbols, signs on public and commercial vehicles, and temporary political campaign signs. A group of outdoor advertising businesses sued, contending that the ordinance violated the First Amendment. A state trial court and an intermediate appeals court ruled in favor of the outdoor advertisers, but the California Supreme Court reversed. The state high court wrote that the ordinance involved “a proper application of municipal authority over zoning and land use for the purpose of promoting the public safety and welfare.” The U.S. Supreme Court reversed the California high court, though no opinion commanded a majority of the justices.Writing for a plurality, Justice Byron R.White—joined by Justices Potter Stewart, Thurgood Marshall, and Lewis F. Powell Jr.—recognized the positives and negatives of billboards: “Billboards are a well established medium of communication, used to convey a broad range of different kinds
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of messages. . . . [However,] the billboard creates a unique set of problems for land use planning and development.” White applied the test the Court had articulated for restrictions on commercial speech in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980). He determined that “insofar as it regulates commercial speech the San Diego ordinance meets the constitutional requirements of Central Hudson.” However, that was not the end of the inquiry for White, because the outdoor advertisers had raised broader First Amendment challenges, including the charge that the law discriminated against certain forms of noncommercial speech. White agreed that in discriminating against certain types of noncommercial speech, the ordinance did violate the First Amendment. He reasoned that many kinds of noncommercial speech would not fit into the ordinance’s protected exceptions and so would be banned.“With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse,” the plurality concluded. Justice William J. Brennan Jr., joined by Justice Harry A. Blackmun, wrote a concurrence in which he reasoned that the law did not meet the Central Hudson test. Brennan expressed concern that the plurality’s analysis supported a total ban on commercial billboards. Justice John Paul Stevens dissented, believing that a city could prohibit billboards as one medium of communication without violating the First Amendment. Chief Justice Warren E. Burger also dissented, writing: “Today the Court takes an extraordinary—even a bizarre—step by severely limiting the power of a city to act on risks it perceives to traffic safety and the environment posed by large, permanent billboards.” Justice William H. Rehnquist also wrote a dissenting opinion, reasoning that “the aesthetic justification alone is sufficient to sustain a total prohibition of billboards within a community.” Although Metromedia remains a confusing precedent for the lower courts to apply, it continues to serve as the Court’s central precedent on the regulation of billboards. See also Billboards; Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech;White, Byron R.
David L. Hudson Jr.
furthe r reading Brody, Steven G., and Bruce E. H. Johnson. Advertising and Commercial Speech: A First Amendment Guide. 2d ed. New York: Practising Law Institute, 2006.
Burt, Jason R.“Speech Interests Inherent in the Location of Billboards and Signs: A Method for Unweaving the Tangled Web of Metromedia, Inc. v. City of San Diego.” Brigham Young University Law Review (2006): 473–527. Parsons, Katherine Dunn.“Billboard Regulation after Metromedia and Lucas.” Houston Law Review 31 (1995): 1555–1607.
Meyer v. Grant (1988) The Supreme Court decision in Meyer v. Grant, 486 U.S. 414 (1988), invalidated a provision of a Colorado statute that made it a felony to pay persons to circulate petitions calling for the inclusion of initiatives on state ballots. In doing so, the Court upheld the holding of an en banc session of the Tenth Circuit Court of Appeals, which had overturned an earlier decision by a three-judge panel of the same appeals court that had upheld the law. Justice John Paul Stevens wrote the opinion for a unanimous Court. Because the Colorado law involved limits on political expression, he found it should receive exacting scrutiny. He further believed the law limited speech by limiting “the number of voices who will convey appellees’ message,” making it less likely that individuals could place items on the ballot. Although Stevens acknowledged that citizens could disseminate their ideas in other ways, he argued that the law “restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication.That it leaves open ‘more burdensome’ avenues of communication, does not relieve its burden on First Amendment expression.” Colorado sought to rely on the Court’s decision in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986), but Stevens observed that the speech in that case was commercial, whereas Meyer centered on purely political speech. Stevens further rejected the state’s argument that the law was needed to ensure that initiatives had statewide support; the state had already addressed this concern, Stevens noted, by specifying the number of signatures needed. He further rejected the idea that paid solicitors were more likely to forge names. Stevens observed that professional circulators, “whose qualifications for similar future assignments may well depend on a reputation for competence and integrity,” would be no more likely than others to engage in fraud. Moreover, he pointed out that other Colorado laws made it a crime to forge such signatures. Stevens cited Buckley v.Valeo (1976) for the principle that “[l]egislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment.” Further citing
Miami Herald Publishing Co. v.Tornillo (1974) Buckley, Stevens said that the principle “applies equally to ‘the discussion of political policy generally or advocacy of the passage or defeat of legislation.’ ” Over a decade later, in Buckley v. American Constitutional Law Foundation (1999) the Court struck down other Colorado laws that required persons soliciting signatures to be registered voters, wear name tags, and file lengthy monthly disclosures. See also Buckley v. American Constitutional Law Foundation (1999); Buckley v.Valeo (1976); Campaign Regulation; Commercial Speech; Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986); Stevens, John Paul.
John R.Vile
furthe r reading Garrett, Elizabeth. “Symposium: Money, Agenda Setting, and Direct Democracy.” Texas Law Review 77 (1999): 1845–1890.
Meyer v. Nebraska (1923) In Meyer v. Nebraska, 262 U.S. 390 (1923), the Supreme Court invalidated a Nebraska law banning the teaching of foreign languages to schoolchildren, finding that the law violated the Fourteenth Amendment’s due process clause. The Meyer law sprang from the nativist sentiment fostered by World War I.The Court recognized a liberty interest in parents providing an education for their children, and found that the law infringed on that interest without a proper “police power” rationale. In this case, Robert Meyer, a teacher at Zion Parochial School, was charged with violating the state law by teaching German to a student. Nebraska had claimed that the law was a proper means to “promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals.” The Court, while acknowledging the importance of ensuring that children attain proficiency in English, concluded in a majority opinion by Justice James C. McReynolds that “the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state.” He added that “mere knowledge of the German language cannot reasonably be regarded as harmful.” Justices Oliver Wendell Holmes Jr. and George Sutherland dissented without writing an opinion. The Court’s reliance on the due process clause in Meyer to invalidate state legislation was an extension of its reasoning in cases involving economic regulation such as Lochner v.
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New York (1905). The ruling in Meyer relied on the Lochner line of cases, but extended their logic well beyond the economic sphere. According to the Court, the liberty protected by the due process clause includes the right “to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”The Court also soon recognized that the due process clause protected against arbitrary state regulation the right to send one’s children to private schools (Pierce v. Society of Sisters [1925]) and the right to freedom of speech (Gitlow v. New York [1925]). The Court retreated from the Lochner line of cases in the late 1930s, but Meyer remained good precedent. In its famous Footnote 4 of United States v. Carolene Products (1938), the New Deal Court cited Meyer as implicitly protecting ethnic minorities. Meyer later became an important basis for the Warren and Burger Courts’ substantive due process jurisprudence in the landmark cases of Griswold v. Connecticut (1965) and Roe v.Wade (1973). In Griswold. the Court suggested that Meyer protected the “spirit of the First Amendment.” More recently, Justices Anthony M. Kennedy, Sandra Day O’Connor, and David H. Souter have praised Meyer as engaging in appropriately aggressive due process review of state regulations to protect unenumerated, noneconomic constitutional rights. See also Carolene Products Footnote Four; Foreign Languages, Right to Learn and Teach; Gitlow v. New York (1925); Pierce v. Society of Sisters (1925).
David E. Bernstein
furthe r reading Ross, William G. Forging New Freedoms: Nativism, Education, and the Constitution, 1917–1927. Lincoln: University of Nebraska Press, 1994.
Miami Herald Publishing Co. v. Tornillo (1974) In Miami Herald Publishing Co. v.Tornillo, 418 U.S. 241 (1974), a unanimous Supreme Court struck down a Florida law granting a right to reply to political candidates whose personal character or official record had been attacked by newspapers. The state right-of-reply statute permitted the attacked candidate—in this case a candidate for the Florida House of Representatives—to demand that the newspaper
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print free of charge any reply that the candidate wished to make to the newspaper’s editorial criticisms. By giving the print media constitutionally protected editorial autonomy, Tornillo dramatically differed from the Court’s treatment of the broadcast media. In Red Lion Broadcasting Co. v. Federal Communications Commission (1969), for example, the Court upheld the fairness doctrine, which required broadcasters to give free reply time to persons attacked on air. Later, in CBS, Inc. v. Federal Communications Commission (1981), the Court sustained a Federal Communications Commission (FCC) regulation requiring broadcasters to give reasonable access to candidates for federal elective office. The Tornillo decision, then, confirmed that the print media’s relationship to the First Amendment enjoyed a higher status than the broadcast media’s. Even though advocates of a legally enforceable right of access to the press argued that newspapers had become monopolistic businesses, unresponsive to the diversity of popular opinion, the Tornillo Court held that the Florida right-of-reply statute unconstitutionally intruded into the freedom of editors to determine the content of their newspaper pages.The Court also found that the statute, by mandating that a newspaper print a reply of someone else’s choosing, effectively penalized that newspaper for publishing controversial material. Faced with the financial and editorial burdens imposed by a mandated right of reply, newspapers might well take the safe course by avoiding the kind of political controversy that could result in the need to grant rights of reply, thereby blunting or reducing newspapers’ political and electoral coverage. Meanwhile, Tornillo struck a blow to those who sought a right of access to the press.These proponents argued that the scarcity rationale used to justify regulation of the broadcast media in Red Lion should also apply to newspapers, especially in view of the prevalence of one-newspaper cities and the high barriers of entry into the industry.The Court, however, refused to extend the scarcity rationale to privately owned newspapers—all of which were descendents of America’s unregulated, politically active, and highly competitive press of the late eighteenth century. See also CBS, Inc. v. Federal Communications Commission (1981); Red Lion Broadcasting Co. v. Federal Communications Commission (1969); Right to Respond.
Patrick M. Garry
furthe r reading Barron, Jerome.“Access to the Press:A New First Amendment Right.” Harvard Law Review 80 (1967): 1641. Lange, David L. “The Role of the Access Doctrine in the Regulation of the Mass Media.” North Carolina Law Review 52 (1973): 1.
Military Personnel, Rights of When the U.S. military is a party to cases centering on First Amendment rights to free speech, free press, and free exercise of religion, the Supreme Court generally defers to the government’s interest and discretion, permitting the military to restrict the rights of service personnel in ways it does not permit in civilian contexts. The U.S. military has always operated as a somewhat distinct society governed by its own criminal code. It is currently ruled by a special system of laws, primarily the Uniform Code of Military Justice (UCMJ), and has its own system for prosecuting violations of the code, including courts-martial.When responding to First Amendment challenges from military personnel, the Court consistently treats the military as a special and separate context or environment in which standard First Amendment protections do not apply, or do not apply to the same extent (other major categories of special contexts are schoolchildren, incarcerated prisoners, and public employees). Chief Justice Earl Warren once suggested that military personnel do not give up their constitutional rights—“our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes” (Warren 1962: 187)—but he did note that under the doctrine of military necessity, also known as the “Orloff Rule” from Orloff v. Willoughby (1953), the military can implement its regulations largely outside the purview of judicial review, because the Court’s attitude had historically been “hands off.” He observed:“[I]t is indisputable that the tradition of our country, from the time of the revolution until now, has supported the military establishment’s broad power to deal with its own personnel. The most obvious reason is that Courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have” (Warren 1962: 186–187). In most cases involving the military, the Supreme Court seems to use lower levels of review or operates from the strong presumption that “military necessity” or the military interests in governing its unique, “separate society” tend to override or outweigh the speech and religious rights indi-
Military Personnel, Rights of viduals ordinarily hold. Indicative of the military’s special status, the Uniform Code of Military Justice prohibits military personnel from using “contemptuous speech” against the president and other leaders, from engaging in “conduct prejudicial to good order and discipline in the Armed Forces,” and from “conduct unbecoming an officer and a gentleman.” These regulations have been used to restrict political expression as well as other activities. Also under the code, military personnel can be severely punished—including dismissal, forfeiture of pay, and imprisonment—for participating in rallies that criticize war efforts, even if they are off duty and dressed as civilians, an issue addressed in United States v. Howe (1967). During the Vietnam War era, several military speech restrictions were unsuccessfully challenged for overbreadth under the First Amendment in Parker v. Levy (1974) by an officer who was convicted by court-martial of criticizing the military and arguing that soldiers should refuse to serve in Vietnam. In Greer v. Spock (1976) and Brown v. Glines (1980), the Court upheld other military regulations that restricted or prohibited service personnel or civilians from distributing political materials on a military base. The military also maintains restrictions on sexual expression and conduct. For example, since World War I U.S. military laws and regulations have prohibited homosexual conduct in the ranks; the UCMJ includes an anti-sodomy regulation.The “Don’t Ask, Don’t Tell” law passed by Congress in 1993, which replaced the Department of Defense’s former policy of discharging all homosexuals, was intended to permit gays to serve in the military so long as they did not reveal their sexual identities. Several free speech challenges were launched against the policy in the 1990s, but district courts have upheld the law’s constitutionality, generally finding that the government’s interest in preventing homosexual conduct permits these restrictions—Holmes v. California Army National Guard (1997) is one example of such a case. Military personnel seeking to overturn judgments in their dismissals have met with relatively little success—examples are Thomasson v. Perry (1996), Philips v. Perry (1997), and Able v. United States (1998). Some observers believe the Don’t Ask, Don’t Tell policy will eventually be subject to an equal protection challenge like that for civilian sodomy laws in Lawrence v.Texas (2003). One of the few areas related to the military in which the Court has, over time, shown its willingness to protect freedom of conscience is in the treatment of conscientious objectors. In Berman v. United States (1946), the Court initial-
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ly rejected attempts to include political and moral grounds other than religion as a basis for conscientious objection, but later recognized personal faith and nontraditional religious variants of pacifism in United States v. Seeger (1965), and, finally, any deeply held or fervent belief, even if nonreligious in character, in Welsh v. United States (1970). However, once a serviceman or -woman has entered the military, the Court provides much less protection of free speech or free conscience than is accorded citizens in other contexts. For example, the military’s interest in maintaining a cohesive, homogeneous community outweighs an individual’s right to wear clothing that represents one’s religious observance. Thus in Goldman v.Weinberger (1986) the Court held that the air force could prohibit an Orthodox Jew from wearing a yarmulke in order to maintain uniformity in its dress code. Rather than evaluating the military’s claim that uniform appearance is essential to its functioning, the Court defers to the military’s judgment that this is in fact true. See also Brown v. Glines (1980); Conscientious Objection to Military Service; Don’t Ask, Don’t Tell; Goldman v. Weinberger (1986); Parker v. Levy (1974); United States v. Seeger (1965); Vietnam War;Welsh v. United States (1970).
Elizabeth Beaumont
furthe r reading Dienes, C. Thomas. “When the First Amendment Is Not Preferred: The Military and Other ‘Special Contexts’: Robert S. Marx Lecture University of Cincinnati College of Law, April 22, 1987.” University of Cincinnati Law Review 56 (1988): 779–843. Fitzkee, David E., and Linell A. Letendre. “Religion in the Military: Navigating the Channel between the Religion Clauses.” Air Force Law Review 59 (2007): 1–71. Lasson, Kenneth. “Religious Liberty in the Military: The First Amendment under ‘Friendly Fire.’ ” Journal of Law and Religion 9 (1992): 471–499. Moskos, Charles, and John Whiteclay Chambers, II, eds. The New Conscientious Objection: From Sacred to Secular Resistance. New York: Oxford University Press, 1993. Servicemembers Legal Defense Network. “Conduct Unbecoming: The Tenth Annual Report on ’Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass.’ ” 2004. www.sldn.org/binary-data/SLDN_ ARTICLES/pdf_file/1411.pdf. Shank, Ross G. “Note: Speech, Service and Sex: The Limits of First Amendment Protection of Sexual Expression in the Military.” Vanderbilt Law Review 51 (1998): 1093–1146. Sugin, Linda. “Note: First Amendment Rights of Military Personnel: Denying Rights to Those Who Defend Them.” New York University Law Review 62 (1987): 855–890. Warren, Earl.“The Bill of Rights and the Military.” New York University Law Review 37 (1962).
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Milkovich v. Lorain Journal Co. (1990) In deciding Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the Supreme Court ruled that opinions can be defamatory and that no broad constitutional shield for the expression of defamatory opinions is appropriate. It was the first time the Court addressed whether libel laws were applicable to expressions of opinion. The debate over constitutional protection for statements of opinion began long before the Supreme Court’s decision in Milkovich. Opinions were presumed to be protected, in part because U.S. common law was constructed in response to persecutions in England of those who dared criticize royalty. The Court had also overturned libel verdicts against publications accusing plaintiffs of being “traitors” and involved in “blackmail.” Most recently, in Gertz v. Robert Welch, Inc. (1974), the Court had suggested in dicta that “[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Nevertheless, the Court addressed the issue straightforwardly when Michael Milkovich, an Ohio high school wrestling coach, sued for the damages he incurred when a newspaper opinion column asserted that he had lied under oath at a public hearing. Coach Milkovich charged in his suit that the newspaper had accused him of perjury. However, the trial judge granted the newspaper’s motion for summary judgment on the ground that the assertion in the newspaper column was opinion, and it therefore was constitutionally protected. In a 7-2 decision, the Supreme Court reversed “the Ohio courts’ recognition of a constitutionally required ‘opinion’ exception to the application of its defamation laws.” Chief Justice William H. Rehnquist wrote the majority opinion, which reached its conclusion on the basis of three claims. First, the media were already protected by requirements that plaintiffs prove both fault and falsity; an additional requirement of a constitutional immunity for media opinions was not necessary. Second, because “expressions of ‘opinion’ may often imply an assertion of objective fact,” they may inflict “as much damage to reputation” as factual claims. And, third, opinions such as those expressed in the case at hand were “sufficiently factual to be susceptible of being proved true or false.” Courts should undertake this inquiry
because of the social values at stake in the protection of individual reputations. Milkovich is one of two relatively recent Supreme Court decisions widely interpreted as designed to restrain the potential excesses of media analysts and investigators. In Masson v. New Yorker Magazine (1991), the Court rejected constitutional protection for fabricated direct quotations, even when the purported direct statement was a “rational interpretation” of what was actually said. The Court held that attribution of fabricated quotations could satisfy the actual malice standard for libel involving public figures when “the alteration resulted in a material change in the meaning conveyed by the statement.” The Court’s decision in Milkovich has led to considerable apprehension among journalists who report on the alleged unethical behavior of public officials, professionals (such as art critics) whose judgments might be interpreted as product disparagement, and employers who write negative job appraisals, among others.The long-term implications of the Court’s decision may spark a movement toward reassessment of constitutional protection for opinions. See also Gertz v. Robert Welch, Inc. (1974); Libel and Slander; Masson v. New Yorker Magazine (1991); New York Times Co. v. Sullivan (1964); Rehnquist,William H.
Richard Parker
furthe r reading Ashdown, Gerald G. “Journalism Police.” Marquette Law Review 89 (2006): 739–759. Orenstein, Jeffrey. “Casenote and Comment: Show Me the Monet: The Suitability of Product Disparagement to Art Experts.” George Mason Law Review 13 (2006): 905–934. Stern, Nat. “Creating a New Tort for Wrongful Misrepresentation of Character.” Kansas Law Review 53 (2004): 81–147.
Milk Wagon Drivers Union v. Meadowmoor (1941) In Milk Wagon Drivers Union v. Meadowmoor, 312 U.S. 287 (1941), the Supreme Court upheld an injunction by an Illinois court against peaceful picketing, which the state court believed was enmeshed in “contemporaneously violent conduct.” The high court did so on the same day it struck down another injunction against peaceful picketing in American Federation of Labor v. Swing (1941). In the opinion for the Court, Justice Felix Frankfurter surveyed the vendor system that had governed the distribu-
Mill, John Stuart tion of milk in Chicago and that had given rise to the controversy. Noting that the Court had included picketing under the ambit of First Amendment rights in Thornhill v. Alabama (1940) and Carlson v. California (1940), Frankfurter argued, “Peaceful picketing is the workingman’s means of communication.” But, likening free speech to appeals to reason, he further observed that “utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force.” The controversy over milk distribution had resulted in numerous acts of violence, and the Court found that the state courts had the right to take such violence into account when they enjoined picketing in this case. Justice Hugo L. Black wrote a dissenting opinion, joined by Justice William O. Douglas, in which he argued that the injunction was a serious infringement of freedom of speech and press. He observed: “Freedom to speak and write about public questions is as important to the life of our government as is the heart to the human body.” To support his position, he advanced five arguments: (1) the matters at issue were matters of public concern; (2) the state laws at issue interfered with “constitutionally guaranteed privileges”; (3) the Supreme Court was relying on a rule that the Illinois Supreme Court had not; (4) the rule announced was too “general and sweeping”; and (5) the specific injunction was too “general and sweeping” as well. Under the last point, Black stressed that the injunction could be interpreted as serving as a prior restraint of further discussion. As to the link between picketing and violence, Black argued that it was too attenuated:“It was eight months after this [violence] before any picketing occurred; four years afterwards before the trial judge granted an injunction, limited to violence alone; five years before the Supreme Court of Illinois directed a more stringent injunction against peaceful persuasion; and seven years before this Court sustained the injunction.” If the state wanted to prevent violence, it should direct its action directly to that violence. Justice Stanley F. Reed authored another dissent, arguing that picketers should not have lost their rights because of the violent actions of others. He concluded: “If the fear engendered by past misconduct coerces storekeepers during peaceful picketing, the remedy lies in the maintenance of order, not in denial of free speech.” He further observed that “[f]ree speech may be absolutely prohibited only under the most pressing national emergencies,” which he did not think were at issue here.
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See also American Federation of Labor v. Swing (1941); Black, Hugo L.; Carlson v. California (1940); Frankfurter, Felix; Picketing; Thornhill v. Alabama (1940).
John R.Vile
furthe r reading Wells, Christina E. “Bringing Structure to the Law of Injunctions against Expression.” Case Western Reserve Law Review 51 (2000): 1–67.
Mill, John Stuart John Stuart Mill (1806–1873), one of the most influential philosophers of the nineteenth century, became a guiding light for modern liberalism and individual liberty. Mill’s arguments for freedom of thought and discussion, for liberty of tastes and pursuits, and for limits on the authority of society are often repeated in contemporary debates regarding freedom of speech and association. Practical applications of First Amendment principles often rest upon allusions to his ideas, most famously expressed in his essay On Liberty (1859). Mill was born in London, the son of James Mill, a prominent British intellectual. He was a child prodigy, with a gift for foreign languages and philosophical thought.As he wrote in his Autobiography, published posthumously, he suffered a mental breakdown in 1826 but continued to spend much of his time refining the philosophy of his father and his father’s friend, Jeremy Bentham, a noted reformer and utilitarian philosopher. In addition to writing, Mill served for a time in Parliament. He was an advocate of women’s rights, including women’s suffrage, apparently influenced on this point by Harriet Taylor, whom he married in 1851. Among Mill’s works are A System of Logic (1843), Principles of Political Economy (1848), Thoughts on Parliamentary Reform (1859), and The Subjection of Women (1869). Some view On Liberty as the intellectual precursor of the marketplace of ideas theory that still predominates in modern First Amendment jurisprudence. The purpose of Mill’s essay was to assert one principle: that self-protection is the only legitimate reason to interfere with another person’s liberty. In Mill’s words,“the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” To assert the harm principle is one thing; to defend it, quite another. In his essay, Mill forswears the use of contractarian arguments or ideas of abstract right; instead, he defends individual liberties on utilitarian grounds—not the utility of Bentham and his father but “utility in the largest sense,
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grounded on the permanent interests of man as a progressive being.” Mill’s utilitarian case for the liberty of thought and discussion was a forceful one. He asserted that the problem with any effort to suppress nonconforming viewpoints is that the guardians of orthodoxy wrongfully presume their own infallibility.What now appears unorthodox or even false may later turn out to be both widely accepted and true. Orthodoxy, if left unchallenged, becomes merely a “dead dogma” rather than a living truth. Only by encountering alternative ideas does a doctrine, no matter how true, have any meaning or vitality. Ultimately, for Mill, progress requires that humanity reap as much truth as it can. The only hope for acquiring social and moral truth, though, is through the “reconciling and combining of opposites” or the “collision of adverse opinions”—that is, through what we label the marketplace of ideas. Because no one doctrine or belief contains the whole truth, society must remain open to any and all points of view if it has any hope of producing happiness. Mill makes similar arguments regarding the need to respect individuality, as manifested not only in political beliefs but also in individual tastes and pursuits. He again claims that society should never interfere with anyone’s choices and habits, except insofar as they cause harm to others. Mill’s primary reason for this position is that experiments in living permit people to find their own paths to self-fulfillment. Experiments in living are a vehicle for the exercise of autonomy, enabling personal growth and moral development. By giving free rein to experiment and by encouraging eccentricity, society may progress toward the good life. Mill’s critics focus on a number of his ideas. Some debate whether Mill is a consistent utilitarian, or whether he is an advocate of negative liberty—that is, of freedom from state control. Others question whether the distinction between self-regarding interests and those matters affecting others can be applied meaningfully in actual situations. Still others quarrel with Mill’s very conception of free speech. As legal and literary theorist Stanley Fish contends,“There is no such thing as free speech.” Fish means that outside the academic seminar, there is no marketplace or situation where ideas exist or function autonomously and unconstrained, independent of the circumstances that make them intelligible in the first place. Every idea is an incitement; every word, potentially, a fighting word. There can be no valid sense in which speech is free. Speech is never free of state pressure; there are always limits to what is permitted. Speech is never free of consequences; it advances some interests over others;
it matters. In other words, Mill’s harm principle is always already violated. Still, Mill’s arguments on behalf of individual liberty have played an important role in fleshing out the doctrines underlying the First Amendment. The harm principle has been used to think through the question of whether there are permissible limits to speech—for example, limits associated with clear and present dangers, fighting words, hate speech, even threats to national security. Most often, though, Mill appears as a progenitor of First Amendment absolutism: “if all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” See also Clear and Present Danger Test; Hate Speech; Marketplace of Ideas; On Liberty.
Leonard Williams
furthe r reading Fish, Stanley. There’s No Such Thing as Free Speech and It’s a Good Thing, Too. Oxford: Oxford University Press, 1994. Gray, John. Mill on Liberty: A Defence. London: Routledge, 1983. Kelly, Paul. “J. S. Mill on Liberty.” In Political Thinkers: From Socrates to the Present, ed. David Boucher and Paul Kelly. Oxford: Oxford University Press, 2003. Riley, Jonathan. Mill on Liberty. London: Routledge, 1998. Wenz, Peter S. Political Philosophies in Moral Conflict.Boston: McGrawHill, 2007.
Miller v. California (1973) In Miller v. California, 413 U.S. 15 (1973), the Supreme Court upheld the prosecution of a California publisher for the distribution of obscene materials. In doing so, it established the test used to determine whether expressive materials cross the line into unprotected obscenity. The Miller test remains the bellwether in this area of First Amendment jurisprudence. In California, Covina-based publisher Marvin Miller was called in some circles the “King of Smut.” In this case, he was prosecuted in 1968 for mailing advertisements for four books—Intercourse, Man–Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography—and a film entitled Marital Intercourse. A jury then convicted Miller under a California law prohibiting the distribution of obscenity, and his conviction was affirmed by a California appeals court. Miller appealed to the U.S. Supreme Court, contending that the advertisements in question were not obscene.The Court affirmed his conviction 5-4.
Miller, Arthur Writing for the majority, Chief Justice Warren E. Burger established a three-part test for juries in obscenity cases: “whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The three parts of the test soon became known, in short, as the prurient interest, patently offensive, and SLAPS prongs. The Miller standard differed from the Court’s previous obscenity standard as articulated in Memoirs v. Massachusetts (1966).A plurality in Memoirs had established that any material designated as obscene had to be “utterly without any redeeming social value,” but in Miller the Court relaxed the standard for prosecutors by requiring the material to have some “serious value.” The new standard granted “greater discretion to law enforcement agencies, judges and jurors to decide whether, under local community standards, material should be condemned as obscene” (Mathews 1973: A1). Burger rejected the notion that the First Amendment requires a national community standard, writing: “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” He did note that only materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law” constituted obscenity. Justice William O. Douglas dissented, writing that obscenity cases “have no business in the courts.” Justice William J. Brennan Jr., joined by Justices Potter Stewart and Thurgood Marshall, also wrote a dissent, referring readers to his dissent in the companion case of Paris Adult Theatre I v. Slaton (1973), in which he argued that obscenity laws could not be drafted consistently with the First Amendment.
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Hixon, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996. Mathews, Linda.“Local Standards Can Be Used to Ban Books, Films.” Los Angeles Times, June 22, 1973, A1.
Miller, Arthur Arthur A. Miller (1915–2005) was one of the most talented and influential American playwrights of the post–World War II era. In his work, he displayed an ability to tap into the American zeitgeist and write characters and plots that captured the social and moral uncertainty of the era. Many of his plays examined the plight of the working class and illustrated the pursuit of false values that led to the destruction of American families. His veiled criticisms of McCarthyism not only produced an award-winning play but eventually led to a congressional investigation, where he stood by his First Amendment rights of association.
See also Brennan, William J., Jr.; Burger, Warren E.; Memoirs v. Massachusetts (1966); Obscenity and Pornography; Paris Adult Theatre I v. Slaton (1973).
David L. Hudson Jr.
furthe r reading Attorney General’s Commission on Pornography. July 1986. www. porn-report.com. de Grazia, Edward. Girls Lean Back Everywhere:The Law of Obscenity and the Assault on Genius. New York: Vintage, 1993.
Acclaimed playwright Arthur Miller’s refusal to “name names” before the House Un-American Activities Committee earned him the contempt of Congress and a jail sentence, which was later overturned.
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Born in Manhattan to Jewish parents whose business failed during the Great Depression, Miller earned his own way to the University of Michigan. While there, he wrote several award-winning plays and edited the university’s student newspaper. He graduated with a degree in English in 1938. Miller’s college successes were followed by failure in his professional debut on Broadway. The Man Who Had All the Luck (1944) was a disaster and closed after only four performances. Miller was devastated and vowed never to write another play. But he came back with the award-winning All My Sons (1947), a play about a war-profiteering businessman who sells defective airplane parts to the United States during World War II. Miller’s writings were filled with cultural and social commentary, much of which he mirrored in his personal life. In his most successful play, Death of a Salesman (1949), which won a Pulitzer Prize, Miller’s lead character is Willy Loman, a downtrodden businessman whose obsession with success and unsuccessful climb up the corporate ladder leads to a crisis of conscience. In 1953 Miller wrote The Crucible, which depicted the mass hysteria of the seventeenth-century witch trials in Salem, Massachusetts.This play was a thinly veiled commentary about Miller’s disdain of the communist witch hunts during the 1950s led by Sen. Joseph McCarthy. During this period dozens of writers, actors, and directors were blacklisted in Hollywood and were unable to work in the entertainment business. Miller left Hollywood and concentrated his writing efforts on Broadway, where the effects of blacklisting were minimal. In 1956 the House Un-American Activities Committee subpoenaed Miller to testify about communist sympathizers in the entertainment industry. Miller refused to name people whom he knew to be “fellow travelers.” He was cited for contempt of Congress and was sentenced to jail, but his conviction was later overturned. See also Blacklists; House Un-American Activities Committee; McCarthyism; Red Scare; Salem Witch Trials.
Kenneth J. Knirck
furthe r reading Bigsby, Christopher. Remembering Arthur Miller. London: Methuen, 2005. Carr, Robert Kenneth. The House Committee on Un-American Activities, 1945–1950. Ithaca: Cornell University Press, 1952. Gladchuk, John Joseph. Hollywood and Anticommunism: HUAC and the Evolution of the Red Menace, 1935–1950. London: Routledge, 2006. Martin, Robert A., ed. The Theater Essays of Arthur Miller. New York: Viking, 1978. Moss, Leonard. Arthur Miller. Boston:Twayne, 1980. Navasky,Victor S. Naming Names. New York:Viking, 1980.
Miller, Judith Judith P. Miller (1948– ), a Pulitzer Prize–winning investigative journalist, went to jail rather than testify before a federal grand jury about a confidential source.The grand jury was investigating a leak from President George W. Bush’s administration that identified a covert CIA agent.Although Miller, who was then reporting for the New York Times, never wrote about the agent, she had evidence relevant to the investigation. Miller argued that as a journalist she had a First Amendment–based privilege to avoid revealing her confidential sources. Born in New York City, Miller earned an undergraduate degree from Barnard College and a master’s degree from Princeton University. She later worked for The Progressive magazine and National Public Radio before joining the New York Times in 1977. In 2003 the CIA sent former ambassador Joseph Wilson to Niger to investigate a claim made by President Bush in his State of the Union address that Iraq had tried to purchase uranium in Africa. Wilson, the husband of Valerie Plame, a CIA agent, told reporters that the intelligence was incorrect and that the Bush administration knew it long before the 2003 speech. In July Wilson published an op-ed piece in the New York Times, claiming that Bush and his advisers had distorted intelligence to push the United States into war with Iraq. Wilson’s criticism led White House officials, including Vice President Richard Cheney, to question whether Wilson’s wife was involved in sending him to Niger. The press, picking up the story, asked White House officials to comment.According to the grand jury subpoena, Miller met with Cheney’s top aide, I. Lewis “Scooter” Libby, two days after Wilson’s op-ed piece was published. Robert Novak, a conservative syndicated columnist, was the first reporter to disclose Plame’s CIA job. Karl Rove, Bush’s top political strategist, and Richard Armitage, then deputy secretary of state, were Novak’s sources.Wilson claimed that the administration purposely leaked his wife’s identity in retaliation and to silence other critics. The Bush administration responded that it would fire anyone who had leaked Plame’s name; however, the White House reversed course when Rove was under suspicion, saying that firings would be warranted only for those who had committed crimes. The administration appointed U.S. attorney Patrick Fitzgerald as special prosecutor to look into the matter. Fitzgerald subpoenaed Miller and had Libby sign a waiver allowing journalists he spoke with to testify about their con-
Mills v. Alabama (1966) versations on the matter. Miller refused to accept the waiver’s validity, feeling that Libby was coerced into signing it. There was some speculation that Miller’s refusal to testify was not to protect Libby but to shield herself or others. Miller’s claims of reporters’ privilege were rejected by the federal courts, including the U.S. Court of Appeals for the District of Columbia Circuit in In Re: Grand Jury Subpoena, Judith Miller (D.C. Cir. 2005).The circuit court relied on the Supreme Court’s decision in Branzburg v. Hayes (1972), which found no such First Amendment exemption for reporters from revealing their confidential sources to a grand jury. Miller spent eighty-five days in jail, leaving only after speaking by telephone with Libby, who reaffirmed that she was released from confidentiality. On September 30, 2005, Fitzgerald questioned Miller under oath before the grand jury. She testified again on October 12 and produced a notebook from a previously unknown meeting with Libby on June 23, 2003—two weeks before Wilson’s op-ed appeared and three weeks before Plame’s identity was disclosed in Novak’s column.According to Miller’s notes from the meeting, Libby said that Wilson’s wife worked for the CIA and was involved in Wilson’s Niger trip. After three years of investigation, Fitzgerald indicted Libby in October 2005 but filed no charges on the leak itself. On October 15, Miller published a first-person account of her grand jury testimony in the New York Times. She then left the newspaper, explaining that it was impossible to cover stories that she had unwittingly become an integral part of. Critics suggested she was forced out because of her close association with the Bush administration. Miller continues to write for various publications. Libby’s defense team at his trial in 2007 argued that Libby was the administration’s scapegoat to conceal Rove’s involvement in disclosing Plame’s identity. Libby was convicted of some of the charges against him. Bush commuted his sentence, however, and he did not serve prison time. See also Branzburg v. Hayes (1972); Reporters’ Privilege; Shield Laws.
Artemus Ward
furthe r reading Bollinger, Lee C. Images of a Free Press. Chicago: University of Chicago Press, 1991. Powe, Lucas A., Jr. The Fourth Estate and the Constitution. Berkeley: University of California Press, 1991. Reeves, Richard. What the People Know: Freedom and the Press. Cambridge, Mass.: Harvard University Press, 1999.
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Mills v. Alabama (1966) In Mills v. Alabama, 384 U.S. 214 (1966), the U.S. Supreme Court reversed the Alabama Supreme Court to conclude that a state law placing criminal liability on an election day newspaper editorial violated the First Amendment. In November 1962, the Birmingham Post-Herald ran an editorial on election day castigating the city government and urging readers to vote for a city initiative to establish “mayor-council” government in Birmingham.The newspaper’s editor, James E. Mills, was arrested and charged with violating Alabama’s Corrupt Practices Act.That law made it a crime “to do any electioneering or to solicit any votes . . . in support of or in opposition to any proposition that is being voted on on the day on which the election . . . is being held.”The trial court held that the law was unconstitutional, but the Alabama Supreme Court reversed and remanded the case for a trial, stating that the act as applied to this case was “clear, unambiguous and not an unreasonable limitation upon free speech, which includes free press.” When Mills appealed his case to the U.S. Supreme Court, the state moved to dismiss the appeal on the grounds the Alabama Supreme Court’s judgment was not a “final” one, and therefore was not appealable under federal law. Justice Hugo L. Black, writing for the Supreme Court, found that the case presented a “final judgment” as required by 28 U.S.C. section 1257, even though the Alabama Supreme Court had remanded the matter for further proceedings. The Alabama court had clearly directed the trial court to find the defendant guilty. Waiting for a trial, noted Black, would not only impose “an inexcusable delay of the benefits Congress intended to grant by providing for appeal to this Court,” but also result in an “unnecessary waste of time and energy in judicial systems already troubled by delays.” Justice John Marshall Harlan II, writing separately, believed the case was not a final state judgment and that the Court lacked jurisdiction. On the merits, the Court held that the prohibition against election day editorials or other forms of “electioneering” violated the First Amendment. Although states have the power to regulate conduct in and around polling places to maintain order, the Alabama law unconstitutionally impinged on the free discussion of political affairs. Black’s opinion noted this restriction was especially egregious when imposed upon the press because of its “important role in the discussion of public affairs.” He noted:“Suppression of the right of the press to praise or criticize governmental agents . . . muz-
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zles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.” Justice William O. Douglas, joined by Justice William J. Brennan Jr., concurred, concluding that jurisdiction was proper and that the law violated the Constitution, albeit without the same emphasis on the special role of the “press” reflected in the majority opinion. Several decades later, the Court’s evocation of a special “press” role reemerged in Austin v. Michigan Chamber of Commerce (1990). There, Justice Thurgood Marshall, writing for the majority, cited Mills in upholding state limits on corporate political activity. In Austin, the state law under scrutiny contained a “press exemption” and survived scrutiny.Yet in cases such as Dunn and Bradstreet, Inc. v. Green Moss Builders, Inc. (1985), the Court has held that the press does not enjoy any preferred constitutional status. See also Austin v. Michigan Chamber of Commerce (1990); Black, Hugo L.; Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985).
Allison Haywood
furthe r reading Barron, Jerome A. “Access to the Press—A New First Amendment Right.” Harvard Law Review 80 (1967): 1641. Smolla, Rodney. Free Speech in an Open Society. New York: Knopf, 1992.
Milton, John John Milton (1608–1674), one of the greatest English poets, made an important contribution to the idea of free speech and free press in a pamphlet, Areopagitica (1644), which he wrote and published in response to a restrictive printing ordinance established by Parliament in 1643. The ordinance required authors to get prior approval from an official licenser before publication of printed materials. Milton published the tract anonymously, defying the ordinance’s prohibition. Milton was born in London, where he was educated at St. Paul’s School and by private tutors. He excelled in languages and later wrote poems in Greek, Latin, Italian, and English.After earning a bachelor’s degree (1629) and master’s degree (1632) from Cambridge University, he devoted the next five years to private study. In 1638 he undertook a journey to France and Italy. Returning to England in 1639 on the eve of the English Civil War, he became a staunch supporter of the Puritans against the crown and served for a time in the Commonwealth under Oliver Cromwell. Milton’s wide-ranging prose works included pamphlets on
religious themes, education, and the law of divorce. His epic poems Paradise Lost, Paradise Regained, and Samson Agonistes, for which he is most remembered, were written after he became blind in 1652. Although Areopagitica is commonly viewed as an eloquent plea for freedom of speech, in its context it should be understood as an argument for allowing printers to bring forth works that could be subjected, after publication, to evaluation, scrutiny, and censorship as might be judged appropriate. Milton by no means supported a general freedom for the press or tolerance of free speech. In Areopagitica, he encouraged the “extirpation” of Roman Catholicism and its writings, and he served himself as the censor for Mercurius Politicus, the Commonwealth’s primary newspaper of general circulation in the 1650s. In Areopagitica, Milton makes four arguments against the prepublication censorship of printed materials.The first was that prepublication censorship originated with the Catholic Church and for that reason should be suspect. Although this is a kind of ad hominem argument, it is consistent with Milton’s preference that works be judged through public rational scrutiny rather than by ecclesiastical hierarchy. Second, Milton argued that readers may benefit from reading morally incorrect books along with good ones. He said, in essence, that the practice of moral virtue requires the knowing choice of good over evil. Unless morally bad books were printed, readers would be denied the benefit of learning how to discern moral falsity through the vicarious experience of it in reading. Third, he argued that prepublication censorship is an ineffective means of achieving the goal of protecting public morality and religion. Many other activities—for example, music, theater, and dance—would have to be censored in order to regulate public morality completely, indicating that censorship of print alone is an impractical means to this end. Finally, he suggested that licensing would have the unintended effect of weakening people’s ability to recognize and affirm truths by using their reason.This argument draws on Milton’s belief that truths must be known by the use of reason rather than by acceptance of authority; unless a rich body of ideas, including some false ones, is available for rational debate, people’s faculty of reason will not flourish. Although the London Stationers’ Company, which regulated publishing and printing, complained to Parliament about the unlicensed publication of Areopagitica, Milton was not penalized for it, and it was largely without effect in his time. Licensing of the press continued in England until
Minersville School District v. Gobitis (1940)
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1695, twenty years after his death. See also Censorship; Printing Ordinance of 1643; Puritans.
Kevin R. Davis
furthe r reading Hill, Christopher. Milton and the English Revolution. London: Faber, 1977. Sirluck, Ernest. “Introduction.” In Complete Prose Works of John Milton, 2: 1643–1648. New Haven:Yale University Press, 1959.
Minarcini v. Strongsville City School District (6th Cir. 1976) The federal appeals court decision in Minarcini v. Strongsville City School District, 541 F.2d 577 (6th Cir. 1976), reaffirmed the principle that school board officials do not have unfettered discretion to remove books from library shelves simply because they find the books objectionable. The controversy arose in Strongsville, Ohio, after local school board members voted to remove Catch 22 by Joseph Heller and two books by Kurt Vonnegut from library shelves and the curriculum. Five students, through their parents, then sued the school board, claiming a violation of their First Amendment rights. The Sixth Circuit Court of Appeals rejected the claim that the school board could not remove books from the curriculum. According to the appeals court, Ohio law empowered local boards of education to determine what books would be used in classrooms. The Sixth Circuit found “no federal constitutional violation in this Board’s exercise of curriculum and textbook control as empowered by the Ohio statute.” However, the appeals court ruled in favor of the student plaintiffs in the removal of the books from library shelves.“A library is a storehouse of knowledge,” the court wrote. “Here we are concerned with the right of students to receive information which they and their teachers desire them to have.” The appeals court determined that the removal of library books clearly raised First Amendment concerns. In 1982 the U.S. Supreme Court employed a similar rationale in its decision in Board of Education, Island Trees Union Free School District v. Pico (1982) on the removal of library books. See also Board of Education, Island Trees Union Free School District v. Pico (1982); Censorship.
David L. Hudson Jr.
Munic, Martin D. “Education or Indoctrination—Removal of Books from Public School Libraries: Board of Education, Island Trees Union Free School District No. 26 v. Pico.” Minnesota Law Review 68 (1983): 213–253.
