1st Amendment
“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.”
What Does It Mean?
Let's break down the main points protected by the First Amendment:
Religious Freedom:
The Establishment Clause: The government can't make laws that support or establish a specific religion as the official one. It must stay neutral and not favor any religion over others.
The Free Exercise Clause: The government can't stop people from practicing their religion or force them to go against their beliefs. People have the right to follow their faith.
Freedom of Expression:
Freedom of Speech: You can say what you want, even if it's critical of the government. The government can't silence you or punish you for expressing your opinions, as long as you're not causing harm or breaking laws.
Freedom of the Press: You can write and publish your thoughts without fear of censorship. The media has the right to report on news and share information that's important for the public to know.
Freedom of Assembly: You can gather with other people peacefully to express your views. This includes protests, rallies, and meetings where you discuss important issues.
Right to Petition: You can ask the government to change things or take action. You have the right to bring your concerns directly to the government and ask for improvements.
In simple terms, the First Amendment ensures that you can practice any religion you choose and express your thoughts freely. You can speak your mind, share your opinions in writing, gather with others to show your support or protest, and ask the government to address your concerns. These rights protect your individuality and allow you to participate in shaping your country's policies.
1st Amendment In-Depth
Freedom of Religion:
The First Amendment contains the Religion Clauses, the first two parts of it. These clauses were added as part of the Bill of Rights in 1791 and also apply to states through the Fourteenth Amendment. These clauses aim to ensure individual religious freedom and the separation of religion and government. They state that Congress can't make laws establishing a religion or stopping people from freely practicing their religion.
The Supreme Court recognizes that these clauses aren't perfectly detailed. They're broad statements rather than strict rules, and they could conflict if taken to the extreme. The Court says that the purpose is to prevent any religion from being favored, sponsored, commanded, or inhibited by the government. Because of the broadness of these clauses, debates have arisen about their exact scope since they were ratified, leading to shifts and inconsistencies in the Court's interpretations over time.
Some essays in this context discuss the historical background of the Religion Clauses, including colonial religious establishments and the shift towards greater religious freedom in early America. Other essays address how the clauses stop the government from interfering in certain religious disputes. There are also essays focusing on the Supreme Court's interpretations of the Establishment Clause and the Free Exercise Clause. Lastly, a couple of essays explore the relationship between the two Religion Clauses and their connection to the First Amendment's Free Speech Clause.
One issue relevant to all discussions about the Religion Clauses is what exactly "religion" means in the First Amendment. Early cases suggested that courts might decide what qualifies as religion. Later, the Court retreated from this idea, limiting government's and courts' ability to judge the legitimacy of religious beliefs. Still, the Religion Clauses only protect sincere religious activities, and the government can check if someone's beliefs are genuine and whether they're religious rather than secular. The protection extends to beliefs inconsistent with specific Christian sects and includes non-Christian religions. The Court has even recognized that modern conceptions of religion can go beyond traditional theism. The clauses also prevent the government from aiding some religions at the expense of others or based on a belief in God versus other beliefs.
The Religion Clauses in the First Amendment create a separation between religion and government. This was reflected in the preamble to the Virginia Statute for Religious Freedom, written by Thomas Jefferson. It expressed that while the government shouldn't meddle in religious beliefs, it can intervene when these beliefs lead to actions that disrupt peace and order.
The Supreme Court has followed a doctrine known as religious autonomy or ecclesiastical abstention. This doctrine holds that civil courts should avoid getting involved in religious disputes. However, as long as they don't make judgments about religious matters, civil courts can resolve conflicts among religious groups using fair legal principles.
For instance, when religious organizations split due to disagreements over beliefs, they might also dispute who should own the church property. The Supreme Court has stated that religious groups are protected and bound by the same laws as other voluntary organizations, and they can use courts to decide property disputes. However, while addressing these property matters, courts must avoid settling religious debates and only apply neutral property laws. Therefore, courts can't determine which faction's beliefs align more closely with the religious order's teachings.
However, if a legal document like a deed clearly designates a specific group as the property's rightful owner, a court can enforce that decision, but it should still respect the religious body's own resolution of any religious questions related to the dispute.
The Establishment Clause prevents the government from creating any law that supports a religion. This means the government can't establish an official national religion like the Church of England. Even if a law doesn't explicitly set up a religion, it can still support it. Looking at the historical background, especially the colonists' experiences with religious establishments, the Supreme Court has understood the Establishment Clause to also block other types of government help that might seem like establishing religion. The Court's view is that laws respecting the "establishment" of a religion meant backing, financial aid, and active participation of the government in religious activities.
The Supreme Court often talks about government neutrality towards religion as its main rule when applying the Establishment Clause. For instance, the Court has said that the government must be neutral in its interactions with religious groups and non-believers. The Court also acknowledges that the government can provide some kinds of support without going against the Establishment Clause. While neutrality has always been the main idea, the Court has used different methods to decide if a certain action is truly neutral.
The Free Exercise Clause stops Congress from forbidding people's free practice of religion. The basic plan for how the Supreme Court handles cases about free exercise was mostly set up in the 1940 case Cantwell v. Connecticut, which also gave the Court the chance to use the Free Exercise Clause with the states. In Cantwell, the Court said that the Religion Clauses cover two ideas: freedom to believe and freedom to act. The first one is total, but the second can't be completely free. Talking about the first freedom, as explained in more detail in another essay, the Free Exercise Clause absolutely stops the government from controlling, banning, or rewarding religious beliefs themselves.
The Court also made clear in Cantwell that actions based on religion, not beliefs, can be regulated to protect society. But the Court warned that the government must be careful not to interfere too much with religious freedom. So, a law that makes it harder but doesn't directly control religious belief isn't completely banned, but it will probably still be checked under the Constitution. Over time, the Court has created rules to figure out when regulations on religious actions unfairly restrict constitutionally protected free exercise. These rules have changed over time and situations, as talked about in the next essays.
The main standard that covers most laws was made in the 1990 case Employment Division v. Smith. In that case, the Court decided that the right to free exercise doesn't let a person avoid following a 'valid and neutral law of general applicability' just because it goes against their religious beliefs. This echoed earlier cases before Cantwell, which dealt with religious challenges to laws against polygamy in U.S. territories. The Court didn't agree with those challenges and said that the government could ban polygamy, and religious beliefs couldn't excuse people from being punished. Smith went back to those earlier cases, but it didn't use the same strict standard as some mid-twentieth-century cases that said the government needed a very good reason to use a neutral law in a way that affects a person's religious activity.
