report - freedom of speech and expression

The Board of Regents of the University of Wisconsin System requires students at the university’s Madison campus to pay an activity fee that supports various campus services and extracurricular student activities. In the university’s view, such fees enhance students’ educational experiences by promoting extracurricular activities, stimulating advocacy and debate on diverse points of view, enabling participation in campus administrative activity, and providing opportunities to develop social skills—all consistent with the university’s broad educational mission. Registered student organizations (RSOs) expressing a wide range of views are eligible to receive a portion of the fees, which the student government administers subject to the university’s approval.

There has been broad agreement that the process for approving RSO applications for funding is administered in a viewpoint-neutral fashion. RSOs may also obtain funding through a student referendum. Some students, however, sued the university, alleging that the activity fee violated their First Amendment rights because it forced them to support expressions of views they did not share. They argued that the university must grant them the choice not to fund RSOs that engage in political and ideological expression offensive to their personal beliefs.

The Supreme Court held in a unanimous decision in Board of Regents of University of Wisconsin System v. Southworth that, if a university determines that its mission is well served when students have the means to engage in dynamic discussion on a broad range of issues, it may impose a mandatory fee to sustain such dialogue. The Court recognized that inevitably such a fee will subsidize speech that some students find objectionable or offensive. Thus, the Court held that a university must protect students’ First Amendment rights by requiring view-point neutrality in the allocation of funding support.

The University of Wisconsin case represents the sort of complex controversy that shapes American civil liberties. Debates about the right to abortion, the right to bear arms, the separa-tion of church and state, and similar issues are constantly in the news. Some of these issues arise from conflicting interests. The need to protect society against crime often conflicts with society’s need to protect the rights of people accused of crime. Other conflicts derive from strong differences of opinion about what is ethical, moral, or right. To some Americans, abor-tion is murder, the taking of a human life. To others, a woman’s choice of whether to bear a child, free of governmental intrusion, is a fundamental right. Everyone, however, is affected by the extent of our civil liberties.

Deciding complex questions about civil liberties requires balancing competing values, such as main-taining an open system of expression while protecting individuals from the excesses such a system may produce. Civil liberties are essential to democracy. How could we have free elections without free speech, for example? But does it follow that critics of officials should be able to say whatever they want, no matter how untrue? And who should decide the extent of our liberty? Should it be a representative institution such as Congress or a judicial elite such as the Supreme Court?

The role of the government in resolving civil liberties controversies is also the subject of much debate. Conservatives usually advocate narrowing the scope of government, yet many conservatives strongly support government-imposed limits on abortion and government-sanctioned prayers in public schools. They also want government to be less hindered by concern for defendants’ rights. Liberals, who typically support a broader scope of govern-ment, usually want to limit government’s role in prohibiting abortion and encouraging reli-gious activities and to place greater constraints on government’s freedom of action in the criminal justice system.

Civil liberties are constitutional and other legal protections of individuals against government actions. Americans’ civil liberties are set down in the Bill of Rights, the first 10 amendments to the Constitution. At first glance, many questions about civil liberties issues may seem straightforward. For example, the Bill of Rights’ guarantee of a free press appears to mean that Americans can write what they choose. In the real world of American law, however, these issues are subtle and complex. Disputes about civil liberties often end up in court. The Supreme Court of the United States is the final interpreter of the content and scope of our liberties; this ul-timate power to interpret the Constitution accounts for much of the ferocious debate over presidential appointments to the Supreme Court. Throughout this chapter you will find special features titled “You Are the Judge.”

Each feature describes an actual case heard by the Supreme Court and asks you to de-cide the case and then compare your decision with that of the Court. To understand the specifics of American civil liberties, we must first understand the Bill of Rights.

Issues of civil liberties present many vexing problems for the courts to re-solve. For example, is a display of the Ten Commandments on a government site simply a recognition of their his-toric importance to the development of law or an impermissible use of govern-ment power to establish religion?

civil liberties

The constitutional and other legal pro-tections against government actions. Our civil liberties are formally set down in the Bill of Rights.

Bill of Rights

The first 10 amendments to the U.S. Constitution, which define such ba-sic liberties as freedom of religion, speech, and the press, and guarantee defendants’ rights.

THE BILL OF RIGHTS

4.1 Trace the process by which the courts have applied the Bill of Rights to the states.

By 1787, all state constitutions had bills of rights, some of which survive, intact, to this day. Although the new U.S. Constitution had no bill of rights, some state ratifying con-ventions made the passage of amendments providing rights a condition of ratification. The First Congress passed the Bill of Rights in 1789 and sent it to the states for ratifica-tion. In 1791 these amendments became part of the Constitution.

The Bill of Rights—Then and Now

The Bill of Rights ensures Americans’ basic liberties, such as freedom of speech and religion and protection against arbitrary searches and being held for long periods without trial (see Table 4.1). When the Bill of Rights was ratified, British abuses of the colonists’ civil liberties were still a fresh and bitter memory. Colonial officials had jailed newspaper editors, arrested citizens without cause, and detained people and forced them to confess at gunpoint or worse. Thus, the first 10 amendments enjoyed great popular support.

Political scientists have discovered that Americans are devotees of rights in the-ory—and more supportive of free expression than people in other nations.1 Their sup-port often wavers when it comes time to put those rights into practice, however.2 For example, Americans in general believe in freedom of speech, but many citizens oppose a range of actions,3 such as letting the Ku Klux Klan speak in their neighborhood or al-lowing public schools to teach about atheism or same-gender relationships. In addition, Americans seem willing to trade civil liberties for security when they feel that the nation is threatened, as in the case of terrorism.4 Because few rights are absolute, we cannot avoid the difficult questions of how to balance civil liberties with other individual and societal values.

First Amendment

The constitutional amendment that pro-tects the four great liberties: freedom of religion, of speech, of the press, and of assembly.

Barron v. Baltimore The 1833 Supreme Court decision holding that the Bill of Rights restrained only the national government, not the states or cities.

The Bill of Rights and the States Take another look at the First Amendment. Note the first words: “Congress shall make no law . . . .” The Founders wrote the Bill of Rights to restrict the powers of the new national government. What happens, however, if a state law violates one of the rights protected by the federal Bill of Rights, and the state’s constitution does not pro-hibit this abridgment of freedom? In 1833, the answer to that question was “nothing.” The Bill of Rights, said the Supreme Court in Barron v. Baltimore, restrained only the national government, not states or cities.

THE BILL OF RIGHTS These amendments were passed by Congress on September 25, 1789, and ratified by the states on December 15, 1791.

Amendment I—Religion, Speech, the Press, Assembly, Petition

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.

Amendment II—Right to Bear Arms A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III—Quartering of Soldiers No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV—Searches and Seizures

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V—Grand Juries, Double Jeopardy, Self-Incrimination, Due Process, Eminent Domain No person shall be held to answer to a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI—Criminal Court Procedures

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be con-fronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII—Trial by Jury in Common-Law Cases

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII—Bails, Fines, and Punishment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX—Rights Retained by the People The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X—Rights Reserved to the States The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. SOURCE: U.S. Constitution.