Minersville School District v. Gobitis (1940) In a case later overruled by West Virginia State Board of Education v. Barnette (1943), the Supreme Court held in Minersville School District v. Gobitis, 310 U.S. 586 (1940), that state legislatures could require public school students to salute the U.S. flag and recite the Pledge of Allegiance without violating students’ speech and religious rights under the First and Fourteenth Amendments. Public school students in Minersville, Pennsylvania, were required to begin the school day by reciting the Pledge of Allegiance while saluting the flag. However, two students, Lillian and William Gobitas (a court clerk erroneously changed the family’s last name to Gobitis), refused. They claimed that such a practice violated their religious principles; they were members of Jehovah’s Witnesses, who believed that saluting the flag was tantamount to paying homage to a graven image. After the students were expelled from school, their father filed suit, claiming that his children were being denied a free education and challenging the required pledge. Both the district court and the court of appeals ruled that the required salute and pledge were unconstitutional. In an 8-1 decision, the Supreme Court overruled the lower courts by upholding the compulsory salute and pledge. Writing for the Court, Justice Felix Frankfurter acknowledged that the First Amendment sought to avoid the “bitter religious struggles” of the past by prohibiting the establishment of a state religion and guaranteeing the free exercise of all religions.Yet the scope of this right to religious liberty could pose serious questions when, as in this case, individuals sought exemption from a generally applicable and constitutional law. Citing a series of cases, beginning with the Court’s decision upholding anti-polygamy laws in Reynolds v. United States (1879), Frankfurter reaffirmed the principle that religious liberty had never included “exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good.” In this case, the “great common end” was achieved through
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repetition of a “cohesive sentiment” represented by the salute and pledge to the flag, “the symbol of our national unity” that transcended all other differences. Frankfurter defined the question in Gobitis as whether the Supreme Court could decide “the appropriateness of various means to evoke that unifying sentiment without which there can ultimately be no liberties, civil or religious,” or whether that decision should be left to the individual state legislatures and school districts. For Frankfurter and the majority of the Court, the decision obviously belonged to the legislatures and school boards. Although multiple methods were available for instilling “the common feeling for the common country” and some of those methods “may seem harsh and others no doubt are foolish,” it was for the legislatures and educators to decide, not the Court.The Constitution did not authorize the Supreme Court to become “the school board for the country.” In his dissent, Justice Harlan Fiske Stone presaged the Court’s opinion three years later in West Virginia State Board of Education v. Barnette (1943) that would overrule the Gobitis decision. Conceding that constitutional guarantees of personal liberty are “not always absolutes,” Stone wrote that when legitimate conflicts arise between liberty and authority, the Court should seek “reasonable accommodation between them so as to preserve the essentials of both.” The Constitution did not indicate in any way that “compulsory expressions of loyalty play any . . . part in our scheme of government.” Compelling the Gobitas children to publicly violate their “religious conscience” should be declared unconstitutional. See also Compelled Speech; Frankfurter, Felix; Jehovah’s Witnesses; Pledge of Allegiance; Stone, Harlan Fiske;West Virginia State Board of Education v. Barnette (1943).
Alex Aichinger
furthe r reading Ravitch, Frank. School Prayer and Discrimination: The Civil Rights of Religious Minorities and Dissenters. Boston: Northeastern University Press, 1999. Woods, James, Jr. “Religion and Education: A Continuing Dilemma.” Annals of the American Academy of Political and Social Sciences (1979): 63–77.
Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983) The Supreme Court in Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), ruled that a “use tax” on the cost of paper and ink products used by periodic publications in excess of $100,000 a year violated the freedom of the press as protected by the First and Fourteenth Amendments by singling out the press and targeting a small group of newspapers. Because of the initial $100,000 exemption, the use tax applied only to eleven publishers, and the Minneapolis Star Tribune paid the lion’s share.The Minnesota Supreme Court had upheld the tax as an alternative to the state sales tax, which Minnesota did not apply to newspapers. Writing for the majority, in which six other justices concurred, Justice Sandra Day O’Connor acknowledged there was no evidence that this tax intended to target individual publications—which was in contrast to Grosjean v. American Press Co. (1936)—but she still thought that the law was “facially discriminatory.” It imposed a tax that “did not serve the function of protecting the sales taxes” and that taxed “an intermediate transaction rather than the ultimate retail sale.” It thus constituted a form of “special treatment” for the press. O’Connor thought this kind of differential treatment would have “troubled the framers of the First Amendment” because such taxation gives the government “a powerful weapon against the taxpayer selected.” In contrast to a sales tax that would apply to all, the Minnesota tax sent the signal that government could disadvantage the press as well as favor it. O’Connor thought further potential abuse could stem from the tax’s application to such “a small group of newspapers.” In a separate partial concurrence, Justice Byron R.White preferred voiding the tax only on the basis that it favored some publishers over others. In dissent, Justice William H. Rehnquist argued that the First Amendment was designed only to prohibit laws that “abridge” freedom of the press and that under the law in question, even the Minneapolis Star Tribune benefited by comparison to what it would have had to pay had it been subject to a general sales tax. He thought the law was a rational state response to the difficulty of subjecting so many small sales to a sales tax and observed that all newspapers were exempt from taxes on the first $100,000 of paper and ink that they bought. Author Randall Bezanson
Mishkin v. New York (1966) believes the general principle underlying the decision is that of neutrality. See also Grosjean v.American Press Co. (1936); Neutrality, Speech; Taxation of Newspapers.
John R.Vile
furthe r reading Bezanson, Randall P. “Political Agnosticism, Editorial Freedom, and Government Neutrality Toward the Press: Observations on Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue.” Iowa Law Review 72 (1987): 1359–1375.
Minnesota Board for Community Colleges v. Knight (1984) The Supreme Court in Minnesota Board for Community Colleges v. Knight, 465 U.S. 271 (1984), upheld a provision of the Minnesota Public Employment Labor Relations Act that restricted colleges from listening to any but designated faculty representatives at its bargaining sessions. Nondesignated faculty members challenged the law because they argued that it restricted their freedom of speech and association, in violation of the First Amendment. Justice Sandra Day O’Connor wrote the majority decision, which overturned a three-judge district court finding that restricting participation in such sessions did not violate the constitutional rights of employees. O’Connor distinguished this decision from the Court’s ruling in City of Madison v.Wisconsin Employment Relations Commission (1976), which upheld the right of a teacher to express his views, by limiting its application to public forums. O’Connor also cited Bi-Metallic Investment Co. v. State Board of Equalization (1915), to assert that the government was not obligated to give members of the public a right to be heard before adopting public policy measures. After citing the decision in Smith v.Arkansas State Highway Employees (1979), in which the Court refused to compel a state to consider a grievance that was submitted by a union instead of an individual, O’Connor observed, “It is inherent in a republican form of government that direct public participation in government policymaking is limited.” O’Connor argued that the case was not altered by the fact that it involved an “academic setting.” She wrote that academicians were still free to decide whether or not to join the union that represented them at bargaining sessions. O’Connor also rejected an equal protection argument, concluding that “[w]hatever the wisdom of Minnesota’s statutory scheme for professional employee consultation on
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employment-related policy, in academic or other settings, the scheme violates no provision of the Constitution.” In Justice Thurgood Marshall’s concurring opinion, he challenged the majority’s “sweeping assertion that no government official is ever constitutionally obliged, before making a decision on a matter of public policy, to afford interested citizens an opportunity to present their views.” In his dissenting opinion, Justice William J. Brennan Jr. cited principles of academic freedom, arguing that faculty members should not be forced to join a union to get their views heard, nor should they be excluded altogether from such sessions. Brennan wrote that the regulation at issue violated both freedom of expression and the right to be free from compelled association. See also Academic Freedom; Brennan, William J., Jr.; City of Madison v. Wisconsin Employment Relations Commission (1976); Marshall,Thurgood; O’Connor, Sandra Day; Public Forum Doctrine; Smith v. Arkansas State Highway Employees (1979).
John R.Vile
furthe r reading Rabban, David M. “Can American Labor Law Accommodate Collective Bargaining by Professional Employees?” Yale Law Journal 99 (1990): 689–758.
Misappropriation See Appropriation
Mishkin v. New York (1966) In Mishkin v. New York, 383 U.S. 502 (1966), the Supreme Court ruled that adult materials pandering to a deviant sexual group rather than the community at large are not protected by the First Amendment. The case came to the Court after Mishkin’s conviction on New York obscenity charges for publishing materials that were meant to appeal to the prurient interest of a clearly defined sexually deviant group. Most of the material depicted sadomasochism, fetishism, and homosexuality and featured covers with drawings of scantily clad women being whipped, beaten, tortured, or abused. Mishkin appealed, arguing that the state or federal laws were so vague that he did not know that such materials fit the definition of obscene. As he did in the case of Ginzburg v. United States (1966), which the Court decided the same day, Justice William J. Brennan Jr. stated that the First Amendment does not protect
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materials that are obscene under the definition from Roth v. United States (1957). Beyond that, states are free to adopt other definitions of obscenity as long as they stay within the bounds set by the constitutional criteria of the Roth definition. New York’s obscenity law was constitutional because it defined obscenity more narrowly than had Roth. Material designed for and primarily distributed to a deviant sexual group, rather than the public at large, is considered obscene under the federal constitutional definition if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. Pandering to a deviant group’s sexual proclivities was seen as an attempt to appeal to their prurient interests; thus, New York’s inclusion of such materials in its definition of obscenity was acceptable under the First Amendment. Justices Hugo L. Black and William O. Douglas in separate dissents argued that the First Amendment protected all ideas. Justice Potter Stewart dissented because he did not think this case involved hard core pornography. The standards for obscenity established in Miller v. California (1973) have since superseded those established in Roth. See also Black, Hugo L.; Brennan,William J., Jr.; Douglas,William O.; Ginzburg v. United States (1966); Miller v. California (1973); Obscenity and Pornography; Pandering; Roth v. United States (1957).
Tom McInnis
furthe r reading de Grazia, Edward. Girls Lean Back Everywhere:The Law of Obscenity and the Assault on Genius. New York: Random House, 1992. Schauer, Frederick F. The Law of Obscenity. Washington, D.C.: Bureau of National Affairs, 1976.
Mitchell v. Helms (2000) In Mitchell v. Helms, 530 U.S. 793 (2000), the Supreme Court rejected a longstanding establishment clause challenge to public funding of instructional resources for religious schools. Officials in Jefferson Parish, Louisiana, had used grant monies from Chapter 2 of the Education Consolidation and Improvement Act (EICA) of 1981 to purchase computer technology and other educational materials for public and private schools in the area.After Mary Helms and other local citizens filed a constitutional challenge to these grants, a federal district court judge invalidated the Chapter 2 funding as applied in Jefferson Parish, reasoning that it had the primary effect of advancing religion. After that judge retired, a new
judge reevaluated the case and reversed the original ruling. The Fifth Circuit Court of Appeals then overruled the second judge, and the case made its way to the Supreme Court. The vote on the merits was 6-3, but no single argument commanded a Court majority, dampening the hopes of many legal observers that Mitchell would clarify the Court’s establishment clause jurisprudence. Justice Clarence Thomas issued the plurality opinion for four justices, arguing that the general availability of the Chapter 2 funds rendered the allocation of monies wholly neutral and secular in purpose, and therefore no reasonable observer would believe that government had sponsored religious indoctrination in private school.Thomas relied heavily on Agostini v. Felton (1997) in deciding the case, but in a concurring opinion the author of the majority opinion in Agostini, Justice Sandra Day O’Connor, joined Justice Stephen G. Breyer to insist that neutrality in determining who gets aid is not sufficient to prevent constitutional challenge. According to O’Connor, the “primary effect” of allocating Chapter 2 funds may be government sponsorship of religious indoctrination apart from whether those funds were allocated in a secular or neutral manner. Still, O’Connor and Breyer saw no state-sponsored religious indoctrination in this case.The three dissenters, led by Justice David H. Souter, argued that the possibility of diverting Chapter 2 resources to religious purposes is sufficient to reject the funding arrangement. See also Agostini v. Felton (1997);Aid to Parochial Schools; Lemon v. Kurtzman (1971); O’Connor, Sandra Day;Thomas, Clarence.
Keven R. den Dulk
furthe r reading Lupu, Ira C. and Robert W.Tuttle.“The Faith-Based Initiative and the Constitution.” DePaul Law Review 55 (2005): 1–118.
Monitor Patriot Co. v. Roy (1971) In Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971), the Supreme Court affirmed that the standard for judging whether a newspaper article constitutes defamation is the actual malice standard set forth by the Court in its landmark decision in New York Times Co. v. Sullivan (1964). Just prior to the Democratic primary election in New Hampshire, the Monitor Patriot Co. published a newspaper article charging that Roy, a political candidate, was a “former small-time bootlegger.” Roy lost the election and sued the newspaper and its distributor for libel.The judge instructed
Morse v. Frederick (2007) the jury to decide whether the article focused on Roy’s “official” as opposed to his “private” conduct, and the jury returned a verdict against the paper.The state supreme court affirmed, but the U.S. Supreme Court reversed and remanded the case. In the Court’s majority opinion, Justice Potter Stewart reviewed the trial judge’s instructions to the jury. He decided that anyone running for public office was a “public figure,” and the information about him was public in nature. Stewart observed that “a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official’s or a candidate’s fitness for office for purposes of application of the ‘knowing falsehood or reckless disregard’ rule of New York Times Co. v. Sullivan.” The Court accordingly ordered the case remanded for proceedings consistent with this standard. In a concurring opinion that he filed in the companion case of Ocala Star-Banner Co. v. Damron (1971), Justice Byron R.White noted that the Court sometimes had to allow falsehood to be published so as not to restrict the truth.Although he concurred in the immediate result, Justice Hugo L. Black, joined by William O. Douglas, dissented from the thought that the Court should allow any libel prosecutions to proceed under the First Amendment. See also Actual Malice; Black, Hugo L.; Libel and Slander; New York Times Co. v. Sullivan (1964); Ocala Star-Banner Co. v. Damron (1971); Stewart, Potter.
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polygamy and slavery as “twin relics of barbarism” in the territories, and popular novels of the day linked polygamy to a variety of social ills.The law not only outlawed bigamy and provided penalties for it, but also overturned the incorporation that the Utah territorial legislature had granted to the Mormon Church and limited its property holding. Referring to the Bill of Rights, Sarah Barringer Gordon has described this law as “a second disestablishment [of religion] in the territories” (Gordon 2002: 82). Although the Morrill Act proved to be largely unenforceable, it did lead to some successful prosecutions for bigamy, including in Reynolds v. United States (1879) in which the Supreme Court distinguished between the legal right to believe in polygamy under the First Amendment and the illegal right to practice it. In 1882 Congress adopted a more expansive law, the Edmunds-Tucker Act, which aimed to dispossess the Mormon Church of its wealth. The Court upheld this far more successful law in Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890).A short time later, Wilford Woodruff, the leading Mormon prophet, renounced the practice of polygamy, and the government returned most of the property it had confiscated. Although some fundamentalist sects continue to practice polygamy, the modern Latter-day Saints have been in the forefront of the movement to protect traditional families against perceived threats from gay marriage and easy divorce. See also Church of Jesus Christ of Latter-day Saints; Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890); Polygamy; Reynolds v. United States (1879).
Anderson, David A. “First Amendment Limitations on Tort Law.” Brooklyn Law Review 69 (2004): 755–826.
Mormons See Church of Jesus Christ of Latter-day Saints
Morrill Anti-bigamy Act of 1862 In 1862 Congress adopted the Morrill Act for the Suppression of Polygamy (also known as the Morrill Antibigamy Act), named for its sponsor, Justin S. Morrill, R-Vt. The act was passed in response to the perceived threat posed by polygamy, which was practiced by the Church of Jesus Christ of Latter-day Saints (Mormons) in Utah. The 1856 Republican Party platform had identified
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John R.Vile
furthe r reading Gordon, Sarah Barringer. The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 2002.
Morse v. Frederick (2007) In Morse v. Frederick, 551 U.S. – (2007), often referred to as the “Bong Hits 4 Jesus” case, the Supreme Court ruled that it is not a denial of the First Amendment right to free speech for public school officials to censor student speech that they reasonably believe encourages illegal drug use. The case began in January 2002 when Joseph Frederick, an eighteen-year-old student at Juneau-Douglas High School in Alaska, unfurled a fourteen-foot banner with the
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message “Bong Hits 4 Jesus” as the Winter Olympics torch relay passed by a public street near his school. Frederick had skipped school that day, intent on displaying his message before television cameras. Frederick, who stood off-campus with several others with his banner, claimed he picked this message not for any commentary on drugs or religion, but simply as a First Amendment experiment to test his free speech rights. School principal Deborah Morse grabbed the banner and ordered Frederick to her office. She initially suspended him for five days. After Frederick quoted Thomas Jefferson’s “speech limited is speech lost,” she doubled his suspension period. Frederick administratively appealed his suspension to no avail. He then filed suit in federal court, contending Morse had violated his First Amendment rights. A federal district court dismissed the suit, reasoning Morse had the authority to punish Frederick for his message that she reasonably interpreted “directly contravened the Board’s policies related to drug abuse prevention.” The Ninth Circuit Court of Appeals reversed, finding that Morse violated Frederick’s First Amendment rights when she punished him based on the content of his speech without showing that his expression would cause any type of disruption. According to the Ninth Circuit, her actions violated the principles of the Supreme Court’s landmark studentspeech precedent, Tinker v. Des Moines Independent Community School District (1969). The Ninth Circuit also ruled that Morse was not entitled to qualified immunity because it was clearly established that Frederick had a First Amendment right to display his banner. Morse and the school board appealed to the Supreme Court with the free legal assistance of former federal appeals court judge and independent counsel Kenneth Starr. Morse argued that the Ninth Circuit strayed from the Court’s later student-speech decision of Bethel School District No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988). The Supreme Court ruled that Morse did not violate Joseph Frederick’s First Amendment rights. Writing for the majority, Chief Justice John G. Roberts Jr. reasoned that school officials have the power to prevent students from advocating drug use, stating that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” Roberts first dismissed the argument that the case was not a student speech case at all. He noted that the torch relay was an “approved social event” at which many students participated. “There is some uncertainty at the
outer boundaries as to when courts should apply schoolspeech precedents, but not on these facts,” he wrote. Roberts then created an exception to the Tinker standard for speech that celebrates illegal drug use, which, he wrote,“poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse.” Roberts did reject the school officials’ arguments that the Kuhlmeier school-sponsored student-speech precedent controlled the analysis because Frederick’s banner was not school sponsored. He also rejected the argument that the Fraser precedent enabled school officials to prohibit any student expression they find “plainly offensive,” stating, “After all much political and religious speech might be perceived as offensive to some.” Justice John Paul Stevens—joined by Justices David H. Souter and Ruth Bader Ginsburg—dissented on the underlying First Amendment question. He wrote that “the Court does serious violence to the First Amendment in upholding—even, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed.”According to Stevens, the majority sanctioned “stark viewpoint discrimination.” Stevens did agree with the majority that Principal Morse should be entitled to qualified immunity. Justice Samuel A. Alito, joined by Justice Anthony M. Kennedy, wrote a concurring opinion, which joined the majority on the understanding that “it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use” and would not restrict student speech about a legitimate political issue, such as the legalization of marijuana for medicinal purposes. Justice Clarence Thomas also concurred, emphasizing his continued commitment to originalism. Thomas reasoned that “the history of public education suggests that the First Amendment, originally understood, does not protect student speech in public schools.” Justice Stephen G. Breyer concurred in part, reasoning that the Court should not resolve the underlying First Amendment issue but simply rule for Principal Morse on qualified-immunity grounds. See also Bethel School District No. 403 v. Fraser (1986); Hazelwood School District v. Kuhlmeier (1988); Roberts, John G., Jr.; Stevens, John Paul; Students, Rights of; Tinker v. Des Moines Independent Community School District (1969); Viewpoint Discrimination.
David L. Hudson Jr.
Mount Healthy City School District Board of Education v. Doyle (1977) furthe r reading Denning, Brandon P., and Molly C.Taylor. Morse v. Frederick and the Regulation of Student Cyberspeech. Hastings Constituional Law Quarterly. 35 (Summer 2008); 835896. Greenhouse, Linda. “Vote against Banner Shows Divide on Speech in Schools.” New York Times, June 26, 2007. Hentoff, Nat. “Saving Free Speech and Jesus.” Village Voice, April 9, 2007. www.villagevoice.com/news/0715,hentoff,76319,2.html.
Motion Picture Ratings The First Amendment limits the degree to which governments can censor or ban movies. In 1968 the Motion Picture Association of America (MPAA) established a system of movie ratings for parents to use as a guide to determine the appropriateness of a film’s content for children and teenagers. The ratings system is voluntary, and there is no legal requirement that filmmakers submit their films for rating. However, there are potentially significant economic sanctions for those filmmakers unwilling to accept the ratings system. For example, many theater chains will not run films without ratings, and numerous publications will not run ads for unrated films. The MPAA rating system replaced the older Hay’s Production Code, used from the 1930s through 1966, in which the U.S. motion picture industry had adopted a policy of self-censorship. The Production Code listed specifics about what would not be permitted in films and a vague imperative that films should not lower the moral standards of viewers. There were several reasons why the Production Code was replaced, including a 1968 opinion in Interstate Circuit, Inc. v Dallas, in which the Supreme Court forbade local governments from banning movies shown to adults but permitted officials to pass laws preventing children from being exposed to certain material. In addition, as the hierarchical studio system died, studios executives lost their iron grip over the content of films, which made the Production Code unenforceable. Finally, the social norms of the 1960s allowed for more candid depictions of adult matter, and during this period there was a greater acceptance of more explicit degrees of nudity, sexuality, and violence. The new ratings system began with four categories: G (general audiences), M (mature audiences, changed in 1969 to PG, parental guidance suggested), R (restricted, no children under 17 allowed without parents or adult guardians), and X (no one under 17 admitted). The ratings were revised several times over the years, to include in 1984 a new PG13 label, and in 1990 a new NC-17 rating (which stands for no one 17 and under admitted).The NC-17 rating replaced
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the X rating, which came to signify pornography. Since its inception, the Ratings Board of the MPAA—an eleven-member board made up of parents who are not employed by the entertainment industry—has been mired in controversy. The board has been accused of being more lenient to major studios, granting them more acceptable ratings compared to those given to independent and foreign films.The board is charged with considering a given film in its entirety, rather than taking questionable scenes out of context, but additional charges have been made that the Ratings Board looks more harshly on individual depictions of sexuality and nudity than on violence.There is an appeals system for studios who want to contest a rating. See also Censorship; Interstate Circuit, Inc. v. Dallas (1968); Obscenity and Pornography.
Douglas C. Dow
furthe r reading Farber, Stephen. The Movie Ratings Game. Washington, D.C.: Public Affairs Press, 1972. Leone, Ron. “Contemplating Ratings: An Examination of What the MPAA Considers ‘Too Far for R’ and Why.” Journal of Communication 52, no. 4 (December 2002): 938–954. Vaughn, Stephen. Freedom and Entertainment: Rating the Movies in an Age of New Media. New York: Cambridge University Press, 2006.
Mount Healthy City School District Board of Education v. Doyle (1977) The Supreme Court ruled that the lower courts erred in applying the wrong legal standard in a First Amendment lawsuit filed by a public school teacher who alleged he was fired for protesting a teacher dress code in a radio interview. High school teacher Fred Doyle had been involved in several disruptive incidents, one of which included sending a copy of a school memorandum involving a dress code for teachers to a radio station. Doyle alleged that in response he was denied tenure because of his First Amendment-protected activity in speaking to the radio station. Both a federal district court and the Sixth Circuit Court of Appeals had ruled in Doyle’s favor on First Amendment grounds. On appeal, the U.S. Supreme Court vacated the lower court decision and sent it back down to the lower courts to apply a different standard. Justice William H. Rehnquist wrote the unanimous Court’s decision, and in it observed that Doyle’s First and
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Fourteenth Amendment claims did not apply to denial tenure but that Doyle might “nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms.” Citing Pickering v. Board of Education (1968), Rehnquist observed that deciding whether the speech of a government employee was constitutionally protected “entails striking a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Rehnquist argued that Doyle had a right to communicate with the radio station, but he also argued that the lower court record was unclear about whether this communication had been essential to the decision to deny Doyle tenure. In other words, Rehnquist indicated that the school may have had legitimate reasons to terminate Doyle, regardless of his comments to the radio station.The Mount Healthy decision remains significant in First Amendment jurisprudence because it offers defendants the same-decision defense—that they would have made the same decision even in the absence of the First Amendmentprotected expressive conduct. See also Pickering v. Board of Education (1968);Teachers, Rights of.
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furthe r reading Eagle, Joan M. “First Amendment Protection for Teachers Who Criticize Academic Policy: Biting the Hand That Feeds You.” Chicago-Kent Law Review 609 (1984): 229–259. Hudson, David L., Jr. Balancing Act: Public Employees and Free Speech. Nashville, Tenn.: Freedom Forum, December 2002. www.first amendmentcenter.org/about.aspx?id=6423.
Movies, Presentation of Issues in See Film
Mueller v. Allen (1983) Mueller v. Allen, 463 U.S. 388 (1983), is one of the more prominent cases in which the Supreme Court upheld the validity of a law allowing tax deductions for tuition and other school expenses disproportionately benefiting parents whose children attend parochial schools. The Court found the law was not in violation of the establishment clause of the First Amendment. Mueller and other Minnesota taxpayers had challenged
Allen (the commissioner of the Department of Revenue) and parents who had taken advantage of a tax deduction. The U.S. district court had issued a summary judgment on behalf of the tax deduction, which the Eighth Circuit Court of Appeals had upheld. Justice William H. Rehnquist wrote the majority decision that upheld the tax deduction and further distinguished this decision from that of the Court’s in Committee for Public Education and Religious Liberty v. Nyquist (1973). Rehnquist applied the three-prong test the Court had developed in Lemon v. Kurtzman (1971) and decided that the state had a secular purpose in defraying the cost of educational expenses that parents incurred and continuing to keep private education viable. He found a number of features that indicated that the primary effect of this case did not advance religion as it had done in previous cases. He observed that the deduction was one among many. He further observed that the deduction was not, as in Nyquist, limited to parents of children in parochial schools. He also noted that public funds “become available only as a result of numerous private choices of individual parents of school-age children.” Responding to studies that showed that the majority of such monies would go to parents with children in parochial schools, Rehnquist argued, “We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law.” Turning to the third prong of the Lemon test, Rehnquist did not believe that the law at issue impermissibly entangled the state with religion. Although the law limited reimbursements to secular textbooks, he did not think this involved the state in a decision much different from that which it had to make in Board of Education v.Allen (1968), which also provided for the provision of secular texts. Justice Thurgood Marshall, in a dissent joined by Justices William J. Brennan Jr., Harry A. Blackmun, and John Paul Stevens, cited the “principle of neutrality” and argued that a state was not permitted to subsidize religious education either directly or indirectly. He did not think that the primary effect of the law in aiding parochial education could be distinguished from that which the Court had identified in Nyquist. Marshall did think it was significant that the bulk of the deductions would go to parents of parochial school children. Marshall ended by quoting the Court’s decision in Everson v. Board of Education (1947): “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatev-
Munro v. Socialist Workers Party (1986) er form they may adopt to teach or practice religion.” This decision has subsequently provided support for school voucher programs. Chief Justice Rehnquist used Mueller as one of the primary precedents to uphold an Ohio program in Zelman v. Simmons-Harris (2002). See also Board of Education v. Allen (1968); Committee for Public Education and Religious Liberty v. Nyquist (1973); Everson v. Board of Education (1947); Lemon v. Kurtzman (1971); Marshall, Thurgood; Neutrality, Religion; Rehnquist, William H.; School Vouchers; Zelman v. Simmons-Harris (2002).
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furthe r reading McConnell, Michael W. and Richard A. Posner. “An Economic Approach to Issues of Religious Freedom.” University of Chicago Law Review 56 (Winter 1989): 1–60.
Municipality of Ponce v. Roman Catholic Apostolic Church in Porto Rico (1908) Although the Supreme Court decision in Municipality of Ponce v. Roman Catholic Apostolic Church in Porto Rico, 210 U.S. 296 (1908), does not directly mention the First Amendment, it illuminates the establishment clause by casting light on matters involving church property. The case involved a dispute in Puerto Rico, a colony the United States had acquired from Spain as a result of the Spanish-American War, over whether a municipality or the Catholic Church owned a house of worship. Lower courts found that the Puerto Rican legislative assembly had the right to confer original jurisdiction on the Supreme Court of Puerto Rico to decide such matters. The U.S. Supreme Court affirmed. Chief Justice Melville W. Fuller wrote the unanimous decision for the Court, stating that the law “recognized at the time of the cession [of Puerto Rico from Spain to the United States] the juristic personality and legal status of the [Roman Catholic] church.” Fuller proceeded to trace the history of church/state property relations from the time of the Roman Emperor Constantine through medieval and Spanish law to the present, including Justice Joseph Story’s decision in Terrett v. Taylor (1815), relative to the Episcopal Church’s ownership of glebe lands in Virginia. Although at the time of Fuller’s decision the United States did not have diplomatic relations with the Vatican, Fuller observed that “[t]he Holy See occupies a recognized position in interna-
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tional law, of which the courts must take judicial notice.” He observed that “by the Spanish law, from the earliest moment of the settlement of the island to the present time, the corporate existence of the Catholic Church has been recognized.” Fuller said that the recognition of the church as a “juridical person” with “the right to acquire, possess, or transfer all kinds of properties” provided the basis for adjusting “the difficult problem incident to the transfer of sovereignty from a regime of union of church and state to the American system of complete separation.” Citing a statement by future Supreme Court chief justice William Howard Taft as governor general of the Philippines and the Court’s decision in Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890), he observed that once land was given to the church, it became the church’s. The fact that the municipality might have contributed to the building under a system where church and state were fused did not affect the church’s current title to the property. See also Catholics, Roman; Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890); Terrett v. Taylor (1815);Vatican, U.S. Recognition of.
John R.Vile
furthe r reading Araujo, Robert John. “The International Personality and Sovereignty of the Holy See.” Catholic University Law Review 50 (2001): 291–360.
Munro v. Socialist Workers Party (1986) In Munro v. Socialist Workers Party, 479 U.S. 189 (1986), the Supreme Court considered whether ballot access restrictions placed on minor party candidates violated free association rights protected by the First Amendment. In 1977 the state of Washington amended Revised Code 29.18.110 to provide that a minor party candidate receive at least 1 percent of all of the votes cast in the state primary in order for that candidate to secure a position on the general election ballot. To determine whether a candidate obtained the required threshold, Washington conducted a “blanket primary” where all registered voters, regardless of party affiliation, may cast a vote for a candidate from any party. Dean Peoples, a candidate from the Socialist Workers Party (SWP), appeared on the October 11, 1983, special election ballot along with thirty-two others. Peoples
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received far less (approximately 0.09 percent of the total vote share) than the required statutory threshold. Pursuant to statute, the state refused to place his name on the general election ballot. Peoples sued Munro, the secretary of state of Washington, and the Court reversed a lower court determination holding the statute did not violate the First Amendment.The Court reviewed prior cases, arguing states have an interest in “. . . preserving the integrity of the electoral process and in regulating the number of candidates on the ballot.” Writing for the majority, Justice Byron R.White, although saying he felt there was no “litmus-paper test,” argued that some level of threshold support for a minor party or independent candidate could be imposed by elections officials and that states should not be required to make an actual showing of voter confusion or ballot overcrowding.With that said, the Court argued that Washington’s statutory scheme was constitutionally appropriate. To hold otherwise “would invariably lead to endless court battles over the sufficiency of the evidence marshaled by a State to prove the predicate.” The Court further argued the primary mechanism is designed to “winnow out” candidates, leaving the “general election ballot for major struggles.” The Court distinguished this case from American Party of Texas v. White (1974). American Party foreclosed access to any statewide ballot, whereas Munro passes constitutional muster because it affords a candidate statewide ballot access and an “opportunity for the candidate to wage a ballot connected campaign.” Justice White rejected the notion that “voters are denied freedom of association because they must channel their expressive activity into a campaign at the primary as opposed to the general election.” Justice Thurgood Marshall wrote a dissenting opinion, joined by William J. Brennan Jr., arguing that the law at issue could not survive the strict scrutiny standard to which he thought it should be subjected. See also Campaign Regulation; Marshall,Thurgood;White, Byron R.;Williams v. Rhodes (1968).
Daniel M. Katz
furthe r reading Issacharoff, Samuel, Pamela S. Karlan, and Richard H. Pildes. The Law of Democracy: Legal Structure of the Political Process. 3d ed. New York: Foundation Press, 2007.
Murdock v. Pennsylvania (1943) The Supreme Court in Murdock v. Pennsylvania, 319 U.S. 105
(1943), invalidated a city ordinance that required solicitors to obtain a license, finding that it infringed on the First Amendment rights of free press, free speech, and free exercise of religion. The city of Jeannette, Pennsylvania, imposed the tax on Murdock and seven other defendants who were members of the Jehovah’s Witnesses and going door to door asking for monetary contributions in exchange for religious literature. The city viewed this as selling literature, so it imposed the tax. Murdock and other Witnesses sued, stating that such a tax placed a restriction on their free exercise of religion, speech, and press. The Superior Court of Pennsylvania had sustained their convictions, but in accepting a rehearing of Jones v. City of Opelika (1942), the U.S. Supreme Court accepted their petitions for certiorari, which the state supreme court had refused. The Court’s decision reversed a ruling it had set in Jones the previous year and came closer to an earlier decision in Lovell v. City of Griffin (1938) striking down permits that had not required fees.Writing for the majority, Justice William O. Douglas believed the requirement of a license tax violated the free exercise rights as applied to the states via the Fourteenth Amendment. Although he recognized that none of these rights were absolute, Douglas argued that no one should have to pay a license tax to exercise constitutional rights. He believed that the sale of literature was as vital to the Witnesses as other more “orthodox” methods of worship. Although the taxes the city of Jeannette imposed were relatively small, they constituted a type of prior restraint that could have an adverse cumulative effect if imposed by other cities, and the rights they impinged in this case occupied “a preferred position” within the Constitution. Douglas emphasized that however one might feel about their methods, the Witnesses were going about their activities in a peaceful fashion. In a dissent joined by Justices Owen J. Roberts, Felix Frankfurter, and Robert H. Jackson, Justice Stanley F. Reed focused on earlier decisions upholding similar taxes and attempted to distinguish taxes on commercial and noncommercial activities. He also argued that there was no reason to believe that the taxes had been imposed in a discriminatory fashion. He believed that the effect of the Court’s decision would be to provide a “tax subsidy” by exempting religious persons from the extra costs that could be involved in policing their activities. In a separate dissent, Justice Frankfurter argued that the tax at issue was not unconstitutional simply because it was a
Murphy, Francis W. flat tax. He believed that the state could justify a nondiscriminatory tax as a way of reimbursing the state for extra costs that such sales activities would require. The following year, the Court ruled in Prince v. Massachusetts (1944) that states could use child labor laws to prohibit children from conducting door-to-door solicitations, but in Watchtower Bible and Tract Society v. Village of Stratton (2002) the Court reaffirmed that individuals could not be forced to register and get a permit before engaging in door-to-door solicitation. See also Door-to-Door Solicitation; Douglas, William O.; Frankfurter, Felix; Jehovah’s Witnesses; Jones v. City of Opelika (1942) (1943); Licensing Laws; Lovell v. City of Griffin (1983); Preferred Position Doctrine; Prince v. Massachusetts (1944); Prior Restraint; Taxation of Religious Entities; Watchtower Bible and Tract Society v.Village of Stratton (2002).
John R.Vile
furthe r reading Peters, Shawn Francis. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Lawrence: University Press of Kansas, 2000.
Murphy v. Ramsey (1885) In Murphy v. Ramsey, 114 U.S. 15 (1885), the Supreme Court upheld a federal law that denied polygamists the right to vote. Congress had adopted a law for the territories limiting such voting at a time when the practice of polygamy was primarily associated with Mormons. Murphy and other Mormon petitioners, in turn, challenged the act of voting registrars in denying them this right. Justice Stanley Matthews wrote the Court’s unanimous decision upholding the law against charges that it was an ex post facto provision. Matthews argued that individuals were not being punished under the law for having entered into polygamous relationships but for sustaining them after the law was adopted. Matthews did not specifically address First Amendment issues, but he made it clear that Congress had the right to predicate voting on family relationships. Matthews observed that “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony” was “the sure foundation of all that is stable and noble in our civilization” and “the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.” Matthews’ arguments indicate that he
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believed regulation of such family relationships was within the province of government, despite the religious beliefs of those participating in alternative relationships. Murphy reaffirmed the Court’s decision in Reynolds v. United States (1879), permitting legislation against polygamy. See also Church of Jesus Christ of Latter-day Saints; Polygamy; Reynolds v. United States (1879).
John R.Vile
furthe r reading Gordon, Sarah Barringer. The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 2002.
Murphy, Francis W. Francis W. Murphy (1890–1949), who served on the Supreme Court from 1940 to 1949, wrote eloquently about the importance of First Amendment freedoms. Except in a few cases he championed individual freedoms and repeatedly voiced his belief that religious freedom was entitled to great constitutional protection. Frank Murphy was born in Harbor Beach, Michigan. He earned undergraduate and law degrees from the University of Michigan and was then in private practice for three years. After military service in Europe during World War I, he served in Detroit as an assistant U.S. attorney, as a judge on a criminal court, and as mayor of the city. He supported Franklin D. Roosevelt’s bid for the presidency in 1932 and was rewarded with the governorship of the Philippines. Murphy was elected governor of Michigan in 1936 but was defeated for reelection two years later. Roosevelt then named him U.S. attorney general. One year later Roosevelt nominated him to the Supreme Court, and the Senate unanimously confirmed him in 1940. Murphy wrote several majority opinions for the Court in First Amendment decisions. He wrote the Court’s opinion in Thornhill v. Alabama (1940), finding that labor picketing was entitled to First Amendment protection: “Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.” He wrote Hartzel v. United States (1944), in which the Court reversed the conviction of an anti-war dissenter for violating the Espionage Act of 1917. Murphy often ruled in favor of Jehovah’s Witnesses in
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cases involving freedom of religion, thus earning the respect of Hayden C. Covington, an attorney who represented the Witnesses. In his dissent in Jones v. City of Opelika (1942), Murphy—noting the “unpopularity” of Jehovah’s Witnesses and the difficulties they had faced—observed that there was “an arresting parallel” between their troubles “and the struggles of various dissident groups in the American colonies for religious liberty which culminated in the Virginia Statute for Religious Freedom, the Northwest Ordinance of 1787, and the First Amendment.” In his concurring opinion in Martin v. City of Struthers (1943), he wrote, “I believe that nothing enjoys a higher estate in our society than the right given by the First and Fourteenth Amendments freely to practice and proclaim one’s religious convictions.” He dissented in the Court’s decision in Prince v. Massachusetts (1944), in which the majority convicted a woman who was a Jehovah’s Witness for allowing children to sell religious magazines on the street. Murphy wrote, “Religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger.” Along with Justices William O. Douglas and Hugo L. Black, Murphy changed his mind about compulsory flag salute laws in public schools. Murphy had voted to uphold such a Pennsylvania law, which was applied against Jehovah’s Witnesses in Minersville School District v. Gobitis (1940), but he voted with the new majority to invalidate a similar West Virginia law in West Virginia State Board of Education v. Barnette (1943). Murphy explained, “Reflection has convinced me that as a judge I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.” Despite his generally broad protection for First Amendment freedoms, Murphy was the author of the Court’s opinion in Chaplinsky v. New Hampshire (1942), in which he wrote a passage that courts frequently cite when they stress that the First Amendment does not protect all forms of speech: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Murphy’s fighting words exception establishes the categorical exclusion model of First Amendment jurisprudence— that one way to distinguish protected from unprotected
expression is to determine whether speech falls into certain categories, such as fighting words, obscenity, or child pornography. Black’s dissenting opinion in Cohen v. California (1971) neatly captures both Murphy’s broad protection of the First Amendment and his creation of the fighting words doctrine. Although a narrow majority of the Court ruled that the profane message “Fuck the Draft,” displayed on a jacket worn by Paul Robert Cohen in a courthouse, was protected expression, Justice Black contended that the message was a form of fighting words. Black wrote that Cohen “appears to be well within the sphere of Chaplinsky v. New Hampshire, where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench.” See also Black, Hugo L.; Chaplinsky v. New Hamphshire (1942); Cohen v. California (1971); Covington, Hayden C.; Espionage Act of 1917; Hartzel v. United States (1944); Jehovah’s Witnesses; Jones v. City of Opelika (1942) (1993); Minersville School District v. Gobitis (1940); Prince v. Massachusetts (1944);Thornhill v.Alabama (1940); Virginia Statute for Religious Freedom;West Virginia State Board of Education v. Barnette (1943).
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furthe r reading Fine, Sidney. “Frank Murphy.” In The Supreme Court Justices: Illustrated Biographies, 1789–1995, 2d ed., ed. Claire Cushman, 396–400. Washington, D.C.: Congressional Quarterly, 1995. St. Antoine, Theodore S. “Justice Frank Murphy and American Labor Law.” Michigan Law Review 100 (2002): 1900–1926. Wirenus, John F. “The Road not Taken: The Curse of Chaplinsky.” Capital University Law Review 24 (1995): 331–383.
Murphy, Paul L. Paul Lloyd Murphy (1923–1997), a prominent scholar and historian, was a strong advocate of First Amendment freedoms and a leader in the fields of civil liberties and the Bill of Rights. Often credited with inventing the field of American constitutional history, he wrote or edited many works dealing with the First Amendment, including The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (1972) and The Shaping of the First Amendment: 1791 to the Present (1991). Born in Caldwell, Idaho, Murphy earned a Ph.D. from the University of California at Berkeley in 1953. In 1957, after other university teaching positions, he joined the faculty at the University of Minnesota, where he was a history professor for four decades. A prolific writer, he was especial-
Murray, John Courtney ly known for his study of the emergence of cases involving First Amendment freedoms during World War I and the threat the war had posed to such liberties. In World War I and the Origin of Civil Liberties in the United States (1979), Murphy observed, “A deliberately planned program of federal suppression was underway and was about to be expanded, in the form of opinion molding, Americanization, homogenization, the coercing of patriotic support, and the rooting out of disloyalty.” Murray retired in June 1997 and died unexpectedly barely a month later. The American Society for Legal History established the Paul L. Murphy award to assist the research and publication of new scholars working in the areas of U.S. constitutional history or the history of American civil rights and civil liberties. See also World War I.
Ronald Steiner
Murray v. Curlett (1963) See Abington School District v. Schempp (1963)
Murray, John Courtney John Courtney Murray (1904–1967), a Jesuit priest, theologian, and advocate of interfaith cooperation, was a lifelong supporter of the principles of the American Constitution and Bill of Rights, which he believed the Roman Catholic Church should support. He was an important influence on the development of the Second Vatican Council’s Declaration on Religious Freedom (1965), which asserted that all individuals have a right to religious freedom, even if a government recognizes a particular religious community. This position contrasted with the church’s earlier view that if the church were ever to achieve a majority in the United States, it would be obligated to establish Catholicism as the state religion. Born in New York City, Murray earned degrees from Weston College and Boston College. He was ordained a priest in 1933 and earned a doctorate in theology at the Gregorian University in Rome in 1937. In 1943 he helped draft the Declaration on World Peace, an interfaith declaration that emphasized the importance of respecting human dignity and creating international institutions and collaboration. He spent most of his life teaching at Woodstock College, a Jesuit seminary near Baltimore, Maryland. He also
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edited Theological Studies and America. Murray believed that the Declaration of Independence had recognized the sovereignty of God and the dignity of man and that it and the Constitution and Bill of Rights, which followed, were based on natural law principles. In his most influential book, We Hold These Truths: Catholic Reflections on the American Proposition (1964), he cited freedom of speech, assembly, association, petition, and other rights as “great historical as well as civil and natural rights” (p. 49). Moreover, he thought the religion clauses in the First Amendment were more accommodating to religious beliefs than formulations that had been generated by the French Revolution and that had later prevailed in much of Europe. Murray argued that the First Amendment recognized that freedom of religion could secure peace in a religiously pluralistic society and that the state was distinct from society. Accordingly, the first two articles of the First Amendment are articles of peace, not articles of faith (p. 65). He observed that the “most striking aspect of the American experience consists in the fact that religion itself, and not least the Catholic Church, has benefited by our free institutions, by the maintenance . . . of the distinction between church and state.” Although he thought this doctrine had sometimes been incorrectly interpreted—for example, in the withholding of state funds from parochial schools—he believed the idea of separating church and state was a genuine advance in human understanding that the Catholic Church should positively endorse. For a time, however, the church asked Murray to cease publishing on the subject. In a chapter on censorship in We Hold These Truths, Murray distinguished between public and private morality. He argued that any censorship should have community support, that it should be administered through strict judicial processes, and that any laws on the subject should be clearly and narrowly drawn. Churches and private organizations had the right to draw stricter standards for their members than the law required. See also Aid to Parochial Schools; Catholics, Roman; Declaration of Independence; Natural Law.
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furthe r reading “Declaration on Religious Freedom—Dignitatis Humanae.” December 7, 1965. www.christusrex.org/www1?CDHN/v10.html. Hooper, J. Leon. “Citizen Murray.” Boston College Magazine (Winter 1995). Pavlischek, Keith J. John Courtney Murray and the Dilemma of Religious
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Toleration. Kirksville, Mo.:Thomas Jefferson University Press. 1994. Whitmore, Todd. “Murray, John Courtney.” In A Companion to American Thought, ed. Richard Wightman Fox and James T. Kloppenberg. Malden, Mass.: Blackwell Publishers, 1995.