Even after Smith, though, a law that puts extra pressure on religious actions might not be seen as neutral or widely applicable and might need more careful checking. So, a big part of checking challenges under the Free Exercise Clause is looking at whether a law treats religion unfairly in its wording, purpose, or impact. The Court has warned that if a law's goal or result is to make it harder to practice one or all religions, or if it unfairly treats different religions, that law might be invalid under the Constitution, even if the effect on religion isn't direct.
Even though the Court doesn't always say it directly, it has suggested in some cases that a government policy only breaks the Free Exercise Clause if it somehow forces someone's religious practice. While it knows that even indirect pressure or punishments on religious practice, not just complete bans, can break the First Amendment, the Court has also said that effects of government programs that don't force people to go against their beliefs aren't checked more closely under the Constitution. For example, the Court turned down a challenge to a program that let public schools release students during the day to take religious classes at private religious schools. The Court said this program didn't involve the Free Exercise Clause because there was no pressure: no one had to go to the religious class, and no religious practice or teaching happened in the public schools. So, the Court has sometimes said that a government action doesn't break the Free Exercise Clause if it doesn't touch belief or make religious practice harder.
Free Speech Clause:
The Free Speech Clause went through several changes before becoming part of the First Amendment. James Madison wrote a first version of the speech and press parts, which was introduced in the House of Representatives on June 8, 1789. Madison's draft said: The people can't be stopped or limited from speaking, writing, or publishing their thoughts; and the freedom of the press, important for liberty, can't be violated. The special committee in the House rewrote Madison's words to say: Freedom of speech and press, and the right for people to peacefully assemble and discuss for their common good, and ask the government for help with problems, can't be taken away. Later, the Senate rewrote it to say: Congress can't make a law that limits freedom of speech, press, or the right for people to peacefully gather and talk for their common good or to ask the government for help. Eventually, the Senate combined these ideas with the religious parts, and the House and Senate agreed on the final version in a meeting.
There wasn't a lot of debate over these parts in the House, and there's no record of debate in the Senate. Madison cautioned against talking about abstract ideas that people might not agree on. He said if we stick to clear, accepted principles, it won't be hard to get the ratification. However, these simple principles led to arguments when they were applied to specific things the government did.
A dispute sparked when the Sedition Act of 1798 came into play, which made the central meaning of the First Amendment clear to the nation. This law punished anyone who would write, print, say, or publish false, harmful, or mean things about the United States government, Congress, or the President, with the intent to hurt their reputation. Even though Thomas Jefferson and Madison said the act was against the Constitution, the Adams Administration used it to punish their political opponents. The Supreme Court didn't say the Sedition Act was against the Constitution before it ended in 1801, but later the Court and the political and judicial parts of the government agreed that the act was unconstitutional.
Procedural Matters
Overbreadth Doctrine, Statutory Language, and Free Speech:
The overbreadth doctrine is about making sure laws that might affect First Amendment rights are written clearly and precisely. It lets people challenge a law based on how it's written, rather than just how it's applied. Usually, when someone challenges a law this way, they have to show that the law would never be okay in any situation, or that it goes way too far. This means if a law covers both protected and unprotected activity, only the part about protected activity might be removed. But when it comes to the First Amendment, if a law is written so broadly that it could affect free speech, even if it's not your own speech, you can challenge it. The overbreadth doctrine allows this and can strike down a law if it punishes a lot of protected speech, even if the law is meant for something else.
However, the overbreadth doctrine can also cause problems. It might stop a law from being used on unprotected speech or conduct. The Supreme Court says using the overbreadth doctrine is like using strong medicine that should be used carefully. So, a law needs to be really too broad to be declared invalid. The Court also says a law shouldn't be thrown out if state courts can make it more specific, and if the law's effect on free speech is a big concern. Finally, the Court usually doesn't use the overbreadth doctrine for commercial speech, like advertising.
Vagueness, Statutory Language, and Free Speech:
Vagueness is a legal concept that comes into play when looking at laws, especially ones about crimes or civil matters. It's especially important when dealing with laws that restrict speech by the government. If a law is vague, it might not be clear what it's really talking about. This can be a problem because if someone isn't sure whether the law applies to what they want to say, they might decide not to speak at all, even if what they want to say is protected by the Constitution. This is a concern for free speech, both the protected kind and the unprotected kind.
When it comes to the First Amendment, the vagueness issue is often combined with the idea of overbreadth, where a law is so broad that it covers too much protected speech. Many laws have been struck down because they were too vague, especially in cases involving loyalty oaths, indecency, and restrictions on public demonstrations. But sometimes, if the law's terms are clear in how they apply to what someone wants to do, even if it involves speech, the court might not consider it vague, even if the law's scope isn't clear in every situation.
Prior Restraints on Speech:
The Supreme Court has understood that freedom of the press, historically enshrined in the Federal Constitution, primarily meant protection from prior restraint or censorship. Back in history, there was a system in England where printing presses and printers needed licenses to publish anything, approved by the state or church authorities. The fight for press freedom was all about getting rid of this licensing system. This is why the Supreme Court is really cautious when it comes to any kind of system that tries to control what can be published before it's published. In other words, the Court is skeptical about any kind of rule that might stop people from speaking their minds. The government has a big job to do if it wants to show that a restraint on speech is justified.
The Supreme Court's first run-in with a law trying to stop publishing before it happens was in Near v. Minnesota ex rel. Olson. In this case, the Court said that a law allowing newspapers to be permanently stopped from publishing if they printed something offensive was like censorship. It made the newspaper get permission from a judge before printing anything else to avoid getting in trouble. The Court said that the press's job of checking up on what the government does is really important. So, it's not okay to stop newspapers from printing stuff before they do it.
This idea that the government can't stop things from being published before they happen is a key part of the First Amendment. It means that laws can't stop you from saying things just because someone thinks they might be bad. This rule applies even if the speech is protected by the First Amendment, like when you're talking about something political. It also applies to speech that's not protected, like yelling "fire" in a crowded theater when there's no fire. If a law is so unclear that people are afraid it might cover what they want to say, that can stop them from speaking, whether the speech is protected or not. The Court has said that if a law might do that, it's like a restraint on speech, and the government has to have a really good reason to make that kind of law.