An opening toward a different answer was provided by the Fourteenth

Amendment, one of the three “Civil War amendments,” which was ratified in 1868. The Fourteenth Amendment declares, No State shall make or enforce any law which shall abridge the privileges or im-munities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Nonetheless, in the Slaughterhouse Cases (1873), the Supreme Court gave a nar-row interpretation of the Fourteenth Amendment’s privileges or immunities clause (dis-cussed in detail in Chapter 3), concluding that it applied only to national citizenship and not state citizenship and thus did little to protect citizens against state actions. In 1925, in Gitlow v. New York, however, the Court relied on the Fourteenth Amendment to rule that a state government must respect some First Amendment rights. Specifically, the Court said that freedoms of speech and press “were fundamen-tal personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states.” In effect, the Court interpreted the Fourteenth Amendment to say that states could not abridge the freedoms of expres-sion protected by the First Amendment. This decision began the development of the incorporation doctrine, the legal con-cept under which the Supreme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states through the Fourteenth Amendment. In Gitlow, the Supreme Court held only parts of the First Amendment to be binding on the states.

Fourteenth Amendment

The constitutional amendment adopted after the Civil War that declares “No State shall make or enforce any law which shall abridge the privileges or im-munities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protec-tion of the laws.”

Gitlow v. New York The 1925 Supreme Court decision hold-ing that freedoms of press and speech are “fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states” as well as by the federal government.

due process clause Part of the Fourteenth Amendment guaranteeing that persons cannot be deprived of life, liberty, or property by the U.S. or state governments without due process of law.

E INCORPORATION OF THE BILL OF RIGHTS Date of Incorporation Amendment

Right

1925 1931 1937 1940 1947 1958 1963 2010

Not incorporateda 1949

1961 1897 1964 1969

Not incorporated 1932

1948 1963 1965 1966 1967 1967 1968 1972

Not incorporated 1962

Not incorporated 1965

First First First First First First First

Second Third

Fourth Fourth Fifth Fifth Fifth Fifth Sixth Sixth Sixth Sixth Sixth Sixth Sixth Sixth Sixth

Seventh Eighth Eighth

Ninth

Freedom of speech Freedom of the press Freedom of assembly Free exercise of religion Establishment of religion

Freedom of association

Right to petition government Right to bear arms

No quartering of soldiers

No unreasonable searches and seizures Exclusionary rule

Guarantee of just compensation Immunity from self-incrimination Immunity from double jeopardy Right to grand jury indictment Right to counsel in capital cases Right to public trial

Right to counsel in felony cases Right to confrontation of witnesses Right to impartial jury Right to speedy trial

Wolf v. Colorado Mapp v. Ohio

Chicago, Burlington, and Quincy RR v. Chicago Mallory v. Hogan Benton v. Maryland

Powell v. Alabama In re Oliver

Gideon v. Wainwright Pointer v. Texas

Parker v. Gladden Klopfer v. North Carolina

Right to compulsory process for obtaining witnesses Washington v. Texas Right to jury trial for serious crimes

Right to counsel for all crimes involving jail terms Right to jury trial in civil cases

Freedom from cruel and unusual punishment Freedom from excessive fines or bail

Right of privacy aThe quartering of soldiers has not occurred under the Constitution.

incorporation doctrine The legal concept under which the Su-preme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states through the Fourteenth Amendment.

Duncan v. Louisiana Argersinger v. Hamlin

Robinson v. California Griswold v. Connecticut Case

Gitlow v. New York Near v. Minnesota

De Jonge v. Oregon Cantwell v. Connecticut

Everson v. Board of Education NAACP v. Alabama NAACP v. Button

McDonald v. Chicago

Gradually, and especially during the 1960s, the Court applied most of the Bill of Rights to the states (see Table 4.2). Many of the decisions that nationalized provisions of the Bill of Rights were controversial. Nevertheless, today the Bill of Rights guarantees indi-vidual freedoms against infringement by state and local governments as well as by the national government. Only the Third and Seventh Amendments, the grand jury require-ment of the Fifth Amendment, and the prohibition against excessive fines and bail in the Eighth Amendment have not been applied specifically to the states.

FREEDOM OF RELIGION

4.2 Distinguish the two types of religious rights protected by the First Amendment and determine the boundaries of those rights.

establishment clause Part of the First Amendment stating that “Congress shall make no law respecting an establishment of religion.”

free exercise clause A First Amendment provision that prohibits government from interfering with the practice of religion.

The First Amendment contains two elements regarding religion and government. These elements are commonly referred to as the establishment clause and the free exercise clause. The establishment clause states that “Congress shall make no law respecting an establishment of religion.” The free exercise clause prohibits the abridgment of citizens’ freedom to worship or not to worship as they please. Sometimes these freedoms conflict. The government’s practice of providing chap-lains on military bases is one example of this conflict; some accuse the government of establishing religion in order to ensure that members of the armed forces can freely practice their religion. Usually, however, establishment clause and free exercise clause cases raise different kinds of conflicts. Religious issues and controversies have assumed importance in political debate in recent years,5 so it is not surprising that interpretations of the Constitution are intertwined with partisan politics.

The Establishment Clause Some nations, such as Great Britain, have an established church that is officially supported

by the government and recognized as a national institution. Some American colonies at one time had official churches, but the religious persecutions that incited many colonists to move to America discouraged the First Congress from establishing a national church in the United States. Thus, the First Amendment prohibits an established national religion. It is much less clear, however, what else the First Congress intended to include in the establishment clause. Some people argued that it meant only that the government could not favor one religion over another. In contrast, Thomas Jefferson argued that the First Amendment created a “wall of separation” between church and state, forbidding not just favoritism but also any support for religion at all. These interpretations continue to provoke argument, especially when religion is mixed with education, as occurs with such issues as government aid to church-related schools and prayer in public schools. EDUCATION Proponents of aid to church-related schools argue that it does not favor any specific religion. Some opponents reply that the Roman Catholic Church has by far the largest religious school system in the country and gets most of the aid. It was Lyndon B. Johnson, a Protestant, who in 1965 obtained the passage of the first substantial aid to parochial elementary and secondary schools. He argued that the aid went to students, not schools, and thus should go wherever the students were, includ-ing church-related schools. In Lemon v. Kurtzman (1971), the Supreme Court declared that laws that provide

aid to church-related schools must do the following: 1. Have a secular legislative purpose 2. Have a primary effect that neither advances nor inhibits religion 3. Not foster an excessive government “entanglement” with religion Since Lemon, the Court has had to draw a fine line between aid that is permissible

and aid that is not. For instance, the Court has allowed religiously affiliated colleges and universities to use public funds to construct buildings, buy textbooks, computers and other instructional equipment, provide lunches and transportation to and from school, and administer standardized testing services. However, schools may not use public funds to pay teacher salaries or to provide transportation for students on field trips. The theory underlying these decisions is that it is possible to determine that buildings, textbooks, lunches, school buses, and standardized tests are not used to sup-port sectarian education. However, determining how teachers handle a subject in class or focus a field trip may require complex and constitutionally impermissible regulation of religion.