Murrow, Edward R. Edward R. Murrow (1908–1965) is credited with being one of the creators of American broadcast journalism. His compelling radio dispatches from London during the Blitz—the nightly bombings of the city in 1940–1941—made him a celebrity. His weekly television program, See It Now, in the 1950s solidified his reputation. His 1954 confrontation with Sen. Joseph McCarthy of Wisconsin made him an icon of journalistic independence, which has inspired other journalists to perpetuate First Amendment rights of free expression. Murrow, who was born Egbert Roscoe Murrow, adopted the name Edward by the time he was in high school. He graduated in 1930 from Washington State College, where he was elected president of the National Student Federation of America. He parlayed his successful NSFA presidency into a job as assistant to the director of the Institute of International Education. In this capacity, Murrow was deeply involved in the activities of the Emergency Committee in Aid of Displaced German (later Foreign) Scholars, which relocated hundreds of European intellectuals in the 1930s. Murrow left the organization in 1935 to join the nascent Columbia Broadcasting System (CBS), which had been on the air since 1927. His career, and the prestige of CBS, would be linked for the next twenty-five years. The pivotal event in Murrow’s career was his appointment as CBS’s European director in 1937. Murrow arrived in a Europe on the verge of disaster.Within a year of his arrival, Adolf Hitler had contrived the political union (Anschluss) of Germany with Austria. By autumn 1940 only the British Isles remained standing against the Nazi juggernaut. Throughout World War II Murrow was a witness, telling the story on the ground in London, reporting from the air over Berlin, and entering the concentration camp at Buchenwald. In 1947 Murrow teamed with news producer Fred Friendly to create a set of phonograph records, “I Can Hear It Now.”That partnership evolved into a weekly radio newsmagazine, “Hear It Now,” which was followed in 1951 by a television program, See It Now. A month after it premiered, See It Now aired a broadcast exposing the misinformation being disseminated by McCarthy. In March 1954 it broadcast the notable “Report on Senator Joseph R. McCarthy,” which further criticized McCarthy and his tactics. In December
1954 McCarthy’s Senate colleagues voted to censure him. See It Now was not the cause of McCarthy’s downfall, but the televised news medium that Murrow pioneered played an instrumental role in exposing his views to the public. In the course of his career, Murrow won nine Emmy awards. See It Now succumbed not so much to controversy, as some historians and biographers contend, but to commercialization. Murrow articulated the program’s obituary in a 1958 speech in which he remarked, “television in the main is being used to distract, delude, amuse, and insulate us.” See also Friendly, Fred; McCarthyism;World War II.
James C. Foster
furthe r reading Clooney, George. Good Night, and Good Luck.” Warner Independent Pictures, 2005. Sperber, Ann M. Murrow: His Life and Times. New York: Fordham University Press, 1999.
Music Censorship Supreme Court decisions over the years have affirmed that the First Amendment covers artistic expression, as exemplified in motion pictures, plays, and movies. Most challenges to music and accompanying lyrics have focused on claims that the lyrics are obscene, that they incite violence, or that they are harmful to minors.
Judicial Actions In an early famous case, a New York court acquitted the publisher John Peter Zenger in 1735 for printing lyrics to ballads critical of the British colonial governor. Centuries after Zenger, the Ninth Circuit Court of Appeals would state in Cinevision Corporation v. City of Burbank (1984), in which it overruled a city council’s denial of access to an amphitheater,“[M]usic is a form of expression that is protected by the First Amendment.” In February 1990, Broward County, Florida, sheriff ’s deputies sought a judge’s opinion about the contents of 2 Live Crew’s As Nasty As They Wanna Be. Judge Mel Grossman stated that the album was probably obscene, and uniformed deputies delivered advisory letters to retailers, warning that continued sale of the disc could result in arrest. In response, 2 Live Crew’s label filed suit in a federal district court in Florida 1990 in Skyywalker Records v. Navarro, arguing against a prior restraint and for the finding on obscenity. Judge Jose Gonzalez found affirmatively on both points;
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K.K. Downing, left, and Glenn Tipton, members of the heavy metal band Judas Priest, perform at a 2004 concert. In Judas Priest v. Second Judicial District Court, the plaintiffs failed to prove that the band’s music was responsible for a fan’s suicide attempt.
his opinion was overturned on appeal by the Eleventh Circuit Court of Appeals in Skyywalker Records v. Navarro (1992). Florida authorities’ appeal to the Supreme Court was denied. In Judas Priest v. Second Judicial District Court (Nev. 1988), in which two heavy metal artists were brought to court separately on grounds that their music caused suicide attempts by young listeners, it was argued that the Supreme Court’s opinion in Brandenburg v. Ohio (1969), permitting the regulation of speech that incites “imminent lawless action,” applied. The plaintiffs in Judas Priest maintained that “back-masked messages” (reversed sound sequences) caused the suicide attempts. However, using the master tape of the music recordings in question, the plaintiffs could not isolate the alleged messages or persuasively argue the causal connection. Waller v. Osbourne (11th Cir. 1992) is a case similar to Judas Priest against the singer Ozzy Osbourne. The plaintiffs argued that Osbourne’s lyrics used “inciteful speech,” but the appellate court ruled in his favor, holding that damages could attach only if it was the intention of the singer to cause the ensuing injury.The Supreme Court refused certiorari. The punk band Dead Kennedys’ 1985 recording Frankenchrist included an explicit poster by artist H. R. Giger. Despite a warning on the exterior of the package about potentially “shocking, repulsive, offensive” art inside, the group was charged with distributing material harmful to minors. The prosecution eded in a hung jury in summer
1987, and the state did not reprosecute.
Congressional Measures Congress passed the Communications Decency Act (CDA) of 1996, which criminalized transmission of “indecent” and “patently offensive” material over the Internet.The Supreme Court issued a 7-2 decision in Reno v.American Civil Liberties Union (1997) affirming a lower court finding of the CDA as unconstitutional because it was overbroad and vague. The Child Online Protection Act (COPA) of 1998, Congress’s response to the CDA ruling, was designed to protect minors from harmful sexual material on the Internet. COPA was challenged in Ashcroft v. American Civil Liberties Union (2002) and Ashcroft v. American Civil Liberties Union (2004), in which the Supreme Court upheld injunction against the law’s enforcement, holding that COPA as well was probably unconstitutional. Even without contemplating legislation, Congress has held hearings investigating popular music and culture. In September 1985, the Senate Subcommittee on Communication of the Commerce, Science, and Transportation Committee held a hearing catalyzed by the Parents Music Resource Center (PMRC), co-founded by Tipper Gore. The PMRC advocated an extensive, content-based labeling system for sound recordings. Although the subcommittee took no action, media attention surrounding the hearings empowered the PMRC to negotiate with the Recording Industry Association of America (RIAA) for voluntary
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Parental Advisory: Explicit Lyrics stickers to be placed on some products. In 1994 hearings catalyzed by the National Political Congress of Black Women (NPCBW) were held in both houses of Congress. NPCBW leader C. Delores Tucker urged legislators to regulate the recording industry. In 1997 the Senate Government Affairs Subcommittee heard testimony on the effect of popular music on youths. In September 2000, Congress held hearings on violent entertainment, including popular music, marketed to children. See also Art Censorship;Ashcroft v.American Civil Liberties Union (2002) (2004); Brandenburg v. Ohio (1969); Child Online Protection Act of 1998; Communications Decency Act of 1996; Gore, Tipper; Harmful to Minors Laws; Incitement; Obscenity and Pornography; Prior Restraint; Reno v.American Civil Liberties Union (1997); USA Patriot Act of 2001; Zenger, John Peter.
Paul Fischer
furthe r reading Barnet, Richard, and Larry Burriss. Controversies of the Music Industry. Westport, Conn.: Greenwood Press, 2001. Block, P. A. “Modern Day Sirens: Rock Lyrics and the First Amendment.” Southern California Law Review 63 (1990): 777–832. Christenson, Peter G., and Donald F. Roberts. It’s Not Only Rock & Roll: Popular Music in the Lives of Adolescents. Cresskill, N.J.: Hampton Press, 1998. Cloonan, Martin, and Reebee Garofalo. Policing Pop. Philadelphia: Temple University Press, 2003. Kauffman, W. B. “Song Lyric Advisories: The Sound of Censorship.” Cardozo Art and Entertainment Law Journal 5 (1986): 225–283. Martin, Linda, and Terry Seagrave. Anti-Rock:The Opposition to Rock ‘n’ Roll. New York: da Capo Press, 1993. Nuzum, Eric. Parental Advisory: Music Censorship in America. New York: Perennial, 2001. Redhead, Steve. Unpopular Cultures: The Birth of Law and Popular Culture. Manchester: Manchester University Press, 1995. Winfield, Betty Houchin, and Sandra Davidson, eds. Bleep! Censoring Rock and Rap Lyrics. Westport, Conn.: Greenwood Press, 1999. Wishnia, S.“Rockin’ with the First Amendment.” Nation, October 24, 1987, 444–446.
Must-Carry Rules Must-carry rules, first instituted by the Federal Communications Commission (FCC) in 1965, require cable systems to carry local broadcast television stations. These rules were originally designed to protect the local stations, which were competing with cable networks for a limited number of cable channels, from losing market shares. Since their inception, some must-carry rules have been found to be constitutional while others have not. They have been frequently altered.
In the mid-1980s, as cable networks proliferated, cable operators found must-carry rules to be increasingly burdensome because the operators were being forced to carry local broadcast stations in preference to the more popular and lucrative cable network channels. In 1985 in Quincy Cable v. Federal Communications Commission, the Circuit Court of Appeals for the District of Columbia found must-carry rules to be impermissible content-based regulations in violation of the First Amendment.The next year, the FCC adopted new must-carry rules in an attempt to satisfy the court. In Century Communications Corporation v. Federal Communications Commission (1987), the rules were once again found to be “incompatible” with the First Amendment. The Cable Television Consumer Protection and Competition Act of 1992, enacted by Congress after extensive hearings and over a presidential veto, reestablished the must-carry rules for cable operators. These modified rules gave local broadcasters a choice between requiring a cable operator to transmit a broadcast signal or preventing the cable operator from retransmitting a signal unless the operator paid a retransmission fee. If the broadcaster chose retransmission, the cable operator was not required to carry the broadcaster’s signal. Therefore, popular network-affiliated stations usually sought a retransmission fee, while unaffiliated local stations took the cable carriage option.The 1992 act also varied the application of must-carry rules according to the channel capacity of the cable system. The new must-carry requirements were immediately challenged in Turner Broadcasting System, Inc. v. Federal Communications Commission (1993). When the case reached the Supreme Court in 1994, it upheld the principle of mustcarry rules but required fact-finding by the district court to determine whether the rules were necessary. The district court found sufficient evidence that the must-carry provision furthered important governmental interests and was narrowly tailored to promote those interests. In 1997 the Supreme Court affirmed the lower-court ruling in a 5-4 opinion that held that Congress “has an independent interest in preserving a multiplicity of broadcasters.” The current transition from analog to digital television transmission is altering the must-carry scheme. The Digital Television Transition and Public Safety Act of 2005 requires cable and satellite operators, as of February 2009, to agree to dual carriage of broadcasters’ analog and digital signals because of the low penetration of digital television sets in consumer households.The 2005 act does not, however, alter must-carry to impose “multicast must-carry,” which would
Mutual Film Corp. v. Industrial Commission of Ohio (1915) require cable and satellite operators to carry local broadcasters’ multicasts, that is, other channels broadcast digitally along with a station’s primary signal. After passage of the 2005 act, FCC chair Kevin Martin publicly pushed for multicast must-carry rules because, he argued, they would help minorities and small businesses. See also Cable Television Consumer Protection and Competition Act of 1992; Federal Communications Commission; Turner Broadcasting System, Inc. v. Federal Communications Commission (1994) (1997).
Audrey Perry
furthe r reading Laughner, Nissa, and Justin Brown. “Cable Operators’ Fifth Amendment Claims Applied to Digital Must-Carry.” Federal Communications Law Journal (2006): 281–320.
Mutual Film Corp. v. Industrial Commission of Ohio (1915) The Supreme Court decision in Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230 (1915), which has been modified since, severely restricted the application of First Amendment freedoms to the medium of movies. Throughout the Progressive Era—roughly 1890 to about the end of World War I—engaged citizens waged intense political and legal campaigns to retain hegemonic control of American culture, which they perceived as being under attack by Catholics, non-Protestants, immigrants, and migrants. Progressives directed their concerns not only against child labor, prostitution, and other ills, but also against the motion picture industry, which was growing during this era. At the time, any state or municipal government could create its own movie censorship board, and many did. Ohio had one such board, and, like the others, Ohio’s levied a licensing fee to film distributors. The Mutual Film Corporation of Detroit sought an injunction against this censorship board, claiming that licensing fees restricted interstate commerce, and further argued the statute was a clear violation of the free speech provisions in the U.S. and Ohio constitutions. The Supreme Court upheld the Ohio law, thus refusing motion pictures federal protection by the First Amendment. The constitutional guarantee of freedom of speech would be denied to movies for thirty-seven years. In a unanimous decision, the Court rejected all of Mutual Film’s arguments, declaring the state within its legal right to
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license films, which the Court compared to “the theatre, the circus, and other shows and spectacles.” Justice Joseph McKenna, writing for the Court, added that states and local communities had inherent police power to grant or withhold “licenses for theatrical performances as a means of their regulation.” McKenna insisted that motion pictures were “a business, pure and simple, [and not] regarded by the Ohio Constitution, we think, as part of the press . . . or as organs of public opinion.” McKenna concluded,“We feel the argument is wrong or strained which extends [federal] . . . guarantees of free speech to . . . [movies because] they may be used for evil.” Author Garth Jowett explains that although the Justices conceded that movies were clear “mediums of thought . . . capable of disseminating ideas, the fear of the Court was that they could be used for ‘evil’ purposes by those seeking merely to make a profit, and [such] danger was only increased by the enormous inherent attraction the medium held for the public.” By placing “movies in the same category as circuses and other sideshow spectacles,” Jowett concludes, the justices just “reflected the traditional judicial suspicion of the theater and the arts.” Once the Court ruled that movies were not speech, protection by the Constitution became moot. Moreover, at that time it was not clear that First Amendment protections would extend to or be binding on the states. In fact, the Court did not extend these protections to the states until its 1925 decision in Gitlow v. New York. The Supreme Court overturned the Mutual ruling in Burstyn v.Wilson (1952), also known as The Miracle decision. See also Censorship; Burstyn v.Wilson (1952).
Bob Pondillo
furthe r reading Black, Gregory D. Hollywood Censored: Morality Codes, Catholics, and the Movies. Cambridge, Mass.: Cambridge University Press, 1994. Gould, Lewis L, ed, The Progressive Era. Syracuse, N.Y.: Syracuse University Press, 1974. Jowett, Garth.“ ‘A Capacity of Evil’:The 1915 Supreme Court Mutual Decision.” In Controlling Hollywood: Censorship and Regulation in the Studio Era, ed. Matthew Bernstein. New Brunswick, N.J.: Rutgers University Press, 1999. Jowett, Garth. “The Miracle Decision and the Decline of Motion Picture Censorship, 1952–1968.” In Movie Censorship and American Culture, ed. Francis G Couvares. Washington, D.C.: Smithsonian Institution Press, 1996.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
NAACP v. Alabama (1958) In NAACP v. Alabama, 357 U.S. 449 (1958), the Supreme Court unanimously ruled that the First Amendment protected the free association rights of the National Association for the Advancement of Colored People (NAACP) and its rank-and-file members. The case challenged Alabama’s foreign corporation statute, which gave state authorities the power to probe unincorporated organizations or organizations that were not officially registered with the state. Although the NAACP established a local affiliate in Alabama as early as 1918 and created a regional office in the state in 1951, it was officially incorporated at its national office in New York. Beginning in 1956, in response to Brown v. Board of Education (1954), Alabama authorities used the foreign corporation law aggressively to investigate the NAACP. The civil rights organization complied with the state’s initial request to hand over its business records, including its charter and list of organizational officers and staff. However, because of confidentiality and potential reprisal attacks, the NAACP refused to hand over its lists of rank-and-file members. The NAACP’s legal team, led by Robert L. Carter, a future U.S. district court judge, argued that publicizing the lists would invite repression and economic reprisals against NAACP members. Civil rights activists believed this would dissuade present members and potential recruits from associating with the organization, which violated their constitutional rights of association and assembly. An Alabama circuit court levied a fine against the NAACP and threatened additional penalties if it continued to withhold the lists; Alabama’s Supreme Court first dismissed the NAACP suit
An NAACP supporter participates in the march on Washington, D.C., in August 1963. Alabama authorities used the foreign corporation law to investigate the NAACP, but the Court ruled in NAACP v. Alabama that the First Amendment protected the free association rights of the NAACP and its rank-and-file members.
on the basis that its allegations were insufficient and then rejected another appeal on procedural grounds. Justice John Marshall Harlan II issued the opinion for the Court, explaining that the right of association and assembly,
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although spelled out in the First Amendment, “is [also] an inseparable aspect of the ‘liberty’” that is protected by the due process clause of the Fourteenth Amendment. Accordingly, the Supreme Court’s decision expanded the scope of the rights of association and assembly to prevent states such as Alabama from discouraging citizens from participating in groups that were engaged in lawful and ethical activities. Prior to this case the Court supported efforts by federal and state governments to investigate organizations that were alleged to be involved in subversive and unlawful activities. In two decisions, New York ex rel. Bryant v. Zimmerman (1928) and Dennis v. United States (1951), the Court had ruled in favor of government efforts to curtail the rights of assembly and speech of the Ku Klux Klan (KKK) and the Communist Party.The NAACP case differed because the type of activities it was involved in did not cause harm to the government or society. Harlan stated that unlike the KKK in the Zimmerman case, the NAACP complied with much of the government’s request to hand over its business records. Membership lists, however, had to remain confidential to protect its members from unlawful attacks. When this case was decided, the NAACP was one of the few, if not only, active civil rights organizations in the South. Thus, this case allowed the only operative civil rights organization to exist in the South, with a minimum level of protection from intimidation. See also Carter, Robert L.; Civil Rights Movement; Dennis v. United States (1951); Harlan, John Marshall, II; New York ex rel. Bryant v. Zimmerman (1928).
Sekou Franklin
furthe r reading Klarmans, Michael J. From Jim Crow to Civil Rights:The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press, 2004. Lawson, Steven F. Civil Rights Crossroads: Nation, Community, and the Black Freedom Struggle. Lexington: University of Kentucky Press, 2003.
NAACP v. Button (1963) In NAACP v. Button, 371 U.S. 415 (1963), the Supreme Court protected the First Amendment rights of a civil rights group to engage in public interest litigation. The Virginia state chapter of the National Association for the Advancement of Colored People (NAACP) sued Button, the attorney general of Virginia, to enjoin enforce-
ment of a 1956 state statute that prevented groups or thirdparty entities from litigating on behalf of potential clients. The law was passed after the desegregation decision in Brown v. Board of Education (1954) and shortly after the Virginia state chapter of the NAACP initiated a campaign to desegregate the state’s public school system. Thus, although the law did not specifically state that civil rights litigants were its intended targets, legal and political observers believed it was designed to undermine the NAACP’s influence. The law was particularly controversial because it established new regulatory standards for punishing barratry and champerty. (Barratry is the deliberate incitement of lawsuits by attorneys, and champerty occurs when attorneys solicit or offer assistance to potential plaintiffs, even if they have no real interest in the cases.) Virginia began regulating these activities as early as 1849. Proponents of such regulatory measures believed they were necessary to prevent frivolous lawsuits. The NAACP was less concerned about the barratry provision because it had been ruled unconstitutional by a lower court.The most intense debate focused on the ban on champerty and how Virginia defined the activity. The law interpreted champerty to include attorneys or groups that solicited prospective plaintiffs in addition to those outside the legal profession who may have encouraged the plaintiffs to seek legal assistance. Civil rights activists also claimed that the law was broad enough to include and punish the plaintiffs. Notwithstanding these concerns, several lower courts upheld the law. In November 1961, the Supreme Court also made a preliminary decision by a 5-4 margin to uphold the law. The Court did not deliver this decision, however, because of the departures of Justices Charles E. Whittaker and Felix Frankfurter, both of whom had voted to uphold the law. The case was reargued the next year; this time Byron W. White and Arthur J. Goldberg, the Court’s new justices, voted with the majority, effectively striking down the law. The Court found that the law prevented the NAACP and its Legal Defense Fund (LDF) from assisting prospective plaintiffs and using litigation as a form of political expression. The LDF argued that litigation was one of the few political strategies available to civil rights activists because most African Americans in the South during this period were disenfranchised and because civil rights protests were usually met with severe repression. Writing for the majority, Justice William J. Brennan Jr. said that the law was too broad because it penalized thirdparty attorneys and organizations, clients, and individuals
NAACP v. Claiborne Hardware Co. (1982) who may have referred clients to the attorneys. He reasoned that previous measures banning champerty in Virginia targeted groups that used litigation to resolve private disputes or groups that attempted to prosecute all types of criminal actions for the purposes of financial gain.The NAACP, however, was only involved in cases pertaining to racial discrimination. It did not use litigation for financial gain but as a form of expression to “vigorous[ly] advocate” for equal rights and constitutional protections. In his concurring opinion, Justice William O. Douglas said the Court majority did not go far enough in exposing the real intentions of the Virginia law, which was to thwart the NAACP’s school desegregation campaign. Justice White concurred in part and dissented in part. He said the Virginia law would have been constitutional had it only punished the conduct of third-party organizations involved in the recruitment of clients. However, as it was, the law was too expansive and allowed for penalties to be levied against clients and other individuals remotely associated with a case. The dissenting opinion was written by Justice John Marshall Harlan II, who had issued the opinion for a unanimous Court in NAACP v. Alabama (1958), which provided First Amendment protections for civil rights groups. In this case, Harlan said litigation fell outside of the scope of the First Amendment’s protections of political expression and association and that Virginia’s champerty ban was consistent with conduct that the American Bar Association’s Canons of Professional Ethics prohibited. Evidence of the NAACP’s involvement in champerty, Harlan insisted, could be found in the organization’s compensation and hiring practices of attorneys, its selective recruitment of prospective litigants, and its legal and philosophical approach to challenging school desegregation. Although Brennan insisted that the majority decision applied to all groups that wanted to use litigation as a vehicle of expression and association, including white supremacy organizations, Harlan was not convinced. He believed the majority wrote its decision to immunize the NAACP from legitimate regulations of unethical legal conduct, especially when these regulations were developed by individual states. The decision was important not only to First Amendment jurisprudence but also to the vitality of public interest law firm litigation in general. See also Brennan,William J., Jr.; Civil Rights Movement.
Sekou Franklin
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furthe r reading Klarmans, Michael J. From Jim Crow to Civil Rights: the Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press, 2004. Lawson, Steven F. Civil Rights Crossroads: Nation, Community, and the Black Freedom Struggle. Lexington: University of Kentucky Press, 2003. Murphy, Walter F. “The South Counterattacks: The Anti-NAACP Laws.” Western Political Quarterly 12 (June 1959): 371–390. Yeazell, Stephen C. “Brown, the Civil Rights Movement, and the Silent Litigation Revolution.” Vanderbilt Law Review 57 (November 2004): 1975–2004.
NAACP v. Claiborne Hardware Co. (1982) In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Supreme Court ruled that an economic boycott constitutes a form of constitutionally protected expression akin to traditional means of communication, such as speaking and writing, even if violence is threatened as a means of achieving group goals. The controversy arose as a result of a boycott imposed by African Americans against white merchants (including those at Claiborne Hardware) in Claiborne County, Mississippi. The NAACP, under the leadership of Charles Evers (its field secretary in Mississippi), organized the boycott and allegedly threatened violence against those who broke the boycott. The Mississippi Supreme Court ruled “that the entire boycott was unlawful and that each of the 92 petitioners was liable for all of its economic consequences.” The U.S. Supreme Court unanimously reversed. The Court held that political expressions in support of a boycott constitute protected speech and that individuals exercising the right of association for lawful purposes cannot be penalized for their lawful conduct.When acts of violence are committed in conjunction with lawful expression, the Court continued, regulations must be sufficiently precise to impose damages only upon those who are guilty of wrongful conduct. Justice John Paul Stevens, writing for the Court, explained: “For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further these illegal aims.” He cited Brandenburg v. Ohio (1969) to support the proposition that persuasion must be “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action” in order to be punishable via criminal law.
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Furthermore, he observed that speech may encourage or even advocate lawless action, yet be unlikely to incite such action. Justice William H. Rehnquist concurred without writing an opinion, and Justice Thurgood Marshall, given his long association with the NAACP, did not participate in the decision. Several subsequent lower court decisions have distinguished between advocacy and urging illegal action, claiming that the latter is unprotected by the First Amendment. For example, in Rice v. Paladin Enterprises (1997), the Fourth Circuit concluded that communications aiding and abetting the commission of a crime are unprotected by the First Amendment, the remoteness or imminence of the criminal activity notwithstanding. The Supreme Court denied review of that decision.The Court has also been careful to exempt economic boycotts with a political purpose from antitrust laws. The Court’s ruling in NAACP v. Claiborne Hardware also extended the applicability of the “incitement to unlawful action” test developed in Brandenburg to civil and criminal cases.Thus, some speech inciting receivers to unlawful action has acquired First Amendment protection from civil and criminal liability. See also Boycotts; Brandenburg v. Ohio (1969); Civil Rights Movement; Incitement; Stevens, John Paul.
Richard Parker
furthe r reading Kastanek,Andrianna D.“From Hit Man to a Military Takeover of New York City: The Evolving Effects of Rice v. Paladin Enterprises on Internet Censorship.” Northwestern University Law Review 99 (2004): 383–436. Reed, O. Lee.“The State Is Strong but I Am Weak.Why the ‘Imminent Lawless Action’ Standard Should Not Apply to Targeted Speech that Threatens Individuals with Violence.” American Business Law Journal 38 (Fall 2000): 177–208. Schneider, Mark D. “Peaceful Labor Picketing and the First Amendment.” Columbia Law Review 82 (November 1982): 1469–1497.
Narrowly Tailored Laws The Supreme Court has ruled that government regulation of First Amendment rights must be “narrowly tailored,” which means that laws must be written precisely to place as few restrictions as possible on First Amendment liberties. Narrow tailoring is linked to the overbreadth doctrine, which the Court invokes when a law sweeps too
broadly and inhibits protected, as well as unprotected, expression. To avoid overbreadth, governments must tailor laws narrowly so they are using the least restrictive means to achieve their purposes. For example, Frisby v. Schultz (1988) centered on a city ordinance that regulated picketing in residential areas. Although the ordinance was upheld as constitutional, some Supreme Court justices dissented, saying the ordinance was too broad and potentially restricted all picketing in residential streets. The majority opinion in Frisby interpreted the ordinance as applying only to picketing single residences and saw no need to strike down the ordinance or to force the city to come up with a less restrictive means of regulating residential picketing. To ensure narrow tailoring, the Court developed the standard of strict scrutiny when reviewing free speech cases. To satisfy strict scrutiny, the government must show that the law meets a compelling government interest and that the regulation is being implemented using the least restrictive means. In R.A.V. v. St. Paul (1992), the Supreme Court struck down an ordinance that banned all cross burnings. The Court held that this ordinance was not tailored narrowly and could suppress speech that the state did not have a substantial interest in suppressing. In Gooding v. Wilson (1972), the Court held that the phrase “opprobrious language” in Georgia’s breach of the peace statute was overbroad and could encompass speech that did not incite a breach of the peace.Therefore, the government cannot place restrictions on more speech than is necessary to advance its compelling interest. See also Compelling State Interest; Frisby v. Schultz (1988); Gooding v.Wilson (1972); Overbreadth; R.A.V. v. St. Paul (1992).
Ruth Ann Strickland
furthe r reading Bunker, Matthew D., and Emily Erickson. “The Jurisprudence of Precision: Contrast Space and Narrow Tailoring in First Amendment Doctrine.” Communication Law and Policy 6 (2001): 259–285. Decker, John F. “Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws.” Denver University Law Review 80 (2002): 241–243. Weinstein, James. “Hate Speech, Viewpoint Neutrality, and the American Concept of Democracy.” In The Boundaries of Freedom of Expression and Order in American Democracy, ed.Thomas R. Hensley, 146–169. Kent, Ohio: Kent State University Press, 2001.
National Do Not Call Registry
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National Broadcasting Co. v. United States (1943)
National Coalition Against Censorship
In National Broadcasting Co. v. United States, 319 U.S. 190 (1943), the Supreme Court upheld Federal Communications Commission (FCC) regulations on broadcast media based on content, finding they did not violate First Amendment free speech rights. The FCC had promulgated several rules designed to regulate “chain broadcast,” known today as network broadcasting. Because the FCC could not directly regulate the radio networks, it directed its rules at the licensing of stations that participated in the activities that the FCC had determined to be contrary to the public interest. The National Broadcasting Co. (NBC) challenged the regulations on several bases, including a First Amendment challenge. The district court dismissed the complaint, and NBC appealed. Justice Felix Frankfurter wrote the majority opinion rejecting the challenge. He reasoned, “The right of free speech does not include, however, the right to use the facilities of radio without a license. The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce.The standard it provided for the licensing of stations was the ‘public interest, convenience, or necessity.’ Denial of a station license on that ground, if valid under the Act, is not a denial of free speech.” This ruling cleared the way for the FCC to regulate networks indirectly by banning licenses to individual stations that contract with networks engaged in practices considered detrimental to the public interest. Although greatly relaxed since the day of NBC v. FCC, these regulations continue today. The ruling also served as the cornerstone for the FCC’s regulation in the areas of the fairness doctrine, equal time, and other content-based restrictions. Justice Frank W. Murphy dissented, and Justices Hugo L. Black and Wiley B. Rutledge did not participate.
The National Coalition Against Censorship (NCAC) is a New York–based organization that serves as a national resource center and information exchange for groups and individuals combating censorship. Founded in 1974, the NCAC comprises fifty nonprofit organizations, including the American Civil Liberties Union, Americans United for Separation of Church and State, the First Amendment Lawyers Association, People for the American Way, and the Student Press Law Center.The NCAC alliance is dedicated to the promotion and defense of “First Amendment values of freedom of thought, inquiry, and expression.” The NCAC focuses its support of freedom of expression on three activities—action, advocacy, and education—in more than twenty areas, ranging from academic and religious freedom to video games and youth. Its advocacy programs include the Arts Advocacy Project, which helps individual artists and curators embroiled in censorship conflicts, and its Youth Free Expression Network, which is dedicated to defending the free expression and access rights of youth.The NCAC’s wealth of educational and research information includes a war and speech database that tracks censorship during wartime (including data on the current “war on terror”), an art law library, and Censorship News, a quarterly publication that highlights major First Amendment issues.
See also Equal Time Rule; Fairness Doctrine; Federal Communications Commission; Frankfurter, Felix.
Howard Leib
furthe r reading Johnson, Nicholas. “With Due Regard for the Opinions of Others.” California Lawyer 8 (1988): 52–55.
See also American Civil Liberties Union; Americans United for Separation of Church and State; Art Censorship; First Amendment Lawyers Association; People for the American Way; Student Press Law Center.
David L. Hudson Jr.
furthe r reading National Coalition Against Censorship, www.ncac.org.
National Do Not Call Registry The National Do Not Call Registry is a list of the personal telephone numbers of subscribers who do not wish to receive unsolicited telephone calls from commercial telemarketers. In 2003 the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) passed rules authorizing the creation of such a registry to protect consumer privacy and to prohibit abusive telemarketing practices. Commercial telemarketers generally are prohibited
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from calling any phone numbers on the do not call list. Consumers can register both their home and mobile numbers, which will remain on the list for five years. Thus the registry is an opt-in system. When launched in June 2003, the registry drew the immediate ire of several telemarketing groups, who alleged a violation of their First Amendment rights. The challenging groups also contended that the registry violated the First Amendment by exempting charitable and political fundraising calls. In the 2004 case Mainstream Marketing Services, Inc. v. Federal Trade Commission, the Tenth Circuit Court of Appeals upheld the registry, finding it a reasonable restriction on commercial speech.The appeals court wrote: “Just as a consumer can avoid door-to-door peddlers by placing a ‘No Solicitation’ sign in his or her front yard, the do-not-call registry lets consumers avoid unwanted sales pitches that invade the home via telephone, if they choose to do.” In making its ruling, the appeals court relied on the U.S. Supreme Court’s decision in Rowan v. U.S. Post Office Department (1970) in which the high court upheld the right of homeowners to refuse unsolicited mailings. The appeals court rejected the argument that the law was an unconstitutional, contentbased restriction on speech because it singled out commercial calls while allowing charitable and political calls. According to the court,“commercial calls were more intrusive and posed a greater danger of consumer abuse.” Numerous states have passed similar do not call laws to protect consumers from unwanted commercial sales calls. See also Commercial Speech; Federal Communications Commission; Federal Trade Commission; Privacy; Rowan v. U.S. Post Office Department (1970).
David L. Hudson Jr.
furthe r reading Federal Communications Commission. “National Do-Not-Call Registry.” www.fcc.gov/cgb/donotcall. Federal Trade Commission.“National Do Not Call Registry.” www.ftc .gov/donotcall. Santry, Jeffrey. “Mainstream Marketing Services v. FTC: Privacy Interests Trump Commercial Speech in Upholding the National Do-NotCall Registry.” Denver University Law Review 82 (2005): 559–583. Smolla, Rodney A. “The Do-Not-Call List Controversy: A Parable of Privacy and Speech.” Creighton Law Review 38 (2005): 743–760.
National Endowment for the Arts v. Finley (1998) In National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the Supreme Court ruled that an amendment that required standards of decency and respect to be taken into consideration in funding decisions by the National Endowment of the Arts (NEA) was constitutional on its face and did not interfere with artists’ First Amendment rights to free speech. The case came to the Court as a result of a 1989 amendment, 20 USCS 954(d)(1), to the National Foundation on the Arts and the Humanities Act of 1965. The amendment directed the chairperson of the NEA to ensure that for any artistic endeavor funded by the NEA,“artistic excellence and artistic merit” must include consideration of “general standards of decency and respect for the diverse beliefs and values of the American public.” The process the NEA had developed to award funding to artists pursuant to the 1965 act required applications for NEA grants to be reviewed initially by advisory panels of experts in the relevant artistic field. The panels then reported to the National Council on the Arts (Council), which advised the NEA chairperson. Before 954(d)(1), an advisory panel had recommended approval of the projects of four performance artists, including Karen Finley, whose graphic performances often involved nudity. The Council subsequently recommended disapproval, and funding was denied after 954(d)(1) went into effect. Finley, other artists, and an artists’ association brought suit to have funding restored by arguing that 954(d)(1) should be ruled unconstitutional.The reviewing federal district and appeals court ruled in favor of the plaintiffs. The Supreme Court reversed, holding that 954(d)(1) did not facially violate the First Amendment because it imposed no specific categorical requirements that could be seen as viewpoint-based discrimination. Writing for the majority, Justice Sandra Day O’Connor supported this conclusion with a number of points. She wrote that the congressional environment or history in which the “decency and respect” amendment was passed did not support an interpretation of the amendment that it compelled the NEA to deny funding on the basis of viewpoint-discriminatory criteria.The guidelines were clear enough to not be impermissibly vague under the First Amendment.The decency and respect clause was no more vague than the NEA’s mandate to fund “artistic excellence.” The government’s guidelines did not dis-
National Identification Cards criminate on the basis of viewpoint; they merely chose to fund one activity to the exclusion of the other. Justice O’Connor added that when the government is acting as a patron, a lack of precision in language is more acceptable than normal. Justice David H. Souter was the Court’s lone dissenter in the case. He believed that the requirement that the NEA take into account “general standards of respect and decency” amounted to viewpoint-based discrimination. See also Government Funding and Free Speech; O’Connor, Sandra Day.
Tom McInnis
furthe r reading Choi, Alicia M. “National Endowment for the Arts v. Finley: A Dispute Over the ‘Decency and Respect’ Provision,” Akron Law Review 32 (1999): 327–350. Cleary, Eric J. “In Finley’s Wake: Forging a Viable First Amendment Approach to the Government’s Subsidization of the Arts.” Fordham Law Review 68 (1999): 965–1010. Freeman, Michelle. “First Amendment Protection for the Arts after NEA v. Finley.” Brandeis Law Journal 38 (2000): 405–422. Petrick, Amy. “Constitutional Law: Decency Requirement in Art Funding NEA v. Finley, 118 S. Ct. 2168 (1998).” Florida Journal of Law and Public Policy 10 (1999): 423–431. Taft, Gloria F.“National Endowment for the Arts v. Finley: Challenging the Facial Challenge.” Campbell Law Review 21 (1998): 81–97.
National Identification Cards At times during national crises, it has been proposed that residents of the United States be required to carry some proof of identity, but so far such a proposal has not been implemented. Critics of national identification cards argue that their issuance would raise numerous constitutional concerns, including those associated with privacy, freedom of association, and the franchise. Over one hundred countries, including many major Western democracies, issue national identification cards and require their citizens to show them when voting, traveling, or applying for government benefits. In some countries, a passport is used instead of a national identification card. Advocates offer several reasons for the issuance of such cards. First, the cards would contribute to national security. Proof of identity would help the government keep track of illegal immigrants, criminals, and individuals who might pose a risk to the United States. Second, the cards would prevent identity theft and fraud. Third, such cards would facilitate the delivery of government services to citizens by ensuring that
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noncitizens do not receive the services in error. Fourth, the cards would promote law enforcement goals by making it easier for police to determine the identity of individuals and criminal suspects. Finally, use of the cards would prevent voter fraud in elections. Congress recently debated the need for national identification cards on at least two occasions.The first was in 1998 in a House committee. Congress considered the idea again after the al-Qaida attacks on the United States of September 11, 2001, but it did not act. Even though the United States issues no official national identification cards, several government-issued documents serve similar functions. In most if not all states, a driver’s license serves as a government-issued identification card when making commercial transactions or voting. The Social Security card, or at least the number, is also often used for governmental, and occasionally nongovernmental, purposes to establish an identity.Thus one could argue that a form of a government-issued or national identification card already exists. Critics of these cards often argue that mandating them would violate the Constitution. Their arguments often cite the Fourth Amendment and right to privacy concerns. Other critics argue that national identification cards interfere with First Amendment rights to freedom of association. For example, in McIntyre v. Ohio Elections Commission (1995), the Supreme Court ruled that individuals have a right to engage in anonymous political speech. Based on this decision, one might argue that individuals have a right to anonymous political association, free from having to carry or produce a government-issued identification card upon request. It could also be argued that requiring voters to produce governmentissued identification cards might make it more difficult for those who lack these cards, such as the poor, to purchase them and vote. See also McIntyre v. Ohio Elections Commission (1995).
David Schultz
furthe r reading Matar, Neda. “Are You Ready for a National Id Card? Perhaps We Don’t Have to Choose between Fear of Terrorism and Need for Privacy.” Emory International Law Review 17 (2003): 287–338.
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National Labor Relations Board v. Catholic Bishop of Chicago (1979)
National Labor Relations Board v. Catholic Bishop of Chicago (1979) The Supreme Court ruling in National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), decided that the National Labor Relations Board (NLRB) did not have jurisdiction over lay faculty members at religious schools according to the religion clauses of the First Amendment. The NLRB sued after concluding that schools operated by the Catholic Bishop had violated the National Labor Relations Act (NLRA) by not recognizing or bargaining with unions representing the schools’ faculty members. Catholic authorities countered the NLRB by saying involvement in the union dispute would lead to excessive entanglement of the government and religion. The Seventh Circuit Court of Appeals denied enforcement of the NLRB’s findings, and the NRLB appealed to the Supreme Court. The Supreme Court upheld the decision in a 5-4 ruling. Although the arguments to the courts raised important constitutional questions, the majority opinion, written by Chief Justice Warren E. Burger, stated that there was a prior question of whether the NLRB had jurisdiction over parochial schools based on the NLRA.The interpretation of congressional intent by the majority was that the NLRB did not have jurisdiction because nothing in the act specifically implied that it was meant for parochial schools. If it had, then the court would have been forced to address the more difficult constitutional question. Thus, constitutionality was not the basis of the ruling, although the opinion admitted that the risk for infringement on the religion clauses of the First Amendment would be significant were the statute to be found applicable to religious educational institutions. The dissenting opinion, written by Justice William J. Brennan Jr. and joined by Justices Byron R. White, Thurgood Marshall, and Harry A. Blackmun, disagreed with the analysis of congressional intent, saying that the Court’s interpretation was virtually a “reenactment” of the legislation. Further, that interpretation of the NLRA was impossible. The dissent did not address the possible constitutional questions. The Court’s ruling effectively shut down unionizing in many religious schools; however, in several circumstances statutory override has occurred because the Court did not broach the constitutional questions.The ruling also does not address other religious institutions (such as hospitals)—it only has been applied to educational institutions.
See also Brennan,William J., Jr.; Burger,Warren E.
Kathryn Oates
furthe r reading Miller, Robert and Ronald Flowers. Toward Benevolent Neutrality: Church, State, and the Supreme Court. 5th ed. Waco, Tex.: Baylor University Press, 1996.
National Labor Relations Board v. Fruit and Vegetable Packers (1964) In National Labor Relations Board v. Fruit and Vegetable Packers, 377 U.S. 58 (1964), the Supreme Court protected the rights of picketers, reaching its decision on statutory grounds under the National Labor Relations Act (NLRA) rather than relying on First Amendment protections. The Court’s decision vacated a federal appeals court decision that had set aside an order by the National Labor Relations Board (NLRB). The NLRB had decided that pickets at a retail food outlet (Safeway) against buying apples constituted an unfair labor practice under 8(b)(4) of the NLRA; the federal appeals court said that ruling could stand only if it showed a substantial economic impact on the stores in question and remanded for a finding on that issue. Writing for the majority, Justice William J. Brennan Jr. focused on an interpretation of the NLRA, noting that the picketers in this case had not tried to dissuade customers from doing any business at the retail outlet—just from buying apples from the business. By Brennan’s analysis, the NLRA was not designed to prevent all secondary boycotts but only those in which the boycotts resulted in substantial harm to the secondary business. He observed that “it is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” He continued, “Peaceful consumer picketing to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer, is poles apart from such picketing which only persuades his customers not to buy the struck product.” Justice Hugo L. Black wrote a vigorous concurring opinion, highlighting what he believed to have been First Amendment issues overlooked by the NLRB. Black observed that picketing embraced the concepts of “patrolling” and “speech.” Although the former was not speech, when unprotected conduct such as patrolling is “intertwined” with constitutionally protected free expression (picketing), regulation of the nonprotected conduct
National Prayer Breakfast may violate the First Amendment. He thought that the government was restricting picketing so as to interfere with the picketers’ message. Black distanced himself from the dissenters who thought the actions did not constitute restrictions of freedom of speech and press simply because other means of communication remained. In dissent, Justice John Marshall Harlan II, joined by Potter Stewart, said he believed the NLRA had intended to prevent all secondary consumer picketing. He thought the actions at issue clearly fell within the letter of the law. Harlan argued that “picketing is ‘inseparably something more [than] and different’ from simple communication.” He continued, “Congress has given careful and continued consideration to the problems of labor-management relations, and its attempts to effect an accommodation between the right of unions to publicize their position and the social desirability of limiting a form of communication likely to have effects caused by something apart from the message communicated, are entitled to great deference.” Justice William O. Douglas did not participate in this case. See also Black, Hugo L.; Brennan, William J., Jr.; Harlan, John Marshall, II; Picketing.
John R.Vile
furthe r reading Jaffan, Marc E. “Notes: Consumer Picketing After Lechmere, Inc., v. NLRB: The Phenomenon of Impulse Buying.” Catholic University Law Review 43 (1993): 279–310.
National Labor Relations Board v. Virginia Electric and Power (1941) In National Labor Relations Board v.Virginia Electric and Power, 314 U.S. 469 (1941), the Supreme Court examined the degree to which the government can ascertain illegal activity on the basis of words, issued in a company bulletin and in speeches, which would otherwise be protected by the First Amendment. The National Labor Relations Board (NLRB) had decided, partly on the basis of statements by Virginia Power and Electric, that the company was illegally attempting to coerce its employees to join an inside labor group rather than an outside union.The Supreme Court did not think the evidence at hand was sufficient to support that conclusion. Writing for a unanimous court, Justice Francis W. Murphy decided that “conduct, though evidenced in part by
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speech, may amount . . . to coercion within the meaning of the Act.” In cases where “language merges into a course of conduct,” the NLRB had “a right to look at what the Company has said, as well as what it has done.” Because the Court could not tell from the record whether the NLRB had judged the utterances by themselves or in light of their background, it remanded the case for further consideration by the NLRB. See also Murphy, Francis W.
John R.Vile
furthe r reading Kersch, Ken I. “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech.” University of Pennsylvania Journal of Constitutional Law 8 (2006): 255–297.
National Organization for Women v. Scheidler (1994) See Scheidler v. National Organization for Women (2006)
National Prayer Breakfast The National Prayer Breakfast, which is held each year in Washington, D.C., attracts political and religious leaders from around the nation and the world, who gather to pray and reflect on faith. Many observers believe the event merely promotes faithfulness, humility, and reflection among national leaders. Others worry that the annual breakfast borders on governmental entanglement with religion in violation of the First Amendment. The National Prayer Breakfast dates back to the informal prayer meetings held by senators and representatives in 1942 at the height of World War II. In 1953 President Dwight D. Eisenhower presided over the first official national prayer event. The event became known as the National Prayer Breakfast in 1970. All presidents since Eisenhower have attended the National Prayer Breakfast. Recent prayer meetings have also been attended by nearly four thousand people of various faiths, who pay hundreds of dollars for their tickets. Famous speakers and leaders of prayer have included humanitarian Mother Teresa, rock star Bono, and evangelist Billy Graham.Although these speakers frequently point to the importance of faith in God, their words also often focus on issues of national and international morality, including poverty and AIDS.