But, even though the Court is really careful about stopping speech before it happens, it also knows that sometimes there are good reasons to do it. The Court has said that the government needs a really good reason and has to make sure it doesn't stop speech without a good reason. The Court has also been careful about how it uses the idea of prior restraint. It mostly limits it to temporary orders that get decided in court quickly. The Court has also said that some types of rules, like those about time, place, and manner of speech, can be okay even if they might stop speech before it happens, as long as they're clear and have limits.
State Action Doctrine and Free Speech:
The First Amendment only applies to laws made by Congress, not actions taken by private individuals or entities. So, there's a rule called the state action limitation, which means that the First Amendment only kicks in when the government is involved. However, the Supreme Court has recognized that there are certain situations where a private entity can still be treated like a government actor for the purposes of the First Amendment. This happens in limited cases, like when:
Private Entity Performs a Public Function: If a private entity is doing something that's normally a job for the government, it might be treated like a government actor. For example, if a private company is running a town just like a government would, then the rules for free speech might apply even though it's a private company.
Government Compels Private Entity: If the government makes a private entity do something specific, the entity might be treated like a government actor. This could happen if a private company is required by the government to take certain actions that affect people's free speech.
Government Acts Jointly with Private Entity: When the government and a private entity work together on something, the private entity might be considered a government actor. This can be a bit tricky to prove, but if the government and a private entity are both involved in making certain rules, the private entity might have to follow the First Amendment.
Some private entities that are created by the government to do government-related things might also be treated as government actors under the First Amendment. For instance, even if a corporation is supposed to be private, it might be treated like part of the government if it's set up by the government to achieve certain goals.
There have been some cases where private entities were treated like government actors for the purposes of the First Amendment. For example, the Supreme Court said that a company-owned town was like a government because it had all the features of a regular town, so it couldn't restrict people's fundamental liberties like free speech. But this only applies if the private entity is doing something that's usually only done by the government.
In more recent cases, the Court has become more specific about when a private entity is treated as a government actor. Just because a private company is doing something that's regulated by the government doesn't automatically mean it's a government actor. There has to be a really close connection between the government and the private entity's actions. For example, just because a private company has to follow certain government rules doesn't mean it's automatically a government actor for the purposes of the First Amendment.
So, in short, the First Amendment usually only applies when the government is involved, but in some specific situations, private entities can be treated like government actors if they're doing something that's normally done by the government or if the government has a really close connection to their actions.
Content-Based and Content-Neutral Regulation of Speech:
The heart of the First Amendment's Free Speech Clause prevents the government from stopping or pressuring agreement with specific ideas or messages. This is to avoid abuses of power, so the Supreme Court looks closely at laws that target speech based on what it says. This scrutiny applies to not only federal and state laws, but also government rules, policies, and even judicial conduct codes. It also covers financial or other kinds of regulatory burdens on speech. Although this essay mainly talks about whether a law is based on its content or not and what that means legally, the principles that dislike content-based discrimination also apply to other types of government actions, even when enforcing content-neutral laws.
The Supreme Court's approach to deciding if a law targets speech based on its content has changed over time. For instance, in the 1980s and early 1990s, the Court looked at both the words of a law and the reasons behind it, sometimes giving more weight to the reasons. The Court shifted towards focusing more on the actual words of a law in its 2015 Reed v. Town of Gilbert decision. This clarified that even if the government tries to give a neutral reason for a law that affects content, it still gets extra attention if the law is content-based.
According to Reed, a law can be content-based because of its words or because of the purpose or reason behind it. A law is facially content-based if it treats speech differently based on the message it carries. It might do this by focusing on the topic, function, or point of view of the speech. On the other hand, a law might be content-neutral on its face but still be content-based if it can't be justified without considering the content of the speech, or if it was made because the government disagreed with the message.
After Reed, courts disagreed on whether a law was automatically content-based on its face if it relied on the content of the speech it was applied to. City of Austin v. Reagan National Advertising of Austin, LLC clarified that a law is facially content-based if it applies to specific speech because of the subject, topic, or viewpoint it expresses. This means it depends on what the speech is saying. A law might still be facially content-neutral even if you need to figure out who is speaking and what they're saying to know if it applies. This is okay as long as this check is done to draw neutral lines without caring about the content.
Content-based laws are usually considered unconstitutional and have to pass strict judicial review. This is a tough test for the government. Under strict scrutiny, the government needs to show that the law serves a very important government interest and is carefully tailored to meet that interest. If there's a less restrictive way to achieve the same goal, the law might fail the strict scrutiny test.
The Court has exceptions to the strict scrutiny rule for content-based laws. One is for commercial speech, like advertising, which gets a less strict review. Even then, some content-based restrictions on commercial speech might still face strict scrutiny. There are also certain types of unprotected speech that the government can regulate because of their harmful content. But in those cases, the government can't make more content-based distinctions unless the reason for the distinction is the same reason the whole category of speech is not protected.
There are contexts where some content-based distinctions are allowed, like in schools, prisons, and nonpublic forums (government-owned property with limited public use). Also, the government can make some content-based distinctions when giving public subsidies or funding programs. These distinctions are meant to identify the activities they want to support.
The Court differentiates between content-based and content-neutral laws, though figuring out if a law is one or the other isn't always easy. A content-neutral law that incidentally affects speech can be upheld if it serves an important government interest unrelated to suppressing free speech, and if it restricts speech no more than necessary. Similar rules apply to reasonable restrictions on the time, place, or manner of speech, as long as they don't focus on the content and leave alternative ways for communication open.
Viewpoint-Based Regulation of Speech:
Laws that regulate speech based on its content usually face strict scrutiny and are often considered unconstitutional. Viewpoint-based regulation of speech is seen as a particularly severe form of content discrimination by the Supreme Court. A law is considered viewpoint-based if it controls speech because of its underlying ideology or the speaker's opinions. From the Supreme Court's rulings on viewpoint discrimination and the Free Speech Clause of the First Amendment, the following key principles have emerged.
First, the Free Speech Clause generally prevents the government from restricting speech based on the specific opinions expressed in that speech. Even when regulating speech that might otherwise be restricted, the government can't pick and choose which viewpoints to allow and which to prohibit. The government is only allowed to differentiate among viewpoints in specific situations, like when it's speaking for itself or when it's funding certain speech as part of a government program.
