First Amendment to the United States Constitution

The First Amendment to the United States Constitution

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

is part of the Bill of Rights

United States Bill of Rights

The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...

. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech

Freedom of speech in the United States

Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws, with the exception of obscenity, defamation, incitement to riot, and fighting words, as well as harassment, privileged...

, infringing on the freedom of the press

Freedom of the press in the United States

Freedom of the press in the United States is protected by the First Amendment to the United States Constitution. This clause is generally understood as prohibiting the government from interfering with the printing and distribution of information or opinions, although freedom of the press, like...

, interfering with the right to peaceably assemble

Freedom of assembly

Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...

or prohibiting the petitioning for a governmental redress of grievances

Right to petition

The right to petition government for redress of grievances is the right to make a complaint to, or seek the assistance of, one's government, without fear of punishment or reprisals.-United States:...

.

Originally, the First Amendment applied only to laws enacted by the Congress

United States Congress

The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

. However, starting with Gitlow v. New York
Gitlow v. New York
Gitlow v. New York, , was a decision by the United States Supreme Court, which ruled that the Fourteenth Amendment to the United States Constitution had extended the reach of certain provisions of the First Amendment—specifically the provisions protecting freedom of speech and freedom of the...

, , the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment applies the First Amendment to each state

U.S. state

A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

, including any local government

Local government in the United States

Local government in the United States is generally structured in accordance with the laws of the various individual states. Typically each state has at least two separate tiers: counties and municipalities. Some states have their counties divided into townships...

Text

Background

Opposition to the ratification of the Constitution was partly based on the Constitution's lack of adequate guarantees for civil liberties

Civil liberties

Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...

. To provide such guarantees, the First Amendment (along with the rest of the Bill of Rights

United States Bill of Rights

) was submitted to the states for ratification on September 25, 1789, and adopted on December 15, 1791.

Establishment of religion

The establishment clause is "[t]he First Amendment provision that prohibits the federal and state governments from establishing an official religion, or from favoring or disfavoring one view of religion over another."

Originally, the First Amendment applied only to the federal government. A number of the states effectively had established churches when the First Amendment was ratified, with some remaining into the early nineteenth century.

Subsequently, Everson v. Board of Education
Everson v. Board of Education
Everson v. Board of Education, 330 U.S. 1 was a landmark decision of the United States Supreme Court which applied the religion clauses in the country's Bill of Rights to state as well as federal law...

(1947) incorporated the Establishment Clause (i.e., made it apply against the states). However, it was not until the middle to late twentieth century that the Supreme Court

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

began to interpret the Establishment and Free Exercise Clauses in such a manner as to restrict the promotion of religion by the states. In the Board of Education of Kiryas Joel Village School District v. Grumet, , Justice David Souter

David Souter

David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...

, writing for the majority, concluded that "government should not prefer one religion to another, or religion to irreligion

Irreligion

Irreligion is defined as an absence of religion or an indifference towards religion. Sometimes it may also be defined more narrowly as hostility towards religion. When characterized as hostility to religion, it includes antitheism, anticlericalism and antireligion. When characterized as...

Separationists

Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of President Thomas Jefferson

Thomas Jefferson

Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...

. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States
Reynolds v. United States
Reynolds v. United States, , was a Supreme Court of the United States case that held that religious duty was not a suitable defense to a criminal indictment...

from 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite

Morrison Waite

Morrison Remick Waite, nicknamed "Mott" was the seventh Chief Justice of the United States from 1874 to 1888.-Early life and education:...

, who consulted the historian George Bancroft

George Bancroft

George Bancroft was an American historian and statesman who was prominent in promoting secondary education both in his home state and at the national level. During his tenure as U.S. Secretary of the Navy, he established the United States Naval Academy at Annapolis in 1845...

, also discussed at some length the Memorial against Religious Assessments by James Madison

James Madison

James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...

, who drafted the First Amendment; Madison used the metaphor of a "great barrier."

Justice Hugo Black

Hugo Black

Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

adopted Jefferson's words in the voice of the Court, and concluded that "government must be neutral among religions and nonreligion: it cannot promote, endorse, or fund religion or religious institutions." The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be "less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities."