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Each president has approached his role, and thus his speech, at the National Prayer Breakfast differently. President Bill Clinton, a mainline Protestant, was applauded by critics of the breakfast for keeping his speeches at the breakfasts relatively neutral in tone. Other presidents, such as George W. Bush, an evangelical Protestant, have delivered far more religious speeches at the events. Some detractors of the National Prayer Breakfast have argued that it amounts to the government’s endorsement of religion. As interpreted by the Supreme Court in Everson v. Board of Education (1947) and Lemon v. Kurtzman (1971), the First Amendment requires separation of church and state. Therefore, by participating in and speaking about the importance of faith at an annual prayer event as the head of state, the president is violating this principle. Those using this same line of reasoning find that the public participation of members of the Senate and House also amounts to government entanglement with religion. These opponents also argue that although a few leaders from religions such as Judaism and Islam are usually present, the meeting undeniably has a Christian tone and focus. Because of this Christian tilt, some critics argue, the breakfast amounts to an unconstitutional endorsement of a particular religion. And yet despite critics’ concerns about the unconstitutionality of the National Prayer Breakfast, no serious lawsuits have been filed in U.S. courts challenging it.
The club is perhaps best known for hosting weekly luncheons for speakers at its headquarters in the National Press Building in Washington, D.C. The first such speaker was President-elect Franklin D. Roosevelt in 1932. Since then, the club has hosted numerous other U.S. and world leaders, many of whose speeches have been televised. The club also supports legislation, such as shield laws, designed to protect freedom of the press. A favorite cause is “Sunshine Week,” a national initiative designed to stimulate discussion about the importance of open government and freedom of information. Along the same lines, the National Press Club has advocated broadcasting sessions of the Supreme Court. Finally, the club gives numerous awards for outstanding reporting, including the Annual Arthur Rowse Award for Press Criticism and the John Aubuchon Freedom of the Press Award.
See also Everson v. Board of Education (1947); Lemon v. Kurtzman (1971).
Despite the absolute language of the First Amendment, wars, threats of wars, and perceived risks to national security have prompted the government to, at times, restrict freedom of speech and other First Amendment freedoms throughout U.S. history. A prime example is the legislation passed only seven years after the adoption of the Bill of Rights, including the First Amendment, in 1791. In 1798 the Federalist Congress, fearful of an impending, full-blown war with France, adopted the Sedition Act, which attempted to stifle any speech that criticized the president, who was conducting an undeclared conflict with France at sea.The Federalist Party justified the Sedition Act as a measure needed to prevent threats to national security from within the country. During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus in some parts of the North, especially those that were unstable, and the Confederate government acted in a similar fashion. World War I saw the adoption of the Espionage Act of 1917 and the Sedition Act of 1918, which led to the first
Christina L. Boyd
furthe r reading Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. 2d ed. Chapel Hill: University of North Carolina Press, 1994.
National Press Club The National Press Club, the premier association of U.S. journalists, was founded by thirty-two newspapermen in 1908 to “provide people who gather and disseminate news a center for . . . the promotion of free expression, mutual support and social fellowship.” Since its founding, the organization has sought to keep First Amendment issues front and center in the public eye. Originally restricted to white males, the club is now open to all those who supply the news, including women journalists and government information officers.
See also Shield Laws.
John R.Vile
furthe r reading National Press Club Online. http://npc.press.org/about/history.cfm. The Greatest National Press Club Speakers. Dubuque, Iowa: Kendall/ Hunt Publishing Co., 1995.
National Security
National Security Supreme Court decisions, among them Schenck v. United States (1919) and Abrams v. United States (1919), that punished political dissidents because their speech allegedly presented a clear and present danger to national security and war efforts. During World War II, the government incarcerated Japanese Americans, and that war and the cold war that followed spurred adoption of the Smith Act (making it illegal to call for the overthrow of the U.S. government), intrusive congressional investigations into personal beliefs and associations, and other efforts to suppress domestic communism. The prolonged U.S. involvement in the Vietnam War and its high death toll prompted the eruption of protests nationwide, along with efforts to suppress them. Such issues were rekindled in the aftermath of the al-Qaida attacks on the United States of September 11, 2001, and the U.S. responses to those events. Periodically, the Supreme Court has examined whether the government can restrict speech to further the compelling interests of national security. In doing so, the Court has recognized that national security, as a governmental interest, does justify restrictions on First Amendment rights. In the landmark free press decision Near v. Minnesota (1931), the Court established a general rule against prior restraints on expression. However, the Court did note that the government could shut down a newspaper if it published military secrets: “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” Nevertheless, the government must provide proof that national security interests really are in play—that is, the government cannot simply use national security as a blank check to sidestep constitutional challenges. In New York Times Co. v. United States (1971), the majority of the Court rejected the government’s national security justifications for attempting to prevent the New York Times and the Washington Post from publishing the Pentagon Papers, the top-secret history of the U.S. involvement in the Vietnam War. In his concurring opinion, Justice Hugo L. Black explained that “the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.” The war on terror that commenced after the September 11 attacks on the United States brought into focus the debate over national security and the proper balance between liberty and security. One controversy arose over certain provisions of the USA Patriot Act, which Congress
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passed forty-five days after the attacks, especially the widespread use by the Federal Bureau of Investigation (FBI) of national security letters (NSLs) under Section 505 of the act. A national security letter is an administrative subpoena instrument used by the FBI to compel recipients of the letter to comply with requests for various data and records on the person who is the subject of the subpoena. This instrument requires no probable cause or judicial oversight. It also contains a gag order preventing recipients from even acknowledging they have received an NSL. A 2007 Department of Justice audit revealed that in 2005, 47,221 requests applicable to 18,000 people were issued. Similar numbers were posted for 2003 and 2004. “Secret evidence” is another questionable instrument sometimes favored by the government, especially in immigration cases. In 2003 Sami al-Arian, a tenured professor of computer engineering at the University of South Florida, was arrested, based on secret evidence, for his alleged ties to the Palestinian Islamic Jihad. The al-Arian case caused an uproar within academia because of its free speech and free association implications as well as his termination from his academic posting. Despite the credible nature of the charges against him, several prominent academicians came to al-Arian’s defense, demanding an inquiry and reinstatement. Al-Arian was charged with seventeen separate counts, but as part of a plea agreement, he was convicted on one count of conspiracy and sentenced to nineteen months in jail beyond the fiftyseven months already served. Al-Arian admitted that he had raised funds for the Palestinian Islamic Jihad. Yet another national security issue that continues to generate controversy is the published “outings” of known intelligence operatives. The best-known case is that of career Central Intelligence Agency (CIA) operative Philip Agee. Agee served in Latin America but became disaffected by the CIA’s role there. He left the agency in 1968, a self-avowed socialist. In the 1970s, Agee published Inside the Company in which he named over 250 operatives and assets for the CIA in Latin America. In 1974 he announced a campaign against the CIA. In response to Agee’s activities, Secretary of State Alexander M. Haig Jr. revoked Agee’s passport. Agee countered by charging that his right to criticize the government under the First Amendment had been infringed by Secretary Haig’s action. In its 7-2 decision in Haig v.Agee (1981), written by Chief Justice Warren E. Burger, the Supreme Court disagreed. Justices William J. Brennan Jr. and Thurgood Marshall dissented.
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National Society of Professional Engineers v. United States (1978)
The Intelligence Identities Protection Act (IIPA) of 1982 was drafted in the wake of the disclosures made in part by Philip Agee and the assassination of CIA station chief Richard Welch by the Greek terrorist group 17 November after his identity was revealed in the magazine Counter-Spy. The IIPA has been invoked twice since its passage: in the 1985 case of CIA operative Sharon Scranage, the only person convicted thus far under the IIPA, and most recently in the Valerie Plame affair. In 2003 newspaper columnist Robert Novak publicly revealed that Valerie Plame, the wife of Ambassador Joseph Wilson, a vociferous critic of the George W. Bush administration and the prewar intelligence on Iraq, was a nonofficial cover operative of the CIA. Later, I. Lewis “Scooter” Libby, the former chief of staff to Vice President Dick Cheney, was indicted by Special Prosecutor Patrick Fitzgerald under the IIPA for disclosing Plame’s name to journalists, who, in turn, disclosed her identity to the American public. On March 6, 2007, Libby was convicted on four counts of perjury and obstruction of justice. However, in the end he was not convicted under the IIPA. Ultimately, policy makers are responsible for maintaining the delicate balance between the First Amendment and national security—a balance with which society continues to struggle in an age of international terrorism. See also Abrams v. United States (1919); Civil War, U.S.; Congressional Investigations; Espionage Act of 1917; Haig v. Agee (1981); New York Times Co. v. United States (1971); Sable Communications of California v. Federal Communications Commission (1989); Schenck v. United States (1919); Sedition Act of 1918; Smith Act of 1940; USA Patriot Act of 2001;Vietnam War; World War I;World War II.
Ojan Aryanfard
furthe r reading Posner, Richard. Not a Suicide Pact: The Constitution in a Time of National Emergency. New York: Oxford University Press, 2006. Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terror. New York:W. W. Norton, 2004.
National Society of Professional Engineers v. United States (1978) In National Society of Professional Engineers v. United States, 435 U.S. 679 (1978), the Supreme Court upheld a lower court decision that nullified a provision in the canons of ethics adopted by the National Society of Professional Engineers as
a violation of the Sherman Antitrust Act. The Supreme Court decided that neither First Amendment protections designed to prevent prior restraint of free speech nor the rights of association prevented the government from limiting agreements that might lead to suppression of trade. The National Society of Professional Engineers had attempted to justify the provision that prohibited engineers from quoting prices until they had been hired as within a “rule of reason” designed to protect the public interest by keeping engineers from understating costs in a manner that might affect public safety. In his opinion for the majority, Justice John Paul Stevens reviewed anti-trust precedents. The Court had interpreted that law in Goldfarb v.Virginia State Bar (1975) to distinguish regulation of professions from ordinary businesses. The Court had never interpreted the law to prohibit every contract that restrains trade but had interpreted it flexibly to prohibit acts that “were unreasonably restrictive of competitive conditions.” Although the statement within the canon of ethics was not price fixing, Stevens noted that “no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement. It operates as an absolute ban on competitive bidding.” Rejecting the idea that the judgment constituted “an unconstitutional prior restraint on speech and an unconstitutional prohibition against free association,” Stevens wrote that “the District Court was empowered to fashion appropriate restraints on the Society’s future activities both to avoid a recurrence of the violation and to eliminate its consequences.” Justice Harry A. Blackmun wrote a concurring opinion, joined by Chief Justice Warren E. Burger, suggesting that part of the majority decision might not have left “enough elbowroom for realistic application of the Sherman Act to professional services.” Burger wrote a partial dissent from that part of the decision prohibiting the society from publishing its views that competitive bidding was unethical. See also Blackmun, Harry A.; Burger,Warren E.; Prior Restraint; Stevens, John Paul.
John R.Vile
furthe r reading Arthur, Thomas C. “Farewell to the Sea of Doubt: Jettisoning the Constitutional Sherman Act.” California Law Review 74 (1986): 266–375.
Native Americans
Native Americans Although some Europeans arrived in the American colonies with the idea of converting Native Americans to Christianity (which by itself led to resistance), Europeans more often arrived with designs on Indian land. Thus throughout much of U.S. history, these groups have had a hostile relationship. At times, national and state governments have denied rights to Native Americans, including those protected by the First Amendment. In turn, Indian religious beliefs have sometimes posed dilemmas for the application of such freedoms. Most Native Americans regarded the land as something that belonged to everyone, but Europeans brought with them the idea of individual property ownership.As the population of European immigrants increased (often because the diseases they brought with them decimated the Native American populations) and their claims to the land expanded, Native Americans were forced to fight or retreat, and frequently had to sign treaties that recognized the rights of the federal government to their lands. Over time, the government moved many Native Americans to reservations, where the tribes exercised powers not unlike those the states exercised over their own citizens. In the document that emerged from the 1787 Constitutional Convention, “Indians not taxed” were exempted from being counted in the formula for representation in the
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U.S. House of Representatives.Also, Congress was given the explicit power to regulate commerce with Native Americans as well as to enter into treaties with them. In 1800, not long after adopting the Sedition Act, Congress also adopted “An Act for the preservation of peace with the Native American tribes” that limited First Amendment speech and press freedoms as a way of suppressing Native American criticism of U.S. policies and preventing Europeans from stirring them to action. Over time, the courts have struggled with the relationship between Native American nations and the U.S. federal and state governments. In Cherokee Nation v. Georgia (1831), the Supreme Court recognized that the tribes constituted “denominated domestic dependent nations.” In Worcester v. Georgia (1832), the Court tried to intervene to protect missionaries in Cherokee Indian Territory whom Georgia was trying to evict because of their support for the Cherokees’ resistance to removal from tribal lands.The case was largely mooted, however, when President Andrew Jackson agreed to the removal of the Cherokee to Oklahoma—a decision that resulted in many deaths along the Trail of Tears. In the 1880s, Roman Catholics became involved in efforts to educate Native Americans, sometimes with the help of the federal government. After some Protestants objected, Congress adopted an Indian appropriations act in 1896 that ended the funding, although some support continued through trial trust and treaty funds.
U.S. courts have struggled with the relationsip between the federal and state governments and the Native American nations. The American Indian Movement (AIM) has brought suits against the federal government regarding the rights of Native nations protected in treaties, laws, and the Constitution. AIM drum group and singers are photographed here at a April 1980 rally in San Francisco after the March for Survival, part of an educational campaign.
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Congress did not extend citizenship to all Native Americans until 1924. Even though they have remained citizens, government policies toward them have shifted several times. Law professor Rennard J. Strickland (1992) has divided federal policies into five eras: “(1) the formative or treaty era (1789–1871); (2) the period of assimilation and allotment (1871–928); (3) the time of reorganization and reestablishment (1928–1942); (4) the termination movement (1943–1961); and (5) the self-determination and tribal revitalization era (1961–present).” In recent decades, Congress has adopted numerous laws relevant to Native Americans.The Indian Civil Rights Act of 1968 extends all of the provisions of the First Amendment (except the establishment clause, which might disadvantage tribal religions) and most other provisions of the Bill of Rights to Native Americans. Another law protects sacred Indian shrines. In 1978 Congress adopted a largely hortatory statement of policy in the American Indian Religious Freedom Act. And in other laws it has set aside certain lands in trust for Native Americans and protected Indian graves and funeral objects. Congress has also given Native Americans access to the feathers of American eagles (otherwise forbidden in an attempt to save the species). In part because of past efforts at Christianization, modern Native Americans have a pluralistic religious life that mirrors the larger society. Since the end of the nineteenth century, the Native American religion has often been associated with the ceremonial ingestion of peyote, a mildly hallucinogenic product of cacti. This practice has led to conflict with the war on drugs. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Supreme Court ruled that states were not required to exempt Native Americans who ingested peyote from the general application of its criminal laws (however, in 1994 Congress amended the American Indian Religious Freedom Act to allow Native Americans to ingest peyote for religious purposes). This decision followed Lyng v. Northwest Indian Cemetery Protective Association (1988), in which the Court refused to prohibit the federal government from building a road through a site in a national forest that was sacred to Native Americans. See also American Indian Religious Freedom Act of 1978; Employment Division, Department of Human Resources of Oregon v. Smith (1990); Indian Appropriations Act of 1896; Lyng v. Northwest Indian Cemetery Protective Association (1988); Sedition Act of 1798 as Amended in 1994.
John R.Vile
furthe r reading Fisher, Louis. “Indian Religious Freedom: To Litigate or Legislate?” American Indian Law Review 26 (2001/2002): 1–37. Strickland, Rennard J. Rev. ed. by Sidney L. Harring. “Native Americans.” In The Oxford Companion to the Supreme Court of the United States, ed. Kermit L. Hall, 669–673. New York: Oxford University Press, 2005. Wunder, John R. “Retained by the People”:A History of American Indians and the Bill of Rights. New York: Oxford University Press, 1994.
Natural Law Natural law refers to laws of morality ascertainable through human reason. Moral philosophers have posited that such laws are antecedent and independent of positive, man-made law.The understanding of natural law is varied and complex, dependent upon the role morality plays in determining the authority of legal norms and rules.The relationship between natural law and the First Amendment is equally complex. In general, natural law, as a “higher” law, forms the foundation on which the First Amendment rests. As a legal philosophy, natural law forms the basis and foundations for legal traditions. As a term of politics and jurisprudence, natural law is a body of rules prescribed by an authority superior to that of the state. It is intended to protect individual rights from infringement by other individuals, nation-states, or political orders. Natural law as a protection of social practices and norms applies not only to states and governments but also to individuals. It provides an ethical set of rules for governing individuals in their interactions with one another based on the idea that positive, or manmade, laws are merely the articulation of the preexisting norms, social practices, and ideas held under natural law. Although natural law provides guidance for individuals in their pursuits and relationships, it does not lead to universal agreement. Moreover, humans do not always act on the basis of rational and deductive thought. The medieval philosopher Thomas Aquinas was among those who concluded that a man-made law is valid only insofar as its content conforms to the content of the natural law. An unjust law is therefore not really a law. This gives individuals who believe that laws are unjust a way to oppose them. Religious beliefs have long been cited as justification for disobeying laws. Dr. Martin Luther King Jr. invoked natural law in opposing racial segregation. Theorists such as the English philosopher John Locke believed that if a ruler goes against natural law and fails to protect “life, liberty, and property,” then the people are justi-
Natural Rights fied in overthrowing the existing state. Locke and his successors often referred to “natural rights” rather than to “natural law”—thus somewhat secularizing the earlier concept, albeit while still acknowledging a Creator.Thomas Jefferson articulated this philosophy in the Declaration of Independence when he declared that “all men are created equal” and that “they are endowed by their Creator with certain unalienable rights,” among which he included those of “life, liberty, and the pursuit of happiness.” James Madison believed that the individual’s relationship to God existed prior even to his or her entry into society; individuals were directly responsible to God, and the state had no authority to meddle in this relationship.The right to the free exercise of religion would be furthered by maintaining the separation of church and state. At the same time, the government had no right to suppress the right of expression to which religious and political freedom were linked. In some respects the provisions of the First Amendment serve much like natural law: both are a form of “higher” law, superior to laws that governments might make. The power of the First Amendment’s guarantees has undoubtedly been enhanced by the willingness of the Supreme Court to enforce its provisions. Even as scholars continue to debate the degree to which justices should seek simply to enforce the constitutional text and the degree to which they can also enforce unstated natural law principles of justice, natural law provides an ongoing means by which individuals can appeal beyond governmental actions, and even court decisions, to a higher justice. See also Declaration of Independence; Jefferson,Thomas; Locke, John; Madison, James.
Dale Mineshema
furthe r reading Coleman, Jules L. “On the Relationship Between Law and Morality.” Ratio Juris 2, no. 1 (1989): 66–78. Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon Press, 1980. George, Robert P. Natural Law Theory: Contemporary Essays. Oxford: Clarendon Press, 1992. Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge: Cambridge University Press, 1996. Hart, H. L. A. The Concept of Law. 2d ed. Oxford: Clarendon Press, 1992. Hochstrasser, T. J. Natural Law Theories in the Early Enlightenment. Cambridge: Cambridge University Press, 2000. Kirk, Russell.“In Memoriam:A Lecture on Natural Law.” Policy Review 69 (Summer 1994): 77–89.
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Raz, Joseph.The Authority of Law: Essays on Law and Morality. Oxford: Clarendon Press, 1979. Wright, R. George. “Is Natural Law Theory of Any Use in Constitutional Interpretation?” Southern California Interdisciplinary Law Journal 4 (Summer 1995): 463–488.
Natural Rights The concept of natural rights occupies an important place in American political thought as reflected in the Declaration of Independence. In the Declaration, primarily authored by Thomas Jefferson, the Second Continental Congress asserted the “self-evident” truths that “all men are created equal” and entitled to “life, liberty, and the pursuit of happiness.” The Declaration then proceeds to excoriate King George III and Parliament for denying such human rights. Jefferson justifies colonial revolution because of this denial of rights. Many scholars think that the idea of natural rights emerged from natural law, a theory evident in the philosophy of the medieval Catholic philosopher St.Thomas Aquinas (d. 1274). Natural law was thought to embody principles of right and wrong—especially pertaining to relations between and among individuals—that could be ascertained by human reason, apart from divine revelation. Philosophers, however, were rarely in complete agreement as to the content of such laws. For example, they disagreed over whether natural law prohibits human slavery, as American abolitionists later argued. As philosophers applied the concept of natural rights to the secular world, the focus shifted from rules concerning individual behavior to claims of rights that individuals could make against the state. Thomas Hobbes (1588–1679) and John Locke (1632–1704) in England, and Jean Jacques Rousseau (1712–1778) in France, were among the philosophers who developed a theory of natural rights based on rights to life, liberty, and property (later expanded by Jefferson to “the pursuit of happiness”) that individuals would have in a prepolitical “state of nature.” Some of these rights, especially those pertaining to the relation of individuals to their Creator, were paramount, and in the words of the Declaration of Independence, “unalienable.” Although the First Amendment was originally third on the list of original proposals in the Bill of Rights that Congress submitted to the states for approval, it was the first amendment to deal with individual rights. Almost without exception, the rights in the First Amendment are thought to be fundamental because they deal with matters of conscience, thought, and expression.The two religion clauses are designed to allow individuals to follow their conscience in
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matters of faith and worship, which some believe could determine eternal destinies, a basis for the argument that James Madison made in his “Memorial and Remonstrance” and in the Virginia Statute for Religious Freedom. Clauses relative to speech, press, peaceable assembly, and petition are designed to promote discussion and debate concerning the kind of governmental policies that suit a republican, or representative, form of government, and arguably to promote the development of the individual’s personality. Perhaps as a result, courts were slow to recognize rights surrounding commercial speech. It is doubtful that George Mason and the authors of the provisions in the First Amendment would have claimed to have originated the rights inherent in the amendment; it is more likely that they would have traced their origins to contemporary documents, including state bills or declarations of rights. Indeed, the Federalists’ initial opposition to the Bill of Rights stemmed in part from the belief that such rights were inherent liberties that did not need to be stated. By contrast, there are some provisions—such as the Fifth Amendment’s prohibition against double jeopardy or the Sixth Amendment’s requirement of trial by jury—that are clearly man-made mechanisms for enforcing fundamental principles of fairness, not morally mandated rights per se. Rights embodied within documents are constitutional, or civil, rights, which serve to shape the values shared by a people. In the U.S. system, individuals can bring claims of such rights to courts, which have the power to enforce them. With the possible exception of equality, which was later recognized in the equal protection clause of the Fourteenth Amendment (1868), it is difficult to identify any rights outside the First Amendment that are more closely associated with the concept of natural rights; from this stem the arguments that these rights should enjoy a “preferred position” and that they are relatively absolute. Embodying such rights within a written text is designed to preclude the necessity for resorting to extralegal means for securing their protection, but such rights would arguably be legitimate moral claims even if they were not embodied in the constitutional text. For example, the Supreme Court has on occasion made decisions on the basis of unenumerated general moral principles, or natural rights, rather than on the basis of a specific constitutional provision. Some believe the modern right to privacy is such a judicially created right. See also Declaration of Independence; Jefferson, Thomas; Locke, John; Madison, James; Mason, George;“Memorial and Remonstrance”;
Natural Law; Preferred Position Doctrine; Privacy; Virginia Declaration of Rights;Virginia Statute for Religious Freedom.
John R.Vile
furthe r reading Corwin, Edward S. The ‘Higher Law’ Background of American Constitutional Law. Ithaca, N.Y.: Cornell University Press, 1953. Cranston, Maurice. What Are Human Rights? New York: Taplinger Publishing, 1973. Finnis, John. Natural Law and Natural Rights. New York: Oxford University Press, 1997. George, Robert P. In Defense of Natural Law. New York: Oxford University Press, 1994. Lutz, Donald S. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988. Lyons, David. Rights. Belmont, Calif.:Wadsworth Publishing, 1979. Zuckert, Michael P. The Natural Rights Republic. Notre Dame, Ind.: University of Notre Dame Press, 1996.
Nazis See American Nazi Party and Related Groups
Near v. Minnesota (1931) In the landmark decision in Near v. Minnesota, 283 U.S. 697 (1931), the Supreme Court reaffirmed the emerging view that the Fourteenth Amendment incorporated the First Amendment against the states and fashioned the First Amendment doctrine opposing prior restraint.The decision is considered one of the pillars of American press freedom. Jay Near was the muckraking editor of The Saturday Press. In fall 1927, Near published a series of articles attacking several Minneapolis city officials for dereliction of duty. The Near Court summarized The Saturday Press accusations as charging, “. . . in substance, that a Jewish gangster was in control of gambling, bootlegging, and racketeering in Minneapolis, and that law enforcing officers and agencies were not energetically performing their duties.” One of the targeted law enforcement officers was Floyd B. Olson, the Hennepin county attorney at the time and future Minneapolis governor; he filed an action to enjoin publication of The Saturday Press permanently as “malicious, scandalous and defamatory.” A state court enjoined further publication of The Saturday Press under the Minnesota Public Nuisance Law. The Supreme Court reversed, 5-4. Writing for the majority, Chief Justice Charles Evans Hughes began by affirming: “It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by
Nebraska Press Association v. Stuart (1976) the due process clause of the Fourteenth Amendment from invasion by state action.” Hughes then recast William Blackstone’s famous definition of press freedom in First Amendment terms. In his Commentaries on the Laws of England (1765–1769), Blackstone had defined “liberty of the press” as consisting of “laying no prior restraints upon publications.” Referring to the Minnesota Public Nuisance Law, Chief Justice Hughes observed that the law was “the essence of censorship.” Understood in these terms, the permanent injunction of The Saturday Press runs counter to the conception of liberty deeply embedded in Anglo-American jurisprudence: “The fact that for approximately 150 years there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right.” Although individuals could sue Near for libelous remarks, the government did not have the power to bar publication of his writings in advance. This would constitute an impermissible prior restraint on expression. Justice Pierce Butler and three other dissenters rejected both the Near majority’s view of the First Amendment’s applicability to the states and its interpretation of the First Amendment. “The decision of the Court,” Butler argued, “declares Minnesota and every other state powerless to restrain by injunction the business of publishing and circulating among the people malicious, scandalous, and defamatory periodicals that . . . [have] been adjudged . . . a public nuisance. It gives to freedom of the press a meaning and a scope not heretofore recognized and construes ‘liberty’ in the due process clause of the Fourteenth Amendment to put upon the states a federal restriction that is without precedent. See also Blackstone,William; Censorship; Libel and Slander; Prior Restraint.
James C. Foster
furthe r reading Friendly, Fred W. Minnesota Rag: Corruption,Yellow Journalism, and the Case that Saved Freedom of the Press. Minneapolis: University of Minnesota Press, 2003. Meyerson, Michael I. “Rewriting Near v. Minnesota: Creating a Complete Definition of Prior Restraint.” Mercer Law Review 52 (Spring 2001): 1087–1145. Pilgrim, Tim A. Dictim Recasts the First Amendment: A Revisionist Examination of Near v. Minnesota. Littleton, Colo.: Fred B. Rothman, 1991.
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Nebraska Press Association v. Stuart (1976) In Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), the Supreme Court unanimously ruled that a trial court judge did not have the authority to place gag orders on reporting about a specific crime prior to jury impanelment, finding it a form of prior restraint and in violation of the First Amendment right of freedom of the press. The controversy arose after Edwin Simants was charged with murdering six people in their home in Sutherland, Nebraska, a town of about 850 people located in a very rural part of the state. Hugh Stuart, a Nebraska state trial judge, feared that publicity surrounding the crime would make it impossible to find an impartial jury, so he issued a gag order on news coverage until a jury was impaneled.The Nebraska Supreme Court modified the gag order but restrained newspapers and other media from publishing or broadcasting accounts of confessions or admissions made by the accused to law enforcement officers or third parties, except members of the press, or other facts “strongly implicative” of the accused.The Supreme Court granted certiorari to determine whether the order violated the First Amendment. Writing for the majority, Chief Justice Warren E. Burger explained that although restraints on freedom of press are possible under some circumstances, any prior restraints must be presumed to violate the First Amendment. Even when trying to balance two such important rights as the freedom of press with the Sixth Amendment right to a fair trial, it should be presumed that reporting on criminal proceedings will take priority. Burger reasoned that pretrial publicity, even when pervasive and adverse, does not inevitably lead to an unfair trial. After reviewing past cases that had been adversely affected by publicity, the Court believed that Judge Stuart had acted responsibly out of a legitimate concern for the effect that adverse publicity would have on the trial in an effort to protect the defendant’s right to a fair trial. Despite this concern, the Court emphasized that in this particular case there was no evidence in the record to demonstrate that other options short of prior restraint on the press would not have served the interest of ensuring Simants a fair trial. Chief Justice Burger noted that most of the other alternatives had been discussed with approval in Sheppard v. Maxwell (1966). These options included: (a) change of trial venue; (b) postponement of the trial to allow public attention to
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subside; (c) searching questioning of prospective jurors to screen out those with fixed opinions as to guilt or innocence; and (d) the use of emphatic and clear instructions on the sworn duty of each juror. Sequestration of jurors also is always an option. In overruling the gag order, which sought to prohibit “implicative” information, the Court also noted the reality of the problems of managing and enforcing pretrial restraining orders and stated that these orders were too vague and too broad to survive the scrutiny that has been given to restraints on First Amendment rights. See also Burger,Warren E.; Gag Orders; Prior Restraint; Sheppard v. Maxwell (1966).
Tom McInnis
furthe r reading Campbell, Douglas S. Free Press v. Fair Trial, Supreme Court Decisions Since 1807. Westport, Conn.: Praeger, 1994. Bush, Chilton R, ed. Free Press and Fair Trial: Some Dimensions of the Problem. Athens: University of Georgia Press, 1971. Bruschke, Jon and William E. Loges. Free Press vs. Fair Trials: Examining Publicity’s Role in Trial Outcomes. Mahwah, N.J.: Erlbaum, 2004. Giles, Robert and Robert Snyder, eds. Covering the Courts, Free Press, Fair Trials & Journalistic Performance. New Brunswick, N.J.: Transaction, 1999. Hudson, David L. Jr. “Supreme Court Said No to Prior Restraints on Press 25 Years Ago.” First Amendment Center, August 28, 2001. www.firstamendmentcenter.org/analysis.aspx?id=4683.
Neutrality, Religion That three-prong test articulated by the Supreme Court in Lemon v. Kurtzman (1971) is used by the high court and other federal courts to determine whether government has violated the First Amendment principle of church-state separation. Even though the word neutrality does not appear in the Lemon test, many scholars and judges have interpreted the test’s commands to mean that government must be neutral in matters of religion—that is, laws and government actions should have a secular purpose, should neither advance nor inhibit religion, and should not foster an excessive entanglement with religion. Over the years, various justices have tinkered with and criticized the Lemon test, but the Court has never overruled it. In several recent decisions, beginning with Mueller v.Allen (1983), the high court used neutrality in part to determine whether certain government laws and actions were violating the establishment clause. Most of the cases centered on government aid to religious entities.
In Mueller, the Rehnquist Court considered a Minnesota law that allowed parents to claim income tax deductions for the expenditures they incurred—“tuition, textbooks and transportation”—in sending their children to secondary schools, including private religious ones. Writing for the majority, Chief Justice William H. Rehnquist noted:“It is not at all easy . . . to apply this Court’s various decisions construing the [establishment] Clause to governmental programs of financial assistance to sectarian schools and the parents of children attending those schools.” Construing precedent, however, Rehnquist found the Minnesota law a neutral government aid program that did not breach the church-state wall. By the time the high court had grappled with tax benefits, such as those presented in Mueller, it had a precedent holding that not all aid to religious schools violates the First Amendment principle of church-state separation. Indeed, the decision in Mueller cited the Court’s 1947 ruling in Everson v. Board of Education, which upheld a public school policy of helping parents shoulder the costs of transporting their children to private schools via the public school busing system. Following Mueller, the Supreme Court cited neutrality in upholding government benefits to religious schools in Witters v.Washington Department of Services for the Blind (1986) and Zobrest v. Catalina Foothills School District (1993). But as the Rehnquist Court noted on numerous occasions, and did so in Mueller, the definition of neutrality depends largely on perception—that is, if the government funding scheme involving religion appears to be secondary or indirect, it has a much greater chance of being viewed as neutral and not a violation of church-state separation. In Mueller, Rehnquist claimed that it was “noteworthy that all but one of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves.” At issue in the high court’s 2002 ruling in Zelman v. Simmons-Harris was an Ohio private school voucher program. Most of the high court’s previous rulings on government funding of religion were noted in upholding Ohio’s embattled plan. But in Zelman the Court expounded upon neutrality. Citing Mueller, Rehnquist wrote: “We would be loathe to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law.” In Zelman, Rehnquist also noted that its precedent made “clear that where a government aid program is neutral with respect to religion, and provides assistance
Neutrality, Speech directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under” the First Amendment principle of church-state separation. In his dissent in Zelman, Justice David H. Souter, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer, criticized the Rehnquist majority for its gradual departure from the long-standing “basic principle of no aid to religion.” At one time in Supreme Court precedent, Souter argued, neutrality—meaning “evenhandedness toward aid recipients”—had a “limited” but nevertheless useful purpose in the high court’s overall determination of when government support of religion violated the separation of church and state. But the majority ruling in Zelman rendered the use of neutrality in church-state jurisprudence “impossible to understand” and useless in determining when a government aid package to religion violates the separation of church and state. Instead, Souter wrote, government aid to religion, despite the Rehnquist Court’s discussion of neutrality, would remain a contentious issue: Not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty. Nor will all of America’s Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools, which combines “a nationalistic sentiment” in support of Israel with a “deeply religious” element. Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes, or for that matter, to fund the espousal of a wife’s obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention. Public funding of religion in America has long been a controversial, touchy subject. The nation’s fourth president, James Madison, offered an eloquent argument against a Virginia bill providing public funds for Christian institutions. In his heralded 1785 text “Memorial and Remonstrance Against Religious Assessments,” Madison rhetorically asked his fellow citizens and Virginia lawmakers whether they could comprehend that the “same authority which can force a citizen to contribute three pence only of his property for the support any one” religion “may force him to conform” to any other religion at other times.
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See also Everson v. Board of Education (1947); Lemon v. Kurtzman (1971); Madison, James; “Memorial and Remonstrance”; Mueller v. Allen (1983); Witters v. Washington Department of Services for the Blind (1986); Zelman v. Simmons-Harris (2002); Zobrest v. Catalina Foothills School District (1993).
Jeremy Leaming
furthe r reading Alley, Robert S. James Madison on Religious Liberty. Amherst, N.Y.: Prometheus Books, 1985. Leaming, Jeremy.“Voucher Revival.” Church and State, February 2003.
Neutrality, Speech Under First Amendment jurisprudence, the government cannot restrict ideas that are unpopular, divisive, hateful, or otherwise offensive. Laws restricting speech are therefore subject to scrutiny by the courts to ensure that they are neutral—that is, they do not discriminate against speech that government officials disfavor. Two related dynamics are at play in restricting speech: viewpoint and content (subject matter). Government restrictions on speech that show disdain for the ideas expressed are characterized as viewpoint discrimination and are typically unconstitutional. Government restrictions on speech based on subject matter are said to be content discrimination. But not all content-based restrictions are unlawful. For example, a law passed to authorize public funds to support a museum featuring artwork from the American West to the exclusion of all other types of art would constitute content-based discrimination, but it would not be unlawful. However, because content-based discrimination is often a covert way of imposing viewpoint-based restrictions, the courts tend to subject content-based laws to strict scrutiny, the highest form of judicial review, to ensure viewpoint neutrality. Over the years, the Supreme Court has based various rulings on content neutrality. In Police Department of Chicago v. Mosley (1972), the Court examined a Chicago city ordinance that prohibited picketing or demonstrations within 150 feet of a public school, except for picketing related to labor disputes.The suit was brought by postal employee Earl Mosley, who regularly protested peacefully against the school’s perceived racial discrimination against black students. Justice Thurgood Marshall wrote the majority opinion of the Court in which he suggested that “[t]he central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. . . . Above all else, the First Amendment means that government has no
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power to restrict expression because of its message, its ideas, its subject matter, or its content.” In Regan v. Time, Inc. (1984), the Court considered whether Time’s regular publication of images of U.S. currency in its various magazines violated U.S. law, even though the law did allow images meeting certain criteria to be published for specific uses.Time, Inc. sought a judgment that the particular section (504) of the U.S. Code at the center of the case infringed on free speech. Justice Byron R. White, in delivering the majority opinion, noted that “504’s purpose requirement is unconstitutional. It cannot be sustained as a valid time, place, and manner regulation because it discriminates on the basis of content in violation of the First Amendment.” At issue in R.A.V. v. St. Paul (1992) was a St. Paul, Minnesota, ordinance that restricted the burning of crosses or the display of Nazi swastikas to “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” After a juvenile was charged with burning a cross on the lawn of a black family, the ordinance was challenged as unconstitutional. Writing for the majority, Justice Antonin Scalia reasoned that the law was unconstitutional because it did not include similar restrictions based on other matters such as political affiliation, union membership, or homosexuality. Generally, laws that negatively affect speech are valid if they serve other legitimate governmental interests. For example, in Carey v. Brown (1980) the state of Illinois attempted to restrict all picketing of residences or other dwellings except that targeting an employer for labor issues. Justice William J. Brennan Jr. delivered the majority opinion of the Supreme Court, which struck down the Illinois statute because it permitted certain speech but denied all other and therefore engaged in unlawful content discrimination. Justice Brennan declared: “When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests.” Content-neutral regulations often seek to regulate behavior or conduct with just an incidental impact on speech. Generally, they are subject only to intermediate scrutiny. One example is the regulations applied to nude dancing. In City of Erie v. Pap’s A.M. (2000), the Supreme Court examined an Erie, Pennsylvania, ordinance that prohibited public nudity with the intention of eliminating Kandyland, a nude dancing establishment. Justice Sandra Day O’Connor delivered the plurality decision of the Court, ruling that the city
ordinance was “aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland and not at suppressing the erotic message conveyed by this type of nude dancing.” Many First Amendment experts, however, question the secondary effects doctrine and fear it enables government officials to characterize truly content-based laws as merely content-neutral. See also Carey v. Brown (1980); City of Erie v. Pap’s A.M. (2000); Compelling State Interest; Dancing, Nude; Police Department of Chicago v. Mosley (1972); R.A.V. v. St. Paul (1992); Regan v.Time, Inc. (1984); Secondary Effects Doctrine.
Joseph W. Roberts
furthe r reading Abrams, Floyd. Speaking Freely: Trials of the First Amendment. New York: Viking Press, 2005. Chemerinsky, Erwin. “Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court’s Application.” Southern California Law Review 74 (2000): 49–64. Gottlieb, Stephen E., ed. Public Values in Constitutional Law. Ann Arbor: University of Michigan Press, 1993. Redish, Martin H. “The Content Distinction in First Amendment Analysis.” Stanford Law Review 34 (1981): 113–151. Stone, Geoffrey R. “Content-Neutral Restrictions.” University of Chicago Law Review 54 (1987): 46–120.
Neutral Reportage Privilege The doctrine of neutral reportage protects from libel claims media organizations that accurately and objectively report newsworthy charges made by prominent groups against public figures as part of an ongoing controversy. The doctrine was first articulated by the Second Circuit Court of Appeals in Edwards v. National Audubon Society (2d Cir. 1977). This privilege resembles the common law privilege of fair report, which immunizes republication of defamatory statements made in the course of an official action or proceeding, such as in court. As the Edwards court observed, the media should not be discouraged from publishing or airing newsworthy information, even if it has serious doubts about its truth, when the newsworthiness stems from the fact that the statements were made by an authoritative source. Because it is in the interest of the media to keep the public informed about controversies, the media should not be required to “take up cudgels against dubious charges in order to publish them,” the court noted. Although the Supreme Court has not ruled directly on the neutral reportage doctrine, Justice Harry A. Blackmun,
Newspaper Preservation Act of 1970 in his concurring opinion in Harte-Hanks Communications v. Connaughton (1989), observed that the media defendant may have been “unwise” not to assert the neutral reportage privilege in its appeal. He suggested that “were this court to adopt the neutral reportage theory, the facts of this case [involving charges of “dirty tricks” against a political candidate] arguably might fit within it.” Several lower federal courts have rejected the privilege. In Dickey v. CBS Inc. (3d Cir. 1978), the appeals court found it inconsistent with the Supreme Court’s ruling in St. Amant v. Thompson (1968), which allowed a plaintiff to prevail in a libel suit if the plaintiff could establish that the publisher of a statement had serious doubts about its truth.That court also cited the high court’s rejection of the “newsworthiness” test promulgated in Rosenbloom v. Metromedia, Inc. (1971) and in Gertz v. Robert Welch, Inc. (1974), which shifted the focus to the plaintiff ’s status rather than the content of the publication. Other courts have limited the privilege to situations in which each of the Edwards criteria was met. In Dixson v. Newsweek, Inc. (10th Cir. 1977), the appeals court declined to either accept or reject the privilege in a case in which the plaintiff was not a public figure. But in Price v.Viking Penguin, Inc. (8th Cir. 1989), the appeals court extended the privilege to situations in which the allegation was reported accurately, even though it was used for advocacy rather than for disinterested reporting. States have considered the privilege. Illinois courts are split on the issue, which has not been addressed by the state’s supreme court. The California Supreme Court explicitly rejected neutral reportage in Khawar v. Globe International, Inc. (Calif. 1998). Although courts in Pennsylvania and Illinois have recognized the doctrine, they have also observed that it is not necessary in cases in which actual malice is not proven. In Martin v. Wilson Publishing Co. (R.I. 1985), the Rhode Island Supreme Court, without adopting the privilege, emphasized that it would not apply in a case in which the statements were rumors of unknown origin. By contrast, in Burns v. Argus Association (Vt. 1981), the Vermont Supreme Court suggested that protecting even an anonymous rumor would be consistent with the Edwards philosophy of shielding newsworthy accusations regardless of their truth. The viability of the neutral reportage privilege will depend on a careful balancing of the First Amendment interest in disseminating information on ongoing controversies against the reputational interests of the people involved in those controversies.
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See also Actual Malice; Gertz v. Robert Welch, Inc. (1974); HarteHanks Communications v. Connaughton (1989); Libel and Slander; Rosenbloom v. Metromedia, Inc. (1971); St. Amant v. Thompson (1968).
Jane E. Kirtley
furthe r reading Anderson, David. “Is Libel Law Worth Reforming?” University of Pennsylvania Law Review 140 (1991): 487–555. Committee on Communications and Media Law. “The Neutral Report Privilege.” Record of the Association of the Bar of the City of New York 53 (1998): 686–722. Sack, Robert D. Sack on Defamation: Libel, Slander and Related Problems. New York: Practising Law Institute, 2005.
Newseum The Newseum is a large “interactive museum of news” built by the Freedom Forum to honor freedom of the press and journalism. It is designed to promote greater public understanding and appreciation for First Amendment freedoms and the rich history of journalism. The original Newseum opened in 1997 in Rosslyn, Virginia, where it attracted well over two million visitors from across the world. Later, however, leaders of the Freedom Forum realized that the museum could make a more definitive impact at a new location, and so in March 2002 the Newseum closed its doors. In March 2007, Freedom Forum and Newseum chief executive officer Charles L. Overby announced that the new museum would be located at 555 Pennsylvania Avenue in Washington, D.C., between the White House and the Capitol Building and near the Smithsonian museums on the National Mall. It opened on April 11, 2008. The Newseum features a seventy-four-foot high marble wall inscribed with the text of the First Amendment, fifteen theatres, nearly 6,200 artifacts, and two state-of-the art television studios.The total cost of the Newseum is $435 million. See also First Amendment Center.
David L. Hudson Jr.
furthe r reading Newseum, www.newseum.org.
Newspaper Preservation Act of 1970 In 1970 Congress enacted the Newspaper Preservation Act, a law designed to preserve a vigorous press by helping to
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keep one or both competing newspapers in the same city from going out of business. The act was passed in response to the Supreme Court decision in Citizen Publishing Co. v. United States (1969), which ruled that a joint operating agreement (JOA) between two competing newspapers in Tucson, Arizona, violated the Sherman Antitrust Act. One newspaper was published by the Citizen Publishing Company and the other by the Star Publishing Company, JOAs allow competing papers to share ownership and advertising revenues (the source of most of their profits), but they must maintain separate editorial staffs in order to provide their city with more diverse viewpoints. Seeking to preserve the twenty-one JOAs in existence at the time of the Citizen Publishing decision, the law allowed these agreements to remain in effect as long as only one of the newspapers on its own was “likely to remain or become a financially sound publication.”The law established a somewhat more stringent test for the creation of new JOAs by permitting such agreements only when one of two competing papers was in “probable danger of financial failure.” In Michigan Citizens for an Independent Press v. Thornburgh (1989), an equally divided Supreme Court issued a brief per curiam opinion affirming such an agreement, approved by then attorney general Edwin Meese III (and defended by the current attorney general, Richard L. Thornburgh), between the Detroit Free Press and the Detroit News. The agreement was unique in that it specified that the papers would issue joint Saturday and Sunday issues, with one paper writing the editorials on Saturday and the other paper writing them on Sunday. See also Citizen Publishing Co. v. United States (1969); Media Concentration.