Second, the government usually can't force a private individual or organization to adopt a specific viewpoint. This principle applies to situations where someone is forced to associate with a particular perspective or is compelled to financially support speech they disagree with.
Third, laws that don't explicitly target a specific viewpoint, but were created to suppress a certain idea or message, or that could lead to unfair enforcement, might still violate the First Amendment.
Overall, these principles guide how the Court interprets the Constitution when it comes to viewpoint discrimination and its relationship with the First Amendment's Free Speech Clause.
Categorical Approach to Restricting Speech:
Although content-based restrictions on protected speech are typically considered unconstitutional, the Supreme Court has acknowledged that there are certain limited categories of speech that can be restricted under the First Amendment. These categories include obscenity, child pornography, defamation, fraud, incitement, fighting words, true threats, and speech closely linked to criminal conduct. This approach of identifying specific categories of content-based regulations is rooted in the Chaplinsky v. New Hampshire case. The Court stated that there are certain well-defined and narrow classes of speech that have little social value and aren't integral to the expression of ideas. As a result, the government can prohibit and penalize such utterances without raising constitutional concerns.
Recent decisions by the Court indicate a reluctance to establish new categories of exempted speech and a tendency to interpret existing categories narrowly. The Court has been cautious about broadening exceptions to the general principle against content-based restrictions on speech. In a 1992 ruling, the Court highlighted that although certain types of speech can be regulated due to their constitutionally proscribed content, these categories are not completely immune to constitutional scrutiny. This means that a regulation targeting one of these categories might still violate the First Amendment if it introduces additional content- or viewpoint-based distinctions that aren't directly related to the proscribed content. In essence, while the government has the authority to prohibit speech falling into certain proscribed categories, it cannot create further content-based distinctions that go beyond the proscribable content itself. This principle underscores the importance of maintaining a balance between permissible restrictions on certain types of speech and the overarching protections of the First Amendment.
Commercial Speech
Early Doctrine:
In the 1970s, the Supreme Court's treatment of commercial speech underwent a transformation from being completely unprotected under the First Amendment to receiving qualified protection. This shift marked a departure from the earlier doctrine established in Valentine v. Chrestensen in 1942, where the Court stated that speech related to commercial transactions was not entitled to First Amendment safeguards. In the Chrestensen case, the Court upheld a city ordinance that prohibited the distribution of commercial advertising on the street, even if the material contained both business information and protest content. This doctrine, which solely applied to speech promoting commercial activities, remained unchanged for several decades. The criteria for whether the speech was disseminated for profit or through commercial channels did not affect the level of regulation it was subjected to.
This stance began to evolve in the 1970s, with the Court's approach taking a different direction. In 1973, a pivotal 5-4 decision upheld a city's ban on sex-designated employment advertising in a newspaper under a statute prohibiting employment discrimination. The Court, while acknowledging that commercial context alone should not negate constitutional protection, indicated that placing want-ads in newspapers was classic commercial speech as defined in Chrestensen. This type of speech was seen as solely focused on proposing commercial transactions without addressing broader social policy issues. However, the Court also noted that the advertisements contributed to employment discrimination, which was against the law.
The Court continued to refine its stance in 1975 when it declared unconstitutional a state statute that criminalized publications encouraging abortion. The statute's application to an editor of a weekly newspaper who published an advertisement discussing the availability of legal abortions in another state was invalidated. In contrast to Chrestensen, the Court found that these advertisements conveyed information beyond purely commercial matters and pertained to services that were lawful in another jurisdiction.
The turning point came in 1976 when the Court discarded the Chrestensen commercial speech exception, striking down a statute that effectively prohibited pharmacists from advertising prescription drug prices. The Court recognized that speech merely proposing a commercial transaction still holds social value and is worthy of protection. It concluded that consumers' interests in receiving accurate price information can be as significant as their interest in political discourse. The Court's decision emphasized that allowing price competition and facilitating access to pricing details serves the public's best interests. The Court further found that the state's purported interests in enforcing professionalism and maintaining prescription product quality were either not met or undermined by the statute.
The Court extended its consideration to advertisers' rights to convey their intentions in 1977, when it invalidated a municipal ordinance that banned For Sale and Sold signs on residential lawns. The ordinance aimed to address fears among white residents about racial demographics changing due to home sales to non-white buyers. The Court affirmed the right of property owners to communicate their intention to sell, protecting the interests of both sellers and potential buyers to exchange truthful information. The Court determined that the community's goals could have been attained through less restrictive means, and restricting the flow of accurate information was an ineffective solution.
Central Hudson Test and Current Doctrine:
In the 1980s, the Supreme Court laid down the prevailing standard that generally governs government restrictions on commercial speech in the landmark case Central Hudson Gas & Electric Corp. v. Public Service Commission. This marked a departure from the earlier doctrine established in 1942's Valentine v. Chrestensen, which held that speech connected to commercial transactions lacked First Amendment protection. However, in Central Hudson, the Court introduced a nuanced approach, acknowledging that commercial speech is afforded a lesser degree of protection compared to other forms of expression.
Central to this evolution was the recognition that the First Amendment protection of commercial speech is rooted in its informative role in advertising. The Court emphasized that there is no constitutional objection to curbing commercial messages that fail to accurately inform the public about lawful activities. Consequently, the government can restrict communications that are more likely to deceive than educate the public, as well as commercial speech linked to illegal activities. However, if the regulated communication is neither misleading nor connected to unlawful conduct, the government's action must pass intermediate scrutiny.
This intermediate standard requires the government to establish a substantial interest, demonstrate that the regulation directly advances that interest, and prove that it is not overly broad in relation to its goal. In Central Hudson, the Court deemed a state regulation banning promotional advertising by electric utilities unconstitutional. Although the state's interests in energy conservation and equitable pricing were considered substantial, the blanket ban was not adequately tailored to the government's objectives. The regulation extended to all promotional advertising, including those highlighting more energy-efficient products, which was overly restrictive.
The Court later characterized Central Hudson as establishing a four-part test for evaluating restraints on commercial expression. This test applies to speech that either merely proposes a commercial transaction or is closely tied to economic interests. The Court has also distinguished between regulations governing the conduct of sellers, an area traditionally subject to government oversight, and those governing a seller's speech. In Expressions Hair Design v. Schneiderman, the Court found a New York State statute unconstitutional that prohibited businesses from displaying cash prices alongside credit card surcharges. The Court clarified that this regulation targeted communication of prices, thus regulating speech.