In an important loosening of its constraints on aid to parochial schools, the

Supreme Court decided in 1997 in Agostini v. Felton that public school systems could send teachers into parochial schools to teach remedial and supplemental classes to needy children. In a landmark decision in 2002, the Court in Zelman v. Simmons-Harris upheld a program that provided some families in Cleveland, Ohio, with vouchers they could use to pay tuition at religious schools. RELIGIOUS ACTIVITIES IN PUBLIC SCHOOLS In recent decades, the Supreme Court has also been opening public schools to religious activities. The Court decided that public universities that permit student groups to use their facilities must allow student religious groups on campus to use the facilities for religious worship.6 In the 1984 Equal Access Act, Congress made it unlawful for any public high school receiving federal funds (almost all of them do) to keep student groups from using school facilities for religious worship if the school opens its facilities for other student meetings.7 In 2001 the Supreme Court extended this principle to public elementary schools.8 Similarly, in 1993, the Court required public schools that rent facilities to secular organizations to do the same for religious groups.9 Beyond the use of school facilities there is the question of the use of public funds

for religious activities in public school contexts. In 1995 the Court held that the University of Virginia was constitutionally required to subsidize a student religious magazine on the same basis as other student publications.10 However, in 2004 the Court held that the state of Washington could exclude students pursuing a devotional theology degree from its general scholarship program.11 The threshold of constitutional acceptability becomes higher when public funds

Engel v. Vitale The 1962 Supreme Court decision holding that state officials violated the First Amendment when they required that a prayer be recited by public schoolchildren.

School District of Abington Township, Pennsylvania v. Schempp The 1963 Supreme Court decision holding that a Pennsylvania law requir-ing Bible reading in schools violated the establishment clause of the First Amendment.

are used more directly for education. Thus school authorities may not permit religious instructors to come into public school buildings during the school day to provide re-ligious education,12 although they may release students from part of the compulsory school day to receive religious instruction elsewhere.13 The Court has also prohibited the posting of the Ten Commandments on the walls of public classrooms.14 Two particularly contentious topics related to religion in public schools are school prayer and the teaching of “alternatives” to the theory of evolution. SCHOOL PRAYER In Engel v. Vitale (1962) and School District of Abington Township, Pennsylvania v. Schempp (1963), the Supreme Court aroused the wrath of many Americans by ruling that requiring public school students to recite a prayer violates the establishment clause; in the second case, it made a similar ruling about requiring students to recite passages from the Bible. In the 1963 decision, the justices observed that “the place of religion in our society is an exalted one ... [but] in the relationship between man and religion, the State is firmly committed to a position of neutrality.” It is not unconstitutional, of course, to pray in public schools. Students may pray

silently as much as they wish. What the Constitution forbids is the sponsorship or encouragement of prayer, directly or indirectly, by public school authorities. Thus the Court has ruled that school-sponsored prayer at a public school graduation15 and student-led prayer at football games are unconstitutional.16 When several Alabama laws authorized public schools to hold one-minute periods of silence for “meditation or voluntary prayer,” the Court rejected its approach because the state made it clear that the purpose of the statute was to return prayer to public schools.17 Many school districts have simply ignored the Supreme Court’s ban on school prayer and continue to allow prayers in their classrooms. Some religious groups and many members of Congress, especially conservative Republicans, have pushed for a constitutional amendment permitting prayer in school. A majority of the public con-sistently supports school prayer.18 EVOLUTION Fundamentalist and evangelical Christian groups have pressed some state legislatures to mandate the teaching of “creation science”—their alternative to Darwin’s theory of evolution—in public schools. Louisiana, for example, passed a law requiring schools that taught Darwinian theory to teach creation science too. In 1987 the Supreme Court ruled that this law violated the establishment clause.19 The Court had already held that states cannot prohibit Darwin’s theory of evolution from being taught in the public schools.20 More recently, some groups have advocated, as an alternative to evolution, “intelligent design,” the view that living things are too complicated to have resulted from natural selection and thus must be the result of an intelligent cause. Although they claim that their belief has no religious implications, lower courts have begun to rule that requiring teachers to present intelligent design as an alternative to evolution is a constitutionally unacceptable promotion of religion in the classroom.

PUBLIC DISPLAYS The Supreme Court has also struggled to interpret the establish-ment clause in other areas. In 2005 the Court found that two Kentucky counties vio-lated the establishment clause when they posted large, readily visible copies of the Ten Commandments in their courthouses, concluding that the counties’ primary purpose was to advance religion.21 However, the Court did not hold that it is never constitu-tional for a governmental body to integrate a sacred text constitutionally into a gov-ernmental display on law or history. In fact, in 2005 the Court held that Texas could include a monolith inscribed with the Ten Commandments among the 21 historical markers and 17 monuments surrounding the Texas State Capitol. The Court argued that a display that simply has religious content or promotes a message consistent with a religious doctrine does not run afoul of the establishment clause. Texas’s placement of the Commandments monument on its capitol grounds was a far more passive use of those texts than their posting in elementary school classrooms and also served a legitimate historical purpose.22 The Court has also upheld saying a prayer to open a legislative session.23 Displays of religious symbols during the holidays have prompted considerable

controversy. In 1984 the Court found that Pawtucket, Rhode Island, could set up a Christmas nativity scene on public property—along with Santa’s house and sleigh, Christmas trees, and other symbols of the Christmas season.24 Five years later, the Court extended the principle to a Hanukkah menorah placed next to a Christmas tree. The Court concluded that these displays had a secular purpose and provided little or no benefit to religion. At the same time, the Court invalidated the display of the nativity scene in a courthouse because it was not accompanied by secular symbols and thus gave the impression of endorsing a religious message.25 The Court’s basic position is that the Constitution does not require complete sepa-ration of church and state; it mandates accommodation of all religions and forbids hostility toward any. At the same time, the Constitution forbids government endorse-ment of religious beliefs. Drawing the line between neutrality toward religion and promotion of it is not easy; this dilemma ensures that cases involving the establish-ment of religion will continue to come before the Court.