John R.Vile
furthe r reading Gertler, Eric J. “Comment: Michigan Citizens for an Independent Press v. Attorney General: Subscribing to Newspaper Joint Operating Agreements or the Decline of Newspapers?” American University Law Review 39 (1980); 123–170.
New York v. Cathedral Academy (1977) The Supreme Court decision in New York v. Cathedral Academy, 434 U.S. 125 (1977), invalidated a New York law adopted to reimburse parochial schools for state-mandated
recordkeeping and testing services, finding it in violation of the First and Fourteenth Amendments because it required excessive state involvement in religious affairs. A three-judge U.S. district court had previously prohibited such reimbursement, and the Supreme Court had affirmed this decision in Levitt v. Committee for Public Education and Religious Liberty (1973).The New York legislature, recognizing what it considered to be a “moral obligation” to make such payments, adopted another law doing so, and a decision by the New York Court of Appeals had upheld it. Justice Potter Stewart’s opinion for the Court said that the case was controlled by Lemon v. Kurtzman (Lemon II) (1973). In that case, it had permitted the state to give payments to parochial schools performed prior to its decision in Lemon v. Kurtzman (Lemon I) (1971), which had declared that such payments violated the First Amendment. In Lemon II, it reasoned that because payments were for expenses already incurred, they posed no threat of continuing excessive entanglement. In this case, however, the law as interpreted by lower courts would have permitted payments for amounts “heretofore or hereafter expended” and would require impermissible state oversight. In such circumstances, the aid would either have the “primary effect of aiding religion,” or it would “result in excessive state involvement in religious affairs.” Lemon II had recognized that “excessive entanglement was an accomplished fact that could not be undone by enjoining payments for expenses previously incurred.” By contrast, the majority thought that the law at issue here “amounts to a new and independently significant infringement of the First and Fourteenth Amendments.” Chief Justice Warren E. Burger and Justice William H. Rehnquist dissented, saying they would have upheld the reimbursements on the basis of Lemon II. Justice Byron R. White also dissented, writing that the Court continued “to misconstrue the First Amendment in a manner that discriminates against religions and is contrary to the fundamental educational needs of the country.” See also Aid to Parochial Schools; Lemon v. Kurtzman (1971); Lemon v. Kurtzman (1973); Levitt v. Committee for Public Education and Religious Liberty (1973); Stewart, Potter.
John R.Vile
furthe r reading Abraham, Henry J. and Barbara A. Perry. Freedom & the Court: Civil Rights & Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2003.
New York v. P.J.Video, Inc. (1986)
New York v. Ferber (1982) New York v. Ferber, 458 U.S. 747 (1982), is the foundational decision in which the Supreme Court held that the First Amendment does not protect child pornography.The Court reasoned such material was not protected—even if not obscene—because of its link to the sexual abuse of children. New York and nine other states prohibited the dissemination of child pornography, which they defined as the depiction of children engaged in sexual conduct. Bookstore owner Paul Ferber sold two movies of young boys masturbating to an undercover police officer and was charged with violating the statute.The Supreme Court upheld the statute and Ferber’s conviction. Although the vote was 9-0 with respect to the material at issue in this particular case, the Court was split 7-2, with its two most liberal members writing separately about whether certain artistic or literary depictions of children were constitutionally protected.Writing for the Court, Justice Byron R. White refused to apply the test for obscenity set out in Miller v. California (1973), which labels material obscene if the average person in the community would find the work’s predominant theme prurient; if it depicts sexual conduct in a patently offensive way; and when taken as a whole it “lacks serious literary, artistic, political, or scientific value.” White reasoned that the sexual exploitation of children belonged in a different class; therefore, the Miller test did not apply. White defined child pornography as material “that visually depicts sexual conduct by children below a specified age.” The analysis was that this material was so intertwined with the sexual abuse of children that it did not warrant First Amendment protection. He explained that “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” White went further, explaining that it was not only the production of child pornography that could be prohibited, but also its distribution. Justice Sandra Day O’Connor wrote a concurrence, stressing that the state of New York did not have to provide an exception for material with serious literary, artistic, political, or scientific value. She added, however, that the statute could be overbroad if applied to “clinical pictures of adolescent sexuality” or to pictures in National Geographic magazine. Justice John Paul Stevens also wrote a concurrence, pointing out that “it is at least conceivable that a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device, might include a scene from one
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of these films and, when viewed as a whole in a proper setting, be entitled to constitutional protection.” Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, wrote a separate concurrence explaining that “depictions of children that, in themselves, do have serious literary, artistic, scientific, or medical value” would be protected by the First Amendment. Brennan said that these “serious contributions to the world of art or literature or science” did not contribute to the sexual abuse of children in the way that depictions from the “low profile, clandestine industry” of pornography did. White and six other justices disagreed, noting, “We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific work.” White noted that, if necessary, adults who looked younger could be used in such situations. The debate between White and Brennan over what was and what was not child pornography was revisited, although by no means resolved, in subsequent cases. For example, in Osborne v. Ohio (1990) the Court extended the logic of Ferber to private possession of child pornography and with the advent of the Internet narrowly held in Ashcroft v. Free Speech Coalition (2002) that part of a computer child pornography law was unconstitutional because it targeted expression that did not involve actual minors. See also Ashcroft v. Free Speech Coalition (2002); Chaplinsky v. New Hampshire (1942); Child Pornography; Child Protection Restoration and Penalties Enhancement Act of 1990; Miller v. California (1973); Obscenity and Pornography; Osborne v. Ohio (1990); Roth v. United States (1957).
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furthe r reading Clark, Hunter, R. Justice Brennan:The Great Conciliator. New York: Birch Lane Press, 1995. Hutchinson, Dennis J. The Man Who Once Was Whizzer White. New York: Free Press, 1998. Jenkins, Philip. Beyond Tolerance: Child Pornography on the Internet. New York: New York University Press, 2003. Levine, Judith. Harmful to Minors: The Perils of Protecting Children from Sex. Minneapolis: University of Minnesota Press, 2002. Taylor, Max and Ethel Quayle. Child Pornography: An Internet Crime. New York: Brunner-Routledge, 2003.
New York v. P.J. Video, Inc. (1986) In New York v. P.J. Video, Inc., 475 U.S. 868 (1986), the Supreme Court clarified that the First Amendment does not
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require a higher standard of probable cause under the Fourth Amendment when officials seize books or films. The case arose after New York officials executed a search warrant and seized several films—Taboo,Taboo II,All-American Girls, Debbie Does Dallas, and California Valley Girls—from P.J. Video. The officials then charged P.J. Video and its owner, James Erhardt, with obscenity. P.J.Video and Erhardt filed a motion to suppress the films, contending that they had been seized illegally from the store because there had not been probable cause to believe the movies obscene. In New York courts, the defendants successfully argued that the officers acted unconstitutionally. New York’s highest state court—the New York Court of Appeals—declared that “there is a higher standard for evaluation of a warrant application seeking to seize such things as books and films, as distinguished from one seeking to seize weapons or drugs.” The Supreme Court reversed the state court by a 6-3 vote.Writing for the majority, Justice William H. Rehnquist Jr. reasoned that prior precedent established that “the seizure of films or books on the basis of their content implicates First Amendment concerns not raised by other kinds of seizures.” However, Rehnquist, citing Heller v. New York (1973), found that these concerns did not translate into requiring a “higher standard of probable cause,” because there was a difference between seizing films to destroy them and seizing them to keep them as bona fide evidence in an obscenity prosecution. He also noted that the warrants in this particular case described the films in detail “to permit the magistrate to focus searchingly on the issue of obscenity.” Justice Thurgood Marshall—joined by Justices John Paul Stevens and William J. Brennan Jr.—dissented. Marshall wrote that the affidavits did not establish that the films in question met the legal definition of obscenity and that the Court should defer to the fact-finding determinations of the New York courts. See also Heller v. New York (1973); Lee Art Theatre v. Virginia (1968); Marcus v. Search Warrant (1961); Marshall, Thurgood; Obscenity and Pornography; Rehnquist, William H.; Roaden v. Kentucky (1973).
New York ex rel. Bryant v. Zimmerman (1928) The Supreme Court decision in New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928), upheld a misdemeanor conviction of an individual who belonged to the Ku Klux Klan (KKK) knowing that the organization had more than 20 members, required a secret oath, and had not registered with state authorities as required by state law. The Court dismissed due process and equal protection claims by the KKK. Bryant, the Klan member who had not registered, had been held in custody when he sought a habeas corpus proceeding challenging the validity of the statute.The Appellate Division of New York and the court of appeals both rejected his case, which was then accepted by the U.S. Supreme Court. Much of the Court’s decision focused on whether the case presented a valid constitutional issue. Writing for the majority, Justice Willis Van Devanter decided that membership in a secret organization was not a privilege or immunity of U.S. citizenship protected by the Fourteenth Amendment. He denied that the due process clause prohibited a state from prescribing and applying “to associations having an oath-bound membership any reasonable regulation calculated to confine their purposes and activities within limits which are consistent with the rights of others and the public welfare.” Van Devanter also dismissed equal protection arguments, pointing out that states had to make reasonable distinctions between organizations like the KKK and fraternal or labor organizations and pointing to the common knowledge that the KKK was a secret organization that relied on terror. In dissent, Justice James C. McReynolds denied that the case presented a federal constitutional issue. Later twentieth-century cases, most notably NAACP v. Alabama (1958), have cited First Amendment rights of association to uphold the right of peaceful organizations to keep their membership lists secret when the disclosure of such lists could result in intimidation. See also Ku Klux Klan; NAACP v. Alabama (1958).
John R.Vile
David L. Hudson Jr.
furthe r reading
furthe r reading
Jeffries, James H., IV. “Seizing Obscenity: New York v. P.J.Video, Inc. and the Waning of Presumptive Protection.” North Carolina Law Review 65 (1987): 799–815.
Barnes, Robin D.“Blue by Day and White by Knight: Regulating the Political Affiliations of Law Enforcement and Military Personnel.” Iowa Law Review 82 (1996): 1979–1172.
New York State Liquor Authority v. Bellanca (1981)
New York State Club Association, Inc. v. City of New York (1988) In New York State Club Association, Inc. v. City of New York, 487 U.S. 1 (1988), the Supreme Court held that a New York City ordinance prohibiting discrimination against persons on the basis of race, color, national origin, or sex in places of public accommodation was constitutional. Local Law 63, enacted in 1984, amended a 1965 ordinance by defining a public accommodation as a club or organization with more than four hundred members that received money to further trade or business. The purpose of the amended ordinance, according to the city council, was to advance equal opportunities for women and minority groups in business and the professions. The New York State Club Association, representing more than a hundred private clubs, contended that the ordinance violated its members’ constitutional right of freedom of association.Associative freedoms fall into two categories: expressive association, arising from the First Amendment’s freedom of speech clause, and intimate association, stemming from the constitutional right to privacy. After losing in the state courts, the association appealed to the Supreme Court. In announcing the opinion of the Court, Justice Byron R.White affirmed the state court rulings, relying on the Court’s earlier decisions in Roberts v. United States Jaycees (1984) and Board of Directors of Rotary International v. Rotary Club of Duarte (1987). In both of these cases, the Court held that even though associative freedoms are important, they may be overridden by the state’s compelling interest in eradicating sex discrimination. Because the New York State Club Association had filed a facial challenge, it had to show that there were no circumstances under which the law could be constitutional. The Court held that the law did not bar clubs within the association from exercising their freedom of speech. Thus, it did not impair the expressive associational rights of every club in the association. Simply preventing an association from using race or sex as a criterion for membership did not affect the ability of individuals within the clubs to advocate their views. See also Board of Directors of Rotary International v. Rotary Club of Duarte (1987); Facial Challenges; Feminist Theory; Hate Speech; Roberts v. United States Jaycees (1984); Sexual Harassment Laws.
Susan Gluck Mezey
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furthe r reading McKenna, Lois M. “Note: Freedom of Association or Gender Discrimination? New York State Club Association v. City of New York.” American University Law Review 38 (1989): 1061–1092. Mezey, Susan Gluck. Elusive Equality:Women’s Rights, Public Policy, and the Law. Boulder, Colo.: Lynne Rienner, 2003. “Note: State Power and Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations.” Harvard Law Review 104 (1991): 1835–1855. Zobler, Marian L. “When Is a Private Club Not a Private Club: The Scope of the Rights of Private Clubs after New York State Club Association v. City of New York.” Brooklyn Law Review 55 (1989): 327–354.
New York State Liquor Authority v. Bellanca (1981) The Supreme Court decision in New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981), upheld the power of states to ban nude dancing in businesses where alcohol is sold, finding that it was not a violation of the First Amendment’s right to free speech. New York amended its Alcoholic Beverage Control Law in 1977 to prohibit nude dancing in establishments with a license to serve alcohol to be consumed on premises. Violators could lose their liquor license. Dennis Bellanca, owner of “The Main Event,” and other nightclub owners challenged the law as a violation of free speech. New York state courts found in their favor. In a per curiam opinion issued without oral argument, the Supreme Court reversed by a 7-2 vote. The Court justified its ruling under the Twenty-first Amendment. “The State’s power to ban the sale of alcoholic beverages entirely,” it wrote,“includes the lesser power to ban the sale of liquor on premises where topless dancing occurs.” Citing California v. LaRue (1972), the Court argued New York had “chosen to avoid the disturbances associated with mixing alcohol and nude dancing by means of a reasonable restriction on establishments which sell alcohol for on-premises consumption.” The Court did not decide whether nude dancing enjoys First Amendment protection, but it did state that “whatever artistic and communicative value may attach to topless dancing is overcome by the State’s broad exercise of its powers arising under the Twenty-First Amendment.” Justice Thurgood Marshall concurred in the judgment. Justice William J. Brennan Jr. dissented and would have set the case for oral argument. Justice John Paul Stevens also dissented, claiming the Court departed from its decisions in LaRue and in Craig v.
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Boren (1976) by giving states too much power under the Twenty-first Amendment to override other constitutional provisions. Stevens did not decide whether nude dancing is entitled to free expression protection or whether New York’s prohibition was a legitimate use of state police powers to prevent nuisances and preserve peace. He indicated he might vote to uphold the law on the merits. Nevertheless, “the Court should not continue to obscure that issue with irrelevancies such as its mischievous suggestion that the TwentyFirst Amendment gives States power to censor free expression in places where liquor is served.” See also California v. LaRue (1972); Dancing, Nude.
Frank J. Colucci
furthe r reading Chen, Jim. “The Potable Constitution.” Constitutional Commentary 15 (Spring 1998): 1–9. Faust, John. “Of Saloons and Social Control: Assessing the Impact of State Liquor Control on Individual Expression.” Virginia Law Review 80 (April 1994): 745–785.
New York Times Co. v. Sullivan (1964) In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court reversed a libel damages judgment against the New York Times and established the important principle that the First Amendment guarantees of freedom of speech and press, in order to foster vigorous debate about government and public affairs, may protect libelous words about a public official. This landmark decision constitutionalized libel law and arguably saved the civil rights movement. New York Times Co. v. Sullivan began as a lawsuit against the newspaper for mistakes in a full-page civil rights fundraising editorial advertisement in 1960 entitled “Heed Their Rising Voices.” The advertisement, protesting the treatment of Rev. Martin Luther King Jr. by Alabama law enforcement, carried the names of prominent civil rights activists, including actors, writers, ministers, and other prominent Americans. The lawsuit was filed by L.B. Sullivan, an elected city commissioner in Montgomery, Alabama, whose duties included supervision of the local police. Under Alabama law, Sullivan only needed to prove that there were mistakes and that they likely harmed his reputation. A jury awarded him $500,000 in damages, an enormous sum at the time. The Supreme Court unanimously reversed and dismissed the damage award.Writing for the majority, Justice William
J. Brennan Jr. opined that “debate on public issues should be uninhibited, robust and wide-open” and said that vehement criticism and even mistakes were part of the price a democratic society must pay for freedom. To protect open discourse, the Court adopted the “actual malice” test, meaning that no public official could win damages for libel without proving that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court intended for this to be a high standard, one that public officials would have a hard time satisfying, one that required conduct by the news media that went beyond just negligence. Moreover, the Court made clear that the public official suing for damages had to prove the existence of actual malice “by convincing clarity.” Having set the new, high standard, the Court then established another important principle by immediately applying the new test to the facts of the case and declaring that there was insufficient evidence of “actual malice.” In other contexts, when the Supreme Court announces a new legal rule, the justices will send a case back to the lower courts to apply the new rule to the particular facts of the case. In New York Times Co. v. Sullivan, however, the Court established the principle of “de novo” review for free speech cases, meaning that the Supreme Court will determine for itself how legal principles apply to the facts of a case. The Court’s reversal of the damage award was unanimous, but Justices Hugo L. Black and Arthur J. Goldberg expressed separate views that the Court’s rule was too restrictive of free expression. Joined by Justice William O. Douglas, they said the right to discuss public affairs and to criticize government should be unconditional. Prior to Sullivan, libel and defamation were entirely matters of state law, and the rules on when individuals could recover damages for injuries to their reputations varied widely. In 1964, however, the Supreme Court transformed the field of libel law from one governed by the laws of the states to one whose contours were determined by the First Amendment. In subsequent rulings, the Court vastly expanded the protection for the news media to apply not just to lawsuits by public officials but also to claims by public figures—people in the news or public eye. The decision was a major First Amendment victory; yet, in less than two decades, there was criticism from opposite sides. Some critics said the ruling made it too hard for individuals to undo damage to their reputations because it was difficult to prove actual malice. Other critics said the media were too
New York Times Co. v. United States (1971) exposed to the high cost of defending against lawsuits and appealing jury awards and too vulnerable to the intrusion on the newsgathering process caused by pretrial depositions and document discovery. New York Times columnist Anthony Lewis wrote in 1983 that “it is not just judgments that worry publishers and reporters and others concerned with freedom of expression. It is the cost of defending libel actions: the cost not only in money but in time and in the psychological burden on editors and reporters.” This criticism by the media of the impact of New York Times v. Sullivan has quieted in recent years. Over time, the federal appeals courts proved a reliable check on jury verdicts that seemed designed to punish the media without really satisfying the actual malice standard. See also Actual Malice; Black, Hugo L; Brennan, William J., Jr.; Civil Rights Movement; Douglas, William O.; Goldberg, Arthur J.; Libel and Slander.
Stephen Wermiel
furthe r reading Epstein, Richard A.“Was New York Times v. Sullivan Wrong?” University of Chicago Law Review 53 (1986). Hopkins, W.Wat. Actual Malice:Twenty-five years after Times v. Sullivan. New York: Praeger, 1989. Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991. ———. “New York Times v. Sullivan Reconsidered:Time to Return to the Central Meaning of the First Amendment.” Columbia Law Review 83 (1983): 603–625.
New York Times Co. v. United States (1971) Often referred to as the “Pentagon Papers” case, the landmark Supreme Court decision in NewYork Times Co. v. United States, 403 U.S. 713 (1971), defended the First Amendment right of free press against prior restraint by the government. In 1967 then secretary of defense Robert McNamara commissioned a secret government study on American involvement in Vietnam.When completed in 1968, the project comprised 47 volumes containing more than 7000 pages. The work was labeled classified, and only 15 copies were made. In early 1971 Daniel Ellsberg, a RAND Corporation employee who had worked on the project, secretly made copies of the documents and passed them to reporters for the New York Times. On June 13, 1971, after several months of review, the Times began to publish these so-called “Pentagon Papers.” After the first three installments were published, the
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Nixon administration, citing national security concerns, obtained a restraining order barring further publication of the Papers. When the Second Circuit Court of Appeals affirmed the order, the Times made an emergency appeal to the Supreme Court, which agreed to hear the case the next day (June 26). The Court issued its opinions on June 30; in all, the entire legal process had taken only 15 days. In a 6-3 decision, the Court dissolved the restraining order and allowed the Times to continue with publication. Citing Bantam Books v. Sullivan (1963), Near v. Minnesota (1931), and Organization for a Better Austin v. Keefe (1971), the three-paragraph per curiam lead opinion noted that “any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity” and “the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.” In this case, the government had failed to carry that burden. When addressing the question of why the government had failed to carry its burden, however, the Court’s majority splintered into six concurring opinions. On one extreme, Justice Hugo L. Black argued that “only a free and unrestrained press can effectively expose deception in government” and rejected any prior restraints on the press. Justice Byron R.White, although specifically rejecting the idea that “in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations,” refused to grant censorship authority to the executive branch without the authorization of Congress. Justice William J. Brennan Jr., referring to Justice Oliver Wendell Holmes’s clear and present danger test, concluded that prior censorship would be permissible in certain circumstances, but the vague, nonspecific claims of harm to national security made in this case were insufficient to justify prior restraint. Justice William O. Douglas generally agreed with Justice Black and also argued that the legislation the government used to support its case, the Espionage Act of 1918, did not support the government’s case. Justices Potter Stewart and Thurgood Marshall argued separately that in the absence of specific guidance by Congress, the Court should not grant the executive broad censorship power. The dissenters—Chief Justice Warren E. Burger and Justices Harry A. Blackmun and John Marshall Harlan II— each filed separate opinions. They contended (in greater or lesser detail) that the case had been resolved far too quickly to consider and resolve fully the critically important legal issues at stake, especially the needs and prerogatives of the executive.
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Niemotko v. Maryland (1951)
New York Times Co. v United States generally is regarded as a seminal victory for the free press in the United States.The per curiam opinion clearly states that in any situation in which the government wishes to resort to censorship, it faces a difficult task in convincing the courts to issue the necessary legal orders. Despite this, many First Amendment advocates have criticized the decision. Although this case supports the right to publish, its impact is diluted by the failure of the Court to produce a clearly reasoned majority opinion. The Court’s fractured majority fails to say prior restraint may never be imposed; may be imposed only if the threat to national security can be proven to be real, serious, and immediate; or may be imposed if Congress provides sufficiently clear authorization and guidelines. Thus, far from being an unambiguous declaration of support for a free press, the decision leaves open the possibility of government censorship without specifying the conditions under which the First Amendment might permit it. See also Bantam Books, Inc. v. Sullivan (1963); Black, Hugo L.; Brennan,William J., Jr.; Douglas,William O.; Ellsberg, Daniel; Near v. Minnesota (1931); Organization for a Better Austin v. Keefe (1971); Pentagon Papers; Prior Restraint.
Steve Robertson
furthe r reading Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers. New York: Viking, 2002. Rudenstein, Daniel. The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley: University of California Press, 1998. Tedford, Thomas and Dale Herbeck. Freedom of Speech in the United States. State College, PA: Strata Publishing, 2001. Unger, Sanford J. The Papers and the Papers. New York: E.P. Dutton, 1972.
Niemotko v. Maryland (1951) In Niemotko v. Maryland, 340 U.S. 268 (1951), the Supreme Court unanimously struck down the disorderly conduct conviction of members of a religious group because they held a Bible study in a park without a permit. The Court found that the conviction was a denial of the First Amendment right to exercise free speech and religion and the Fourteenth Amendment guarantee of equal protection. A group of Jehovah’s Witnesses, including Niemotko, had peacefully used a public park in Havre de Grace, Maryland, for Bible study after the park commissioner and the city council had denied them a permit.They had been convict-
ed on the charge of disorderly conduct and fined. After Maryland courts declined to review the case, the Supreme Court accepted the case, which it decided in conjunction with Kunz v. New York, involving the renewal of permits for preaching on city streets. Writing for the majority, Chief Justice Frederick M. Vinson stressed that the city did not have a formal statute in place governing permits. Decisions by the park commissioner and city council were without standard. The hearing showed no basis for the denial of the permit other than public officials’ “dislike for or disagreement with the Witnesses or their views.” Vinson concluded that the law denied “[t]he right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments.” In a separate concurring opinion, Justice Felix Frankfurter compared this decision to others involving public streets, door-to-door solicitation, the sale of religious literature, public parks, sound trucks, and breaches of the peace. He stressed that there was no evidence that the gathering of Jehovah’s Witnesses in this case breached the peace and warned about the danger that “arbitrary action” posed to First Amendment freedoms. See also Jehovah’s Witnesses; Kunz v. New York (1951); Licensing Laws.
John R.Vile
furthe r reading McAninch, William Shepard. “A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court.” University of Cincinnati Law Review 55 (1987): 997–1077.
Nike v. Kasky (2003) The Supreme Court decision in Nike v. Kasky, 539 U.S. 654 (2003), is controversial because it raised, but did not resolve, contemporary issues regarding First Amendment protection for corporate speech in matters of public concern. These unresolved issues remain the focus of a lively discussion among First Amendment scholars. Nike manufactures footwear and apparel in factories in foreign countries. In the 1990s, numerous critics accused Nike of unfair labor practices and unsafe working conditions. Nike responded to these allegations with a public relations and advertising campaign. In 1998 Mark Kasky, an activist lawyer, invoked California’s False Advertising Law and Unfair Competition Law for the purpose of suing Nike for publish-
Nimmer, Melville B. ing false and misleading statements in this campaign. Nike claimed that the statements were noncommercial speech on matters of public concern and thus were constitutionally protected. Nike prevailed in trial court and in the California Court of Appeals. However, the California Supreme Court reversed the lower courts in its 4-3 decision in Kasky v. Nike, Inc. (2002). In Nike v. Kasky, the U.S. Supreme Court agreed to hear the appeal, then abruptly dismissed it as “improvidently granted,” effectively returning the issue to the California courts for disposition. The case was settled out of court eventually, without any substantive ruling on the constitutional issues. Justice John Paul Stevens said in a concurring opinion that the Nike case “presents novel First Amendment questions because the speech at issue represents a blending of commercial speech and debate on issues of public importance,” but he also said that the Court did not need to look into the complicated free speech issues at this point. Three justices dissented, believing that the justices should examine the underlying constitutional issues. Justice Stephen G. Breyer wrote a strong dissent focusing on the importance and need for resolution of the constitutional issues, especially the chilling effects imposed on free speech by the California Supreme Court’s decision. The clash between the majority and dissenting justices focused on the classification of communication in which Nike was engaged and the free speech implications of that classification. The majority held that Nike’s campaign constituted commercial speech and therefore merited protection only if it satisfied the test in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980).The initial prong of the Central Hudson test—the expression of commercial speech concerns lawful activity and is not misleading—was met because both parties stipulated that the campaign included deceptive statements.The majority held that “communication more likely to deceive the public than to inform it” fails to meet the threshold of commercial communications eligible for constitutional protection. The dissenters claimed that the speech dealt with an important public issue and therefore merited a high level of protection and that to punish Nike for factual errors would chill corporate participation in future debates on public issues. Because Nike and Kasky settled out of court, at least two significant constitutional issues remain unresolved. First, the definition of commercial speech articulated in Kasky v. Nike highlights, but does not dispose of, important questions
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regarding corporate speech that contains both commercial and noncommercial elements. Second, the California Supreme Court’s invocation of the threshold part of the Central Hudson test as a threshold determinant of constitutional protection appears to privilege the classification of speech as commercial or noncommercial, at the expense of an inquiry into the functions of corporate communications in contemporary society. The case raises additional questions regarding the vitality of the Central Hudson test for commercial speech in the twenty-first century. See also Breyer, Stephen G.; Central Hudson Gas and Electric Corp. v. Public Service Commission (1980); Commercial Speech; Stevens, John Paul.
Richard Parker
furthe r reading Piety, Tamara R. “Grounding Nike: Exposing Nike’s Quest for a Constitutional Right to Lie.” Temple Law Review 78 (Spring 2005): 151–197. Samuel A. Terilli. “Nike v. Kasky and the Running-But-GoingNowhere Commercial Speech Debate.” Communication Law and Policy 10 (Autumn 2005): 383–432. Vladeck, David C. “Lessons from a Story Untold: Nike v. Kasky Reconsidered.” Case Western Reserve Law Review 54 (2004): 1049–1089.
Nimmer, Melville B. Melville Bernard Nimmer (1923–1985), an expert in copyright law and freedom of expression, contributed greatly to jurisprudence in these areas during his legal career. As a defender of the First Amendment, he is best known for his successful advocacy before the Supreme Court in Cohen v. California (1971), in which he convinced the Court that an individual could not be convicted for wearing a jacket bearing a profane word in a courthouse. Born in Los Angeles, Nimmer earned an undergraduate degree from the University of California, Berkeley, and a law degree from Harvard. After graduation, he worked in the legal department at Paramount Pictures before entering private practice in Los Angeles. In 1962 he accepted a faculty position at the law school of the University of California, Los Angeles, where he remained for the rest of his life. Nimmer’s most cited work is his four-volume Nimmer on Copyright, first published in 1963. His son David, also a copyright expert, now updates this famous treatise that has been called the Bible of copyright. In 1984 Nimmer pub-
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lished his definitive work on free expression entitled Nimmer on Freedom of Speech: A Treatise on the First Amendment. First Amendment expert Rodney A. Smolla has updated the later editions of this work. See also Cohen v. California (1971); Copyright; Smolla, Rodney A.
David L. Hudson Jr.
furthe r reading Cohen, William. “A Look Back at Cohen v. California.” UCLA Law Review 34 (1987): 1595–1614. “Professor Melville Bernard Nimmer Memorial Page.” www.darch enoam.org/ethics/pages/pmbnimmer.htm.
Nixon v. Shrink Missouri Government PAC (2000) In Nixon v. Shrink Missouri Government PAC, 528 U.S. 277 (2000), the Supreme Court concluded that Missouri’s political contribution limits did not infringe on the First Amendment guarantees of free speech and association and the Fourteenth Amendment’s equal protection clause. A state political committee and a candidate for state auditor sought an injunction against enforcement of the law, arguing that the adjusted contribution limit of $1,075 for statewide office, down to $275 for lower offices, violated the First Amendment.The district court granted summary judgment for the state (and Attorney General of Missouri Jeremiah W. Nixon), but the Eighth Circuit Court of Appeals reversed, applying strict scrutiny and holding that the state had not produced evidence that the contribution limit was in response to corruption from large contributions. Justice David H. Souter, writing for the Court’s majority, defended the approach, first articulated by the Court in Buckley v. Valeo (1976), of evaluating contribution limits under a less rigorous test than that of spending limits. He observed that the evidence required to sustain a law will vary with the novelty of the law and with whether those challenging the law could show evidence casting doubt on the conclusion that large contributions should be regulated. Souter also found that there was no evidence that the state’s limits “prevented candidate or political committees from amassing the resources necessary for effective advocacy.” The test for whether a contribution limit was unconstitutional was “whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.”
Justice Stephen G. Breyer’s concurrence, joined by Justice Ruth Bader Ginsburg, argued that when considering contribution limits,“constitutionally protected interests lie on both sides” and the presumption of unconstitutionality implied by “strict scrutiny” was incorrect. Contribution limits, argued Breyer, democratize the influence of money and make the process “fairer and more democratic.” Moreover, Breyer believed that legislatures have expertise in regulating campaign finance deserving judicial deference. Justice Anthony M. Kennedy dissented and called for the overruling of Buckley because it did not provide sufficient protection for political speech. Also in dissent, Justice Clarence Thomas, joined by Justice Antonin Scalia, agreed that Buckley was a flawed decision, allowing the regulation of political contributions while protecting “begging, shouting obscenities, erecting tables on a sidewalk and refusing to wear a necktie.” He also concluded that contribution limits deserved strict scrutiny and Buckley’s holding to the contrary should be abandoned. He castigated the majority for adopting a vague definition of corruption that allows the government to impose broad restrictions on campaign finance activity. See also Buckley v. Valeo (1976); Campaign Regulation; Souter, David H.
Allison Haywood
furthe r reading Breyer, Stephen. “Our Democratic Constitution” (2002 Madison Lecture). University Law Review 77 (2002): 245–272. Briffault, Richard. “Nixon v. Shrink Missouri Government PAC: The Beginning of the End of the Buckley Era?” Minnesota Law Review 85 (2001): 1729–1771.
Nixon, Richard M. Richard Milhous Nixon (1913–1994), the thirty-seventh president of the United States, served from January 20, 1969, to his resignation on August 9, 1974—a tumultuous period marked by ongoing civil rights upheavals, protests against the Vietnam War, and executive wrongdoing and investigations. For many observers, Nixon’s conduct during this time typified executive abuse of power, even at times threatening the freedoms of speech, press, and political association. Nixon, a World War II Navy veteran who was born in California, had a long political career that included service in both the U.S. House of Representatives (1947–1950) and U.S. Senate (1950–1953). He also served as President
Nixon, Richard M.
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A 1973 cartoon illustrates the damage to Richard Nixon’s presidency by his involvement in the Watergate scandal.
Dwight D. Eisenhower’s vice president (1953–1961). During his service in the House, Nixon helped to expose State Department official Alger Hiss as a Soviet spy. Playing off the fears generated by McCarthyism, he moved to the Senate by painting his opponents as “pink.” Nixon lost the presidential election of 1960 to Democrat John F. Kennedy, and he failed to win the governorship of California in 1962. He then resumed practicing law (he had graduated from Duke Law School) and contributed to First Amendment jurisprudence by arguing for the Hill family before the Supreme Court in Time, Inc. v. Hill (1967). Although the Hill family had won damages in a lower court, the Supreme Court rejected the idea that a Life magazine article about the hostage ordeal endured by the family portrayed it in a “false light” for which it should be able to sue. In 1968 Nixon once again entered politics and won the presidential election. He served one and a half terms before resigning in the wake of the Watergate scandal. As president, he is remembered positively for his many foreign policy accomplishments, including ending U.S. combat in the Vietnam War, opening diplomatic relations with China, and establishing détente with the Soviet Union. In the domestic policy arena, however, Nixon is reviled for his perceived and real excesses, some of which were tied
to his attempts to maintain secrecy in matters related to foreign affairs. Nixon’s administration seemed to operate above the law. Revelations about the use of both the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) to infiltrate and spy on social activist groups, ranging from civil rights organizations to consumer protection groups and especially the anti-war movement, threatened freedom of association and contributed to the perception of Nixon as Machiavellian.The president’s “enemies lists” of civil rights and anti-war leaders, as well as liberal activists, politicians, journalists, and fund-raisers, enhanced his image as an officeholder who personalized his opposition and justified use of the power of his office to counteract their efforts. In June 1971, the Nixon administration began a campaign to discredit RAND analyst Daniel Ellsberg, who had leaked to the New York Times a secret history of the Vietnam War (known as the Pentagon Papers) that contained admissions of lies and cover-ups about the conduct of the war. Among other things, administration operatives broke into the office of Daniel Ellsberg’s psychiatrist in California to retrieve damaging information on Ellsberg. In New York Times Co. v. United States (1971), the Supreme Court held that the government did not have the right to invoke prior
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restraint on the New York Times and the Washington Post for publishing excerpts of the Pentagon Papers. The problems afflicting the Nixon administration extended to campaign practices as well. Irregularities, especially in fund raising in the 1968 presidential election, ultimately led to congressional passage of the Federal Election Campaign Act (FECA) in 1971. Nevertheless, the 1972 election was rife with corruption, which culminated in what came to be known as the Watergate scandal, but included earlier wrongdoing. Two well-known efforts to subvert the political process were the creation and operation of the “plumbers” unit, a group dedicated to “plugging leaks” within the administration, and of the Committee to Re-Elect the President (CREEP), which engaged in “dirty tricks” to stymie the political and personal opposition to Nixon and his administration. One such trick was the break-in by members of CREEP at the 1972 national headquarters of the Democratic Party in Washington’s Watergate Hotel; the burglars were seeking campaign intelligence. During the hearings of the Senate Watergate Committee, a special committee convened to investigate the Watergate burglary and the surrounding scandals, the president lost yet another court decision in which the Supreme Court upheld a 1974 ruling in United States v. Nixon that the president had to surrender tapes of his personal conversations to the special prosecutor appointed to investigate administration activities.These tapes contained the “smoking gun” that revealed Nixon had orchestrated the Watergate cover-up. To avoid certain impeachment by the House and conviction by the Senate, the president resigned from office. See also Ellsberg, Daniel; McCarthyism; New York Times Co. v. United States (1971); Pentagon Papers; Time, Inc. v. Hill (1967); Vietnam War.
Matthew M. Caverly
furthe r reading Ambrose, Stephen. Nixon: The Ruin and Recovery of a Politician, 1973–1990. New York: Simon and Shuster, 1991. Barber, James David. The Presidential Character: Predictive Performance in The White House. 4th ed. Englewood Cliffs, N.J.: Prentice Hall, 1992. Nixon, Richard M. RN: The Memoirs of Richard Nixon. New York: Grosset and Dunlap, 1978. Safire,William L. Before the Fall:An Inside View of the Pre-Watergate White House. Garden City, N.Y.: Doubleday, 1975. Schlesinger, Arthur. The Imperial Presidency. 2d ed. Boston: Houghton Mifflin, 1989.
Woodward, Robert, and Carl Bernstein. All the President’s Men. New York: Simon and Shuster, 1974.
Nizer, Louis Louis Nizer (1902–1994), one of America’s best-known trial lawyers, successfully argued two First Amendment cases before the Supreme Court. The Court ruled in Interstate Circuit, Inc. v. Dallas (1968) that a film censorship ordinance in Dallas,Texas, was unconstitutionally vague.The Court in Jenkins v. Georgia (1974) decided that the movie Carnal Knowledge was not obscene under standards previously adopted in Miller v. California (1973) and Paris Adult Theatre I v. Slaton (1973). By contrast, Nizer lost a decision in Fortnightly Corporation v. United Artists Television (1968), in which he had argued that cable television systems were infringing on copyrights when they captured and transmitted copyrighted programs without paying royalty fees (Willis, p. 534). Nizer was born in London, England. His parents brought him at an early age to Brooklyn, New York. After earning undergraduate and law degrees from Columbia University, Nizer and Louis Phillips formed a law partnership, which they built into the prestigious firm of Phillips, Nizer, Benjamin, Krim & Ballon. His client list included many celebrities, among them Johnny Carson, Elizabeth Taylor, Mae West, and Muhammad Ali. In 1962 Nizer won a record libel award for John Henry Faulk, a radio performer and storyteller in Austin,Texas, who had been accused of communist leanings. During his lengthy legal career, Nizer represented the New York Film Board of Trade and the Motion Picture Association of America; in the latter capacity he played an influential role in the adoption, in 1966, of the Motion Picture Code and Rating Program, which voluntarily assessed the suitability of movies for children. He also wrote several books, including the bestselling My Life in Court (1962). See also Censorship; Film; Interstate Circuit, Inc. v. Dallas (1968); Jenkins v. Georgia (1974); Miller v. California (1973); Motion Picture Ratings; Obscenity and Pornography; Paris Adult Theatre I v. Slaton (1973);Vagueness.
David L. Hudson Jr.
furthe r reading Willis, Clyde. “Louis Nizer.” In Great American Lawyers, ed. John R.Vile, 2:530–537. Santa Barbara, Calif.: ABC-CLIO, 2001.
Nonpreferentialism
Noerr-Pennington Doctrine The Noerr-Pennington doctrine is a judicially created defense against certain business torts (wrongful acts) for activity that implicates the First Amendment petition right. Created in Eastern Railroad Presidents Conference v. Noerr Motor Freight (1961) and United Mine Workers v. Pennington (1965) and restated in California Motor Transport Co. v. Trucking Unlimited (1972), the doctrine began as a defense against antitrust liability. Under the early version of the doctrine, a competitor whose activities ordinarily would have been subject to liability as anti-competitive was immune from liability to the extent that the activities that were the subject of the complaint amounted to a good faith attempt to seek government action, even if the action sought was itself impermissibly injurious to a competitor. Thus, even though a would-be monopolist who attempted to establish a price-fixing cartel would have been subject to anti-trust liability, the same actor who attempted to reach the same result by lobbying for legislation to fix prices would not have been subject to liability. However, an attempt to seek government intervention that was not intended to yield some official result—such as a proceeding brought to harass a competitor rather than to win a favorable decision—fell within the “sham” exception to the Noerr-Pennington doctrine and would not have been immune from liability. There is some debate in the literature about the source of authority for the Noerr-Pennington doctrine. Many commentators argue that the doctrine is an interpretive gloss on federal anti-trust statutes. Others find the doctrine in the First Amendment freedom of petition. Although the Supreme Court has not yet resolved this controversy, the modern trend in the lower courts is to treat the doctrine as a general principle of First Amendment law. Consistent with the modern trend, petitioners frequently invoke the Noerr-Pennington doctrine to defend their advocacy from liability under a wide variety of business torts. For example, Noerr-Pennington often appears in litigation collateral to land use disputes. Frustrated land developers periodically bring suit against local activists (who have defeated the developers in local legislatures) under various theories, notably for the tort of unlawful interference with contractual relations. These suits, known colloquially as Strategic Lawsuits against Public Participation, or SLAPP suits, ordinarily fall to Noerr-Pennington defenses.
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One conceptual difficulty facing those who argue that the Noerr-Pennington doctrine is applicable beyond the anti-trust context is its application to court proceedings. In theory, the right to petition the government for redress of grievances applies equally to petitions brought to the judiciary and those brought to the legislature. Accordingly, the Noerr-Pennington doctrine immunizes businesses from anti-trust liability based on good faith lawsuits brought against competitors. However, expansion of this application of the doctrine outside the anti-trust context might force the courts to abolish the well-recognized tort of abuse of process. At a minimum, the tort would have to be cut back from its current scope—conferring liability on plaintiffs who file meritless lawsuits for an improper purpose—to apply only to those suits in which the plaintiff intends solely to harass rather than to reach a favorable result. Noerr-Pennington is significant in the First Amendment landscape as one of the few doctrines that provide breathing space for political activity against sanctions primarily initiated by private citizens rather than the state.The constitutional justification for this expanded sphere of protection is the notion that the state is participating in private censorship by permitting its legal system to be used as a tool to suppress core political communication. This constitutional principle, which was first established to prevent government enforcement of racially discriminatory land transfer covenants in Shelley v. Kraemer (1948), marks out a perennial tension in constitutional law. Vigorous enforcement of constitutional boundaries on government-supported private conduct was a hallmark of the Warren Court, and later courts have substantially narrowed its scope. See also California Motor Transport Co. v. Trucking Unlimited (1972); Eastern Railroad Presidents Conference v. Noerr Motor Freight (1961); Marsh v. Alabama (1946); PruneYard Shopping Center v. Robins (1980); SLAPP Suits.
Paul Gowder
furthe r reading Maher, Joseph. “Comment: Survival of the Common Law Abuse of Process Tort in the Face of a Noerr-Pennington Defense.” University of Chicago Law Review 65 (1998): 627–662. Zauzmer, Robert. “Note: The Misapplication of the NoerrPennington Doctrine in Non-Antitrust Right to Petition Cases.” Stanford Law Review 36 (1984): 1243–1272.
Nonpreferentialism This test for interpreting and applying the establishment clause of the First Amendment comes close to accommoda-
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tion and “positive neutrality.” It probably lies farthest from interpretations based on strict separation of church and state, or on Thomas Jefferson’s “wall of separation” between church and state. The nonpreferentialist position may have been best articulated by Justice William H. Rehnquist in his dissent in Wallace v. Jaffree (1985). In this case, the Supreme Court majority rejected an Alabama law that allowed teachers to tell students that they could pray during classroom moments of silence. Rehnquist argued that the Court had taken a wrong turn in its decision in Everson v. Board of Education (1947) by advocating strict separation of church and state. According to Rehnquist, the establishment clause had two central purposes: preventing the establishment of a single national religion and preventing favoritism of one religion over another. He did not, however, think the provision was designed to prevent government from favoring religion over nonreligion. He would therefore deny that all government actions had to follow the first two prongs of the test established in Lemon v. Kurtzman (1971)—the Lemon test specified that such laws must have a clear secular legislative purpose, or they must have a primary effect that neither advances nor inhibits religion—as long as the government’s actions advanced religion in general rather than a specific denomination in particular. Rehnquist would allow most government pronouncements and actions (often referred to as civil religion) that generally acknowledged God. In interpreting the religion clauses of the First Amendment, nonpreferentialists emphasize the preeminence of the free exercise clause in securing religious liberty over the establishment clause.They believe that many strict separationists end up expressing hostility to religion, whereas even advocates of neutrality end up undermining the essential role that religion has played historically in the United States. In law professor Patrick M. Garry’s formulation of nonpreferentialism, it would permit “all nonpreferential accommodations [of religion], whether mandatory or voluntary . . . unless they have a coercive effect on someone else’s religion” (Garry 2005: 40). Garry argues that “under the spirit of the First Amendment, it is better to favor all religions than to risk discrimination against one or more religions or risk eliminating a religious presence from the nation’s public life altogether” (p. 52). See also Accommodationism and Religion; Civil Religion; Everson v. Board of Education (1947); Jefferson,Thomas; Lemon v. Kurtzman
(1971); Neutrality, Religion; Rehnquist, William H.; Separation of Church and State;Wall of Separation;Wallace v. Jaffree (1985).
John R.Vile
furthe r reading Bell, Ashley M. “Comment: ‘God Save This Honorable Court’: How Current Establishment Clause Jurisprudence Can be Reconciled with the Secularization of Historical Religious Expressions.” American University Law Review 50 (2001): 1273–1320. Garry, Patrick M.“Religious Freedom Deserves More than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion.” Florida Law Review 57 (2005): 1–52.