While Central Hudson's fourth prong tests whether a restriction is excessively broad, the Court clarified that a least restrictive means approach is not necessary. Instead, a reasonable fit between means and ends is required, with the means being narrowly tailored to the objective. The Court has upheld commercial speech restrictions under this standard. However, it has also struck down bans that were not sufficiently tailored, such as those limiting attorney advertising or targeting personal solicitation.
Although the Court has occasionally suggested that greater latitude exists for regulating commercial speech due to its traditional regulatory nature, it has since backed away from this stance. The Court has emphasized that the commercial speech doctrine's application does not equate to a lesser level of scrutiny. In recent cases like Sorrell v. IMS Health, Inc., the Court has displayed an increased focus on scrutinizing content-based regulations of commercial speech more rigorously.
Despite debates about the applicability of the Central Hudson test, it remains the predominant framework for assessing commercial speech restrictions. The Court's evolving treatment of commercial speech has implications for various First Amendment doctrines, influencing regulations related to times, places, and manners, as well as considerations of prior restraints and overbreadth.
Public Forum Doctrine:
In 1895, Justice Oliver Wendell Holmes, while on the highest court of Massachusetts, rejected the idea that public property was automatically open for public speech. The U.S. Supreme Court later endorsed this view. However, starting with the case Hague v. CIO in the 1930s, the Supreme Court revisited this matter. Justice Owen Roberts, in Hague, asserted that streets and parks have historically been used for assembly, communication between citizens, and discussions of public issues. This perspective was supported by various subsequent Court decisions.
In the 1960s, there was some uncertainty around this view, but a majority later embraced Justice Hugo Black's narrower interpretation of speech rights in public places. However, the Court continued to reference and uphold Roberts' perspective from Hague, which became the Court's stance. Public streets, parks, courthouses, foreign embassies, public libraries, and legislative grounds are considered public forums where demonstrations are allowed. However, the specific uses of these areas can affect the range of allowable expression.
Nonetheless, not all public property falls under this category. Some places aren't as open for expression as streets and parks due to their purpose or tradition. If the government opens unconventional forums for expression, it cannot discriminate based on content or viewpoint.
Free speech in public forums is subject to regulations related to time, place, and manner. These regulations must be content-neutral, serve a significant government interest, and provide alternative channels for communication. The regulations should be tailored to the government's interest without being overly broad.
A key principle is that the government cannot discriminate between different kinds of messages or favor certain viewpoints in granting access. The Court has also held that prior restraints, like permit systems, must adhere to strict requirements to avoid arbitrary administration.
The Court identifies three categories of public property for forum analysis. Traditional public forums, like streets and parks, permit reasonable restrictions on private speech based on time, place, and manner, but content-based restrictions face strict scrutiny. Designated public forums are created by the government for communication activities and have some limitations, but content-based restrictions must serve compelling interests. Nonpublic forums, which are not traditionally open to public communication, can have reasonable speech regulations as long as they're not aimed at suppressing views opposed by public officials.
Public and Non-Public Forums :
It can sometimes be challenging to distinguish between public and nonpublic forums. Whether a speech restriction is subject to strict scrutiny or reasonableness review depends, in part, on whether the government deliberately opens a nontraditional forum for public discourse, creating what's called a designated public forum. To decide if a forum is designated or nonpublic, the Court considers the government's intent in opening the forum, initial access restrictions, and the forum's nature.
For example, in Cornelius v. NAACP Legal Defense and Educational Fund, the Court found that the Combined Federal Campaign (CFC), an annual charitable fundraising event at federal workplaces, was a nonpublic forum. Despite allowing some charitable organizations to solicit funds, the government's practice and policy didn't show intent to designate the CFC as a public forum open to all. As a result, certain exclusions were seen as reasonable based on the forum's purpose.
However, even in nonpublic forums, certain restrictions are not allowed under the First Amendment. In Minnesota Voters Alliance v. Mansky, the Court decided that a polling place in Minnesota, though a nonpublic forum, was subject to more restrictions. While strict scrutiny didn't apply, the Court struck down a Minnesota law barring political apparel at polling places as unreasonable due to its vague interpretation and lack of clear standards.
Applying these principles has led to complex questions. In United States v. Kokinda, Justices couldn't agree on whether a sidewalk on postal premises was a public forum. Similarly, in International Society for Krishna Consciousness, Inc. v. Lee, the Court was divided over whether non-secured areas of airport terminals were public forums.
Regarding the internet, United States v. American Library Association, Inc. ruled that internet access in public libraries isn't a traditional or designated public forum. The Court upheld the Children's Internet Protection Act, allowing blocking of certain content on library computers.
In Packingham v. North Carolina, the Court likened the internet to traditional public forums. Justice Anthony Kennedy observed that cyberspace, including social media, is a significant platform for the exchange of views. The Court struck down a law preventing registered sex offenders from using social networking websites, applying strict scrutiny and ruling that the law overly restricted lawful speech without being narrowly tailored to the government's interest in protecting minors.
Quasi-Public Places:
The First Amendment prevents the government from restricting expression and doesn't require individuals to allow others to use their private property to communicate about specific topics. However, there are instances where private property is so similar to public property that owners can't prevent expression on it. In Marsh v. Alabama, the Court ruled that a private company town couldn't stop a Jehovah's Witness from distributing religious materials on a street in the town's business area. The town functioned like a regular town, despite being privately owned, so the owner's rights were limited by the rights of those using it.
The Court later expanded this in Food Employees Union v. Logan Valley Plaza, allowing protected picketing of a store in a shopping center. This ruling stated that the government can't use trespass laws to completely exclude people exercising First Amendment rights if their actions align with the property's use. However, a few years later, the Court reversed this stance. It held that shopping centers are not functionally equivalent to company towns like in Marsh. Private property rights can override expressive rights if there's no clear relationship between the expressive activity and the property's use. Suburban malls are private property, even if they function as modern town squares.
In short, while private property that takes on public attributes can limit property rights, the distinction between public and private property for expressive purposes remains complex and subject to legal interpretation.