The Free Exercise Clause The First Amendment also guarantees the free exercise of religion. This guarantee seems simple enough. Whether people hold no religious beliefs, practice voodoo, or go to a church, a temple, or a mosque, they should have the right to practice religion as they choose. In general, Americans are tolerant of those with religious views out-side the mainstream, as you can see in Figure 4.1. The constitutional guarantee of the free exercise of religion is, of course, more complicated. Religions sometimes forbid actions that society thinks are necessary; conversely, religions may require actions that society finds unacceptable. For example, what if a religion justifies multiple marriages or the use of illegal drugs? Muhammad Ali, the boxing champion, refused induction into the armed services during the Vietnam War because, he said, military service would violate his Muslim faith. Amish parents often refuse to send their children to public schools. Jehovah’s Witnesses and Christian Scientists may refuse to accept blood transfusions and certain other kinds of medical treatment for themselves or their children. Consistently maintaining that people have an inviolable right to believe whatever they want, the courts have been more cautious about the right to practice a belief. What if, the Supreme Court once asked, a person “believed that human sacrifices were a necessary part of religious worship?” Not all religious practices receive constitutional protection. Thus, over the years, the Court has upheld laws and regulations forbid-ding polygamy, prohibiting business activities on Sunday (restricting the commerce of Orthodox Jews, for whom Sunday is a workday), denying tax exemptions to reli-gious schools that discriminate on the basis of race,26 allowing the building of a road through ground sacred to some Native Americans, and even prohibiting a Jewish air force captain from wearing his yarmulke while on duty. (Congress later intervened to permit military personnel to wear yarmulkes.) At the same time, Congress and the Supreme Court have granted protection to a

range of religiously motivated practices. The Court has allowed Amish parents to take their children out of school after the eighth grade, reasoning that the Amish commu-nity is well established and that its children will not burden the state.27 More broadly, parents have a right to send their children to accredited religious schools rather than public schools. A state may not require Jehovah’s Witnesses or members of other religions to participate in public school flag-saluting ceremonies. Congress has also decided—and the courts have affirmed—that people can become conscientious objec-tors to war on religious grounds. The free exercise clause also prevents government from interfering with the freedom of religious groups to select their own personnel. Thus, religious groups are not subject to laws that prohibit discrimination in employ-ment.28 In 2014 the Court held that requiring family-owned corporations run on religious principles to pay for insurance coverage for contraception violated a federal law protecting religious freedom.29 The next year, it held that the 1964 Civil Rights Act (discussed in detail in Chapter 5) forbids an employer from making an applicant’s religious practice (such as a head scarf) a factor in employment decisions.30 What kind of laws restricting religious practices might be constitutional? In 1988, in upholding Oregon’s prosecution of persons using the drug peyote as part of their religious rituals (Employment Division v. Smith), the Court decided that a state law could apply to conduct, even if the conduct was religiously inspired, as long as that law did not single out religious practices because they were engaged in for religious reasons.31 However, the Religious Freedom Restoration Act, which Congress passed in 1993 and which applies only to the national government,32 requires laws to meet a more restric-tive standard: a law or regulation cannot interfere with religious practices unless the government can show that it is narrowly tailored and in pursuit of a “compelling inter-est.” The Court in a 2006 decision allowed a small religious sect to use a hallucinogenic tea in its rituals despite the federal government’s attempts to bar its use.

In 2000, Congress passed legislation that, in accordance with the “compelling inter-est” standard, made it more difficult for local governments to enforce zoning or other regulations on religious groups and required governments to allow those institutionalized in state facilities (such as prisons) to practice their faith. The Supreme Court upheld this law in 2005,34 and in 2015 upheld the right of a Muslim prisoner to grow a short beard.35 In 2017, the Court held that Missouri violated a church’s right of free exercise under the First Amendment when it denied the church public funds for playground improvements “solely because it was a religious institution.” The Court pointed out that the playground was publicly accessible and not for use solely by students or members of the church.36 Now imagine that “You Are the Judge” in the case involving a city’s ban on ritual animal sacrifices, a summary of which appears above.

FREEDOM OF EXPRESSION

4.3 Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights.

A democracy depends on the free expression of ideas. Thoughts that are muffled, speech that is forbidden, and meetings that cannot be held are the enemies of the democratic process. Totalitarian governments know this, which is why they go to enormous trouble to limit expression. Americans pride themselves on their free and open society. Freedom of con-science is absolute; Americans can believe whatever they want. The First Amendment plainly forbids the national government from limiting freedom of expression—that is, the right to say or publish what one believes. Is freedom of expression, then, like free-dom of conscience, absolute? Most experts answer “no.” Supreme Court justice Oliver Wendell Holmes offered a classic example of impermissible speech in 1919: “The most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theater and causing a panic.”

Given that not all speech is permissible, the courts have had to address two ques-tions in deciding where to draw the line separating permissible from impermissible speech. First, can the government censor speech that it thinks will violate the law? Second, what constitutes speech (or press) within the meaning of the First Amendment and thus deserves constitutional protection, and what does not? Holding a political rally to attack an opposing candidate’s stand receives First Amendment protection. Obscenity and libel and incitements to violence and overthrow of the government do not. But just how do we know, for example, what is obscene? To complicate mat-ters further, certain forms of nonverbal speech, such as picketing, are considered symbolic speech and receive First Amendment protection. Judges also have had to balance freedom of expression against competing values, such as public order, na-tional security, and the right to a fair trial. Then there are questions regarding com-mercial speech. Does it receive the same protection as religious and political speech? Regulating the publicly owned airwaves raises yet another set of difficult questions. One controversial freedom of expression issue involves so-called hate speech. Advocates of regulating hate speech forcefully argue that, for example, racial insults, like fighting words, are “undeserving of First Amendment protection because the perpetrator’s intent is not to discover the truth or invite dialogue, but to injure the victim.”37 In contrast, critics of hate speech policy argue that “sacrificing free speech rights is too high a price to pay to advance the cause of equality.”38 In 1992, the Supreme Court ruled that legislatures and universities may not single out racial, reli-gious, or sexual insults or threats for prosecution as “hate speech” or “bias crimes.”39 The Court held in 2017 that a law denying protection to disparaging trademarks vio-lated the First Amendment.

Prior Restraint

In the United States, the First Amendment ensures that even if the government frowns on some material, a person’s right to publish it is all but inviolable. That is, it ensures that there will not be prior restraint, government actions that prevent material from being published—or, in a word, censorship. A landmark case involv-ing prior restraint is Near v. Minnesota (1931). A blunt newspaper editor called local officials a string of names, including “grafters” and “Jewish gangsters.” The state closed down his business,41 preventing him from publishing, but the Supreme Court ordered the paper reopened. Of course, the newspaper editor could later be punished for violating a law or someone’s rights (such as not to be libeled) after publication. The extent of an individual’s or group’s freedom from prior restraint does depend in part, however, on who that individual or group is. Expressions of students in public school may be limited more than those of adults in other settings. In 1988 the Supreme Court ruled that a high school newspaper was not a public forum and could be regu-lated in “any reasonable manner” by school officials.42 In 2007, the Court held that the special characteristics of the school environment and the governmental interest in stopping student drug abuse allow schools to restrict student expressions that they reasonably regard as promoting such abuse.43 In the name of national security, the Supreme Court has also upheld restrictions on the right to publish. Wartime often brings widely supported censorship to protect classified information. Few want to publish troop movement plans during a war. Moreover, the constitutional restrictions have not been limited to wartime censorship. Former CIA officials have to meet their contractual obligations to submit books about their work to the agency for censorship, even though the books reveal no classified information.44 In recent years, WikiLeaks has published hundreds of thousands of classified government documents covering a wide of range of foreign policy issues. The U.S. Department of Justice has opened a criminal probe of WikiLeaks founder Julian Assange. The government is similarly pursuing Edward Snowden for divulging documents related to electronic surveillance.