Norman v. Reed (1992) In Norman v. Reed, 502 U.S. 279 (1992), the Supreme Court struck down an Illinois law that required a minor political party to obtain 25,000 signatures to appear on the ballot for the first time, finding it in violation of the First Amendment right of association. This case eased the burden for new or minor parties seeking to appear on the ballot. At issue was an Illinois statute that mandated that new third-party candidates for statewide office had to secure 25,000 signatures and meet other procedural hurdles not required of candidates of established parties. More important, the law stipulated that in cases in which a subdivision has separate districts from which some of its officers are elected, party organizers seeking to fill such offices must collect 25,000 signatures from each district. In addition, a new political party becomes an “established political party” only after it received 5 percent of the vote in the next election, but a party that has not engaged in a statewide election can become “established” only in a subdivision where it has fielded candidates. The case grew out of efforts by the Harold Washington Party (named after Chicago’s first African American mayor, Harold Washington) to gain ballot access in Cook County (Chicago), Illinois. Before the 1990 elections, members of the party presented the county with a petition containing 44,000 signatures from the city district and 7,800 signatures from the suburban district and a slate of candidates for both at-large and district-specific seats. They were denied ballot access and eventually appealed their case to the Supreme Court. Prior to Norman v. Reed, in Munro v. Socialist Workers Party (1986) the Supreme Court had upheld a Washington state law that required minor-party candidates for partisan office to receive at least 1 percent of the votes cast in the primary
Northwest Ordinance of 1787 before appearing on the general election ballot. The Court rejected claims that the 1 percent threshold to appear on the general ballot was burdensome to First Amendment association rights. It ruled instead that if the purpose of a primary was to narrow the political field by a demonstration of political support, then the 1 percent threshold was reasonable. Norman v. Reed follows Munro. The Court struck down the Illinois law as burdensome on the First Amendment association rights of the Harold Washington Party.Writing for the majority, Justice David H. Souter said that although the state had an interest in requiring candidates and parties to demonstrate some public support, the First and Fourteenth Amendments protect the right of citizens to create and develop new political parties.A state may limit new parties’ access to the ballot only to the extent that a sufficiently weighty or compelling state interest justifies the restriction. Any severe restriction must be narrowly drawn to advance a state interest of compelling importance. In this case, the Court ruled that the 25,000-signature requirement, especially in the way that it may require this amount of signatures for each political subdivision, was not the least restrictive way for Illinois to secure its compelling objective of regulating ballot access and ensuring that a party had sufficient public support. Moreover, the requirement was overly burdensome to the First Amendment rights of the voters and party members who wished to create new political parties. In dissent, Justice Antonin Scalia upheld the law and would have given significant deference to the “State of Illinois’s arrangement of its elections” to prevent the “dangers of factionalism” that might threaten Cook County or Illinois should numerous political parties form. Overall, Norman v. Reed is a significant First Amendment case affirming the associational rights of third parties seeking to organize and appear on the ballot. See also Munro v. Socialist Workers Party (1986); Political Parties; Storer v. Brown (1974).
David Schultz
furthe r reading Lowenstein, Daniel Hays, and Richard L. Hasen. Election Law: Cases and Materials. Durham, N.C.: Carolina Academic Press, 2004.
Northwest Ordinance of 1787 The Northwest Ordinance (formally the Ordinance for the Government of the Territory of the United States, North-
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West of the River Ohio) primarily created the Northwest Territory. The ordinance was passed by the Continental Congress on July 13, 1787, and affirmed, with slight modifications, by the U.S. Congress on August 7, 1789. Provisions of the Northwest Ordinance presaged several provisions of the Constitution and the First Amendment and announced a prohibition of slavery in the states to be formed out of the territories. When the Treaty of Paris ended the Revolutionary War in 1783, the United States laid claim to lands stretching from the Ohio River west to the Mississippi and north to the Great Lakes. This land, which came to be known as the Northwest Territory, had been claimed by several states, which gave up their claims when they ratified the Articles of Confederation. In 1784 Thomas Jefferson proposed a plan for developing the new territory into states.The main features of that plan were adopted by the Continental Congress in 1787, while the Constitutional Convention was meeting in Philadelphia. The primary purpose of the ordinance was to terminate the claims of individual states and to organize the territory into new states.These purposes are accomplished by sections 1–13 of the document. Section 14 announced a perpetual compact between the people of the original states and the people of the new territories that could be altered only by mutual consent. In setting the stage for the Constitution, the first article of the compact promised religious toleration for any person “demeaning himself in a peaceable and orderly manner” regardless of that person’s mode of worship or religious sentiment.The second article announced a series of rights related to criminal procedure, political equality, and the protection of private property. The third article announced that schools and means of education were to be encouraged, because religion, morality, and knowledge were necessary to “good government and the happiness of mankind.” After the Civil War in the 1860s, the Declaration of Independence, Articles of Confederation, Northwest Ordinance, and Constitution, taken together, came to be called the “Organic Laws of the United States of America.” The title conveys the conviction, enunciated by President Abraham Lincoln, that the founding of the United States was “dedicated to the proposition that all men are created equal.” See also Constitutional Convention of 1787; Jefferson,Thomas.
Paul Cornish
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furthe r reading Anastaplo, George. The Constitution of 1787:A Commentary. Baltimore: Johns Hopkins University Press, 1989. Cox, Richard H. Four Pillars of Constitutionalism: The Organic Laws of the United States of America. Buffalo, N.Y.: Prometheus Books, 1998. Onuf, Peter S. Statehood and Union:A History of the Northwest Ordinance. Bloomington: Indiana University Press, 1987. The Portable Thomas Jefferson, ed. M. D. Peterson. New York: Penguin, 1975.
Norton v. Discipline Committee of East Tennessee State University (1970) In Norton v. Discipline Committee of East Tennessee State University, 399 U.S. 906 (1970), the Supreme Court declined to review a federal appeals court ruling that college students’ First Amendment rights were not violated when they were suspended from the university for distributing two “inflammatory” pamphlets. Three justices—Thurgood Marshall, William O. Douglas and William J. Brennan Jr.—dissented from the denial of certiorari, and Marshall accompanied his dissent with an opinion. The controversy began in May 1968 when several students at East Tennessee State University—including Marietta Norton—distributed two pamphlets urging their fellow students to stand up to the administration and protest for their rights. One pamphlet declared: “Maybe students will learn that no matter what the despots who run this school say, students have the constitutional right to protest, demonstrate, and demand their rights.” University officials suspended the students for the oncampus distribution of “material of a false, seditious and inflammatory nature.” Officials contended that the material was meant to disrupt school activities—much like the disruptions that had already broken out at several other universities across the country. After the students lost their appeal at the administrative level, they sued in federal court. The federal district court judge ruled in favor of the university officials. On appeal, a divided three-judge panel of the Sixth Circuit Court of Appeals affirmed the ruling. The Sixth Circuit majority applied the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District (1969), which held that public secondary school officials could censor student expression if they could reasonably forecast a substantial disruption of school activities. In Tinker, the Court determined that school officials in Iowa violated the rights of several students by suspending
them for wearing black armbands to protest the U.S. involvement in Vietnam. However, the Sixth Circuit majority found that East Tennessee school officials had reasonably forecast substantial disruption of school activities and so “had the right to nip such action in the bud and prevent it in its inception.” When the students appealed to the Supreme Court, it denied certiorari. In his dissenting opinion, Justice Marshall contended that the First Amendment protected the students’ pamphleteering, which he termed “rather mild invocations of student protest.” He pointed out that the students’ pamphlets were “similar in some ways to the broadsides circulated by popular writers in England and the Colonies, the official suppression of which helped lead to adoption of the First Amendment.” See also Marshall, Thurgood; Students, Rights of; Tinker v. Des Moines Independent Community School District (1969).
David L. Hudson Jr.
furthe r reading Wells, N. Douglas. “Thurgood Marshall and ‘Individual SelfRealization’ in First Amendment Jurisprudence.” Tennessee Law Review 61 (1993): 237–287.
Norwood v. Harrison (1973) In Norwood v. Harrison, 413 U.S. 455 (1973), the Supreme Court unanimously found that a Mississippi program that provided textbooks to private schools, even if the school engaged in discriminatory practices, was unconstitutional. In so ruling, it found that the requirements of nondiscrimination violated the equal protection clause of the Fourteenth Amendment but not the establishment clause of the First Amendment. The case was brought by parents of schoolchildren who claimed that because the state program provided textbooks to schools that excluded students on the basis of race, the state was providing direct aid to segregated education, thus violating the equal protection clause. A three-judge federal district court upheld the program because the state had enacted the legislation in 1940 not with the purpose of creating racially segregated schools, but to provide aid to students who chose to attend private schools. The district court also found the supply of textbooks to be consistent with earlier Supreme Court opinions that allowed states to provide textbooks to students attending private sectarian schools because the books were an aid to the students, not the schools.
Noto v. United States (1961) Writing for the Court, Chief Justice Warren E. Burger first affirmed the right of private schools to exist.The court had previously held that states could provide aid to private school students under the Lemon test, which required that the effect of the aid had a secular purpose, was neutral toward the advancement of religion, and did not create an excessive entanglement between the state and government. Based on these criteria, Chief Justice Burger found that the Mississippi program did not violate the establishment clause of the First Amendment. Because the Mississippi statute provided textbooks to private schools, even if they practiced racial discrimination, however, Burger decided that the program violated the equal protection clause. The number of private schools in Mississippi increased sharply after the court mandated that public schools be integrated, and a large majority of the students attending those schools were white. Although the Mississippi program was enacted at a time when integration was not an issue and was not intended to be used as a way of inhibiting integration, it had the effect of creating segregated education. Thus, the court found the program to be invalid. However, “the state could continue its book loan program if it required all participating schools to certify they did not engage in racial discrimination,” according to Congress and the Nation. See also Burger,Warren E.; Lemon Test.
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point. Justice William O. Douglas wrote a dissent, joined by Justice Hugo L. Black, arguing that the remand was useless because he did not think such a hearing would exempt individuals from the oath. Douglas thought the underlying First Amendment issue of whether such oaths could be required was ripe for review. After the Washington Supreme Court ruled that individuals who refused to take the oath were entitled to a hearing, employees challenged the oath on First and Fourteenth Amendment grounds. Again the U.S. Supreme Court issued a per curiam opinion dismissing this question, this time “for want of a substantial federal question.” Once again, Douglas dissented, joined by Black. In examining the oath that employees were required to take, Douglas observed that employees had to swear that they did not intend “to ‘alter’ the Government of the United States by ‘revolution.’” He observed that “[t]o ‘alter’ has been the objective of many who have proposed constitutional amendments. The idea of ‘revolution’ is an American concept that at least until recently has been greatly revered. A ‘revolution’ that operates through the route of constitutional amendments would, at least arguably, be in keeping with our ideas of freedom of belief and expression.” See also Constitutional Amending Process; Cramp v. Board of Public Instruction of Orange County (1961); Douglas,William O.; Loyalty Oaths;Vagueness.
John R.Vile
Jonathan R. Ellzey
furthe r reading
furthe r reading
Bartholomew, Paul C. “The Supreme Court of the United States, 1972–1973.” Western Political Quarterly 27-1 (1974): 164–181. “Norwood v. Harrison (413 U.S. 455).” Congress and the Nation, 1973–1976, vol. 4.Washington, D.C.: CQ Press, 1977.
Frickey, Philip P. “Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court.” California Law Review 93 (2005): 397–464.
Nostrand v. Little (1960)
Noto v. United States (1961)
The Nostrand v. Little, 362 U.S. 474 (1960) case, which twice reached the Supreme Court, dealt with a Washington statute that required all public employees to take an oath that they were not members of subversive organizations or face immediate dismissal.The cases were considered by the Court to determine whether the law violated employees’ due process and other constitutional rights. Because one ground for the case rested on the claim that employees had no opportunity for a hearing, the Supreme Court issued a per curiam opinion remanding the case to the Supreme Court of Washington for determination of this
The Supreme Court decision in Noto v. United States, 367 U.S. 290 (1961), stands for the principle that the First Amendment’s right to free speech prohibits convicting individuals for the mere abstract teaching of the moral propriety of violence. The Court’s unanimous decision reversed the conviction of Buffalo-area communist John F. Noto, finding insufficient evidence to convict him for violations of the Smith Act of 1940.Arrested in August 1955, Noto became the first person in New York state tried under the membership clause of the Smith Act, which prohibits any person from organizing “any
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society, group or assembly of persons who teach, advocate or encourage the overthrow or destruction of . . . government by force or violence or becomes or is a member of, or affiliates with, any such society, group or assembly of persons.” In April 1956, a federal jury convicted Noto, who did not deny he was an active member of the Communist Party. After the Second Circuit Court of Appeals affirmed his conviction, Noto appealed to the Supreme Court. On June 5, 1961, the Court issued its decisions in Communist Party of the United States v. Subversive Activities Control Board, Scales v. United States, and Noto. The Court upheld the Subversive Activities Control Act of 1950 in Subversive Activities Control Board and upheld the constitutionality of the membership clause of the Smith Act in Scales. However, the Court unanimously ruled in favor of John Noto. Writing for the majority, Justice John Marshall Harlan II reasoned that there was insufficient evidence of present advocacy of illegal conduct to convict Noto. Citing Yates v. United States (1957), Harlan wrote:“[W]e reiterate now, that the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future. . . .”
Justice William J. Brennan Jr. and Chief Justice Earl Warren indicated that the prosecution was barred by a provision in the Internal Security Act, a position Brennan advocated in his dissent in Scales. Justices Hugo L. Black and William O. Douglas each wrote concurrences, indicating the prosecutions infringed on core First Amendment freedoms. See also Communist Party of the United States; Communist Party of the United States v. Subversive Activities Control Board (1961); Harlan, John Marshall, II; Scales v. United States (1961); Smith Act of 1940;Yates v. United States (1957).
David L. Hudson Jr.
furthe r reading Redish, Martin. “Unlawful Advocacy and Free Speech Theory: Rethinking the Lessons of the McCarthy Era.” University of Cincinnati Law Review 73 (2004): 9–94.
NOW v. Scheidler (2006) See Scheidler v. National Organization for Women (2006)
Nude Dancing See Dancing, Nude
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
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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 REDRESS OF GRIEVANCES.
Obscenity and Pornography Obscenity refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political, or scientific value. For adults at least, most pornography—material of a sexual nature that arouses many readers and viewers— receives constitutional protection. However, two types of pornography receive no First Amendment protection: obscenity and child pornography. Sometimes, material is classified as “harmful to minors” (or obscene as to minors), even though adults can have access to the same material. Obscenity remains one of the most controversial and confounding areas of First Amendment law, despite the fact that Supreme Court justices have struggled mightily through the years to define it. Justice Potter Stewart could provide no definition for obscenity in Jacobellis v. Ohio (1964), but he did exclaim: “I know it when I see it.” Stewart found that the Court was “faced with the task of trying to define what may be indefinable.” In a later case, Interstate Circuit, Inc. v. Dallas (1968), Justice John Marshall Harlan II referred to this area as the “intractable obscenity problem.” Several early U.S. courts adopted a standard for obscenity from the British case Regina v. Hicklin (1868). The Hicklin rule provided the following test for obscenity: “whether the tendency of the matter . . . is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” This test allowed material to be declared obscene based on isolated passages of a work and its effect on particularly susceptible persons. Using this broad test, the British court ruled obscene books deemed to be anti-religious. The two
major problems with the Hicklin test were that it allowed works to be judged obscene based on isolated passages, and it focused on particularly susceptible persons instead of reasonable persons. This focus led to suppression of much free expression. The Supreme Court squarely confronted the obscenity question in Roth v. United States (1957), a case contesting the
Struggling to craft an exact definition of obscenity in the 1964 case Jacobellis v. Ohio, Supreme Court justice Potter Stewart said, “I know it when I see it.”
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constitutionality of a federal law prohibiting the mailing of any material that is “obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character.” The Court, in an opinion drafted by Justice William J. Brennan Jr., determined that “obscenity is not within the area of constitutionally protected speech or press.” He articulated a new test for obscenity:“whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” The Roth test differed from the Hicklin test in that it focused on “the dominant theme” of the material as opposed to isolated passages and on the average person rather than the most susceptible person. The Court struggled with obscenity cases through the 1960s and 1970s. In Memoirs v. Massachusetts (1966), a plurality of the Court, in an opinion by Justice Brennan, articulated a new three-part test: “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” In the 1970s, the Burger Court determined that the obscenity standard was too rigid for prosecutors. Therefore, in Miller v. California (1973) the Court adopted a new threepart test—what Chief Justice Warren E. Burger called “guidelines” for jurors—that was more favorable to the prosecution: (1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. In Miller, the Court reasoned that individuals could not be convicted of obscenity charges unless the materials depict “patently offensive hard core sexual conduct.” Under that reasoning, many sexually explicit materials—pornographic magazines, books, and movies—are not legally obscene. Ironically, Justice Brennan dissented in Miller and Paris Adult Theatre I v. Slaton (1973), changing his position on obscenity. He determined that obscenity laws were too vague and could not be applied without “jeopardizing fundamental First Amendment values.” The Miller test remains the leading test for obscenity cases, but it continues to stir debate. In its 1987 decision in Pope v. Illinois (1987), the Court clarified that the “serious
value” prong of the Miller test was not to be judged by contemporary community standards. Obscenity prosecutions do, however, impose contemporary community standards, even though a distributor may transport materials to various communities.Thus interesting issues emerge when a defendant in California is prosecuted in a locale with more restrictive community standards. This phenomenon has caused some legal experts and interested observers to call for the creation of a national standard, particularly in the age of the Internet. In Ashcroft v. American Civil Liberties Union (2002), several justices expressed concern about applying local community standards to the Internet as required by the Child Online Protection Act of 1998. For example, Justice Stephen G. Breyer wrote in his concurring opinion that “to read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s veto affecting the rest of the Nation.” Similarly, Justice Sandra Day O’Connor, in her concurrence, wrote that “adoption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity.” Federal obscenity prosecutions increased during the George W. Bush administration. States continue to pursue obscenity prosecutions against hard-core pornography, but also occasionally against other materials. For example, in 1994 a comic book artist was convicted of obscenity in Florida, and in 1999 the owner of gay bar in Nebraska was successfully prosecuted for displaying a gay art in a basement. Although obscenity laws have their critics, they likely will remain part of the legal system and First Amendment jurisprudence. See also Brennan,William J., Jr.; Child Pornography; Hicklin Test; Jacobellis v. Ohio (1964); Memoirs v. Massachusetts (1966); Miller v. California (1973); Paris Adult Theatre I v. Slaton (1973); Pope v. Illinois (1987); Roth v. United States (1957).
David L. Hudson, Jr.
furthe r reading Calvert, Clay, and Robert D. Richards.“Vulgarians at the Gate: Privacy, Pornography and the End of Obscenity Law as We Know It.” Southwestern University Law Review 34 (2005): 427–448. Fairman, Christopher M. “Fuck.” Cardozo Law Review 28 (2007): 1711–1772. Hixon, Richard F. Pornography and the Justices:The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois Press, 1996. Hudson, David L., Jr. “Justice Brennan’s ‘Significant Departure’ and Warning of an ‘Evisceration.’ ” Nexus: Journal of Opinion 10 (2005): 93–98, www.nexusjournal.org/2005obscenity/93-98.pdf.
O’Connor v.Washburn University (10th Cir. 2005) Kostenko, Roman. “Are ‘Contemporary Community Standards’ No Longer Contemporary?” Cleveland State Law Review 49 (2001): 105–132. Rembar, Charles. The End of Obscenity. New York: Random House, 1968.
Ocala Star-Banner Co. v. Damron (1971) The Supreme Court decision in Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971), helped clarify the Court’s landmark libel decision in New York Times Co. v. Sullivan (1964) by showing how the “actual malice” test of that case extended to individuals running for public office. A Florida newspaper had published a story alleging that Leonard Damron, a local mayor who was running for county tax assessor, had been charged in federal court with perjury.The story was false as regards Leonard; it was true, however, in respect to his brother. Damron sued for libel.At trial the judge instructed jurors that they did not need to consider whether a libel had been committed but only damages. The jury’s award of damages was upheld by a Florida district court of appeal, and the Florida Supreme Court denied review. In a decision authored by Justice Potter Stewart, the U.S. Supreme Court reversed, holding that instead of classifying the article as “libelous, per se,” the lower court should have applied the actual malice test of New York Times Co. v. Sullivan. The Court observed that the article at issue was not merely a “private” libel issue as held by the Florida courts; rather, it was a public issue because it clearly related to the fitness of a candidate for public office.Thus, using the actual malice test, Damron would have had to show that the paper had published its story with knowledge that it was false or with reckless disregard of its truth or falsity. In a brief concurring opinion, Justice Byron R. White observed, “The sole basis for protecting publishers who spread false information is that otherwise the truth would too often be suppressed.” Justice Hugo L. Black filed a concurring decision in a companion case, Time, Inc. v. Pape (1971), joined by Justice William O. Douglas, arguing that the First Amendment was designed to leave the press free from libel judgments. See also Actual Malice; Black, Hugo L.; Libel and Slander; Monitor Patriot Co. v. Roy (1971); New York Times Co. v. Sullivan (1964); Stewart, Potter;Time, Inc., v. Pape (1971).
John R.Vile
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furthe r reading Anderson, David A. “First Amendment Limitations on Tort Law.” Brooklyn Law Review 69 (2004): 755–826.
O’Connor v. Washburn University (10th Cir. 2005) The O’Connor v. Washburn Univrsity, 416 F.3d 1216 (10th Cir. 2005), decision by the Tenth Circuit Court of Appeals affirmed a federal district court decision denying damages to individuals who alleged that a religious sculpture displayed on the Washburn University campus (a public university) violated the First Amendment. Holier Than Thou, which had been chosen as part of a temporary outdoor sculpture exhibit, depicted a Catholic bishop with a liturgical head covering, or miter, that some had interpreted to be “a stylized representation of a phallus.” A faculty member and a student, both Roman Catholics, argued that the display of the exhibit demonstrated “statesponsored disapproval of their religious beliefs.” The Tenth Circuit found that because the temporary exhibit and the statue had been removed, requests for injunctive and declaratory relief were moot, but it found that the plaintiffs had standing because they were exposed to the exhibit as part of their routine participation in campus life. Judge Michael R. Murphy applied the endorsement test that Justice Sandra Day O’Connor had formulated and considered in the recent Supreme Court decisions McCreary County v. American Civil Liberties Union (2005) and Van Orden v. Perry (2005), dealing with Ten Commandments displays. Murphy did not find that the committee members who had chosen to display the statue had selected it because they thought it conveyed sexual imagery or because they were trying to send an anti-Catholic message. Likewise, the committee appeared to choose the site of the display near a footpath to correspond to the size of the exhibit rather than to aggravate passersby. Murphy did not think that a “reasonable observer aware that the statute was part of an outdoor art exhibit” would “believe the university endorsed the message of any particular piece of art within the exhibit.” Murphy compared this case to Bauchman v. West High School (1997), in which the Tenth Circuit had upheld a school choir’s performance of songs with religious themes, and to Linnemeir v. Board of Trustees of Purdue University (2001), in which it had refused to enjoin the performance of a play named Corpus Christi that many Christians found to
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be offensive. Citing the Supreme Court decision of Healy v. James (1972), Murphy observed that the sculpture at issue “was displayed in the context of a university campus, a place that is ‘peculiarly the marketplace of ideas.’ ” The plaintiffs appealed to the U.S. Supreme Court, which denied review on March 6, 2006. See also Art Censorship; Catholics, Roman; Endorsement Test; Healy v. James (1972); McCreary County v.American Civil Liberties Union (2005); Neutrality, Religion; O’Connor, Sandra Day; Van Orden v. Perry (2005).
John R.Vile
furthe r reading Weins, W. Jesse. “Note: A Problematic Plurality Precedent: Why the Supreme Court Should Leave Marks Over Van Orden v. Perry.” Nebraska Law Review 85 (2007): 830–874.
O’Connor, Sandra Day Sandra Day O’Connor (1930– ) was the first woman to be appointed to the Supreme Court, where she served from 1981 to 2006. She was often a key swing vote during her later years on the bench, causing some observers to label the Court during this period the O’Connor Court. In First Amendment law she is best known for her opinions in the area of religious liberty. Born in El Paso, Texas, O’Connor spent much of her childhood at the Lazy B Ranch in Arizona. Graduating from high school at age sixteen, she earned undergraduate and law degrees at Stanford University. Even though she finished third in law school, O’Connor had difficulty finding a job because of gender discrimination. The only job offer she received was a position as a legal secretary. She became a deputy county attorney in San Mateo, California, in 1952. She married John O’Connor and lived in Germany for a few years while her husband fulfilled his service obligations. After returning to Maricopa County, Arizona, Sandra O’Connor entered local politics. In 1965 she became an assistant attorney general, and in 1969 she was appointed to the Arizona State Senate to replace a departing member. She won reelection for two more terms. In 1974 she was elected to a trial court position in Maricopa County. Five years later the governor appointed her to the Arizona Court of Appeals. In 1981 President Ronald Reagan announced O’Connor as his nominee for the Supreme Court, fulfilling a campaign promise to nominate a woman.The Senate confirmed her, 99-0.
In many of her opinions O’Connor showed a concern for religious liberty. In a concurring opinion in a crèche display case, Lynch v. Donnelly (1984), she proposed the endorsement test as a “clarification of our Establishment Clause jurisprudence.” As she explained, endorsement of a religious belief “sends a message to nonadherents that they are outsiders, not full members of the political community.” The endorsement test became widely used by the Court in cases involving public religious displays or other expressive acts. In her concurring opinion in Employment Division, Department of Human Resources of Oregon v. Smith (1990), she warned that the Court had gone too far in reducing the level of free exercise protection, a position she reaffirmed in her dissent in City of Boerne v. Flores (1997). O’Connor delivered many of the Court’s majority or plurality opinions in a variety of First Amendment contexts, sometimes favoring and sometimes disfavoring First Amendment claims. She wrote the Court’s majority opinion in a tobacco advertising decision, Lorillard Tobacco Co. v. Reilly (2001), which invalidated various parts of Massachusetts’ restrictions on advertising based on either preemption or First Amendment grounds. She also wrote the Court’s opinion striking down restrictions on advertisements of compounded drug prices in Thompson v. Western States Medical Center (2002). She extended free speech protection to independent contractors in Board of County Commissioners v. Umbehr (1996). In Simon and Schuster v. Members of the New York State Crime Victims Board (1991), she wrote for a unanimous Court in striking down a Son of Sam law that imposed financial penalties on authors who discussed their past crimes in their literary works. She struck down some portions of a Dallas licensing law on sexually oriented businesses in FW/PBS, Inc. v. City of Dallas (1990) and struck down a law that prohibited display of messages critical of foreign embassies in Boos v. Barry (1988). O’Connor ruled that private-figure plaintiffs must prove that statements about public interest are false before recovering damages for defamation in Philadelphia Newspapers, Inc. v. Hepps (1986) and ruled that a tax that singled out the press violated the First Amendment in Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983). In other First Amendment opinions O’Connor upheld laws or regulations from First Amendment challenges. She delivered key portions of the Court’s main opinion in McConnell v. Federal Election Commission (2003), which upheld most of the Bipartisan Campaign Finance Reform Act of 2002. In City of Erie v. Pap’s A.M. (2000) she upheld
Oh! Calcutta! restrictions on nude dancing and rejected challenges to a requirement that the National Endowment for the Arts consider general standards of “respect and decency” when awarding grants in National Endowment for the Arts v. Finley (1998). O’Connor upheld a thirty-day ban on attorney solicitation letters in Florida Bar v.Went for It, Inc. (1995) and rejected a First Amendment challenge to a state sales tax that exempted certain types of media in Leathers v. Medlock (1991). She upheld the Equal Access Act of 1984 from an establishment clause challenge in Board of Education of the Westside Community Schools v. Mergens (1990). Her plurality opinion in Frisby v. Schultz (1988) upheld a Wisconsin law that banned residential picketing. Her majority opinion in Turner v. Safley (1987) rejected a challenge to a regulation limiting correspondence of prison inmates and lowered the standard for reviewing constitutional claims of inmates. O’Connor announced her intended retirement at the end of the 2005 term, but she served until the appointment of Samuel A. Alito Jr., in 2006, after the death of Chief Justice William H. Rehnquist. Charles Haynes, an expert on religious liberty, said to the Associated Press (2005) upon O’Connor’s first announced retirement,“On religious-liberty issues, Justice Sandra Day O’Connor was more than just the swing vote—she was a voice of reason and moderation during a time when extremes often dominate the debate.”
Failinger, Marie A.“In Praise of Contextuality—Justice O’Connor and the Establishment Clause.” Hamline Law Review 29 (2006): 7–16. Hudson, David L., Jr. The Rehnquist Court: Understanding Its Impact and Legacy. Westport, Conn.: Praeger, 2006. Huhn,Wilson Ray. “The Constitutional Jurisprudence of Sandra Day O’Connor: A Refusal to Foreclose the Unanticipated.” Akron Law Review 39 (2006): 373–415. Segall, Eric J. “Justice O’Connor and the Rule of Law.” Florida Journal of Law and Public Policy 17 (2006): 107–137.
Oh! Calcutta! Derided by critics, excoriated by censors, but enjoyed by audiences, Oh! Calcutta! opened on Broadway on June 17, 1969, and closed on August 12, 1972.After its revival in 1976, it ran until 1989, logging a breathtaking 5,959 Broadway performances.The play inflamed some public officials, leading to censorship and First Amendment arguments. The show was the brainchild of critic and social observer Kenneth Tynan. It featured the work of Samuel Beckett, Jules Feiffer, John Lennon, Sam Shepard, and Peter Schickele, among others. Whereas the play Hair was a work of political and social theater that included nudity, Oh! Calcutta! was intended as a
See also Board of County Commissioners v. Umbehr (1996); Board of Education of the Westside Community Schools v. Mergens (1990); Boos v. Barry (1988); City of Boerne v. Flores (1997); City of Erie v. Pap’s A.M (2000); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Endorsement Test; Florida Bar v.Went for It, Inc. (1995); Frisby v. Schultz (1988); FW/PBS, Inc. v. City of Dallas (1990); Leathers v. Medlock (1991); Lorillard Tobacco Co. v. Reilly (2001); Lynch v. Donnelly (1984); McConnell v. Federal Election Commission (2003); Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983); National Endowment for the Arts v. Finley (1998); Philadelphia Newspapers, Inc. v. Hepps (1986); Privacy; Simon and Schuster v. Members of the New York State Crime Victims Board (1991); Son of Sam Laws;Thompson v.Western States Medical Center (2002);Turner v. Safley (1987).
David L. Hudson Jr.
furthe r reading Associated Press.“Justice O’Connor to Retire,” July 1, 2005. www.first amendmentcenter.org/news.aspx?id=15503. Biskupic, Joan C. Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice. New York: ECCO, 2005. Cushman, Clare, ed. The Supreme Court Justices: Illustrated Biographies, 1789–1995. 2d ed. Washington D.C.: Congressional Quarterly, 1995.
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Mark Dempsey and Katie Drew Wilkinson perform in Oh! Calcutta!
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light review centering on sex and eroticism. It was the first Broadway show to display full frontal nudity, but its goal was more to entertain than to stimulate thought or discussion. In his review of the original production of the show, Clive Barnes wrote for the New York Times: “There is no more innocent show in town—and certainly none more witless— than this little diversion.” Barnes’s depiction of the inherent innocence of Oh! Calcutta! was not shared by all. The New York Daily News called the show “hard-core pornography.” Many cities, including Chattanooga and Cincinnati, even banned the show, and it was shut down by the Los Angeles vice squad after a single performance. Overseas, productions were banned in Australia but permitted in Israel in 1986 with the nudity intact (the producers did, however, tone down some of the play’s sexual content). Oh! Calcutta! also enjoyed long and successful runs in England and France. Despite its problems with censors, by 1987 Oh! Calcutta! had played in more than 250 cities worldwide and grossed $260 million. At home, Oh! Calcutta! was briefly the longest running show on Broadway. The play’s difficulties with censorship were not limited to the theatrical stage. In 1970 a performance of the show was videotaped at the off-Broadway Eden Theatre. The producer intended to show the video on a pay-per-view basis at movie theaters around the country. Although he made arrangements with about 250 theaters for such a showing, the producer was able to exhibit the video in only fifty theaters because of censorship issues. This filmed performance was released on video and later on DVD. Ultimately, time and the mores of the day overtook Oh! Calcutta! In its later years, the show’s audience was made up primarily of foreign tourists seeking to participate in a piece of Broadway history. On opening night, creator Tynan told reporters that he was not “trying to make a revolution,” but Oh! Calcutta! did open farther the door cracked by Hair, and broke the path for the use of full nudity in future shows. See also Censorship; Hair; Public Nudity.
Howard Leib
furthe r reading Barnes, Clive.“ ‘Oh, Calcutta!’ a Most Innocent Dirty Show.” New York Times, June 18, 1969, 33. “Oh! Calcutta!,” Internet Broadway Database. www.ibdb.com. Rich, Frank.“Critic’s Notebook;The Asterisks of ‘Oh! Calcutta.’ ” New York Times, August 8, 1989, C3. Tynan, Kenneth. Oh! Calcutta! New York: Grove Press, 1969.
O’Hair, Madalyn Murray Madalyn Murray O’Hair (1919–1995), an atheist, filed several lawsuits that dealt with First Amendment separation of church and state issues. In 1960 she was a plaintiff in a lawsuit, Murray v. Curlett, that sought to prohibit Bible reading in the Baltimore public schools as an unconstitutional activity.The case was consolidated with Abington School District v. Schempp (1963); in this case the Supreme Court extended the ban on prayer in public schools established in Engel v. Vitale (1962) to Bible reading and the recitation of the Lord’s Prayer. O’Hair was born Madalyn Mays in Pittsburgh, Pennsylvania, to a building contractor and homemaker. Her family lost its wealth in the Great Depression. She dated her loss of faith to 1932, when she read the Bible for the first time. During World War II, she enlisted in the Women’s Army Corps and worked as a cryptographer on Gen. Dwight D. Eisenhower’s staff. At the end of the war, she married William J. Murray, whom she later divorced. She earned a BA from Ashland College in Ohio in 1948 and a law degree from South Texas College of Law in 1953; she also studied social work at Howard University, in Washington, D.C., and by 1960 was working as a social worker in Baltimore. In 1960 her son, William, a junior high student, complained to her that he was uncomfortable with religious instruction in his school.When O’Hair pursued the matter, the school board responded that state law mandated prayer at the start of each school day. The attorney general of Maryland issued a finding that school prayer and Bible reading in school were constitutional but that students should be allowed to excuse themselves. Still dissatisfied, O’Hair believed that teachers were discriminating against her son, and she filed suit in 1960. Superior Court justice J. Gilbert Prendergast dismissed the lawsuit in 1961 on the grounds that a decision in O’Hair’s favor would force students to submit to her atheist beliefs. O’Hair lost an appeal to the Maryland Court of Appeals before taking the case to the U.S. Supreme Court.The Court, in an 8-1 decision, affirmed that public schools must be neutral in matters of religion and that the Maryland school prayer law violated the First Amendment. O’Hair, fired from her state job for alleged incompetence, spent much of the next decade filing lawsuits to remove Christianity from public life. She sought to outlaw tax exemptions for churches and clerics as well as tax deductions for donations to churches. She sued to eliminate mandatory
O’Hare Truck Service v. City of Northlake (1996) periods of silence in schools and to remove the phrase “In God We Trust” from American currency. All of these lawsuits failed. Although her efforts drew public attention and hate mail, O’Hair appeared to enjoy notoriety and became known for making inflammatory anti-Christian statements. She founded the American Atheist Press in 1965 to publish writings that other publishers would not touch. In 1965 she married artist Richard O’Hair and settled in Austin, Texas. Her son, William, became a Baptist and after declaring publicly in 1980 that he found atheism to be unfulfilling, he wrote a book describing his mother in unflattering terms. He later wrote a book, Let Us Pray: A Plea for Prayer for Our Public Schools (1995), disavowing the famous 1963 decision bearing his last name. Sometime in 1995 O’Hair, another son, Jon, and granddaughter Robin Murray-O’Hair disappeared. After initially believing that the family might have fled with organization funds, Austin police in 1998 identified three kidnappers, including an employee whom O’Hair had fired for embezzlement. In 2001 the embezzler led police to the remains of the O’Hair family near Austin. See also Abington School District v. Schempp (1963); Atheism; Engel v.Vitale (1962); Prayer at Public School Events.
Caryn E. Neumann
furthe r reading LeBeau, Bryan F. The Athiest: Madalyn Murray O’Hair. New York: New York University Press, 2003. Murray, William J. My Life without God. Nashville, Tenn.: Thomas Nelson, 1982.
O’Hare Truck Service v. City of Northlake (1996) The Supreme Court decision in O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996), provided that government officials violate the First Amendment rights of free association and expression when they retaliate against an independent contractor for his or her political association. John Gratzianna, the owner of O’Hare Truck Service, contended that he was removed from the City of Northlake, Illinois’s tow list because he refused to make a campaign contribution to the mayor and instead supported the mayor’s opponent. Gratzianna contended this violated his First Amendment political free association and free expression rights. The city countered that the First Amendment deci-
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sions of Elrod v. Burns (1976) and Branti v. Finkel (1980), which protect public employees from retaliation for political expression, did not extend to independent contractors. A federal district court agreed with the city and dismissed the suit. The Seventh Circuit Court of Appeals affirmed, writing that “it should be up to the U.S. Supreme Court to extend Elrod.” Probably because the federal appeals courts were divided on the question, the Supreme Court granted review and ruled that Elrod and Branti did extend to independent contractors. Writing for a seven-member majority, Justice Anthony M. Kennedy reasoned that public employers should not be able to command political loyalty by trampling on the political choices of independent contractors. Citing the Court’s related decision decided the same day, Board of County Commissioners v. Umbehr (1996), Kennedy wrote that allowing the government to avoid liability for retaliating against independent contractors “would invite manipulation by government, which could avoid constitutional liability simply by attaching different labels to particular jobs.” The city argued that independent contractors, unlike public employees, easily could obtain other work and minimize any losses of income caused by the loss of particular government service contracts. Kennedy questioned the veracity of this, particularly for independent contractors in small towns. He added: “That some citizens find a way to mitigate governmental over-reaching, or refrain from complaining, does not excuse wrongs done to those who exercise their rights.” Kennedy also rejected the city’s “floodgates of liability” argument, noting that a similar argument had been made when the Supreme Court had extended Elrod by granting First Amendment protection to public employees who were denied desired promotions or transfers (as opposed to protection from discharges in Elrod) in Rutan v. Republican Party of Illinois (1990). Justice Antonin Scalia, joined by Justice Clarence Thomas, pointed to his dissenting opinion in Umbehr. See also Board of County Commissioners v. Umbehr (1996); Branti v. Finkel (1980); Elrod v. Burns (1976); Public Employees; Rutan v. Republican Party of Illinois (1990).
David L. Hudson Jr.
furthe r reading Johnson, Jaimie. “O’Hare Truck Service v. City of Northlake: Further Limiting the Spoils of the Victor.” Georgia State University Law Review 14 (1998): 489–513.
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Shapero, Laurence. “A Logical Extension:The Supreme Court Extends Rights of Free Speech and Association to Government Contractors.” DePaul Law Review 47 (1997): 155–189.
Ohralik v. Ohio State Bar Association (1978) In Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), the Supreme Court ruled that states can prohibit direct, faceto-face solicitation by attorneys. This ruling ensures that states can regulate at least some speech-related activities of professionals without necessarily running afoul of constitutional protections. Albert Ohralik, an Ohio attorney, personally solicited two eighteen-year-old women who recently had been involved in a car accident. He visited one woman while she lay in traction in a hospital bed. The Ohio Bar Association suspended him from practicing law on the grounds that in-person solicitation violated rules of professional conduct. (Many categories of professionals—doctors, pharmacists, accountants, and so on—are regulated, either by state or by professional organizations that are empowered by the state to set standards. For example, all fifty states regulate the practice of law.) The case reached the Supreme Court on the heels of prior decisions that expanded constitutional protections for commercial speech. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Court ensured to pharmacists the right to advertise prescription drug prices. The majority recognized that “the free flow of commercial information is indispensable” and that “keeping the public in ignorance” is a “highly paternalistic approach” to governance that is inconsistent with the First Amendment. In Bates v. State Bar of Arizona (1977), the Court extended the commercial speech doctrine to allow truthful newspaper advertising by attorneys. Ohralik argued that he had a First Amendment right to convey commercial information to the public, just as the attorneys did through the newspaper in Bates. The Supreme Court disagreed unanimously. Writing for the majority, Justice Lewis F. Powell Jr. reasoned that Ohio had a legitimate interest in preventing solicitations that involve fraud, undue influence, intimidation, and the like and that the Disciplinary Rules of the State Bar Association were the appropriate means for preventing and regulating unethical practices. Justice Powell characterized the state’s interest in regulating in-person legal solicitation as “compelling,” especially when this communication targeted
vulnerable audiences or threatened the integrity and reputability of the legal profession. In contrast, the Court also ruled the same day in In re Primus (1978) that a state was powerless to prohibit a legal solicitation written not for pecuniary gain but for the purpose of “vindicating” a client’s “civil liberties.” Hence, the motive of the solicitor is a key to determining constitutional protection for speech. In-person solicitation has remained an issue of concern to the courts. The Supreme Court held that the rules applicable to in-person legal solicitation could not be invoked to apply to attorney advertising in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985).The Court concluded that Ohralik was an inapt precedent for deciding cases involving in-person solicitations by certified public accountants in Edenfield v. Fane (1993). However, in Florida Bar v. Went For It, Inc. (1995), the Supreme Court upheld a rule of the Florida Bar prohibiting personal-injury lawyers from sending direct-mail solicitations to victims or their families within thirty days of a disaster or accident, reiterating concerns regarding vulnerable recipients and the integrity and reputation of the legal profession first expressed in Ohralik. See also Attorney Advertising; Bates v. State Bar of Arizona (1977); Edenfield v. Fane (1993); Florida Bar v.Went For It, Inc. (1995); In re Primus (1978); Powell, Lewis F., Jr.; Shapero v. Kentucky Bar Association (1988); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985).
Richard Parker
furthe r reading Birdsell, Kandi L., and Joshue D. Janow. “Current Development 2001–2002: Legal Advertising: Finding Timely Direction in the World of Direct Solicitation, Waiting Periods and Electronic Communication.” Georgetown Journal of Legal Ethics 15 (Summer 2002): 671–696. DeVore, P. Cameron, and Robert D. Sack. Advertising and Commercial Speech: A First Amendment Guide. New York: Practicing Law Institute, 2003. Levy, Evan R.“Edenfield v. Fane: In-Person Solicitation by Professionals Revisited—What Makes Lawyers Different?” Albany Law Review 58 (1994): 261–298. Sullivan, Kathleen M.“The Intersection of Free Speech and the Legal Profession: Constraints on Lawyers’ First Amendment Rights.” Fordham Law Review 67 (November 1998): 569–588.
Oklahoma Publishing Co. v. Oklahoma County District Court (1977)
Oklahoma Press Publishing Co. v. Walling (1946) In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), the Supreme Court upheld the right of a wage-hour administrator enforcing the 1938 Fair Labor Standards Act (FLSA) to issue a subpoena duces tecum (an order to compel the production of documents) to a newspaper publishing company for its records relative to its compliance with the FLSA. The company had resisted the subpoena, citing the First Amendment freedom of the press and other constitutional provisions. Writing for the Court, Justice Wiley B. Rutledge found that the subpoena did not violate the First Amendment. He did not think it significant that the legislation authorizing this action did not cover every industry or that it did not apply to all small newspapers. In contrast to the facts in Grosjean v. American Press Co. (1936), in which newspapers were subject to “special taxation” that was scaled according to their circulation, the government was not attempting to favor small papers over large ones but simply to place newspaper publishers “upon the same plane with other businesses” of like size. Rutledge denied that the subpoena permitted “the Administrator to conduct general fishing expeditions into petitioners’ books, records and papers” in violation of the Fourth Amendment. The Fourth Amendment’s protections against search and seizure did not exempt newspapers from providing records that Congress had required from other businesses. Justice Francis (Frank) W. Murphy’s solitary dissent focused not on First Amendment issues but on his concern that the law should restrict the issuance of subpoenas to judicial officers rather than administrators. See also Grosjean v.American Press Co. (1936); Leathers v. Medlock (1991).
John R.Vile
furthe r reading Asciolla, Gregory. “Leathers v. Medlock: Differential Taxation of the Press Survives under the First Amendment.” Catholic University Law Review 41 (1992): 507–543.