Role of Government:
The Supreme Court has allowed the government to have more control over speech in specific situations where it acts as the speaker or when there's a valid reason to regulate speech for certain functions like running schools or prisons. For instance, the government wants to ensure that education isn't disrupted by unnecessary distractions. In these cases, the government can place some limits on expression to achieve its valid goals, but if these restrictions become too extreme, they would violate the First Amendment.
This concept of giving the government more authority when it's fulfilling particular roles is also connected to the idea that certain groups, like military members, have a distinct relationship with the government. For example, government employees can manage their workers' speech and actions in a way similar to private employers. This is partly because these employees share a unique connection with the government and also because the government needs to provide public services efficiently. The issue of speech by public employees is further explored in later essays, but it's based on the notion of the government's lawful interests in carrying out specific functions.
Public Employee Speech and Government as Employer
Loyalty Oaths:
Significant First Amendment issues often arise in the context of loyalty and security standards for government employees. These programs usually take one of two forms, or sometimes combine both. First, the government might set up a system to investigate employees or job applicants based on their presumed loyalty. Second, the government might require its employees or applicants to take a loyalty oath, where they disavow support for or membership in organizations that promote unlawful or disloyal actions.
After the Civil War, both state and federal governments introduced test oaths, which were often invalidated by the Supreme Court as laws that retroactively punished individuals or violated their rights. The Court upheld provisions that required candidates to pledge that they were not involved in efforts to violently overthrow the government, and that they were not knowingly members of such organizations. A requirement for employees to take an oath that they hadn't recently supported or advocated government overthrow or belonged to organizations with similar goals was also upheld.
Later, the Court ruled that a state could disqualify individuals from government employment if they advocated overthrowing the government by force or violence or were members of such organizations. The Court believed that while people had the right to their beliefs and associations, they couldn't expect to work for the government without adhering to reasonable terms. The Court also struck down an oath requirement that solely relied on organizational membership for disqualification, stating that individuals needed to be or have been members with knowledge of illegal goals.
Subsequently, the Court focused on vague loyalty oaths aimed at subversive groups. It found oaths requiring individuals to disavow any support for the Communist Party to be too vague, as they could penalize lawful activities unknowingly aiding illegal aims. Similarly, the Court invalidated oaths for teachers and state employees that required allegiance to the government and respect for its institutions, as these could have negative implications for First Amendment rights.
More specific oaths with First Amendment concerns followed. An oath targeting Communist Party membership was invalidated if it implicated members who didn't support illegal goals. Another oath requiring individuals to oppose government overthrow through unlawful means was struck down due to concerns about penalizing innocent membership in groups advocating illegal actions.
Loyalty oath cases in the 1970s continued the trend of protecting constitutional rights. An oath that required employees to pledge against government overthrow was invalidated if refusal to take the oath resulted in automatic dismissal without a chance to explain. A more general oath, which merely restated the commitment to uphold the government, was upheld as it didn't infringe on protected interests.
Overall, the Court's stance shifted from allowing unreasonable conditions for public employment to ensuring that government couldn't deny employment or benefits in ways that violated individuals' constitutionally protected rights.
Political Activities and Government Employees:
The end of the spoils system in federal employment led to rules restricting political activities by federal employees. In 1876, federal employees were banned from giving or receiving money for political purposes. The Civil Service Act of 1883 extended this, preventing civil service employees from using their position to influence political actions or elections. The Hatch Act expanded these restrictions to federal and some state employees, prohibiting active involvement in political campaigns.
The case of United Public Workers v. Mitchell saw the Supreme Court confirm these restrictions. While acknowledging the limitations on First Amendment rights, the Court found that no right is absolute and judged the restrictions based on a reasonable due process standard. Civil Service Commission v. National Association of Letter Carriers upheld these restrictions again, emphasizing the government's substantial interest in preventing political activities by its employees.
The issue in the latter case was whether the language of the Act was too vague. The Court decided that Congress intended to clarify the restrictions through case-by-case decisions by the Commission, which had been done adequately. Although there were conflicts between some protected activities and the forbidden actions, the Court believed the prohibitions were clear enough for ordinary people to understand.
In Bush v. Lucas, the Court determined that existing civil service laws provided sufficient remedies for federal employees' First Amendment rights in cases of disciplinary actions by supervisors.
Additionally, the Court addressed the balance between elected officials' right to speak about public concerns and elected bodies' authority to censure objectionable speech in Houston Community College System v. Wilson. The Court recognized elected representatives' right to free speech on government policy, but also acknowledged that censures by other elected representatives were a form of protected speech. In this specific case, the Court found that the censure did not violate the First Amendment.
It's important to note that while the Court ruled in these cases, there might be different outcomes in situations involving other types of discipline or punishment.
Honoraria and Government Employees:
In the case of United States v. National Treasury Employees Union (NTEU), the Court invalidated a ban on honoraria when applied to lower-level Federal Government employees. The Court noted differences between the honoraria ban and the Hatch Act, stating that the honoraria ban curbed employees' right to express themselves, while the Hatch Act aimed to protect that right. The Court pointed out that there was no proof of wrongdoing in how the plaintiff class of federal employees accepted honoraria.
The Court highlighted several issues with the honoraria ban: it only applied to expressive actions and didn't cover other outside income sources, it was relevant even when the content of speeches and articles and the payers had no connection to the employee's job, and it exempted a group of speeches or articles but not individual ones. These inconsistencies led the Court to conclude that the potential benefits of the ban didn't outweigh the limitations it placed on expressive activities.
Pickering Balancing Test for Government Employee Speech:
The government has some ability to limit its employees' speech, but it's not unlimited. In the case of Pickering v. Board of Education, the Court explained that the government has different interests as an employer compared to its role in regulating the speech of the general public. The case involved a high school teacher who was fired for writing a critical letter to a newspaper. The Court highlighted the challenge of balancing the teacher's right to comment on public matters and the government's need to maintain efficient public services through its employees.
Factors that could affect this balance were discussed, including the nature of the relationship between the employee and their supervisor. The Court ruled that if the employee's criticism didn't create problems in the workplace, it couldn't be a reason for dismissal.
Another case, Arnett v. Kennedy, dealt with a law allowing the suspension or removal of an employee for issues including speech. The Court found this law constitutional as long as it was specific and didn't overly restrict free speech rights.