Nevertheless, the courts are reluctant to issue injunctions prohibiting the pub-lication of material, even on the grounds of national security. The most famous case regarding prior restraint and national security involved stolen papers concerning the war in Vietnam. Now imagine that “You Are the Judge.” In “The Case of the Purloined Pentagon Papers” above, examine the arguments for and against the right of the New York Times to publish leaked Department of Defense documents.

Free Speech and Public Order

Schenck v. United States A 1919 Supreme Court decision up-holding the conviction of a socialist who had urged resistance to the draft during World War I. Justice Holmes declared that government can limit speech if the speech provokes a “clear and present danger” of substantive evils.

In wartime and peacetime, considerable conflict has arisen over the tradeoff between free speech and the need for public order. During World War I, Charles T. Schenck, the secretary of the American Socialist Party, distributed thousands of leaflets urg-ing young men to resist the draft. Schenck was convicted of impeding the war effort. In Schenck v. United States (1919), the Supreme Court upheld his conviction. Justice Holmes declared that the government can limit speech if it provokes a clear and pres-ent danger of substantive evils. But only when such danger exists can government restrain speech. It is difficult to say, of course, when speech becomes dangerous rather than simply inconvenient for the government. The courts confronted the issue of free speech and public order in the late 1940s

and early 1950s, when there was widespread fear that communists had infiltrated the government. American anticommunism was a powerful force, and the national gov-ernment was determined to jail the leaders of the Communist Party. On the basis of the Smith Act of 1940, which forbade advocating the violent overthrow of the American government, Senator Joseph McCarthy and others in Congress persecuted people whom they thought were subversive. In Dennis v. United States (1951), the Supreme Court upheld prison sentences for several Communist Party leaders for conspiring to advocate the violent overthrow of the government—even in the absence of evidence that they actually urged people to commit specific acts of violence. Although the activities of this tiny, unpopular group resembled yelling “Fire!” in an empty theater rather than a crowded one, the Court ruled that a communist takeover was so grave a danger that the government could squelch the threat. Thus, the Court concluded that protecting national security outweighed First Amendment rights. Soon the political climate changed, however, and the Court narrowed the inter-pretation of the Smith Act, making it more difficult to prosecute dissenters. In later years, the Court has found that it is permissible to advocate the violent overthrow of the government in the abstract but not actually to incite anyone to imminent lawless action (Yates v. United States [1957]; Brandenburg v. Ohio [1969]). The 1960s brought waves of protest over political, economic, racial, and social issues, and, especially, the Vietnam War. Many people in more recent times have en-gaged in public demonstrations, such as those opposing the war in Iraq or protesting against Wall Street. Courts have been quite supportive of the right to protest, pass out leaflets, or gather signatures on petitions—as long as it is done in public places. People may even distribute campaign literature anonymously.45 First Amendment free speech guarantees do not apply when a person is on private property,46 however, although a state may include within its own free speech guarantee politicking in shop-ping centers.47 Moreover, cities cannot bar residents from posting signs on their own property,48 and they cannot impose more stringent restrictions on signs directing the public to the meeting of a non-profit group than on signs conveying other messages.

Obscenity

Obscenity is one of the more perplexing free speech issues. In 1957, in Roth v. United States, the Supreme Court held that “obscenity is not within the area of constitutionally protected speech or press.” Deciding what is obscene, however, has never been an easy matter. Obviously, public standards vary from time to time, place to place, and person to person. Many of today’s music videos would have been banned only a few decades ago. What might be acceptable in Manhattan’s Greenwich Village would shock resi-dents of some other areas of the country. Works that some people call obscene might be good entertainment or even great art to others. At one time or another, the works of Aristophanes, Mark Twain, and even the “Tarzan” stories by Edgar Rice Burroughs were banned. The state of Georgia banned the acclaimed film Carnal Knowledge (the Supreme Court struck down the ban in 1974).50 The Court tried to clarify its doctrine by spelling out what could be classified as obscene and thus outside First Amendment protection in the 1973 case of Miller v. California. Warren Burger, chief justice at the time, wrote that a work was obscene under the following circumstances: 1. The work, taken as a whole, appealed “to a prurient interest in sex.” 2. The work showed “patently offensive” sexual conduct that was specifically de-fined by an obscenity law.

3. The work, taken as a whole, lacked “serious literary, artistic, political, or scientific value.”

Decisions regarding whether material is obscene, said the Court, should be based on how average people (in other words, juries) apply the contemporary standards of local—not national—communities. The Court did provide “a few plain examples” of what sort of material might fall within this definition of obscenity. Among these examples were “patently of-fensive representations of ultimate sexual acts ... actual or simulated,” “patently offensive representations of masturbation or excretory functions,” or “lewd exhibi-tion of the genitals.” Cities throughout the country duplicated the language of Miller in their obscenity ordinances. The qualifying adjectives lewd and offensive prevent communities from banning anatomy texts, for example, as obscene. The problem remains in determining what is lewd or offensive. The challenge of defining obscenity makes it difficult to obtain an obscenity con-viction. So does the absence of a nationwide consensus that offensive material should be banned—at least not when it is restricted to adults. In many communities the laws on pornography are lenient; prosecutors know that they may not get a jury to convict, even when the disputed material is obscene as defined by Miller. Thus obscene mate-rial is widely available both on-and offline. Despite the Court’s best efforts to define obscenity and determine when it can be banned, state and local governments continue to struggle with the application of these rulings. In one famous case, a small New Jersey town tried to get rid of a nude dancing parlor by using its zoning power to ban all live entertainment. The Court held that the measure was too broad, restricting too much expression, and was thus unlawful.51 However, the Court has upheld laws specifically banning nude dancing when their effect on overall expression was minimal.52 In another obscenity case, Jacksonville, Florida, tried to ban drive-in movies containing nudity. You can examine the Court’s reaction in the Jacksonville case, in “The Case of the Drive-in Theater,” on the next page. Regulations such as rating systems for movies and television that are aimed at keeping obscene material away from the young, who are considered more vulnerable to harmful influences, have wide public support; courts have consistently ruled that states may protect children from obscenity. The public and the courts also strongly support laws designed to protect the young from being exploited in pornography. It is a violation of federal law to send or receive sexually explicit photographs of children through the mail or over the Internet, and in 1990 the Supreme Court upheld Ohio’s law forbidding the possession of child pornography.53 Advances in technology have created a new wrinkle in the obscenity issue. The Internet and the World Wide Web make it easier to distribute obscene material rapidly, and a number of online information services have taken advantage of this opportu-nity. In 1996 Congress passed the Communications Decency Act, banning obscene material online and criminalizing the electronic transmission of indecent speech or images to anyone under 18 years of age. This law made no exception for material hat has serious literary, artistic, political, or scientific merit as outlined in Miller v. California. In 1997, the Supreme Court overturned it as being overly broad and vague and thus a violation of free speech.54 In 2002, the Court overturned a law banning vir-tual child pornography on similar grounds.55 (Apparently the Supreme Court views the Internet similarly to print media, with similar protections against government regulation.) In 1999, however, the Court upheld prohibitions on obscene e-mail and faxes. In 2011 the Court ruled that a California law banning the

sale or rental of violent video games to minors violated the First Amendment because the games communicate ideas.56 Depictions of violence, the Court added, have never been subject to government regulation and thus do not qualify for the same exceptional treatment afforded to obscene materi-als. The California law imposed a restriction on the content of protected speech and was invalid because the state could not show that it served a compelling government interest and was narrowly tailored to serve that interest.