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Oklahoma Publishing Co. v. Oklahoma County District Court (1977) In Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U.S. 308 (1977), the Supreme Court struck down an order prohibiting the press from publishing information obtained in a preliminary hearing open to the public and press. The Court found the order in violation of the First Amendment right to freedom of the press. The case arose from a judge’s pretrial order enjoining the news media from further disseminating the name of an eleven-year-old boy charged with murder, although his identity had been lawfully acquired in an open hearing. Reporters had learned the boy’s name when they attended his detention hearing in juvenile court. As the boy was escorted from the courthouse to a vehicle, a newspaper photographer took his picture. Local newspapers printed the boy’s name and photograph, and local television stations showed film footage of him and identified him. The judge then barred the news media from publishing or broadcasting the boy’s name and picture in connection with subsequent court proceedings. On appeal by The Daily Oklahoman, the Oklahoma Supreme Court “concluded that the restraint on the press was valid in the interest of the possible rehabilitation of the youthful offender and his subsequent integration into society.” However, the U.S. Supreme Court in a brief per curiam opinion unanimously held that under the First Amendment’s freedom of the press, the state court could not prohibit “the publication of widely disseminated information obtained at court proceedings which were in fact open to the public.” The Oklahoma Supreme Court had relied on a state statute closing juvenile hearings unless specifically ordered by the judge to be conducted in public.There was no indication the judge in this instance had ordered the hearing open. However, the U.S. Supreme Court noted that regardless of whether the trial judge had “expressly made such an order,” the judge, prosecutor, and defense counsel all knew reporters were in the courtroom but made no objection to their presence or to the photographs taken as the boy left the courthouse. The U.S. Supreme Court said its decision was “compelled” by its rulings in Cox Broadcasting and Nebraska Press Association, which restricted gag orders against the reporting of information lawfully acquired in open court proceedings
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or in public court documents. In Cox Broadcasting, the Court held that a state could not sanction the accurate publication of a rape victim’s name that had been revealed in court records, and the ruling in Oklahoma Publishing “made clear that the press may not be prohibited from ‘truthfully publishing information released to the public in official court records.’ ” The Court said that principle had been reaffirmed in Nebraska Press Association. What transpired in a public hearing could not be subject to a prior restraint, the Court had held. Two years later in Smith v. Daily Mail Publishing Co. (1979), the Court extended similar protection to information lawfully obtained outside the courthouse through routine reporting techniques.
The act established several principles upon which public primary and secondary education continues to rest today: that basic education is a public or community responsibility, that the state can require communities to raise and expend local funds for schools, that day-to-day responsibility for the operation of schools rests at the local level, and that schools are to be organized in levels separating elementary from secondary education. The religious origins of laws providing for education in early America may help explain some of the conflicts that have subsequently developed when courts, enforcing the establishment clause of the First Amendment, have invalidated devotional religious exercises in public schools. See also Puritans.
David Carleton See also Cox Broadcasting Corp. v. Cohn (1975); Nebraska Press Association v. Stuart (1976); Smith v. Daily Mail Publishing Co. (1979).
Joey Senat
furthe r reading Bruschke, Jon and William E. Loges. Free Press vs. Fair Trials: Examining Publicity’s Role in Trial Outcomes. Mahwah, N.J.: Lawrence Erlbaum Associates, 2005. Cole,Tijani R.“The Courts & the Media Bench Book.” New England Law Review 35 (2001): 853–907. Giles, Robert and Robert Snyder, ed. Covering the Courts: Free Press, Fair Trials, and Journalistic Performance. Somerset, N.J.: Transaction Publishers, 1999.
Old Deluder Satan Act of 1647 Massachusetts passed the Old Deluder Satan Act in 1647, laying the basis for public schools in America. The Puritans valued literacy highly; they believed all individuals should be able to read and interpret the Bible for themselves. In 1642 Massachusetts had required parents to ensure their children’s ability to read, and five years later, in this act, the state mandated community schooling. The religious basis of the act was explicit: the act stated its intention was to thwart “ye old deluder, Satan” in his goal “to keepe men from the knowledge of ye Scriptures.” To this end, the law required every town with 50 or more families to hire and maintain a teacher to instruct all children in reading and writing. Towns of 100 or more families were required to support a grammar school to prepare students to attend Harvard College. Similar acts were soon adopted in the other New England colonies, except Rhode Island.
furthe r reading Gutek, Gerald. An Historical Introduction to American Education. New York:Thomas Y. Crowell Company, 1970. Leinwand, Gerald. Public Education. New York: Facts on File Books, 1992.
O’Lone v. Estate of Shabazz (1987) In O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), the Supreme Court, using a deferential standard of review for prison policies, held that inmate religious rights may be restricted for security concerns; the policies were not in violation of the free exercise clause of the First Amendment. This holding led to several attempts by Congress to require that courts apply a less deferential standard of review in cases involving governmental interference in religion. In O’Lone, inmates in a New Jersey prison sued, alleging that prison policies that required some inmates to work outside the prison, and which barred these inmates from returning to the prison during the day, violated their right to free exercise of their religion.These inmates wished to return to the prison during the day to participate in a Muslim religious service. The policies applied to all work-eligible inmates and were intended to minimize disruption and danger associated with moving inmates in and out of prison. The U.S. district court had upheld the policies as reasonable security measures, but the U.S. appellate court had reversed on the grounds that the state should have to prove that there were no alternate measures that might accommodate the prisoners’ rights.
One, Inc. v. Olesen (9th Cir. 1957) Writing for the majority, Chief Justice William H. Rehnquist overturned the circuit court decision and upheld the prison policies. In Turner v. Safley (1987), decided one week earlier, the Court held a regulation was valid if it was “reasonably related to a legitimate penological interest.” The majority in O’Lone applied this standard to the New Jersey prison work policies and upheld them as reasonably related to the legitimate penological interest of security.The Court refused to apply a stricter standard of review (such as strict scrutiny) to a prison policy simply because it interfered with freedom of religion. This case is significant because with it the Court used a standard of review that is deferential to prison administrators’ interests and difficult for inmates to overcome. This standard of review has since been modified. In 1993 Congress passed the Religious Freedom Restoration Act (RFRA), which required the use of “strict scrutiny” for reviewing federal laws affecting religious practices. Under the RFRA, a federal law could not “substantially burden” a person’s religious practice unless there was a “compelling state interest” and the law used the “least restrictive means possible.” The Supreme Court struck down the RFRA as applied to state and local governments in City of Boerne v. Flores (1997) on the grounds that it exceeded Congress’s authority under the Fourteenth Amendment. Congress then passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2003. Section 3 of the RLUIPA addresses the free exercise rights of institutionalized persons, including inmates. The RLUIPA retained the “strict scrutiny” test of the RFRA but based its authority on the Spending and Commerce Clauses. A group of Ohio prisoners then sued, alleging the prison was interfering with their religious practices. In Cutter v. Wilkinson (2005), the Supreme Court held that the RLUIPA did not violate the First Amendment because it did not elevate accommodations of religious practices over an institution’s need to maintain order and security. Justice Ruth Bader Ginsburg noted that although the RLUIPA requires application of strict scrutiny, rather than the Safley test,“context matters in the application of that standard.” In other words, although the RLUIPA requires application of “strict scrutiny,” courts are still expected to give great weight to the interests of prison administrators. It suggests the Supreme Court will permit some restriction on inmate religious practices, even under the strict scrutiny test.
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See also City of Boerne v. Flores (1997); Cutter v. Wilkinson (2005); Employment Division, Department of Human Resources of Oregon v. Smith (1990); Prisons; Religious Freedom Restoration Act of 1993; Religious Land Use and Institutionalized Persons Act of 2000;Turner v. Safley (1987).
Craig Hemmens
furthe r reading Davis, Heather. “Inmates’ Religious Rights: Deference to Religious Leaders and Accommodation of Individualized Religious Beliefs.” Albany Law Review 64 (2000):773–844. Hemmens, Craig, Barbara Belbot, and Katherine Bennett. Significant Cases in Criminal Procedure. Los Angeles: Roxbury Publishing Company, 2004. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) 42 U.S.C.A. Section 2000cc.
One, Inc. v. Olesen (9th Cir. 1957) In One, Inc. v. Olesen, 241 F.2d 772 (9th Cir. 1957), the Ninth Circuit Court of Appeals ruled that a magazine published for a homosexual audience was obscene and was therefore not constitutionally protected under the First Amendment rights of free speech and press. The case arose when the postmaster of the city of Los Angeles, Otto K. Olesen, ordered federal postal authorities to seize One:The Homosexual Magazine, informing the publisher that he considered it “obscene, lewd, lascivious and filthy” and “non-mailable” under federal law (the Comstock laws). The publisher sued, arguing that the government’s actions violated the First and the Fourteenth Amendments. In deciding whether the postmaster’s actions were justified, the lower court had to determine whether the October 1954 issue of the magazine was obscene. In 1957 the Supreme Court held in Roth v. United States that obscenity was not protected by the First Amendment and that publishers and distributors of obscene material could be punished under state or federal law. In most cases, the courts had to decide if the book or magazine in question fell within the Court’s definition of obscenity. In this case, the lower court ruled in favor of the government, finding the magazine obscene because it contained stories and poems that were intended to arouse a gay audience and also provided information on how to obtain obscene material (another criterion of “non-mailability”). On appeal, the Ninth Circuit Court of Appeals emphasized that it would base its ruling on the effect of the words on the reader, insisting that it was not “its brothers’ keeper as to the type of reading to be indulged in.” However, in announcing
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the opinion for the circuit court, Judge John Rolly Ross noted that although the magazine stated its aim was to provide educational and informative material, it “has a primary purpose of exciting lust, lewd and lascivious thoughts and sensual desires in the minds of the persons reading it.” The judge described one of the articles, entitled “Sappho Remembered,” about a 21-year-old woman’s choice to live as a lesbian as “cheap pornography.” The judge said that he believed homosexuality could only be discussed from a “scientific, historical and critical point of view.” Thus, because of such “morally depraving and debasing” articles, the court found the magazine as a whole “obscene and filthy” and upheld the lower court’s ruling that the postmaster was justified in considering it “non-mailable.” The next year, in One, Inc. v. Olesen (1958), the Supreme Court reversed the circuit court opinion, merely citing its ruling in Roth as the reason for its decision. See also Obscenity and Pornography; Roth v. United States (1957).
Susan Gluck Mezey
furthe r reading Eskridge,William N., Jr. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, Mass.: Harvard University Press, 1999. Keen, Lisa, and Suzanne B. Goldberg. Strangers to the Law: Gay People on Trial. Ann Arbor: University of Michigan Press, 2003.
O’Neil, Robert M. Robert M. O’Neil, an authority on First Amendment issues, is a lawyer, professor, and director of the Thomas Jefferson Center for the Protection of Free Expression. He frequently writes amicus curiae briefs on First Amendment cases that reach the Supreme Court. O’Neil was born in Boston. After earning undergraduate, master’s, and law degrees from Harvard University, he clerked for Supreme Court justice William J. Brennan Jr. for the 1962–1963 term. After his clerkship, O’Neil entered academia at the University of California, Berkeley. He flourished as both professor and administrator, serving in turn as provost of the University of Cincinnati, vice president at Indiana University, and president of the University of Wisconsin. In 1985 O’Neil became the president of the University of Virginia, a position he held until 1990, when he became the founding director of the Thomas Jefferson Center for the Protection of Free Expression.The organization, which advocates on behalf of free expression issues, has close ties to the university.
O’Neil has written numerous books related to the First Amendment. Among them are The First Amendment and Civil Liability (2001), Free Speech in the College Community (1997), The Rights of Public Employees:The Basic ACLU Guide to the Rights of Public Employees (1993), and Classrooms in the Crossfire: The Rights and Interests of Students, Parents, Teachers, Administrators, Librarians, and the Community (1981). Throughout his academic career, O’Neil has taught classes on the First Amendment. He currently teaches several such classes at the School of Law at the University of Virginia. See also Brennan, William J., Jr.; Thomas Jefferson Center for the Protection of Free Expression.
David L. Hudson Jr.
furthe r reading Heitman, Danny. “Constitutional Scholar Puts His Principles Where His Mouth Is.” Advocate, March 12, 1995, p. 31. “Robert M. O’Neil.” http://lawnotes2.law.virginia.edu/lawweb/ faculty.nsf/FHPbI/3198. Thomas Jefferson Center for the Protection of Free Expression. www.tjcenter.org.
On Liberty The 1859 book On Liberty by British philosopher John Stuart Mill presents one of the most influential arguments ever formulated in favor of free speech and individual freedom over censorship and paternalism.The importance of On Liberty resides in a series of powerful arguments defending the free flow of ideas in a marketplace of ideas, and in the belief that individuals can best make their lifestyle choices, free from government intervention. On Liberty was thus an inspiration for future First Amendment theory. According to Mill, protection against the tyranny of the government magistrate is not enough to ensure individual freedom. Protection is also needed against the tyranny of prevailing opinion, which seeks to suppress dissent and enforce conformity.The central concern of On Liberty is to find a way to draw the line between “individual independence and social control”—that is, under what circumstances is society warranted in interfering in a person’s life? To this question Mill responds: “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”
Open Meeting Laws and Freedom of Speech Chapters 3, 4, and 5 of On Liberty are devoted to an extended series of arguments against paternalism. In these arguments, Mill asserts that individuals are their own best judges of their tastes and preferences, and therefore they should be permitted to make their own choices if they are to grow and flourish as individuals. Mill also contends that were society to interfere, it would often do so wrongly. Overall, the thrust of these parts is to effect a wall between one’s private and public life, with society having no right to interfere in the private life. Chapter 2 of On Liberty is a defense of freedom of thought and expression and an argument against censorship. Mill offers several arguments in favor of free expression. First, because no one knows the truth, censoring an idea may be censoring the truth. Second, free competition of ideas is the best way to find truth.Third, because no one idea is the sum of truth, even those ideas containing only a portion of the truth will help society acquire knowledge. This argument implies that even false ideas are valuable, because they both test the truth and prevent it from slipping into dogma, and because they too may contain a germ of truth worth preserving. In summary, the robust exchange of ideas will help preserve individuality, restrain the tyranny of social opinion, and guide the pursuit of truth. On Liberty has played a role many constitutional law theories. It has been important in the defense of a right to privacy against individual freedom, in areas of sexual autonomy, and in the choice of reading material and religion. But the real power of the book has been in conceptualizing the First Amendment as a marketplace of ideas in which the truth of ideas is determined not by bowing to government fiat or censorship, but by letting dissenters burn flags or crosses, protest, or publish ideas that challenge the prevailing orthodoxy in society. Perhaps the best statement of the embodiment of On Liberty in the Constitution was in West Virginia State Board of Education v. Barnette (1943). The Supreme Court, in striking down a compulsory flag salute law, declared:“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” See also Censorship; Marketplace of Ideas;West Virginia State Board of Education v. Barnette (1943).
David Schultz
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furthe r reading Shiffrin, Steven H. The First Amendment, Democracy, and Romance. Princeton, N.J.: Princeton University Press, 1990.
Open Meeting Laws and Freedom of Speech Open meeting laws, also called sunshine laws, require that, with notable exceptions, most meetings of federal and state government agencies and regulatory bodies be open to the public, along with their decisions and records. Although open meeting statutes are closely related to the Freedom of Information Act of 1966, no national minimum standard defines “openness,” and it is not mentioned in the First Amendment. Much of the litigation over open meeting laws has centered on whether particular exceptions justify closing certain meetings of government bodies. Open meeting laws are a relatively new development. They ensure the public’s right to access to the internal workings of government at all levels.This “right” cannot be traced back to America’s common law tradition with England or to practices in place when the United States was founded. Until the mid-1800s, sessions of the English Parliament were closed to the public, and attempts to publish its debates in the press were punishable offenses. In America, sessions of the Continental Congress and the Constitutional Convention were held in secret. Although neither the Constitution nor the Bill of Rights requires public access to government meetings, the principle is entirely compatible with the concept of popular sovereignty and an informed citizenry.The freedoms of speech, the press, and the right to petition the government in the First Amendment all presuppose a “right to access.”To criticize or support a government policy effectively, citizens must be informed of the reasons for that policy. In the 1950s, even before Congress enacted the Freedom of Information Act, the American Society of Newspaper Editors had formed the Freedom of Information Committee. It pressured state legislatures to enact “open meetings” laws as part of a general move toward more responsive and responsible government. By 1976 all of the states and the District of Columbia had passed sunshine laws that created a legal right to (limited) access. In general, most statutes require public bodies to meet and deliberate in public. Although these laws guarantee that the public and the media can attend, they do not guarantee the public’s right to speak. What constitutes a meeting is usually defined by its purpose—to perform public business
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(social gatherings are not considered meetings)—and the number of participants—a quorum or majority. All such meetings, unless specifically and legally exempted, are presumed to be open to the public, and agencies are required to give advance notice of the date, time, place, and agenda. Exempted meetings are normally held in closed executive session and may be devoted to such things as personnel issues, ongoing investigations, collective bargaining, conferences with agency attorneys, the acquisition or sale of public property, or a debate among members of the agency prior to a decision. Nevertheless, the agency must compile minutes or transcripts, and formal action must be taken in a public session. Both federal and state legislatures have the discretion to enact statutes to change or add exemptions at any time. Faced with the technological advances of the information age and haphazard business practices, states are finding that they must reconsider their open meeting statutes.Violations have ranged from conducting public business during innocent chance meetings to purposely bypassing the public notification requirement by using serial telephone calls or emails to speak with fellow board or agency members. In either case, technically the attendance requirement that triggers an open meeting is not present under most state laws, but the intent or spirit of the law is being ignored. To clarify the meaning of “meeting” and to address today’s virtual or electronic communications capabilities, several states have relied on the analysis provided by the Washington state appeals court decision in Wood v. Battle Ground School District (2001). It specifies that regardless of the setting, a meeting is defined by the intent and substance of the communication among public officials. If that intent is to discuss information and views or influence public business or policy, the communication becomes a meeting under the law and the provisions of the open meeting law apply. If, however, the information is “passive,” with no real intent of influencing public policy, the communication does not trigger the legal requirement for an open meeting. In the e-mail context, courts have focused on whether there was simultaneous communication akin to exchanges at a real-world meeting between officials. For example, in Beck v. Shelton (Va. 2004), the Virginia Supreme Court determined that the exchange of e-mails between city council members and certain members-elect did not constitute a meeting because “the e-mails did not involve virtually simultaneous interaction.” Today, in most states intent is central to determining the applicability of the open meeting statutes.
See also American Society of Newspaper Editors; Freedom of Information Act of 1966; State Constitutional Provisions on Expressive Rights.
Alex Aichinger
furthe r reading “Note: Open Meeting Statutes: The Press Fights for the ‘Right to Know.’ ” Harvard Law Review 75 (1962): 1199–1221. O’Connor, John, and Michael J. Baratz. “Some Assembly Required: The Application of State Open Meeting Laws to Email Correspondence.” George Mason Law Review 12 (2004): 719–774.
Order of St. Benedict v. Steinhauser (1914) In Order of St. Benedict v. Steinhauser, 234 U.S. 640 (1914), the Supreme Court ruled that the religious order was entitled to the estate of one of its deceased members, the author Augustine Wirth. State recognition of individuals’ rights to join, and thereby assume obligations to, religious societies arguably serves to protect the free exercise of religion guaranteed by the First Amendment. Writing for the unanimous Court, Chief Justice Charles Evans Hughes found that Wirth had joined the New Jersey Order of St. Benedict voluntarily and had taken vows of “obedience, stability, chastity, and poverty.” The poverty vow included agreeing that monies he earned while a member would remain with the order. Although Wirth’s abbot had allowed Wirth to control some of his earned monies from publishing books, neither this permission nor the permission he had received to visit other monasteries altered the nature of the agreement he had made or opened Wirth’s estate to claims by others. Hughes said that prior decisions had recognized “the distinctions between civil and ecclesiastical rights and duties.” Provided the order allowed members to withdraw, as the Benedictine Order did, the Court would enforce agreements by members to turn over their property to collective purposes. Hughes observed that in Wirth’s case, much of the value of his copyrights might even have stemmed from his association with the order. This decision was similar to Baker v. Nachtrieb (1856), where the Court upheld a contractual agreement between individuals and a religious organization with which they chose to associate. See also Baker v. Nachtrieb (1856); Copyright.
John R.Vile
Original Intent furthe r reading Silversmith, Jed Michael, and Jack Achiezer, Guggenheim. “Between Heaven and Earth: The Interrelationship between Intellectual Property Rights and the Religious Clauses of the First Amendment.” Alabama Law Review 52 (2001): 467–527.
Organization for a Better Austin v. Keefe (1971) In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Supreme Court held that those seeking a prior restraint on expression carry “a heavy burden of showing justification for the imposition of such a restraint.” Keefe, a real estate agent, obtained a temporary injunction prohibiting the Organization for a Better Austin (OBA) from passing out literature criticizing Keefe’s real estate activities in Austin, arguing that the literature distributed by OBA in his neighborhood of Westchester, seven miles from Austin, invaded his right of privacy and was coercive rather than informative. By an 8-1 vote, the Court reversed the Illinois state court ruling. Justice John Marshall Harlan II based his dissent not on disagreement with the majority’s reasoning on prior restraint, but on his understanding that the Court lacked appellate jurisdiction.This decision made it even more difficult to justify prior restraints through the series of cases begun in Near v. Minnesota (1931). In Near the Court asserted that the protection from prior restraints is “not absolutely unlimited. But the limitation has been recognized only in exceptional cases.” These four exceptional cases are when speech jeopardizes public safety in wartime, threatens the primary requirements of decency, incites acts of violence and the overthrow of government, or invades private rights. However, in the majority opinion, Chief Justice Warren E. Burger cited Carroll v. President and Commissioners of Princess Anne (1968) and Bantam Books v. Sullivan (1963) to emphasize that “[a]ny prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Burger argued that the respondent had failed to meet the “heavy burden” required to convince the Court that it should disregard this presumption on both points. First, Burger argued that the “claim that the expressions were intended to exercise a coercive impact . . . does not remove them from the reach of the First Amendment” because the means of expression were peaceful and, similar to a newspaper, were attempts to influence conduct. Second, on the privacy argument, Burger emphasized that the “respondent is
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not attempting to stop the flow of information into his own household, but to the public.” See also Bantam Books, Inc. v. Sullivan (1963); Burger,Warren E.; Carroll v. President and Commissioners of Princess Anne (1968); Near v. Minnesota (1931); New York Times Co. v. United States (1971); Prior Restraint.
Tim Meinke
furthe r reading Lee, Francis Graham. Neither Conservative nor Liberal: The Burger Court on Civil Rights and Liberties. Malabar, Fla.: R.E. Krieger Publishing Co., 1983.
Original Intent The term original intent refers to the notion that the judiciary should interpret the Constitution (including its amendments) in accordance with the understanding of its framers. The courts’ commitment to original intent is somewhat tested, however, by the reality that the framers’ intentions are not always easy to identify. Another factor is that it has never been clear to what extent the framers’ intentions are relevant to the task of establishing constitutional norms. Some even disagreed on this point. James Madison, one of the drafters of the Constitution, felt strongly that future interpretation of the document should not rest primarily on the intentions of the framers, but on the intentions of the people who, through their state representatives, ratified the Constitution. In part, this reasoning explains Madison’s decision not to make public for many years the notes he took at the Constitutional Convention. Alexander Hamilton, who signed the Constitution on behalf of NewYork, looked to the Constitution itself, believing that the text should control its interpretation. In his view, the Constitution spoke for itself; there was no need to go behind it to ascertain the intent of the framers. However, in what it says, the Constitution is liberal in granting powers to the national government. Thomas Jefferson advocated still another method of constitutional interpretation: the rule of strict constructionism. Jefferson strongly asserted that the Constitution and Bill of Rights were grounded in the principle embodied in the Tenth Amendment: that all undelegated powers are reserved “to the states respectively, or to the people.” Yet even Jefferson violated his interpretive theory when, after originally concluding that the Louisiana Purchase required a constitutional amendment, he authorized the transaction without one.
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James Madison believed that interpretation of the Constitution should be based on the intentions of the American people rather than solely on the views of the founders.
The Bill of Rights was not a part of the document drafted at the Constitutional Convention in 1787. Almost all the delegates believed a bill of rights would be superfluous. The new federal government possessed only limited powers delegated to it by the states; no power had been granted to legislate on any of the subjects that might be included in a bill of rights.Therefore, an enumeration of rights was not necessary. From late 1787 until 1789, the proposed Constitution was considered by the various state ratifying conventions. Meanwhile, a strong Anti-Federalist element developed quickly. The Anti-Federalists opposed ratification, fearing that the centralizing tendencies of the new document would crush the rights of states and individuals. For many of the states, the only solution to this problem was to mandate inclusion of a bill of rights. Indeed, six of the thirteen states— Massachusetts, New Hampshire, North Carolina, New York, Rhode Island, and Virginia—accompanied their instruments of ratification with a list of recommended amendments that
would secure various personal liberties, such as “rights of conscience,”“liberty of the press,” and “rights of trial by jury.” However, the records of the debates of the state ratifying conventions are of little help in ascertaining the precise meanings that such liberties were to assume. The first rights enumerated in the First Amendment pertain to religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Of the six states that recommended amendments to secure personal liberties, all but Massachusetts submitted proposals about religious freedom.Apparently, Massachusetts legislators did not feel that the Massachusetts religious establishments were in any way threatened by the proposed Constitution; they believed that the new federal government was to be impotent in matters of religion. For the religion clauses, two basic interpretations of what the constitutional framers intended have emerged—the separationist and the accommodationist.The separationist interpretation suggests a strict separation between civil authority and religion. Although governmental authority should protect the private “free exercise” of religion, no church or religious group should receive any form of governmental aid. The accommodationist view holds that the framers intended for the establishment clause to prevent governmental establishment of a single sect or denomination of religion over others.The framers, they contend, intended only to keep the government from abridging religious liberty by discriminatory practices generally or by favoring one denomination or sect over others. Neither view, however, was well articulated, nor can either claim to have represented the clearly understood meaning of the religion clauses in 1789. As for the remaining rights enumerated in the First Amendment, it is equally unclear exactly what the framers were thinking. Most scholars believe they were thinking rather broadly, with few restrictions on the rights enumerated. Virtually everyone agrees that First Amendment rights were fundamentally limitations on federal and not state power. Thus there was little reason to interpret the various rights. In fact, from the time the Bill of Rights was ratified in 1791 until World War I, Congress passed only one law restricting speech—the Sedition Act of 1798. It was not until the Espionage Act of 1917 and the Sedition Act of 1918 that an intense debate over the meaning of the free speech clause began. That debate, like the meaning of all of the First Amendment rights, has largely played out in the courts. As for freedom of the press, if there was anything close to a consensus in the founding era it was likely the common
Osborne v. Ohio (1990) law view expressed by English jurist William Blackstone: “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published” (Blacksone 1872: 4:151). Few suggest that there should be no limits on speech, press, assembly, and redress rights. Rather, the debate is over where to draw the line between protected and nonprotected expression. In some areas, such as pornography and flag burning, it is exceedingly difficult to know where to draw the line. Individual interests are pitted against society’s larger interests, and the courts do the line drawing. Whether the courts’ decisions conform to the framers’ original intent will always be a matter of considerable debate. See also Accommodationism and Religion; Anti-Federalists; Bill of Rights; Constitutional Convention of 1787; Federalists; Hamilton, Alexander; Madison, James; Prior Restraint; Sedition Act of 1798; Separation of Church and State.
Derek H. Davis
furthe r reading Blackstone, William. Commentaries on the Laws of England, 2d rev. ed., ed.T. Cooley. Chicago: Callaghan, 1872. Bollinger, Lee C., and Geoffrey R. Stone. Eternally Vigilant: Free Speech in the Modern Era. Chicago: University of Chicago Press, 2002. Davis, Derek H. Religion and the Continental Congress, 1774–1789: Contributions to Original Intent. Oxford: Oxford University Press, 2000. Levy, Leonard W. Legacy of Suppression: Freedom of Speech and Press in Early American History. Cambridge, Mass.: Belknap Press, 1960. ———. Origins of the Bill of Rights. New Haven, Conn.:Yale University Press, 1999. Sunstein, Cass R. Democracy and the Problem of Free Speech. New York: Free Press, 1993.
Osborne v. Ohio (1990) Although the Supreme Court decision in Osborne v. Ohio, 495 U.S. 103 (1990), reversed and remanded the conviction of Clarence Osborne for the private possession of “child pornography,” it established that the First Amendment right to free speech did not forbid states from enforcing laws against private possession of such material. While executing a valid search warrant at Osborne’s home, the police found four photographs of a boy, or boys, in nude, sexually provocative poses. Osborne, a 62-year-old man, was charged with violating an Ohio criminal statute that said, in part, that no one may “. . . [p]ossess or view any material or performance that shows a minor who is not the
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person’s child or ward in a state of nudity.” Osborne had not taken the pictures, and there was no evidence he was a pedophile or that he had in any way distributed the material to others. Yet, he was convicted and sentenced to six months in jail. Osbourne asked the Supreme Court to review his case, arguing that prohibiting the possession of pornography was a violation of the First Amendment right to free press and expression.The Court agreed to hear the case and held that laws prohibiting the private possession of child pornography were not in violation of the First Amendment. Nonetheless, the Court reversed and remanded the case, finding that it was unclear whether the state had proved all elements of the offense. More than thirty years earlier, the Supreme Court had unequivocally removed obscenity from First Amendment protection in Roth v. United States (1957). Since then, with varying degrees of success, the Court has attempted to define what obscenity is, and therefore what is excluded, but it has never wavered from its fundamental premise. In 1969 the Court made one important concession, ruling in Stanley v. Georgia that the state could not prosecute the private possession of pornography. This decision balanced the interests of the state in outlawing private possession of pornography and the individual’s freedom of thought. In that case the state’s interest was not found compelling enough to invade the individual’s privacy. Then in New York v. Ferber (1982), the Court addressed another question entirely—that is, whether sexually explicit materials that involved minors, but were not obscene under the three-part standard for obscenity established in the Miller v. California (1973) standard (which asked “if ‘(a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; [if] (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and [if] (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value’), were protected by the First Amendment. In answering no, the Court said that the “compelling state interest” in protecting children removed any First Amendment protection the material involving minors might have. Ferber created the child pornography exception in First Amendment jurisprudence. Ohio and other states subsequently passed statutes outlawing “child pornography.” These were often very broad statutes that included many items, such as depictions of mere nudity, that would not have been legally obscene under
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existing statutes.The state claimed that it needed the statutes to pursue pedophiles, who often used pornography to recruit and/or exploit victims. In defending Osborne in his appeal before the Supreme Court, his attorneys relied, unsuccessfully, on the Stanley decision, saying that the mere personal possession of any pornography is protected by the First Amendment. The court disagreed, reasoning that Stanley was a narrow exception. It declared that the state’s interest in the prevention of child abuse far outweighed Clarence Osborne’s right to view the images. See also New York v. Ferber (1982); Obscenity and Pornography; Roth v. United States (1957); Stanley v. Georgia (1969).
James L.Walker
furthe r reading Adler,Amy. “The Perverse Law Of Child Pornography.” Columbia Law Review 101 (March 2005): 209–273. Quigley, John. “Child Pornography and the Right to Privacy,” Florida Law Review 47 (1991).
Overbreadth Overbreadth is shorthand for the overbreadth doctrine, which provides that a regulation of speech can sweep too broadly and prohibit protected as well as nonprotected speech.A regulation of speech is unconstitutionally overbroad if it regulates a substantial amount of constitutionally protected expression. Overbreadth is closely related to its constitutional cousin, vagueness. A regulation of speech is unconstitutionally vague if a reasonable person cannot distinguish between permissible and impermissible speech because of the difficulty encountered in assigning meaning to language. At least three motives drive the government’s impulse to fashion overbroad regulations. First, officials may employ overbroad regulations to suppress a broad range of criticisms directed against those in power. Second, officials may selectively enforce broad regulations to protect or suppress communicative content as they choose.Third, governments may adopt broad regulations to avoid judicial determinations of content or viewpoint discrimination. Judicial examination of free speech regulations reflects an enduring concern: that free expression needs “breathing space” to survive (City of Houston v. Hill [1987]). The Supreme Court implicitly recognized overbreadth in two 1940 decisions. In Thornhill v.Alabama (1940), the Court overturned the application to the accused of a wholesale ban
on labor picketing that outlawed “peaceful and truthful discussion of matters of public interest” and violent actions alike. In Cantwell v. Connecticut (1940), the Court held that a “breach of the peace” statute could not be broadly construed to “suppress free communication of views, religious or other, under the guise of conserving desirable conditions.” However, in both cases the Court refrained from invalidating the statute in question, calling instead for a limiting construction of its applications. One of the essential characteristics of contemporary overbreadth doctrine that the Court emphasized in Broadrick v. Oklahoma (1973) is that it is “manifestly strong medicine,” to be employed “sparingly and only as a last resort,” and not in situations in which “a limiting construction has been or could be placed on the challenged statute.” A second characteristic of the doctrine is that a regulation’s overbreadth “must be not only real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” This determination entails balancing the potential harm to society when unprotected speech goes unpunished against the societal implications of silencing communicators. As the Court ruled in Gooding v.Wilson (1972), these implications include leaving grievances to fester and foisting the “chilling effects” of regulation upon those whose speech is protected by the Constitution. Precisely because of these chilling effects, the overbreadth doctrine permits those to whom the law constitutionally may be applied to argue that it would be unconstitutional as applied to others. This doctrine constitutes an exception to the traditional third-party standing rule. However, in a series of recent cases, including Hill v. Colorado (2000), the Supreme Court implied that only parties whose speech is unprotected may facially challenge regulations on overbreadth grounds, a development that would alter the historical development of overbreadth doctrine. See also Ad Hoc Balancing; Broadrick v. Oklahoma (1973); Cantwell v. Connecticut (1940); City of Houston v. Hill (1987); Gooding v. Wilson (1972); Hill v. Colorado (2000); Thornhill v. Alabama (1940);Vagueness;Viewpoint Discrimination.
Richard Parker
furthe r reading Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 2d ed. New York: Aspen Law and Business, 2002, esp. Sec. 11.2.2. Chen, Alan K. “Statutory Speech Bubbles, First Amendment Overbreadth, and Improper Legislative Purpose.” Harvard Civil Rights—Civil Liberties Law Review 38 (2002): 31–90.
Overton v. Bazzetta (2003) Monaghan, Henry Paul. “Overbreadth.” In The Supreme Court Review, ed. Philip B. Kurland, Gerhard Kasper, and Dennis J. Hutchinson, 1–39. Chicago: University of Chicago Press, 1981. Redish, Martin H.“The Warren Court, the Burger Court, and the First Amendment Overbreadth Doctrine.” Northwestern University Law Review 78 (1983): 1031–1070.
Overton v. Bazzetta (2003) In Overton v. Bazzetta, 539 U.S. 126 (2003), the Supreme Court upheld certain prison noncontact visitation bans, reaffirming the principle that prison officials have broad discretion in disciplinary policies that may affect inmates’ First Amendment rights. The case involved a class-action challenge to various provisions of the Michigan Department of Corrections’ visitation policies, which were amended in 1995 to address drugsmuggling and discipline problems.The suit challenged policies for noncontact visitation, including a ban on visitation by minor nieces and nephews and children for whom inmates’ parental rights had been terminated, a ban on visitation by former inmates, and a ban on visitation for inmates with two or more substance-abuse violations. A federal district court and federal appeals court determined that the bans violated the prisoners’ constitutional rights, including their First Amendment–based associational rights. The Supreme Court unanimously reversed the lower courts in an opinion written by Justice Anthony M. Kennedy. The Court applied the deferential rational-basis standard of review articulated by its decision in Turner v. Safley (1987), which determined that prison officials do not violate inmates’ constitutional rights if their policies serve a reasonable penological goal, such as safety or rehabilitation. “We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a correc-
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tions system and for determining the most appropriate means to accomplish them,” Kennedy wrote. “The burden, moreover, is not on the State to disprove the validity of prison regulations but on the prisoner to disprove it.” Kennedy determined that the limitation on visits by children was reasonably related to the goal of “maintaining internal security and protecting child visitors from exposure to sexual or other misconduct or from accidental injury.” Kennedy also upheld the ban on former inmates’ visits based on security reasons. Finally, Kennedy reasoned that the ban on visitation for inmates with multiple drug-abuse violations “serves the legitimate goal of deterring the use of drugs and alcohol within the prisons.” Justice John Paul Stevens, joined by three other justices, wrote a short concurring opinion, emphasizing that the Court was not abdicating its role of reviewing constitutional claims by inmates. Justice Clarence Thomas, joined by Antonin Scalia, also wrote a separate concurring opinion, which differed dramatically from the opinions by Kennedy and Stevens.According to Thomas,“states are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivations—provided only that those deprivations are consistent with the Eighth Amendment [prohibiting ‘cruel and unusual punishments’].” (Italics in the original.) See also Kennedy, Anthony M.; Prisons;Thomas, Clarence;Turner v. Safley (1987).
David L. Hudson Jr.
furthe r reading Hudson, David L., Jr. “Justice Thomas and Prisoners’ Freedom of Expression.” First Amendment Center, October 8, 2007. www.first amendmentcenter.org/analysis.aspx?id=18979. Sinema, Kyrsten. “Overton v. Bazzetta: How the Supreme Court Used Turner to Sound the Death Knell for Prisoner Rehabilitation.” Arizona State Law Journal 36 (2004): 471–491.
CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT
P
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 REDRESS OF GRIEVANCES.
Pacific Gas and Electric Co. v. Public Utilities Commission (1986) The Supreme Court decision in Pacific Gas and Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986), is significant because it established, with very few exceptions, the right of a corporation as a publisher to refuse to print messages with which it does not agree. This free speech case involved documents distributed by Pacific Gas and Electric Company, which sent with its monthly bill a newsletter containing information about utilities, public interest stories, and political editorials.The public interest group Toward Utility Rate Normalization (TURN) sued, arguing that billing envelopes should not be used to distribute political speech because customers were forced to bear this expense. The California Public Utilities Commission found that the extra space in the billing envelopes was the ratepayer’s property, and in an effort to apportion this space,TURN was permitted to use the extra space four times a year with no limitation on its messages except to state that the messages were not those of Pacific Gas and Electric Co. The decision involved several factors. Does a corporation, as a person, have free speech protections? Because TURN disagreed with Pacific Gas and Electric’s policies, the corporation was forced to disseminate hostile views.Thus, the issue of negative free speech or the protection of “what not to say” was involved in the Court’s interpretation of the First Amendment. Justice Lewis F. Powell Jr. gave the opinion of the Court, which Chief Justice Warren E. Burger, Justice William J.
Brennan Jr., and Justice Sandra Day O’Connor joined. Justice Thurgood Marshall filed a concurring opinion. Justice William H. Rehnquist filed a dissenting opinion, which Justices Byron R.White and John Paul Stevens joined in part. Based on First National Bank of Boston v. Bellotti (1978), the majority affirmed that corporations as individuals are entitled to free speech. This protection extends to the corporation’s newsletter and the space in the billing envelope. (Justice Rehnquist’s dissent specifically disagrees with this. He argued that corporations do not enjoy the negative free speech rights that individuals and the press enjoy.) The Court relied on Miami Herald Publishing Co. v.Tornillo (1974), in which the Court decided that compelling a private corporation to provide a forum for views with which it disagreed infringed on the corporation’s free speech rights. Although the intent of the California Public Utility Commission’s decision was to further free discussion, its effect discriminated on the basis of the viewpoint of the speaker because only those who disagreed with Pacific Gas and Electric were given access to the envelope space. By mandating that the opposing views of TURN be given access, the appellant was compelled to respond to TURN’s arguments.A forced response is antithetical to free discussion under the First Amendment. Although the state may have a compelling interest in utility regulations, the appellant’s rights cannot be abridged by government restrictions that enhance the speech of its opponents. The Supreme Court held that the California Public Utilities Commission’s decision must be vacated and remanded the decision to the California Supreme Court.
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See also First National Bank of Boston v. Bellotti (1978); Miami Herald Publishing Co. v.Tornillo (1974); Powell, Lewis F., Jr.
Lynn Garcia
furthe r reading Cronauer, Adrian. “The Fairness Doctrine: A Solution in Search of a Problem.” Federal Communications Law Journal 47 (1995): 2004–2005.
Paine, Thomas Thomas Paine (1737–1809), pamphleteer and revolutionary, is best remembered as the author of Common Sense (1776), an enormously popular and highly influential forty-sevenpage pamphlet that resonated across the land with its critique of King George III and hereditary succession and its call for American independence. Alongside his justification for the colonists’ separation from England, Paine suggests
Thomas Paine
that the rule of law should replace the rule of king. Paine’s “hints” for organizing an independent government include reverence for a written charter that would emphasize individual liberty, including the free exercise of religion. Born to a Quaker father and Anglican mother in Thetford, England, Paine worked variously as a corsetmaker, excise-tax collector, seaman, and shopkeeper before departing for the colonies. Arriving in Philadelphia in 1774 with a letter of introduction from Benjamin Franklin, Paine began a career in journalism as editor of The Philadelphia Magazine. Paine’s literary style bridged the gap between the political elite of the era and the colonial everyman. The power of his ideas coupled with the accessibility of his writing account in part for the success and influence of Common Sense. Just nine months after the battles of Lexington and Concord, Paine was assuring Americans that “we have it in our power to begin the world over again” and serve as a model for world citizenship, commerce, and peace. Although Paine wrote another series of influential papers under the title American Crisis during the Revolution, his common-man, radical, and egalitarian sentiments (which included opposition to slavery and support for women’s rights) brought him enemies in his adopted land. In April 1787, he departed the United States for Europe, where he intended to raise funds to build an iron bridge he had previously patented.This fund-raising expedition turned into a fifteen-year sojourn. While traveling between England and France, Paine responded to Edmund Burke’s critique of the French Revolution, which had begun in 1789, by publishing Rights of Man (1791, 1792). The popular success of this work met with charges of seditious libel from English authorities, forcing Paine to flee to France to avoid arrest. Paine received a hero’s welcome in France, where he was elected as a representative to the new National Convention. When Paine opposed the death penalty for Louis XVI, however, he was imprisoned and barely escaped execution himself. Released the next year, Paine produced Age of Reason (1794, 1796), a two-part critique of Christianity and religion. This was followed in 1797 by another controversial work, Agrarian Justice, considered a seminal text for the workers’ movement and the welfare state. Maligned and misunderstood in his own day, it was noted at his death that just six mourners attended the funeral of this citizen of the world who wrote so eloquently about rejecting injustice and pursuing limited government and personal liberty.
Palmer, A. Mitchell See also Declaration of Independence; Franklin, Benjamin.
Norman Provizer
furthe r reading Foner, Eric. Tom Paine and Revolutionary America. New York: Oxford University Press, 1976. Foner, Philip, ed. The Complete Writings of Thomas Paine. New York: Citadel Press, 1945. Kaye, Harvey. Thomas Paine and the Promise of America. New York: Hill and Wang, 2005.
Palko v. Connecticut (1937) In Palko v. Connecticut, 302 U.S. 319 (1937), the Supreme Court ruled against applying to the states the federal double jeopardy provisions of the Fifth Amendment but in the process laid the basis for the idea that some freedoms in the Bill of Rights, including the right of freedom of speech in the First Amendment, are more important than others. Frank Palko had been tried for first-degree murder in Connecticut but was convicted of murder in the second degree and sentenced to life in prison. Prosecutors retried him, and he received a death sentence, which he appealed on the grounds that Fifth Amendment protections against double jeopardy applied to the states through the Fourteenth Amendment’s due process clause.At the time, the Court had applied some provisions of the Bill of Rights to the states in this manner, but not others. In the opinion for the Court, Justice Benjamin N. Cardozo surveyed previous decisions rejecting the application of provisions within the Bill of Rights to the states in the areas of grand jury indictment, self-incrimination, and jury trials. He contrasted these with decisions that had applied to the states freedom of speech and the press, the free exercise of religion, peaceable assembly, and the benefit of counsel in capital cases. Acknowledging that the two lines of decisions might appear inconsistent, Cardozo found a “rationalizing principle.” The Fourteenth Amendment includes only those rights that are “of the very essence of a scheme of ordered liberty.” These include rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In looking at the rights of “freedom of thought, and speech,” which the First Amendment protects, Cardozo wrote that they compose “the matrix, the indispensable condition, of nearly every other form of freedom.” By contrast, he did not consider the federal right to protection from double jeopardy to be fundamental. Justice Pierce Butler dissented without writing an opinion.
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See also Bill of Rights; Cardozo, Benjamin N.; Preferred Position Doctrine.
John R.Vile
furthe r reading Abraham, Henry J., and Barbara A. Perry. Freedom and the Court. 8th ed. Lawrence: University Press of Kansas, 2003.