The Court refined the analysis in Connick v. Myers, where an assistant district attorney was fired for circulating a survey about employee morale. The Court ruled that when employee speech isn't about public matters, the government has more freedom to manage its offices without interference. But if the speech does concern public issues, a balance between the employee's rights and the government's interests needs to be struck.
A case called Rankin v. McPherson protected an employee's comment on the President's policies, even though it didn't aim to inform the public. The Court found that the employee's lack of contact with the public made the employer's interest in maintaining office efficiency less important than the employee's First Amendment rights.
However, the Court established in Garcetti v. Ceballos that when public employees speak as part of their official duties, their speech isn't protected by the First Amendment, even if it's about public issues. In Lane v. Franks, testimony outside of an employee's usual job duties was considered protected citizen speech and could be evaluated using the Pickering-Connick balancing test.
A 2022 case, Kennedy v. Bremerton School District, clarified that an employee's speech could be seen as private or government speech based on context. The Court determined that a football coach's prayers after games were private speech, not government speech.
The rules for government employees' speech also apply to independent government contractors, with the Pickering balancing test adjusted for the government's interests as a contractor.
In summary, the government has some room to restrict its employees' speech but not without considering the balance between its interests and the employees' rights. If the speech doesn't relate to public matters, the government can restrict it more easily. For matters of public concern, a balancing act takes place, weighing the government's interests against the employees' rights. Statutory protections for whistleblowers also play a role alongside the First Amendment in safeguarding government employees' speech.
Media Regulation:
The First Amendment protects freedom of speech regardless of how it's expressed – whether in a park, a newspaper, or a movie. However, the standards for evaluating these protections can vary depending on the form of expression. Sometimes, specific rules might apply due to the unique characteristics of a medium. While the Supreme Court acknowledges that both the Free Speech and Free Press Clauses safeguard media outlets, these organizations still need to follow general laws, even if these laws indirectly affect free speech rights.
Political Speech: (Campaign Finance)
Both federal and state governments regulate how money is used in political campaigns. At the federal level, the Federal Election Campaign Act (FECA) sets limits on campaign contributions, specifies who can contribute, requires disclosure and disclaimers in political advertisements, and establishes a public financing system for presidential campaigns. In a significant case from 1976 called Buckley v. Valeo, the Supreme Court ruled that such regulations can affect the First Amendment rights of free speech and association. According to the Court, limits on campaign contributions (giving money to a candidate's campaign) and expenditures (spending money for campaign messages) impact the right to express political ideas and associate with particular candidates. Similarly, the Court found that requirements to disclose campaign donations and include disclaimers in ads could potentially interfere with the right to private association and beliefs as protected by the First Amendment. When reviewing challenges to these regulations under the First Amendment, the Court uses different levels of scrutiny based on the impact they have and the government's reasons for them.
Compelled Speech:
The First Amendment protects both religious beliefs and freedom of speech. Belief forms the basis for practicing religion and expressing opinions. The Supreme Court emphasized that no government authority, regardless of its status, can dictate what people should believe or force them to express beliefs against their will. While the freedom to act on beliefs can be limited, the freedom to hold beliefs is absolute. This means that courts generally apply strict scrutiny to government actions that force speech, but they might be more accepting of certain types of disclosure requirements, especially in commercial situations. Earlier, we discussed how the Court handles disclosures and disclaimers in the context of campaign finance and election regulations.
Unconstitutional Conditions Doctrine:
The unconstitutional conditions doctrine is based on the idea that the government can't deny someone a benefit if it infringes on their constitutionally protected rights. This principle isn't limited to just the First Amendment; however, many important Supreme Court cases related to this doctrine focus on freedom of speech. Although there isn't a formal test for this doctrine, the main idea is that the government can't force someone to give up a constitutional right, like the right to speak or not speak on a particular topic, as a requirement for receiving a public benefit. How this principle is applied in specific legal cases depends on the kind of benefit the government is providing, which can include things like public employment, tax exemptions, or government funding.
Symbolic Speech:
Communication of different viewpoints—political, economic, social, and more—doesn't always happen through traditional methods like talking face-to-face, broadcasting, or writing in newspapers. There's also a form of expression called symbolic speech, which includes things like picketing, distributing leaflets, door-to-door solicitation, burning flags, and even actions like sit-ins and stand-ins that can convey protests effectively.
The Supreme Court has said that conduct can trigger First Amendment protection if it's meant to convey a specific message and if it's likely that people who see it will understand the message. However, the conduct itself must be inherently expressive—simply combining speech and actions isn't enough to turn actions into 'speech.' Expressive conduct is evaluated under a less strict standard than pure speech, which means it can be regulated and restricted more easily. In some cases, expressive conduct might be completely prohibited if the government has a strong enough reason to regulate the non-speech aspect of the activity.
The legal test for evaluating expressive conduct comes from the case United States v. O'Brien. According to this test, a government regulation is justified if it's within the government's power, serves an important government interest unrelated to suppressing free expression, and the restriction on First Amendment rights is no more than necessary to serve that interest. This standard also applies to regulations of pure speech if they only regulate the time, place, or manner of the speech, focusing on non-content aspects of the speech.
An example of this legal principle in action is the case of United States v. O'Brien, where the Supreme Court upheld a law that prohibited burning draft registration certificates. The Court found that the government's interest in making sure people keep their draft cards was important and that the law didn't restrict First Amendment rights more than necessary to serve that interest. In another case, the Court supported a policy that targeted young men who refused to register for the draft and those who reported them for prosecution.
In summary, there are different ways to express ideas beyond just talking or writing, like symbolic actions. Courts use a specific legal standard to decide if regulations on these expressive actions are valid, and sometimes even conduct that's expressive can be regulated if the government has a good reason.
Freedom of Association
The First Amendment protects various activities like speaking, gathering, and practicing religion that are not just personal but can involve communities and relationships (called association). Even though the First Amendment doesn't explicitly mention the freedom of association, the Supreme Court has recognized it as essential for protecting other First Amendment freedoms. This right to associate for purposes like speaking out, gathering, and practicing religion is what we're focusing on here. The Court also acknowledges a personal freedom in certain close relationships, protected by both the First Amendment and the Fourteenth Amendment's Due Process Clause.