Libel and Slander

Another type of expression not protected by the First Amendment is defamation, false statements that are mali-cious and may damage a person’s reputation. Libel refers to written defamation, slander to spoken defamation.

Of course, if politicians could collect damages for every untrue thing said about them, the right to criticize the government—which the Supreme Court termed “the central meaning of the First Amendment”—would be stifled. No one would dare be critical for fear of making a factual error. To encourage public debate, the Supreme Court has held in cases such as New York Times Co. v. Sullivan (1964) that statements about public figures are libelous only if made with malice and reckless disregard for the truth. Public figures have to prove to a jury, in effect, that whoever wrote or said untrue statements about them knew that the statements were untrue and intended to harm them. This standard makes libel cases difficult for public figures to win because it is difficult to prove that a publication was intentionally malicious.

To win libel lawsuits, private individuals have a lower standard to meet than public

figures do. They need to show only that statements about them are defamatory false-hoods and that those who made the statements were negligent. Nevertheless, it is unusual for someone to pursue a libel case; most people do not wish to draw attention to critical statements about themselves. If public debate is not free, there can be no democracy, yet in the process of free debate some reputations will be damaged (or at least bruised), sometimes unfairly. Libel cases must thus balance freedom of expression with respect for individual reputations. In one widely publicized case, General William Westmoreland, once the commander of American troops in South Vietnam, sued CBS over a documen-tary it broadcast called The Uncounted Enemy. It claimed that American military leaders in Vietnam, including Westmoreland, systematically lied to Washington to make it appear that the United States was winning the war. The evidence, including CBS’s own internal memoranda, showed that the documentary made errors of fact. Westmoreland sued CBS for libel. Ultimately, the power of the press—in this case, a sloppy, arrogant press—prevailed. Fearing defeat at the trial, Westmoreland settled for a mild apology from CBS.58 An unusual case that explored the line between parody and libel came before the

Supreme Court in 1988, when Reverend Jerry Falwell sued Hustler magazine. Hustler had printed a parody of a Campari liquor ad about various celebrities called “First Time,” in which celebrities related the first time they drank Campari; the phrase “first time” had an intentional double meaning. When Hustler depicted the Reverend Jerry Falwell having had his “first time” in an outhouse with his mother, Falwell sued. He alleged that the ad subjected him to great emotional distress and mental anguish. The case tested the limits to which a publication could go to parody or lampoon a public figure. The Supreme Court ruled that they can go pretty far—all nine justices ruled in favor of the magazine.59

Symbolic Speech

Freedom of speech, broadly interpreted, is a guarantee of freedom of expression. In 1965, school authorities in Des Moines, Iowa, suspended Mary Beth Tinker and her brother John when they wore black armbands to school to protest the Vietnam War.

The Supreme Court held that the suspension violated the Tinkers’ First Amendment rights. The right to freedom of speech, said the Court, went beyond the spoken word.60 As discussed in Chapter 2, when Gregory Lee Johnson set a flag on fire at the 1984 Republican National Convention in Dallas to protest nuclear weapons, the Supreme Court decided that the state law prohibiting flag desecration violated the First Amendment (Texas v. Johnson [1989]). Burning the flag, the Court said, constituted symbolic speech and not just dramatic action.61 When Massachusetts courts ordered the organizers of the annual St. Patrick’s Day parade to include the Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Supreme Court declared that a pa-rade is a form of protected speech and thus that the organizers are free to include or exclude whomever they want (the organizers lifted the ban in 2015). Wearing an armband, burning a flag, and marching in a parade are examples of symbolic speech: actions that do not consist of speaking or writing but that express an opinion. Court decisions have classified these activities somewhere between pure speech and pure action. The doctrine of symbolic speech is not precise; for example, although burning a flag is protected speech, burning a draft card is not.62 In 2003 the Court held that states may make it a crime to burn a cross with a purpose to intimi-date, as long as the law clearly gives prosecutors the burden of proving that the act was intended as a threat and not as a form of symbolic expression.63 In 2015, the Court upheld Texas’s refusal to allow specialty license plates bearing the Confederate battle flag because the speech was government rather than individual speech.64 Despite the imprecisions, these cases make it clear that First Amendment rights are not limited by a rigid definition of what constitutes speech.

Compelled Speech Usually we think of free speech issues as those that prevent someone from express-ing a view. What about attempts to force someone to express or endorse a view with which they disagree? The Court’s first compelled speech case—West Virginia Board of Education v. Barnette (1943)—held that schools may not compel children to say the Pledge of Allegiance or salute the flag and suggested that speech compulsions “could be commanded only on even more immediate and urgent grounds” than speech restrictions. In Wooley v. Maynard (1977), the Court held that people have a right to tape over the slogan “Live Free or Die” on their license plates, because “a system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Thus, in 2018 in Janus v. American Federation of State, County, and Municipal Employees, the Court ruled that government workers who choose not to join unions may not be required to help pay for collective bargaining, because requiring payments to unions that negotiate with the government may force workers to endorse political messages at odds with their beliefs. The Court has also struck down requirements for factual disclosures, holding

that any difference between compelled speech and compelled silence is without constitutional significance, because the First Amendment guarantee of freedom of speech comprises “the decision of both what to say and what not to say.”65 Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech. California had a law requiring “crisis pregnancy centers” to provide information about abortion. The centers seek to persuade women to choose parenting or adoption and oppose abortion on religious grounds. In National Institute of Family and Life Advocates v. Becerra (2018), the Court voided the law, holding that the First Amendment prohibits California from forcing the centers to post notices about how to obtain abortions.

Free Press and Fair Trials

The Bill of Rights is an inexhaustible source of potential conflicts among different types of freedoms. One is the conflict between the right of the press to print what it wants and the right to a fair trial. The quantity of press coverage given to the trial of Michael Jackson on charges of child sexual abuse was extraordinary, and little of it was sympathetic to Jackson. Defense attorneys argue that such publicity can inflame the community—and potential jurors—against defendants and compromise the fairness of a trial. It very well may.