Beginning with the Everson decision itself, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. The Everson decision laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale
Engel v. Vitale
Engel v. Vitale, 370 U.S. 421 , was a landmark United States Supreme Court case that determined that it is unconstitutional for state officials to compose an official school prayer and require its recitation in public schools....

and School District of Abington Township v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission, the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman
Lemon v. Kurtzman
Lemon v. Kurtzman, 403 U.S. 602 , was a case in which the Supreme Court of the United States ruled that Pennsylvania's 1968 Nonpublic Elementary and Secondary Education Act, which allowed the state Superintendent of Public Instruction to reimburse nonpublic schools for the salaries of teachers who...

, these points were combined, declaring that an action was not establishment if

the statute (or practice) has a secular purpose;
its principal or primary effect neither advances nor inhibits religion; and
it does not foster an excessive government entanglement with religion.

This Lemon test has been criticized by Justices and legal scholars, but it remains the predominant means by which the Court enforces the Establishment Clause. In Agostini v. Felton
Agostini v. Felton
Agostini v. Felton, 521 U.S. 203 , is a landmark decision of the Supreme Court of the United States. In this case, the Court overruled its decision in Aguilar v...

, the entanglement prong of the Lemon test was demoted to simply being a factor in determining the effect of the challenged statute or practice. In Zelman v. Simmons-Harris
Zelman v. Simmons-Harris
Zelman v. Simmons-Harris, , was a case decided by the United States Supreme Court which tested the allowance of school vouchers in relation to the establishment clause of the First Amendment....

, the opinion of the Court considered secular purpose and the absence of primary effect; a concurring opinion saw both cases as having treated entanglement as part of the primary purpose test.

Accommodationists

Accomodationists, on the other hand, read the Establishment Clause as prohibiting the Congress or any state from declaring an official religion or preferring one to another, but hold that laws do not have to be shorn of morality and history to be declared constitutional. As a result, they apply the Lemon Test only selectively, holding Justice Douglas

William O. Douglas

William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...

' statement in Zorach v. Clauson
Zorach v. Clauson
Zorach v. Clauson, 343 U.S. 306 , was a case in which the Supreme Court of the United States considered a New York law that permitted schools to allow some students to leave school during school hours for purposes of religious instruction or practice while requiring others to stay in school...

, "[w]e are a religious people whose institutions presuppose a Supreme Being" .

As such, for many conservatives, the Establishment Clause solely prevents the establishing of a state church

State church

State churches are organizational bodies within a Christian denomination which are given official status or operated by a state.State churches are not necessarily national churches in the ethnic sense of the term, but the two concepts may overlap in the case of a nation state where the state...

, not from publicly acknowledging God

God

God is the English name given to a singular being in theistic and deistic religions who is either the sole deity in monotheism, or a single deity in polytheism....

and "developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals."

Free exercise of religion

In Sherbert v. Verner
Sherbert v. Verner
Sherbert v. Verner, 374 U.S. 398 , was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required that government demonstrate a compelling government interest before denying unemployment compensation to someone who was fired because her...

, , the Supreme Court required states to meet the "strict scrutiny

Strict scrutiny

Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...

" standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a "compelling interest" regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina

South Carolina

South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...

because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist

Seventh-day Adventist Church

The Seventh-day Adventist Church is a Protestant Christian denomination distinguished by its observance of Saturday, the original seventh day of the Judeo-Christian week, as the Sabbath, and by its emphasis on the imminent second coming of Jesus Christ...

faith. In Wisconsin v. Yoder
Wisconsin v. Yoder
Wisconsin v. Yoder, 406 U.S. 205 , is the case in which the United States Supreme Court found that Amish children could not be placed under compulsory education past 8th grade, as it violated their parents' fundamental right to freedom of religion....

, , the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional.

The need for a compelling interest was narrowed in Employment Division v. Smith
Employment Division v. Smith
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 , is a United States Supreme Court case that determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was...

, , which held no such interest was required under the Free Exercise Clause regarding a law that does not target a particular religious practice. In Church of Lukumi Babalu Aye v. City of Hialeah
Church of Lukumi Babalu Aye v. City of Hialeah
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 , was a case in which the Supreme Court of the United States held an ordinance passed in Hialeah, Florida that forbade the "unnecessar[y]" killing of "an animal in a public or private ritual or ceremony not for the primary purpose of food...