The Court didn't always recognize this constitutional right of association. Back in 1886, it said that states can regulate or stop associations and meetings, except peaceful gatherings formed to petition the government. It took almost fifty years before the Court saw the right to gather as a distinct form of association. In 1937, the Court said that the right to peacefully gather is closely related to free speech and free press, and is just as important. This view was used in a 1945 case, where the Court said that the right of union organizers to talk about the pros and cons of joining a union is protected not just as free speech, but also as part of free assembly.
From the 1950s, the Court started to see freedom of association as a separate but related right to freedom of speech and assembly, which are specifically mentioned in the First Amendment. The Court said that the freedom to associate for beliefs and ideas is an essential part of civil liberties, like freedom of speech. While political groups are a clear example of expressive association, the First Amendment also protects other kinds of 'association' that might not be political but are important for social, legal, and economic benefits.
There have been cases where the freedom of association has been directly restricted. For example, in Coates v. Cincinnati, the Court said a local law that made it illegal for three or more people to gather on sidewalks and annoy passersby directly targeted protected activities like gathering and assembly.
Usually, the Court deals with cases where laws indirectly affect the freedom to associate. For instance, if laws force you to reveal your associations, it might stop you from exercising your First Amendment rights because you might face threats or harm. So, even laws that don't directly stop you from joining groups might still have a chilling effect on association.
The Court's decisions in this area sometimes seem conflicting. They're about finding the balance between First Amendment rights and government interests, considering the important events of the time. For example, during the 1950s and 1960s, the Court dealt with cases involving citizens' affiliations with the Communist Party due to security concerns. The Court took national security seriously while also increasing scrutiny of laws that burdened other groups' associations.
Although the freedom of association is protected by the Constitution, it's not absolute. The government can stop agreements to do illegal things, and certain forms of association might not get constitutional protection. Even when a law affects protected association, the government's interests might outweigh the impact on association. Lastly, while individuals can organize as a group to express their views, the government isn't obligated to listen to the group's concerns.
Freedom of the Press
There's a question about whether the Free Speech Clause and the Free Press Clause, when it comes to media protection, are basically the same. Some decisions by the Supreme Court about regulating media outlets looked at the constitutional protections without making a big difference between these two clauses. In 1978, the Court specifically looked into whether the press has more freedom from government regulations than individuals, groups, or associations that aren't part of the press. Justice Potter Stewart, in his own opinion, emphasized the important role the press plays in American society, suggesting it needs special consideration. However, Chief Justice Warren Burger, in a different opinion, said the Court hadn't fully decided if the Press Clause gives the press any extra freedom from government rules that others don't have. Ultimately, the Court decided that the First Amendment doesn't give the media special access to prisons.
Some previous decisions by the Supreme Court make it pretty clear that the Free Press Clause doesn't give the press the power to force the government to give them information or access that the public in general doesn't have. The press isn't generally treated differently from the public in many situations. Laws that apply to everyone don't usually go against the First Amendment just because they affect the press. However, laws that target the press or treat different types of media differently might sometimes break the First Amendment rules. Also, it's pretty clear that the press gets some extra protection under the Constitution because of its role in spreading news and information. This means the government should be more careful when dealing with the press, as mentioned by Justice Potter Stewart.
Freedom of Assembly and Petition
(Historical Background)
The right of petition has its origins in the Magna Carta (1215), where it was initially outlined in a simple way. This humble beginning led to the creation of Parliament and its legislative procedures, the equity jurisdiction of the Lord Chancellor, and processes to address issues with the Crown through petitions. Over time, Parliament, especially the House of Commons, began using petitions to address grievances and negotiate with the King for financial support. As the House of Commons gained influence, it claimed the authority to shape the King's responses to petitions. By 1669, it was established that every commoner in England had the inherent right to prepare and present petitions, and the House of Commons had the right to receive and evaluate them. The Bill of Rights in 1689 solidified the right of subjects to petition the King, making any actions against such petitioning illegal.
Similarly, the right of peaceable assembly for lawful purposes has deep historical roots, considered an inherent aspect of citizenship under a free government. Initially, the right of petition and assembly were treated as a single right, but later, the Supreme Court viewed the right of assembly as a distinct protection for holding peaceful political gatherings.
The First Amendment recognized the right of petition in the early 1830s when petitions against slavery in the District of Columbia were submitted to Congress. Despite initial resistance, efforts by John Quincy Adams led to the repeal of rules prohibiting such petitions. The House of Representatives allowed Members to present petitions, which were entered into the Journal unless deemed obscene or insulting by the Speaker. However, during World War I, petitions against certain laws and military measures led to imprisonment.
In the United States, processions for presenting petitions haven't always been successful. In 1894, General Coxey organized a march to Washington by unemployed people to present petitions, but their leaders were arrested for walking on the Capitol's grass. In 1932, veterans marched to demand bonus legislation, which was seen as an exercise of the right of petition. Although marches and encampments for petitions have become more common, their outcomes have varied.
Doctrine on Freedoms of Assembly and Petition
The right of assembly first appeared before the Supreme Court in 1876 in a case called United States v. Cruikshank. This case involved the Enforcement Act of 1870, which prohibited conspiracies to intimidate people from exercising their constitutional rights. Defendants were charged with preventing citizens from peaceably assembling for lawful purposes. The Court ruled that the indictment was insufficient because it didn't connect the assembly with the federal government's powers or duties, even though it broadly stated that the right to assemble for petitioning Congress or discussing matters related to the National Government is protected.
Over time, the right of assembly and petition has expanded, becoming part of the liberty protected by the Fourteenth Amendment's Due Process Clause. The right to peacefully assemble for lawful discussion cannot be prohibited by the government, even if participants have committed crimes elsewhere. The Court has also extended the protection of the right of petition to access courts and administrative agencies, allowing citizens to make demands and voice their concerns on various matters.
Cases like Hague v. CIO and Coates v. Cincinnati demonstrate the Court's stance on protecting the right of assembly. The Court has recognized the overlap between the rights of assembly, petition, speech, and press, often considering them as part of a broader freedom of expression. Similar standards are applied in most cases involving these rights. For instance, public employees claiming protection under the First Amendment's Speech Clause must demonstrate speaking as citizens on public concerns. Likewise, in Borough of Duryea, Pennsylvania v. Guarnieri, the Court held that complaints must pertain to matters of public concern to be protected under the right to petition. The right of assembly has also been intertwined with the implied right of association recognized by the Court.