Nevertheless, the Court has never upheld a restriction

The conflicting rights of free press and fair trials provide a dilemma for the courts. Here, Michael Jackson arrives in the Santa Barbara County courthouse in California for his trial on charges of molesting children. The trial received an enormous amount of press coverage, most of it critical of Jackson.

Zurcher v. Stanford Daily A 1978 Supreme Court decision holding that a search warrant could be applied to a newspaper without necessarily violating the First Amendment rights to freedom of the press.

on the press in the interest of a fair trial. The constitu-tional guarantee of freedom of the press entitles journal-ists to cover every trial. When a Nebraska judge issued a gag order forbidding the press to report any details of a particularly gory murder (or even to report the gag order itself), the outraged Nebraska Press Association took the case to the Supreme Court. The Court sided with the editors and revoked the gag order.66 In 1980 the Court reversed a Virginia judge’s order to close a murder trial to the public and the press. “The trial of a criminal case,” said the Court, “must be open to the public.”67 A pretrial hearing, though, is a different matter. In a 1979 case, the Supreme Court permitted a closed hearing on the grounds that pretrial publicity might compromise the defendant’s right to fair-ness. Ultimately, the only feasible measure that the judicial system can take against the influence of publicity in high-profile cases is to sequester the jury, thereby isolating it from the media and public opinion.

Occasionally a reporter withholds some critical evidence that either the pros-ecution or the defense wants in a criminal case, information that may be essential for a fair trial. Reporters argue that “protecting their sources” should exempt them from revealing notes from confidential informants. Some states have passed shield laws to protect reporters in these situations. In most states, however, reporters have no more rights than other citizens once a case has come to trial. The Supreme Court ruled in Branzburg v. Hayes (1972) that in the absence of a shield law, the right to a fair trial preempts the reporter’s right to protect his or her sources. After a violent confrontation with student protestors at Stanford University, the police got a search warrant and marched off to the Stanford Daily for photographs of the scene they could use to make arrests. The paper argued that its files were protected by the First Amendment, but the decision in Zurcher v. Stanford Daily (1978) sided with the police.

Commercial Speech commercial speech

Communication in the form of advertis-ing, which can be restricted more than many other types of speech.

As we have seen, not all forms of communication receive the full protection of the First Amendment. Laws restrict commercial speech, such as advertising, far more exten-sively than expressions of opinion on religious, political, or other matters. The Federal Trade Commission (FTC) decides what kinds of goods may be advertised on radio and television and regulates the content of such advertising. These regulations have responded to changes in social mores and priorities. At one time, for example, tampons could not be advertised on TV but cigarettes could; today, the situation is the reverse

The FTC attempts to ensure that advertisers do not make false claims for their

products, but “truth” in advertising does not prevent misleading promises. For ex-ample, when ads imply that the right mouthwash or deodorant will improve one’s love life, that dubious message is perfectly legal. Nevertheless, laws may regulate commercial speech on the airwaves in ways that would clearly be impossible in the political or religious realm. Regulations may actually require manufacturers to include certain words in their advertising. For ex-ample, the makers of Excedrin pain reliever were required to add to their commer-cials the words “on pain other than headache.” (The claim of superior effectiveness was based on tests of how Excedrin relieved pain that many women experience after giving birth.)

Although commercial speech is regulated more rigidly than other types of

speech, the courts have been broadening its protection under the Constitution. For years, many state laws prohibited advertising for professional services—such as legal and engineering services—and for certain products ranging from eyeglasses and prescription drugs to condoms and abortions. Advocates of these laws claimed that they were designed to protect consumers against misleading claims, while critics charged that the laws prevented price competition. The courts have struck down many such restrictions—including restrictions on advertising casino gam-bling where such gambling is legal—as violations of freedom of speech.68 In gen-eral, the Supreme Court has allowed the regulation of commercial speech when the speech concerns unlawful activity or is misleading, but otherwise regulations must advance a substantial government interest and be no more extensive than necessary to serve that interest.69

The government may also not refuse to register potentially offensive names. In

Matal v. Tam (2017), the Court held that a law denying federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs, or national symbols,” violated the First Amendment.

Regulation of the Public Airwaves and Cyberspace

The Federal Communications Commission (FCC) regulates the content, nature, and very existence of radio and television broadcasting. Although newspapers do not need licenses, radio and television stations do. A licensed station must comply with regula-tions, including a requirement that it devote a certain percentage of broadcast time to public service, news, children’s programming, political candidates, or views other than those its owners support. The rules are more relaxed for cable channels, which can spe-cialize in a particular type of broadcasting because consumers pay for, and thus have more choice about, the service.

Licensing would clearly violate the First Amendment if it were imposed on the print media. For example, Florida passed a law requiring newspapers in the state to provide space for political candidates to reply to newspaper criticisms. In Miami Herald Publishing Company v. Tornillo (1974), the Supreme Court, without hesitation, voided this law. In contrast, in Red Lion Broadcasting Company v. Federal Communications Commission (1969), the Court upheld similar restrictions on radio and television stations, reasoning that such laws were justified because only a limited number of broadcast frequencies were available. One FCC rule regulating the content of programs restricts the use of obscene

words. Comedian George Carlin had a famous routine about words that could never be said over the airwaves. A New York City radio station tested the FCC rule by air-ing his routine. The ensuing events proved Carlin right. In 1978 the Supreme Court upheld the commission’s policy of barring obscene words from radio or television when children might hear them.70 Similarly, the FCC twice fined New York radio personality Howard Stern $600,000 for indecency. Had Stern’s commentaries been car-ried by cable or satellite instead of the airwaves, he could have expressed himself with impunity because cable is viewed as private communication between individuals. (In 2006, Stern made the move to satellite radio.) The Supreme Court has held that government has a legitimate right to regulate sexually oriented programming on cable television but that any regulation designed to do that must be narrowly tailored to serve a compelling government interest in the least restrictive way. In 1996 Congress had passed a law banning transmission of such programming for most of the day so that children would not be exposed to it. The Court concluded that targeted blocking, which allows subscribers to ask their ca-ble companies to block specific channels, is less restrictive and a feasible and effective means of furthering the government’s compelling interest, so banning transmission could not be justified.71

One of the most important forums for free speech in the modern era is cyberspace.

North Carolina prohibited registered sex offenders from accessing any social network-ing Web site that permits minor children to become members or to create or maintain personal Web pages. In Packingham v. North Carolina (2017), the Court held this restric-tion violated the First Amendment because one of the most important ways to obtain information and exchange views is through social media.

Campaign Spending A relatively recent dimension of free speech relates to the effort of both the na-tional and state governments to limit the role of money in political campaigns. The Federal Election Campaign Act of 1971 included limits on campaign contributions to candidates for the presidency and Congress, disclosure and reporting require-ments, and public financing of presidential elections. In Buckley v. Valeo (1976) the Court upheld these provisions. However, it also ruled that spending money to influence elections is a form of constitutionally protected speech. Thus, the Court voided those parts of the law that limited total campaign expenditures, indepen-dent expenditures by individuals and groups, and expenditures by candidates from their personal or family funds.