, , the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería

Santería

Santería is a syncretic religion of West African and Caribbean origin influenced by Roman Catholic Christianity, also known as Regla de Ocha, La Regla Lucumi, or Lukumi. Its liturgical language, a dialect of Yoruba, is also known as Lucumi....

religion, while providing exceptions for some practices such as the kosher slaughter

Kashrut

Kashrut is the set of Jewish dietary laws. Food in accord with halakha is termed kosher in English, from the Ashkenazi pronunciation of the Hebrew term kashér , meaning "fit" Kashrut (also kashruth or kashrus) is the set of Jewish dietary laws. Food in accord with halakha (Jewish law) is termed...

. Since the ordinance was not "generally applicable," the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional.

In 1993, the Congress passed the Religious Freedom Restoration Act

Religious Freedom Restoration Act

The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 , codified at through , is a 1993 United States federal law aimed at preventing laws that substantially burden a person's free exercise of their religion. The bill was introduced by Howard McKeon of California and...

(RFRA), which sought to restore the compelling interest requirement applied in Sherbert and Yoder. In City of Boerne v. Flores
City of Boerne v. Flores
City of Boerne v. Flores, 521 U.S. 507 , was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment...

, , the Court struck down the provisions of the Act that forced state and local governments to provide protections exceeding those required by the First Amendment on the grounds that while the Congress could enforce the Supreme Court's interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities. According to the court's ruling in Gonzales v. UDV
Gonzales v. O Centro Espírita Beneficente União do Vegetal
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 , is a case decided by the United States Supreme Court involving the Federal Government's seizure of a sacramental tea, containing a Schedule I substance, from a New Mexican branch of the Brazilian church União do Vegetal...

, , RFRA remains applicable to federal laws and so those laws must still have a "compelling interest".

Speech critical of the government

The Supreme Court

Supreme Court of the United States

never ruled on the constitutionality

Constitutionality

Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...

of any federal law regarding the Free Speech Clause until the 20th century. The Supreme Court never ruled on the Alien and Sedition Acts

Alien and Sedition Acts

The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...

of 1798, whose speech provisions expired in 1801. The leading critics of the law, Thomas Jefferson

Thomas Jefferson

and James Madison

James Madison

, argued for the Acts' unconstitutionality based on the First Amendment, among other Constitutional provisions (e.g. Tenth Amendment

Tenth Amendment to the United States Constitution

The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...

). In retrospect, dicta from New York Times Co. v. Sullivan
New York Times Co. v. Sullivan
New York Times Co. v. Sullivan, 376 U.S. 254 , was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the...

, acknowledges that, "[a]lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."

The Espionage Act of 1917

Espionage Act of 1917

The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

imposed a maximum sentence of twenty years for anyone who caused or attempted to cause "insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States." Over two thousand were convicted under the Act. One filmmaker was sentenced to ten years imprisonment because his portrayal of British soldiers in a movie

The Spirit of '76 (1917 film)

The Spirit of '76 was a silent film directed by Frank Montgomery that depicted the early history of the United States. It is considered a lost film as no prints are known to survive.-Production:...

about the American Revolution

American Revolution

The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...

impugned the good faith of an American ally, the United Kingdom. The Sedition Act of 1918

Sedition Act of 1918

The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds...

went even further, criminalizing "disloyal," "scurrilous" or "abusive" language against the government.

In the midst of World War I, Charles Schenck, then the general secretary of the Socialist party, was found guilty of violating the Espionage Act after a search of the Socialist headquarters revealed a book of Executive Committee minutes. The book contained a resolution, dated August 13, 1917, to print 15,000 leaflets to be mailed to men who had passed exemption boards. The contents of these leaflets intimated a fervent opposition to the draft, comparing conscripts to convicts and urging potential draftees to "not submit to intimidation." Schenck's appeal of his conviction reached the Supreme Court as Schenck v. United States
Schenck v. United States
Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...

, . According to Schenck, the Espionage Act violated the Free Speech Clause of the First Amendment. The Supreme Court unanimously rejected Schenck's appeal and affirmed his conviction. Justice Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

, writing for the Court, explained that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger

Clear and present danger

Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

that they will bring about the substantive evils that Congress has a right to prevent."