Palmer, A. Mitchell Alexander Mitchell Palmer (1872–1936), a lawyer, politician, and attorney general of the United States after World War I, is remembered for directing the notorious “Palmer raids,” a series of mass roundups and arrests by federal agents of radicals and political dissenters suspected of subversion. Palmer became attorney general in 1919, as the first red scare was spreading throughout the country and First Amendment rights were under duress. Born in Moosehead, Pennsylvania, Palmer graduated summa cum laude in 1891 from Swarthmore College. After studying law for two years, he was admitted to the practice of law in 1893 and became a prominent lawyer and a leader of Pennsylvania’s Democratic Party. He was elected to Congress in 1908 and served three terms in the House of Representatives. He supported woman suffrage, the abolition of child labor, and tariff reform. In 1912 he played an important role at the Democratic National Convention, helping to nominate Woodrow Wilson for president. President Wilson offered Palmer a cabinet post—secretary of war—but he declined because of his pacifist Quaker beliefs. The following year,Wilson appointed him as judge of the U.S. Court of Claims, where he served briefly before resigning to return to political work. In 1917 Wilson appointed Palmer as an alien property custodian, where he conducted searches and seized properties belonging primarily to German aliens. His methods of investigation were criticized, as were his partisan appointments and broad construction of his powers.Wilson then appointed Palmer attorney general, where he served until 1921. He unsuccessfully sought his party’s nomination for president in 1920. The repression of radicals and dissenters had begun during World War I, before Palmer became attorney general.The Department of Justice and its Bureau of Investigation, an agency that later developed into the Federal Bureau of Investigation, began to conduct surveillance on immigrant anarchist groups suspected of bombings that had occurred throughout the country. The surveillance increased after
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1917, when concerns about the Russian Revolution’s potential to spread communism combined with a new series of domestic bombings and heightened labor unrest to produce a growing public hysteria about radicals. Palmer himself was the target of two anarchist bomb attacks. Partly in response to these attacks and partly as a way of furthering his presidential ambitions, he became a zealous opponent of radicals and their organizations. He wrote articles and gave speeches warning of dangers posed by leftists. Armed with supplementary congressional appropriations earmarked for matters of internal security and relying on recently passed laws, such as the Espionage Act of 1917 and the Sedition Act of 1918, Palmer’s agents raided headquarters of communist, socialist, and anarchist organizations as well as labor union offices. In one raid, in December 1919, federal agents detained nearly 250 suspected subversives, including the anarchist Emma Goldman, and placed them on board a ship bound for the Soviet Union. In January 1920, another 6,000 suspected radicals, most members of the Industrial Workers of the World (IWW), were arrested and those who were not citizens were deported. By the end of the month, 10,000 individuals had been rounded up. At the time it was the largest mass arrest in the history of the United States. Although the public generally supported these efforts, Palmer and his federal agents were accused by civil liberties groups of using illegal and unconstitutional methods for obtaining evidence and conducting surveillance, including warrantless searches, illegal wiretaps, and cruel interrogation techniques. Public support for continuing repression gradually eroded, as the raids increasingly became the subject of public criticism. In May 1920, an influential pamphlet, Report upon the Illegal Practices of the United States Department of Justice, was written and circulated by twelve prominent lawyers, including Felix Frankfurter and Zechariah Chafee Jr., charging Palmer with conducting illegal searches, the mistreatment of prisoners, and the use of agents provocateurs to entrap innocent individuals. Other public figures and some public officials were inspired by this pamphlet to speak out as well. The American Civil Liberties Union was founded in 1920 largely in reaction to the violation of liberties that the Palmer raids represented.The organization later represented numerous individuals who were caught in a second red scare at the end of World War II, when the Soviet Union was emerging as a global power. After serving as attorney general, Palmer stayed in Washington to practice law and remained active in
Democratic Party politics until his death. The Palmer raids illustrate that important legal rights are sometimes violated during times of war and perceived crisis. See also Aliens; American Civil Liberties Union; Anarchy Statutes; Chafee, Zechariah, Jr.; Espionage Act of 1917; Frankfurter, Felix; Goldman, Emma; Hoover, J. Edgar; Red Scare; Sedition Act of 1918; World War I.
Mark Kessler
furthe r reading Braeman, John.“World War One and the Crisis of American Liberty.” American Quarterly 16 (Spring 1964): 104–112. Coben, Stanley. A. Mitchell Palmer: Politician. New York: De Capo Press, 1972. Finan, Christopher M. From the Palmer Raids to the Patriot Act:A History of the Fight for Free Speech in America. Boston: Beacon Press, 2007. Goldstein, Robert Justin. Political Repression in Modern America, 1870 to 1976. Champagne: University of Illinois Press, 2001. Heale, M. J. American Anticommunism: Combating the Enemy Within, 1830–1970. Baltimore: Johns Hopkins University Press, 1990. Murray, Robert K. Red Scare:A Study of National Hysteria, 1919–1920. New York: McGraw-Hill, 1964. Preston, William. Aliens and Dissenters: Federal Suppression of Radicals, 1903–1933. 2d ed. Champagne: University of Illinois Press, 1994.
Palmer Raids See Palmer, A. Mitchell
Pandering In a legal context, pandering occurs when distributors or booksellers merchandise works in salacious terms, appealing purely to the potential purchaser’s “prurient interests.” It became a constitutional issue because of federal laws banning the use of the U.S. postal service to mail obscene, lewd, and lascivious materials as well as illegal narcotics and abortion devices. The Supreme Court addressed the issue of pandering in the obscenity context in Ginzburg v. United States (1966). Ralph Ginzburg was convicted of violating federal law by mailing obscene materials through the U.S. Postal Service. In promoting his materials, Ginzburg sought to mail them through the postmasters of Intercourse and Blue Ball, Pennsylvania, and Middlesex, New Jersey. The trial court held that these communities were selected to promote the magazine EROS because their names would appear on the postmark and would aid in emphasizing the salacious nature of the publication. In addition, the promotional literature included with the mailing stressed the sexual content of the material and was sexually graphic.
Panhandling Laws Justice William Brennan Jr., writing for the majority of the Supreme Court, upheld the conviction by asserting that the way in which the magazine and materials had been pandered could be used to determine whether the materials were obscene. Relying on Roth v. United States (1957), which established that obscenity was not protected expression and that Roth’s conviction was justified under U.S. Code 18, section 1461, Brennan refined Roth’s prurient interest test. He defined pandering as the “commercial exploitation of erotica solely for the sake of their prurient appeal.” Thus, if the purveyors of erotica openly advertised to appeal primarily to a customer’s erotic interests, the advertisements could be used to support a finding that the materials are obscene. At the same time, if the distributors had advertised EROS as appealing primarily to artistic values, the Court would not be bound by the contents of the promotional literature alone and would have to rule that the work was not obscene. The Ginzburg ruling did not add anything new to the definition of obscenity. Instead, it applied a portion of the definition of obscenity—that being “prurient interest”—to enforce federal obscenity laws against pandering and to clarify how communities could justify declaring materials obscene that involved pandering. What constitutes pandering and a violation of anti-obscenity laws remains controversial. Critics of the Ginzburg ruling argue that it is impossible to prove pandering because prosecutors cannot establish that distributors had intent or knowledge that the works being marketed were obscene. In contrast, supporters of the Ginzburg ruling respond that the indiscriminate distribution and marketing of obscene materials will erode public morality, and pandering is an important element when determining whether material promoted through the mail is obscene. See also Brennan,William J., Jr.; Ginzburg v. United States (1966); Obscenity and Pornography; Roth v. United States (1957).
Ruth Ann Strickland
furthe r reading Baughman, Thomas H. “Obscenity—Obscene Publications— Pandering.” In Commentaries on Obscenity, ed. Donald B. Sharp. Metuchen, N.J.: Scarecrow Press, 1970. Romero, Javier.“Unconstitutional Vagueness and Restrictiveness in the Contextual Analysis of the Obscenity Standard:A Critical Reading of the Miller Test Genealogy.” University of Pennsylvania Journal of Constitutional Law 7 (October 2005): 1207–1228. Smith, Craig R., and David M. Hunsaker. The Four Freedoms of the First Amendment: A Textbook. Long Grove, Ill.:Waveland Press, 2004. Werhan, Keith. Freedom of Speech: A Reference Guide to the United States Constitution. Westport, Conn.: Praeger, 2004.
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Panhandling Laws Panhandling is a form of solicitation or begging derived from the impression created by someone holding out his hand to beg or using a container to collect money. When municipalities regulate panhandling—a form of speech—First Amendment rights become an issue. Supporters of panhandling regulation contend it is a safety measure designed to protect people from harassment and other crimes. Opponents of such regulation contend it is blatant suppression of the First Amendment rights of the poor and dispossessed. There are two types of panhandling: passive and aggressive. Passive panhandling is soliciting without threat or menace, often without exchanging any words at all—just a cup or a hand is held out. Aggressive panhandling is soliciting coercively, with actual or implied threats, or menacing actions. If a panhandler uses physical force or extremely aggressive actions, the panhandling may constitute robbery. In recent years, an increasing number of U.S. cities have enacted ordinances restricting panhandling because of the influx of people living in public spaces. For the most part, cities are particularly concerned about the effects of panhandling on public safety, tourism, and small businesses. So far, this trend has included measures making it illegal for persons to ask for money in public, as well as measures prohibiting activities such as sleeping/camping, eating, sitting, and begging in public spaces. Other efforts to crack down on panhandling and related activities include limiting begging to daylight hours, barring panhandling from certain areas, banning panhandlers on drugs or alcohol, ticketing or fining panhandlers, and imposing license requirements. The growing number of ordinances criminalizing panhandling over the years has spun off a corresponding growth in support of panhandlers’ free speech rights under the First Amendment. Although the Supreme Court has never addressed this issue directly, its decisions provide some guidance to regulations on direct solicitation by charities as opposed to street beggars. In Schaumburg v. Citizens for a Better Environment (1980), a case dealing with the regulation of legitimate charities, the Court held that “solicitation for money is closely intertwined with speech” and that “solicitation to pay or contribute money is protected under the First Amendment.” However, since Schaumburg the Supreme Court has allowed restrictions on a variety of direct solicitations where cities have found such activities inimical to the purpose of public space. For example, in Young v. New York City Transit Authority
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(2d Cir. 1990), the Court declined to hear an appeal challenging a New York City regulation prohibiting begging in the city’s subway system. In International Society for Krishna Consciousness v. Lee (1992), the Court upheld prohibitions on solicitation at a state fairground, on sidewalks outside of a post office, and within an airport terminal. Thus far, although some lower courts have deemed panhandling to have some constitutional protection as “speech,” some have also recognized that communities have substantial leeway in devising regulations on “how and where” panhandling may occur within a community. And yet some courts have struck down for overbreadth laws in cities such as Austin,Texas, and Minneapolis, Minnesota, while upholding restrictive panhandling policies in cities such as Indianapolis, Indiana. In Madison, Wisconsin, the city ordinance was revised to avoid infringing on the free speech rights of panhandlers. Absent some kind of finality from the Supreme Court on panhandling, it is possible that, under its existing First Amendment jurisprudence of “time, place, and manner,” city ordinances restricting solicitation in a public place must pass intermediate scrutiny and (1) be neutral in content; (2) be narrowly tailored; (3) leave open ample alternative channels of communication; and (4) serve a significant government interest that is pressing and legitimate. Thus, the fate of panhandling under the First Amendment remains less than clear. Some scholars contend that ordinances that regulate ordinary panhandling can be clearly distinguished from those that regulate menacing and intimidating behavior—aggressive panhandling. Others argue that city laws regulating panhandling are unconstitutionally vague and overbroad, deprive panhandlers of their free speech rights, and raise serious due process concerns by targeting the homeless. In spite of the strong views on both sides of this issue, the plethora of city actions that regulate and criminalize panhandling today arguably speak more to the lack of clarity from the Supreme Court on the issue. As shown, cities can enact ordinances that properly regulate the time, place, and manner of panhandling without completely prohibiting begging, as long as such ordinances are content neutral and do not burden people’s abilities to exercise their free speech rights. Such a regulation would be constitutional because neither intimidating conduct nor threatening speech is a recognized communication protected under the free speech guarantees of the First Amendment.
See also Heffron v. International Society for Krishna Consciousness (1981); International Society for Krishna Consciousness v. Lee (1992); Schaumburg v. Citizens for a Better Environment (1980).
Marc-Georges Pufong
furthe r reading Burke, Robert. “Begging, Vagrancy and Disorder.” In Zero Tolerance Policing, ed. R. H. Burke. Leicester, U.K.: Perpetuity Press, 1998. Burns, Michael. “Fearing the Mirror: Responding to Beggars in a ‘Kinder and Gentler’ America.” Hastings Constitutional Law Quarterly 19 (1992): 783–844. “A Dream Denied: The Criminalization of Homelessness in U.S. Cities.” Report by the National Coalition for the Homeless and the National Law Center on Homelessness and Poverty, Washington, D.C., 2005. Leoussis, Fay. “Symposium on the Regulation of Free Expression in the Public Forum: The New Constitutional Right to Beg—Is Begging Really Protected Speech?” St. Louis University Law Review 14 (1995): 529–550. Scott, Michael. “Panhandling: Problem-Oriented Guide for Police.” Problem Specific Guide Series #13, U.S. Department of Justice, Office of Community Oriented Policing Service, 2003. Teir, Robert. “Maintaining Safety and Civility in Public Spaces: A Constitutional Approach to Aggressive Begging.” Louisiana Law Review 54 (1993): 285–338.
Paparazzi Paparazzi are freelance photographers known for their relentless pursuit of photographs of famous persons. In Galella v. Onassis (2d Cir. 1973) a federal appeals court defined paparazzo as “literally a kind of annoying insect, perhaps roughly equivalent to the English ‘gadfly.’ ” The intrusive newsgathering activities of paparazzi have led to cries of invasion of privacy by celebrities, and legislation has been designed to control their activities. Such legislation represents a collision between individual privacy rights and First Amendment free press rights. Perhaps the most famous paparazzo was Ronald Galella, best known for his pursuit of Jackie Onassis and her children. In 1973, the Second Circuit modified but upheld an injunction against Galella, who went to ridiculous lengths to obtain close photographs of the former first lady. The appeals court in Galella reasoned that “Galella’s action went far beyond the reasonable bounds of news gathering.” In 1997 international outrage followed the death of England’s Princess Diana from a car crash in which paparazzi allegedly followed the car driven by her chauffeur. In the United States, calls to regulate the paparazzi through legislation intensified at both the federal and state level, and sever-
Papish v. Board of Curators of the University of Missouri (1973)
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Italian photographer Rino Barillari exchanges blows with American actor Mickey Hargitay, left, as supermodel Vatussa Vitta wields her handbag against Barillari. While under legal attack for invasion of privacy, paparazzi have argued that putting limits on their photography violates free press rights.
al bills were introduced in Congress. Two such measures were the Protection from Personal Intrusion Act and the Privacy Protection Act of 1998.These laws stipulated criminal penalties for paparazzi if their conduct caused physical harm. For example, the Personal Intrusion Act, which was introduced by the late Sonny Bono, included a prison term of up to twenty years if the conduct of the paparazzi led to death. Both measures were referred to the House Judiciary Committee but never made it out of committee. California passed a law in 1998 designed to protect public persons from intrusive conduct by paparazzi. California Civil Code section 1708.8 prohibits constructive invasions of privacy, defined as follows: “A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.” In 2006 the California legislature amended the law to provide that those who face such invasions of privacy can
sue the paparazzi for “three times the amount of any general or special damages” caused by their conduct. Given the astronomically high-dollar demand for photos of celebrities, it is likely that the legislation will be tested in the courts in the near future with cases involving a charged paparazzo. See also Privacy; Publicity, Right of.
David L. Hudson Jr.
furthe r reading O’Neil, Robert M. “Privacy and Press Freedom: Paparazzi and Other Intruders.” Illinois Law Review (1999): 703–716. Scharf, Jennifer R. “Shooting for the Stars: A Call for Federal Legislation to Protect Celebrities’ Privacy Rights.” Buffalo Intellectual Property Law Journal 3 (2006): 164–195. Vance, Lisa. “Amending Its Anti-Paparazzi Statute: California’s Latest Baby Step in Its Attempt to Curb the Aggressive Paparazzi.” Hastings Communications and Entertainment Law Journal 29 (2006): 99–119.
Papish v. Board of Curators of the University of Missouri (1973) The Supreme Court’s decision in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), reaffirmed that public universities cannot punish students for indecent or offensive speech that does not disrupt campus order or interfere with the rights of others.
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Parades
Barbara Papish, a thirty-two-year-old graduate journalism student at the University of Missouri, was expelled for distributing on campus an underground newspaper containing allegedly indecent speech: a front-page political cartoon depicted policemen raping the Statue of Liberty and the Goddess of Justice, and inside, a headline that read “Motherfucker Acquitted.” Officials said Papish had violated a university by-law requiring students “to observe generally accepted standards of conduct” and prohibiting “indecent conduct or speech.” The Eighth Circuit Court of Appeals ruled that her freedom of expression could be subordinated to the “conventions of decency in the use and display of language and pictures” on a public campus without violating the First Amendment. Voting 6-3 to reverse, the Supreme Court noted that the Eighth Circuit’s ruling had come several days before Healy v. James (1972), in which the Court had ruled that although a state university could enforce reasonable rules governing student conduct, “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” In a per curiam opinion, the Papish majority said Healy made “clear that the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’ ” Relying on Gooding v. Wilson (1972) and Cohen v. California (1971), the majority held that it was equally clear that neither the political cartoon nor the headline was obscene or otherwise unprotected under the First Amendment.The majority also held that Papish had been unconstitutionally “expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution.” In separate dissents, Chief Justice Warren E. Burger and Justice William H. Rehnquist argued that even if precedents precluded criminal prosecution of Papish, the university was not precluded from expelling her for the same conduct. Each emphasized the university’s authority and role in teaching students “to express themselves in acceptable, civil terms.” Rehnquist also adhered to his view that public use of the word motherfucker was “lewd and obscene” as defined in Chaplinsky v. New Hampshire (1942). See also Chaplinsky v. New Hampshire (1942); Cohen v. California (1971); Gooding v.Wilson (1972); Healy v. James (1972); Students, Rights of.
Joey Senat
furthe r reading Calvert, Clay, and Robert D. Richards. “Interview and Commentary: Lighting a Fire on College Campuses: An Inside Perspective on Free Speech, Public Policy and Higher Education.” Georgetown Journal of Law Public Policy 3 (2005): 205–255. Travis, Jon E. “Censorship in Higher Education: Is the Public Forum at Risk?” Community College Journal of Research and Practice 24 (2000): 809–821.
Parades A parade is an organized procession of people going from one location to another in a public area in order to make a collective point, not just to each other, but also to bystanders. Though political protests can take the form of parades, they are generally called demonstrations or marches in order to distinguish them from nonpolitical parades such as the annual Rose Parade in Pasadena, California, and the Thanksgiving Day Parade in New York City.American courts have consistently ruled that private speech that takes place in public in the form of a parade or march—even one that contains unpopular messages and excludes certain groups from participation—is constitutionally protected by the First Amendment. Neither governments nor other private groups can quash or compromise the message of the speakers and the parade. There have been many significant political parades or marches in American history. For example, in 1963 Dr. Martin Luther King Jr. led 200,000 people from the Washington Monument to the Lincoln Memorial in the March on Washington for Jobs and Freedom, which culminated in his famous “I Have a Dream” speech. The Supreme Court has decided a number of cases involving parades and freedom of speech. In Gregory v. City of Chicago (1969) the Court reviewed a protest march aimed at the Chicago city government and held that as long as marches are “peaceful and orderly” they are protected by the First Amendment. Similarly, in Edwards v. South Carolina (1963) the Court protected a march of protest and pride by at least 187 African American students whose actions included carrying placards and singing The Star Spangled Banner. In 1977–1978 the National Socialist Party of America (NSPA)—an offshoot of the American Nazi Party—sought to organize a march through Marquette Park in Chicago. When the city refused permission, the group turned toward the village of Skokie, a Chicago suburb and traditional home to a sizable Jewish population (40,000 out of 70,000 people) which included several thousand survivors of concentration
Paris Adult Theatre I v. Slaton (1973) camps.The village took steps to prevent the march by passing a series of ordinances relating to “Parades and Public Assemblies,” including a thirty-day notice requirement, prohibition of military-style uniforms, and a requirement that groups must post an insurance bond of $350,000.The NSPA enlisted the help of the American Civil Liberties Union, and in the litigation that followed, both state and federal courts held that the proposed march was protected speech. The Supreme Court heard various appeals on technical aspects of the case and each time ruled in favor of the neo-Nazis, for instance, in Village of Skokie v. National Socialist Party of America (1977) and Collin v. Smith (7th Cir. 1978), with certiorari denied in Smith v. Collin (1978). Ultimately, the Nazi sympathizers canceled their planned march in Skokie when the City of Chicago finally allowed them to march in Marquette Park. The case was consistent with previous free speech cases where the Supreme Court protected the rights of unpopular speakers. A different issue was presented in another important case involving a parade, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995). In a unanimous opinion delivered by Justice David H. Souter, the Court held that the parade organizers—various veterans’ groups—had a free speech right to exclude an Irish gay group from participating in a St. Patrick’s Day parade in Boston. The gay group argued that their exclusion violated both the state and federal constitutions and the state public accommodations law, which prohibited “any distinction, discrimination or restriction on account of . . . sexual orientation . . . relative to the admission of any person to, or treatment in any place of public accommodation, resort or amusement.” But the Court said that being forced to include groups, such as a gay and lesbian group, would alter “the parade’s expressive content and thereby violated the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” See also American Nazi Party and Related Groups; Civil Rights Movement; Gregory v. City of Chicago (1969); Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston (1995); Village of Skokie v. National Socialist Party of America (1977).
Artemus Ward
furthe r reading Davis, Susan G. Parades and Power: Street Theatre in Nineteenth-Century Philadelphia. Philadelphia:Temple University Press, 1986. Neier, Aryeh. Defending My Enemy:American Nazis, the Skokie Case and the Risks of Freedom. New York: E. P. Dutton, 1979.
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Strum, Philippa. When the Nazis Came to Skokie: Freedom for Speech We Hate. Lawrence: University Press of Kansas, 1999. Yarbrough,Tinsley E. David Hackett Souter:Traditional Republican on the Rehnquist Court. New York: Oxford University Press, 2005.
Paris Adult Theatre I v. Slaton (1973) The Supreme Court ruled in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), that there is no First Amendment right to show obscene films. Lewis Slaton, the Fulton County, Georgia, district attorney, sought a court order to prevent the proprietors of two “adult” theaters from showing Magic Mirror and It All Comes Out in the End, which allegedly violated state obscenity laws. The defendants responded that the First Amendment protected showing such films to consenting adults. The trial court judge agreed with the defendants and dismissed the complaint. On appeal, the Georgia state supreme court unanimously overruled the lower court, finding the films to be “hard core pornography.” The U.S. Supreme Court upheld the state supreme court’s ruling in a 5-4 vote and remanded the case to determine whether the films were obscene according to the standard set forth in Miller v. California (1973), a decision announced the same day. In the opinion for the Court, Chief Justice Warren E. Burger emphasized that obscenity is not protected speech and that the right to privacy does not apply to films exhibited in public. He added that states have a legitimate interest in regulating commerce in obscene materials in order to prevent crime and improve the community. He also reasoned that the state was not obliged to offer conclusive proof of a connection between obscene materials and social harm. Justice William J. Brennan Jr., joined by Justices Potter Stewart and Thurgood Marshall, believed that the Court could not formulate an effective standard to distinguish between obscene and nonobscene materials. Although Brennan had authored the Court’s opinion in Roth v. United States (1957) and later the plurality opinion in Memoirs v. Massachusetts (1966), important obscenity cases, Brennan said he could no longer support obscenity prosecutions for activities involving consenting adults. He feared that efforts to suppress allegedly obscene materials would also suppress protected expression. Brennan concluded that government regulation should be confined to protecting children and nonconsenting adults. In a separate dissent, Justice William
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Parker v. Levy (1974)
O. Douglas restated his belief that the First Amendment protected all forms of expression, including obscenity. The practical impact of Paris Adult Theatre I is uncertain. The years following the decision saw an exponential increase in the pornography business and a gradual decrease in obscenity prosecutions. Experts now estimate that the pornography industry annually grosses more than $15 billion in the United States and $56 billion globally.There has been no significant increase in convictions for obscenity or in charges brought against distributors of such materials. Many cities have given up on banning sexually explicit businesses and have turned instead to zoning laws as a means to control such commerce. The laws restrict these businesses to specific areas in communities. Nonetheless, although only a narrow majority of the Court ruled in favor of obscenity laws in Paris Adult Theatre I and Miller, these cases have guided court decisions since. See also Brennan, William J., Jr.; Burger, Warren E.; Miller v. California (1973); Obscenity and Pornography.
Timothy J. O’Neill
furthe r reading Hudson, David L., Jr. “Justice Brennan’s Significant Departure and Warning of an Evisceration.” Nexus Journal of Opinion 10 (2005): 93–97. Smolla, Rodney. Free Speech in an Open Society. New York: Vintage, 1993. Sunstein, Cass. Democracy and the Problem of Free Speech. New York: Free Press, 1995.
Parker v. Levy (1974) In Parker v. Levy, 417 U.S. 733 (1974), the Supreme Court established for the first time the limits of free political expression for those serving in the armed forces of the United States. The Court determined that the demands of military necessity are superior to individual constitutional rights in the military setting. The U.S. Court of Military Appeals held in United States v. Jacoby (1960) that “the protections of the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces.” Military and civilian courts alike balance the interest in military necessity against the right of service personnel to exercise First Amendment rights. Beginning with Levy, the landmark case regarding First Amendment rights in the military, judicial decisions have privileged the military interest.
Dr. Howard Levy, an Army captain stationed at a U.S. Army hospital in South Carolina, urged black enlisted men to refuse to serve in Vietnam because “they are discriminated against and denied their freedom in the United States, and . . . discriminated against in Vietnam by being given all the hazardous duty and they are suffering the majority of casualties.” He also claimed that “Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.” Levy was court-martialed and convicted under Articles 133 and 134 of the Uniform Code of Military Justice (UCMJ) for “conduct unbecoming an officer and a gentleman” and disloyal statements prejudicial to “good order and discipline.” The federal district court affirmed; however, the court of appeals reversed on the ground that the Articles were unconstitutionally vague. In a 5-3 decision, the Supreme Court reinstated Levy’s conviction. Justice William H. Rehnquist, writing for the Court majority, recognized that service personnel possess constitutional rights but noted that the “fundamental necessity for obedience, and . . . the imposition of discipline” might require greater limitations of First Amendment rights than are tolerable within civilian life. These necessities arise from the fact that the military is “a specialized society separate from civilian society,” ready to fight wars and to act without question in response to orders. Consequently, the Court rejected claims of vagueness regarding the UCMJ, claiming that prior constructions of the Articles in question narrowed the scope of their application.The Court also denied to service personnel the right to challenge the Articles for overbreadth. Justice William O. Douglas dissented, reasoning that the majority had given too much deference to military officials. “Uttering one’s belief is sacrosanct under the First Amendment,” he wrote. Justice Potter Stewart—joined by Justices Douglas and William J. Brennan Jr.—also wrote a dissenting opinion. He contended that the rules of military justice under which Dr. Levy was charged were unconstitutionally vague. Levy has served as precedent for subsequent decisions allowing military prosecution for such disparate offenses as possessing marijuana off base (Schlesinger v. Councilman [1975]), exercising the right to petition without permission from the base commander (Brown v. Glines [1980]), and wearing religious garb in violation of the uniform dress code (Goldman v.Weinberger [1986]). It remains the foundation for judicial recognition of “military necessity” as a weightier interest than First Amendment rights of individuals in the military.
Paulson, Ken See also Brown v. Glines (1980); Goldman v.Weinberger (1986); Greer v. Spock (1976); Military Personnel, Rights of; Overbreadth; Vagueness.
Richard Parker
furthe r reading Carr, John A. “Free Speech in the Military Community: Striking a Balance between Personal Rights and Military Necessity.” Air Force Law Review 45 (1998): 303–368. Dienes, C.Thomas.“When the First Amendment Is Not Preferred:The Military and Other ‘Special Contexts.’ ” University of Cincinnati Law Review 56 (1988): 779–843. Packer, Cathy. Freedom of Expression in the American Military: A Communication Modeling Analysis. New York: Praeger, 1989.
Patriot Act See USA Patriot Act of 2001
Patterson v. Colorado (1907) In Patterson v. Colorado, 205 U.S. 454 (1907), the Supreme Court upheld a contempt citation against a newspaper publisher who had printed articles and a cartoon criticizing a decision by the Colorado Supreme Court in a pending case. The decision is more important as a historical relic than as a living precedent because its reasoning has been superseded by more expansive interpretations of the First Amendment and by the application of these provisions to the states. Thomas M. Patterson, a former United States senator and the principal owner of the Denver Times and the Rocky Mountain News, did not deny publishing the materials, which had targeted a series of questionable decisions in which the state supreme court appeared to have upended election results, but he did deny that they were contemptuous or that they were written at a time when the cases were pending. He argued that he should be able to present truth as a defense. He also argued that the contempt ruling by the Colorado Supreme Court was contrary to precedents and was self-serving. Writing for the 7-2 majority, Justice Oliver Wendell Holmes Jr. argued that the issues of contempt, and of prior precedents, were issues of “local law” that the Colorado Court could settle “without interference from the Constitution of the United States.” Holmes followed English common law interpretations in arguing that even if freedom of the press applied to the states, its primary purpose was that of preventing prior restraint of publication. Moreover, this rule applied even more strongly to contempts than to crim-
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inal libel.Although judges had sat in their own case, Holmes noted, not altogether convincingly, that “the grounds upon which contempts are punished are impersonal.” Justice John Marshall Harlan I. thought that Holmes’s view of the First Amendment was too crabbed. He believed that the due process clause of the Fourteenth Amendment applied the rights of free speech and free press to the states. Justice David J. Brewer’s separate dissent focused on jurisdictional issues. In Gitlow v. New York (1925), the Supreme Court subsequently adopted Harlan’s view that the due process clause applied freedom of speech to the press. In Near v. Minnesota (1931), the Court not only applied the freedom of press to the states but also decided that although the central purpose of that provision was to prohibit prior restraint, the freedom was not limited to that purpose alone. See also Gitlow v. New York (1925); Harlan, John Marshall, I.; Holmes, Oliver Wendell, Jr.; Near v. Minnesota (1931); Prior Restraint.
John R.Vile
furthe r reading Gibson, Michael T. “The Supreme Court and Freedom of Expression from 1791 to 1917.” Fordham Law Review 55 (December 1986): 363–444. Jenkins, David. “The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence.” American Journal of Legal History 45 (2001): 143–213. Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997.
Paulson, Ken Kenneth A. Paulson (1953–), editor of USA Today, is a staunch defender of the First Amendment and free expression. Trained as a lawyer and journalist, Paulson achieved national prominence in his role as executive director of the First Amendment Center from 1997 to 2004. Born in Chicago, Paulson earned an undergraduate degree in journalism from the University of Missouri in 1975. After graduating from the College of Law at the University of Illinois in 1978, he moved through the journalism ranks, working at several Gannett newspapers, in Florida,Wisconsin, New Jersey, and New York. Paulson’s passion for the First Amendment accelerated when he assumed leadership of the First Amendment Center in Nashville, Tennessee. From that position, he created and
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Peel v. Attorney Disciplinary Commission of Illinois (1990)
wrote Freedom Sings, a program on music censorship. He founded and hosted Speaking Freely, an Emmy-nominated weekly television program on free expression featuring interviews with artists and celebrities. He also cohosted a series of seminars about free expression with First Amendment Center founder John Seigenthaler Sr. and wrote a nationally syndicated column entitled “Inside the First Amendment.” In 2004 Paulson left the First Amendment Center and the Freedom Forum to become editor of USA Today. He continues to defend the role of a free and vigorous press and supports an expansive view of the reach of free expression in music and the arts. See also First Amendment Center; Seigenthaler, John.
David L. Hudson Jr.
furthe r reading American Press Institute. “Biography: Ken Paulson.” www.american pressinstitute.org/content/6008.cfm.
Peel v. Attorney Disciplinary Commission of Illinois (1990) In Peel v. Attorney Disciplinary Commission of Illinois, 496 U.S. 91 (1990), a sharply divided Supreme Court determined that Illinois could not censure an attorney for truthfully stating that he was certified as a trial specialist by the National Board of Trial Advocacy. The case reaffirms the general First Amendment principle favoring the disclosure of information. Gary E. Peel, an Illinois attorney, obtained certification as a civil trial specialist from the private organization National Board of Trial Advocacy in 1981. In 1983 he changed his letterhead to reflect his certification, along with the fact that he was licensed to practice law in Illinois, Missouri, and Arizona. The Illinois Attorney Registration and Disciplinary Commission contended that Peel’s letterhead violated a provision of the Illinois Code of Professional Responsibility that states that “no lawyer may hold himself out as ‘certified’ or a ‘specialist.’ ” The Commission recommended a public censure, which the Illinois Supreme Court affirmed. The state high court rejected Peel’s First Amendment arguments, reasoning that the letterhead was misleading in several ways. The court determined that the certification implied that Peel provided higher-quality legal services than other attorneys.The court also agreed with the Commission
that the letterhead improperly implied that Illinois had sanctioned a formal program of certification. On appeal, the U.S. Supreme Court reversed, ruling in Peel’s favor in a 5-4 decision.Writing for the plurality, Justice John Paul Stevens determined that the letterhead was not misleading but stated a verifiable fact—that Peel had earned the certification. Stevens also wrote that the public could distinguish between private certification by a private group like the National Board of Trial Advocacy and official licensing by the state. Stevens acknowledged the outcome could be different if the state could show the certification was a “sham” and that the state may be able to require a disclaimer about the certification process. He concluded that the state had not rebutted “the constitutional presumption favoring disclosure over concealment [of information].” Justice Thurgood Marshall wrote that Peel’s letterhead was “potentially misleading” because many members of the public could believe that the National Board of Trial Advocacy was a governmental agency; nevertheless, he concurred because he ruled the constitutional response from the state was not to ban completely the statement but to add “additional information” explaining the certification. In dissent, Justice Byron R. White agreed that Peel’s letterhead was “potentially misleading” but reasoned that it should be Peel’s responsibility “to clean up his advertisement so as to eliminate its potential to mislead.” Justice Sandra Day O’Connor—joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia—also wrote a dissent, criticizing the plurality for failing to give the states sufficient latitude to regulate attorneys. She pointed out that nineteen states and the District of Columbia banned certification claims by attorneys. She believed the letterhead was “inherently misleading.” The decision has had considerable impact on the legal profession because the American Bar Association in its model rules of professional conduct and various state rules generally permit lawyers to state that they are specialists and certified by private organizations that have met state regulatory requirements. See also Attorney Advertising; Disclaimers; Marshall, Thurgood; O’Connor, Sandra Day; Stevens, John Paul;White, Byron R.
David L. Hudson Jr.
furthe r reading Granite, Lisa L. “In No Hurry to Specialize: Certification in Legal Specialties Has Been Slower to Catch On Than Expected.” Pennsylvania Lawyer 23 (May/June 2001): 24–29.
PEN American Center Thier, W. “Peel v. Attorney Registration and Disciplinary Commission: Allowing Claims of Certification in Lawyer Advertising.” Tulane Law Review 65 (1991): 687–696.
Pell v. Procunier (1974) In Pell v. Procunier, 417 U.S. 817 (1974), the Supreme Court upheld California prison restrictions on face-to-face interviews with inmates. Inmates and journalists had challenged the restrictions as a violation of the First Amendment right of freedom of the press. Three journalists—Eve Pell, Betty Segal, and Paul Jacobs—and four inmates—Booker T. Hillery Jr., John Larry Spain, Bobby Bly, and Michael Shane Guile—challenged the constitutionality of a California Department of Corrections policy that banned press interviews of inmates. The suits were filed separately. The policy provided that “[p]ress and other media interviews with specific individual inmates will not be permitted.” A federal district court ruled in favor of the inmates but not the journalists. The California Department of Corrections and the journalists both appealed the district court rulings to the Supreme Court. The Court rejected the claims of both inmates and journalists in a majority opinion written by Justice Potter Stewart. He observed that the corrections system had at least three functions—crime deterrence, the quarantining of criminal defendants from society, and the internal security of the prisons. Although California had limited faceto-face interviews with the press, it left other methods of communications open. These included communication by mail, previously addressed in Procunier v. Martinez (1974); communications through visitations from family and friends; and communications of these individuals with the media. Stewart noted that “the entry of people into prisons for face-to-face communications with inmates” created “security and related administrative problems,” noting that the current policy had been implemented after an earlier policy permitting the media to select individual inmates for interviews had created special problems that had led to prison violence. This experience, along with the Court’s opinion in Branzburg v. Hayes (1972), limiting the confidentiality of reporters’ sources from grand jury inquiry, further undermined the claim of reporters to special access under freedom of the press. Stewart argued that the government had no “affirmative duty to make available to journalists sources of information not available to members of the public generally.”
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In a partial concurrence, Justice Lewis F. Powell Jr. agreed that inmates had no personal constitutional right as individuals to talk to reporters but argued that the absolute ban on such interviews impermissibly interfered with freedom of the press. Justice William O. Douglas’s dissenting opinion, joined by Justices William J. Brennan Jr. and Thurgood Marshall, contended that the prison regulations were overly broad as applied to inmates and that the Court’s decision respecting the rights of reporters did not take sufficient account of “the public’s right to know.”Although he favored reasonable “time, place, and manner” restrictions, Douglas thought the prison’s absolute ban on such press access was also overly broad. See also Branzburg v. Hayes (1972); Douglas, William O.; Overbreadth; Prisons; Procunier v. Martinez (1974); Reporters’ Privilege; Stewart, Potter;Time, Place, and Manner Restrictions.
John R.Vile
furthe r reading Palmer, John W. and Stephen W. Palmer. Constitutional Rights of Prisoners. 8th ed. Cincinnati, Ohio: Anderson Publishing, 2006.
PEN American Center Founded in New York City in 1922, the PEN American Center is an organization of writers who work “to advance literature, defend free expression, and foster international literary fellowship.”The organization is one of the largest centers of International PEN, the human rights organization founded in 1921. PEN (referring to poets, playwrights, essayists, editors, and novelists) advances its causes through various programs, including Freedom to Write and Prison Writing. For fifteen years, the organization has awarded annually a PEN/ Newman’s Own First Amendment award to a person or persons who have fought courageously for First Amendment values despite adversity.The group’s Children’s Book Author Committee is in the forefront of opposition to book banning and censorship. PEN has been vocal in opposing many provisions of the USA Patriot Act, passed by Congress in 2001. In October 2006, PEN delivered a “press freedom petition” to Congress, urging members to combat what the organization terms a “deeply troubling . . . campaign of intimidation against American newspapers and journalists” and excessive secrecy on the part of the government.
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See also Book Banning; Prisons; USA Patriot Act of 2001.
David L. Hudson Jr.
furthe r reading PEN American Center. www.pen.org.
Penn, William William Penn (1644–1718), founder of Pennsylvania and one of the first champions of expressive freedoms in the American colonies, demonstrated how a free society could work and how individuals of different races and religions could live together in liberty and peace. The principles of freedom that Penn promoted and adopted helped lay the framework for the First Amendment. Born in London, England, Penn was the son of an admiral of the British fleet. He attended Oxford University until he was expelled for joining the Religious Society of Friends, or Quakers. He became a leading defender of religious freedom and was arrested and tried on several occasions. Penn used his diplomatic skills and political connections to free Quakers from jail and help them travel to America. In 1681 King Charles II granted him a charter to found a new colony in America. Penn arrived in America in 1682 and established the groundwork for the formation of the Pennsylvania colony. His pluralistic approach attracted a diverse range of people from many faiths. Penn’s first goal was to develop a legal basis for a free society. He believed that people were born with certain natural rights and privileges of freedom. In his First Frame of Government (1682), he provided for secure private property, free enterprise, free press, trial by jury, and religious toleration. In 1701 Penn signed the Fourth Frame, or Charter of Privileges, which granted citizens of Pennsylvania a number of basic freedoms—in particular, freedom of worship and the right of individuals to speak their mind. The Charter of Privileges formed the basis of Pennsylvania’s state constitution in 1776. See also Natural Rights; Quakers; Religious Tests.
Alvin K. Benson
furthe r reading Kroll, Steven. William Penn, Founder of Pennsylvania. NewYork: Holiday House, 2000. Swain, Gwenyth. Freedom Seeker: A Story about William Penn. Seattle: Lerner Publishing Group, 2003.
Pennekamp v. Florida (1946) The unanimous Supreme Court decision in Pennekamp v. Florida, 328 U.S. 331 (1946), overturned a contempt citation that a Florida court had issued to an editor of the Miami Herald, which had published two editorials and a cartoon criticizing the court’s handling of criminal cases.The Court found that the work published did not pose a clear and present danger and that the contempt citation violated the First Amendment. A Florida state trial court found editor John Pennekamp and the Miami Herald in contempt. The Florida Supreme Court affirmed the contempt citations and rejected the First Amendment defense. Pennekamp and the newspaper appealed to the Supreme Court. Justice Stanley F. Reed wrote the majority decision, finding that the materials in question had not posed a clear and present danger to the administration of justice in a pending case.Although the editorials were not balanced, they were not intended to interfere in an ongoing case. Reed observed that “free discussion of the problems of society is a cardinal principle of Americanism. . . . Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.” The decision relied on Bridges v. California (1941). Justice Felix Frankfurter wrote a long concurring opinion warning against elevating Oliver Wendell Holmes Jr.’s “clear and present danger” test into dogma. Frankfurter observed, “A free press is vital to a democratic society because its freedom gives it power. Power in a democracy implies responsibility in its exercise.” In the present case, Frankfurter did not believe that the materials at issue were designed to interfere with a pending case. Justice Frank W. Murphy concurred, writing that affirming the conviction “would be approving, in effect, an unwarranted restriction upon the freedom of the press.” Justice Wiley B. Rutledge also concurred, noting that newspapers often published carelessly, hastily, and ignorantly about the law.Thus,“any standard which would require strict accuracy in reporting legal events . . . would be an impossible one.” The materials that exceeded the boundary of “fair comment” in the present case had not blocked or obstructed “the functioning of the judicial process.” Justice Robert Jackson did not participate in this case. See also Bridges v. California (1941); Clear and Present Danger Test; Contempt of Court; Frankfurter, Felix.
John R.Vile
Pentagon Papers furthe r reading Krause, Stephen J. “Punishing the Press: Using Contempt of Court to Secure the Right to a Fair Trial.” Boston University Law Review 76 (1996): 537–574.
Pennsylvania v. Nelson (1956) The Supreme Court decision in Pennsylvania v. Nelson, 350 U.S. 497 (1956), addresses federal preemption in the context of the red scare and McCarthyism (1947–1957) and illustrates how the Court protected civil liberties during an era of intense discord and distrust, when the Court was under attack. Steve Nelson, a Communist Party leader in western Pennsylvania, was convicted under the Pennsylvania Sedition Act of advocating overthrow of the U.S. government by force or violence. By 1955, forty-two states, plus Alaska and Hawaii, had adopted similar laws. Fifteen years earlier, Congress had adopted the 1940 Alien Registration Act, commonly known as the Smith Act after its sponsor Representative Howard W. Smith (D-VA). These statutes resulted from acute American worries about internal subversion in the depths of the cold war. The language of the Pennsylvania Sedition Act and the Smith Act was virtually identical. Writing for a majority of six, Chief Justice Earl Warren upheld the Pennsylvania Supreme Court’s reversal of Nelson’s conviction. Warren wrote: “[T]he conclusion is inescapable that Congress has intended to occupy the field of sedition. . . .Therefore, a state sedition statute is superseded regardless of whether it purports to supplement the federal law.” Justices Stanley F. Reed, Harold H. Burton, and Sherman Minton dissented. Reed objected to the idea that states could not punish seditious acts. The Warren Court “interfered” to protect association and expression. Nevertheless, the Court had to act discreetly, focusing on preemption and not the First Amendment. Merely two years before Nelson, the Court handed down Brown v. Board of Education (1954), mandating an end to racial segregation in public education. Brown triggered massive resistance throughout the South. The congressional Southern Manifesto prompted challenges to Brown in the form of state laws across the former Confederacy attempting to entrench Jim Crow. The Court responded eventually by asserting its prerogative to interpret the Constitution in Cooper v. Aaron (1958)—a “boasting of the weak,” in law professor L. A. Powe Jr.’s apt characterization.
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Meanwhile, the Court endeavored to balance constitutional and national security concerns indirectly and under the congressional radar screen. Few on Capitol Hill were fooled. A series of decisions, including Mesarosh, alias Nelson v. United States (1956), which reversed Nelson’s Smith Act conviction without reaching the constitutionality of the Smith Act itself, enraged Congress. The Court’s Nelson accommodation tactic to avoid a political maelstrom is reminiscent of the Court’s approach to slavery in Prigg v. Pennsylvania (1842). Prigg held that the 1793 federal Fugitive Slave Law preempted Pennsylvania’s 1788 Personal Liberty Law. Both preemption approaches failed; Prigg’s circumstances were tragic because the country later dissolved in civil war. See also McCarthyism; Smith Act of 1940;Warren, Earl.
James C. Foster
furthe r reading Frickey, Philip P. “Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court.” California Law Review 93 (2005): 397–464. Maltz, Earl M. “Majority, Concurrence, and Dissent: Prigg v. Pennsylvania and the Structure of Supreme Court DecisionMaking.” Rutgers Law Journal 31 (Winter 2000). Powe, Lucas P., Jr. “The Politics of American Judicial Review.” Wake Forest Law Review 38 (2003): 697–732.
Pentagon Papers Officially titled “History of U.S. Decision-Making in Vietnam, 1945–68,” the Pentagon Papers are a study of the origins and development of the Vietnam War, commissioned in June 1967 by Secretary of Defense Robert McNamara after he had developed doubts about the wisdom of that war. They became the subject of a major Supreme Court case regarding censorship and freedom of the press. The authors of the papers were granted access to numerous classified documents but were not permitted personal interviews. Work continued after McNamara was replaced by Clark Clifford and ended shortly after President Richard M. Nixon took office. Fifteen copies of the forty-seven-volume top secret study were distributed. Although President Lyndon B. Johnson used parts in writing his memoirs, neither McNamara nor Nixon’s secretary of defense Melvin Laird read them. What made