In 2002, Congress passed the Bipartisan Campaign Reform Act, often referred to as the McCain-Feingold Act. It banned unrestricted (“soft money”) donations made directly to political parties (often by corporations, unions, or wealthy individuals) and the solicitation of those donations by elected officials. It also limited advertising that unions, corporations, and nonprofit organizations could engage in up to 60 days prior to an election, and it restricted political parties’ use of their funds for advertis-ing on behalf of candidates in the form of “issue ads” or “coordinated expenditures.” The Supreme Court upheld most of the law in 2003,72 but in 2007 it held that issue ads that do not urge the support or defeat of a candidate may not be banned in the months preceding a primary or general election.73 In Citizens United v. Federal Election Commission (2010), the Supreme Court made

a broader decision, striking down provisions of McCain-Feingold in holding that the First Amendment prohibits government from restricting political broadcasts in candi-date elections when those broadcasts are funded by corporations or unions. Further limiting the reach of campaign finance laws, in 2014 the Court struck down as violat-ing the First Amendment the overall limits that an individual could contribute to all federal candidates and the limit that an individual could contribute to political party committees every two years.74 Arizona created a public financing system for state candidates and provided them matching funds if a privately financed candidate’s expenditures, combined with the expenditures of independent groups made in support of or opposition to that can-didate, exceeded the publicly financed candidate’s initial state allotment. The Court held that the law violated the First Amendment rights of candidates who raise private money because they may be reluctant to spend money to speak if they know that it will give rise to counter-speech paid for by the government.

FREEDOM OF ASSEMBLY

4.4 Describe the rights to assemble and associate protected by the First Amendment and their limitations.

The last of the great rights guaranteed by the First Amendment is the freedom to “peaceably assemble.” Commentators often neglect this freedom in favor of the more trumpeted freedoms of speech, press, and religion, yet it is the basis for forming inter-est groups, political parties, and professional associations as well as for picketing and protesting. There are two facets to the freedom of assembly.

Right to Assemble

The first facet is the literal right to assemble—that is, to gather together in order to make a statement. This freedom can conflict with other societal values when it disrupts public order, traffic flow, peace and quiet, or bystanders’ freedom to go about their business without interference. Within reasonable limits, called time, place, and manner restrictions, freedom of assembly includes the rights to parade, picket, and protest. Whatever a group’s cause, it has the right to demonstrate. For example, in 2011 the Supreme Court upheld the right of the congregation of a small church to picket military funerals to communicate its belief that God hates the United States for its tolerance of same-gender relationships, particularly in America’s military.76 However, no group can simply hold a spontaneous demonstration anytime,

anywhere, and in any way it chooses. Usually, a group must apply to the local city government for a permit and post a bond of a few hundred dollars as a sort of secu-rity deposit. The governing body must grant a permit as long as the group pledges to hold its demonstration at a time and in a place that allows the police to prevent major disruptions. There are virtually no limitations on the content of a group’s mes-sage. One important case arose when the American Nazi Party applied to march in the streets of Skokie, Illinois, a Chicago suburb with a sizable Jewish population, in-cluding many survivors of Hitler’s death camps. In “The Case of the Nazis’ March in Skokie,” which follows below, you can compare your judgment of the case with the decision reached by the Court. Protest that verges on harassment tests the balance between freedom and or-der. Pro-life advocates protest abortion outside abortion clinics and seek to shame or even harass clients into staying away. Thus, rights are in conflict: a woman has the right to obtain an abortion; the demonstrators have the right to protest the very existence of the clinic. The courts have acted to restrain these demonstra-tors, setting limits on how close they may come to clinics and upholding clinic clients’ damage claims, and Congress has enacted broad penalties against abortion protestors. In 2014, however, the Supreme Court ruled that a buffer zone around a Massachusetts clinic restricted access to public space and was not narrowly tai-lored to balance rights.77 Pro-life demonstrators in a Milwaukee, Wisconsin, sub-urb paraded outside the home of a physician who performed abortions. The town board forbade future picketing in residential neighborhoods. The Supreme Court agreed that the right to residential privacy is a legitimate local concern and upheld the ordinance.

Right to Associate The second facet to freedom of assembly is the right to associate with people who share a common interest, including an interest in political change. In a famous case at the height of the civil rights movement, Alabama tried to harass the state chap-ter of the National Association for the Advancement of Colored People (NAACP) by requiring it to turn over its membership list. In NAACP v. Alabama (1958), the Supreme Court found this demand an unconstitutional restriction on freedom of association.

In 2006 some law schools argued that a law that required them to grant mili-tary recruiters access to their students violated the schools’ freedoms of speech and association. Siding with the government, the Supreme Court concluded that the law regulated conduct, not speech. In addition, it argued, nothing about recruiting suggests that law schools must agree with any speech by recruiters, and nothing in the law restricts what law schools may say about the military’s poli-cies. Nor does the law force law schools to accept students and faculty it does not desire, and students and faculty are free to voice their disapproval of the military’s message.79

RIGHT TO BEAR ARMS

4.5 Describe the right to bear arms protected by the Second Amendment and its limitations.

Few issues generate as much controversy as gun control. In an attempt to control gun violence, many communities have passed restrictions on owning and carrying handguns. National, state, and local laws have also mandated background checks for gun buyers and limited the sale of certain types of weapons altogether. Yet other laws have required that guns be stored so as to prevent their being stolen or used by children.

Some groups, most notably the National Rifle Association, have invested millions of dollars to fight almost all gun control efforts, arguing that they violate the Second Amendment’s guarantee of a right to bear arms. Many advocates of gun control ar-gue that the Second Amendment applies only to the right of states to create militias. Surprisingly, the Supreme Court has rarely dealt with gun control. In 2008, however, the Court directly faced the issue. A District of Columbia law restricted most residents from owning handguns. The law also required that, when not in use, all lawfully owned firearms, including rifles and shotguns, be unloaded and disassembled or bound by a trigger lock or similar device. In District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment protects an indi-vidual right to possess a firearm, that the right is unconnected with service in a militia, and that an individual may use a firearm for lawful purposes, such as self-defense within the home. Similarly, the requirement that any lawful firearm be disassembled or bound by a trigger lock when not in use is unconstitutional because it makes it im-possible for citizens to use arms for self-defense. In 2010 in McDonald v. Chicago, the Court extended the Second Amendment’s limits on restricting an individual’s right to bear arms to state and local gun control laws.

Nevertheless, like most rights, the right to bear arms is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, prohibitions on concealed weapons are permissible, as are limits on the possession of firearms by felons, those convicted of domestic as-sault,80 and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, laws imposing conditions and qualifications on the commercial sale of arms, and laws restricting “dangerous and unusual weapons” that are not typically used for self-defense or recreation.