The "clear and present danger" test of Schenck was elaborated in Debs v. United States
Debs v. United States
Debs v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917.Eugene V. Debs was an American labor and political leader and five-time Socialist Party of America candidate for the American Presidency...

, . On June 16, 1918, Eugene V. Debs

Eugene V. Debs

Eugene Victor Debs was an American union leader, one of the founding members of the International Labor Union and the Industrial Workers of the World , and several times the candidate of the Socialist Party of America for President of the United States...

, a political activist, delivered a speech in Canton, Ohio

Canton, Ohio

Canton is the county seat of Stark County in northeastern Ohio, approximately south of Akron and south of Cleveland.The City of Caton is the largest incorporated area within the Canton-Massillon Metropolitan Statistical Area...

, the main theme of which "was socialism

Socialism

Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...

, its growth, and a prophecy of its ultimate success." Debs spoke with pride of the devotion with which his "most loyal comrades were paying the penalty to the working class — these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft." Moreover, hours earlier, Debs had spoken with approval of an Anti-War Proclamation and Program adopted at St. Louis in April, 1917 which advocated a "continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within [their] power." Following his speech, Debs was charged and convicted under the Espionage Act. In upholding his conviction, the Court reasoned that although he had not spoken any words that posed a "clear and present danger," taken in context, the speech had a "natural tendency and a probable effect to obstruct the recruiting services[.]"

Benjamin Gitlow

Benjamin Gitlow

Benjamin "Ben" Gitlow was a prominent American socialist politician of the early twentieth century and a founding member of the Communist Party USA. From the end of the 1930s, Gitlow turned to conservatism and wrote two sensational exposés of American Communism, books which were very influential...

was convicted of criminal anarchy after he was found advocating the "necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means" in the Left Wing Manifesto
Left Wing Manifesto
The Left Wing Manifesto is the name rather confusingly bestowed upon two distinct programmatic documents of the Left Wing Section of the Socialist Party during the factional war in the Socialist Party of America of 1919...

, as well as publishing and circulating a radical newspaper called The Revolutionary Age advocating similar ideas. In arguing before the Supreme Court, Gitlow contended that "the statute as construed and applied by the trial court penalize[d] the mere utterance, as such, of 'doctrine' having no quality of incitement, without regard to the circumstances of its utterance or to the likelihood of the unlawful sequences[.]" While acknowledging "liberty of expression 'is not absolute,'" he maintained "it may be restrained 'only in instances where its exercise bears a causal relation with some substantive evil, consummated, attempted or likely[.]'" As the statute took no account of the circumstances under which the offending literature was written, it violated the First Amendment. The Court rejected Gitlow's reasoning. Writing for the majority, Justice Edward Sanford declared that "utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion....Such utterances, by their very nature, involve danger to the public peace and to the security of the state." Gitlow v. New York
Gitlow v. New York
Gitlow v. New York, , was a decision by the United States Supreme Court, which ruled that the Fourteenth Amendment to the United States Constitution had extended the reach of certain provisions of the First Amendment—specifically the provisions protecting freedom of speech and freedom of the...

, greatly expanded Schenck and Debs but established the general opinion of the Court that the First Amendment is incorporated by the Fourteenth Amendment to apply to the states.

In 1940, Congress enacted the Smith Act

Smith Act

The Alien Registration Act or Smith Act of 1940 is a United States federal statute that set criminal penalties for advocating the overthrow of the U.S...

, making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence." The law provided law enforcement a tool to combat Communist

Communism

Communism is a social, political and economic ideology that aims at the establishment of a classless, moneyless, revolutionary and stateless socialist society structured upon common ownership of the means of production...

leaders. After Eugene Dennis

Eugene Dennis

Francis Xavier Waldron , best known by the pseudonym Eugene Dennis was an American communist politician and union organizer, best remembered as the long-time leader of the Communist Party USA and as named party in Dennis v...

was convicted for attempting to organize a Communist Party

Communist party

A political party described as a Communist party includes those that advocate the application of the social principles of communism through a communist form of government...

in the United States pursuant to the Smith Act § 2, he petitioned for certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

, which the Supreme Court granted. In Dennis v. United States
Dennis v. United States
Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

, the Court upheld the law 6-2 (Justice Tom C. Clark

Tom C. Clark

Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...

did not participate because he had ordered the prosecutions when he was Attorney General

United States Attorney General

The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...

). Chief Justice Fred M. Vinson

Fred M. Vinson

Frederick Moore Vinson served the United States in all three branches of government and was the most prominent member of the Vinson political family. In the legislative branch, he was an elected member of the United States House of Representatives from Louisa, Kentucky, for twelve years...

explicitly relied on Oliver Wendell Holmes, Jr.'s "clear and present danger" test as adapted by Learned Hand

Learned Hand

Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...

: "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger." Clearly, Vinson suggested, clear and present danger did not intimate "that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited."

Dennis has never been explicitly overruled by the Court, but its relevance within First Amendment jurisprudence has been considerably diminished by subsequent rulings. Six years after Dennis, the Court changed its interpretation of the Smith Act. In Yates v. United States
Yates v. United States
Yates v. United States, 354 U.S. 298 , was a case decided by the Supreme Court of the United States involving free speech and congressional power...

, . the Court ruled that the Act was aimed at "the advocacy of action, not ideas." Advocacy of abstract doctrine remains protected while speech explicitly inciting the forcible overthrow of the government is punishable under the Smith Act.

During the Vietnam Era, the Courts position on public criticism of the government changed drastically. Though the Court upheld a law prohibiting the forgery, mutilation, or destruction of draft cards in United States v. O'Brien
United States v. O'Brien
United States v. O'Brien, 391 U.S. 367 , was a decision by the Supreme Court of the United States, which ruled that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech...

, , fearing that burning draft cards

Draft-card burning

Draft-card burning was a symbol of protest performed by thousands of young American men as part of the opposition to the involvement of the United States in the Vietnam War. Beginning in May 1964, some activists burned their draft cards at anti-war rallies and demonstrations. By May 1965 it was...

would interfere with the "smooth and efficient functioning" of the draft system, the next year, the court handed down its decision in Brandenburg v. Ohio
Brandenburg v. Ohio
Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...

, , expressly overruling Whitney v. California
Whitney v. California
Whitney v. California, 274 U.S. 357 , was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.-Facts:...

, (a case in which a woman was imprisoned for aiding the Communist Party). Now the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms: Brandenburg discarded the "clear and present danger" test introduced in Schenck and further eroded Dennis. In Cohen v. California
Cohen v. California
Cohen v. California, 403 U.S. 15 was a United States Supreme Court case dealing with freedom of speech. The Court overturned a disturbing the peace conviction of a man wearing a jacket decorated with profanity.-Background of the case:...

, , wearing a jacket reading "Fuck the Draft" in the corridors of the Los Angeles County

Los Angeles County, California

Los Angeles County is a county in the U.S. state of California. As of 2010 U.S. Census, the county had a population of 9,818,605, making it the most populous county in the United States. Los Angeles County alone is more populous than 42 individual U.S. states...

courthouse was ruled not to be punishable.

Anonymous speech

In Talley v. California, , the Court struck down a Los Angeles

Los Ángeles

Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...

city ordinance that made it a crime to distribute anonymous

Anonymity

Anonymity is derived from the Greek word ἀνωνυμία, anonymia, meaning "without a name" or "namelessness". In colloquial use, anonymity typically refers to the state of an individual's personal identity, or personally identifiable information, being publicly unknown.There are many reasons why a...

pamphlets. In McIntyre v. Ohio Elections Commission, , the Court struck down an Ohio

Ohio

Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...

statute that made it a crime to distribute anonymous campaign literature. However, in Meese v. Keene,, , the Court upheld the Foreign Agents Registration Act of 1938, under which several Canadian films were defined as "political propaganda

Propaganda

Propaganda is a form of communication that is aimed at influencing the attitude of a community toward some cause or position so as to benefit oneself or one's group....

," requiring their sponsors to be identified.

Campaign finance

In Buckley v. Valeo
Buckley v. Valeo
Buckley v. Valeo, 424 U.S. 1 , was a case in which the Supreme Court of the United States upheld a federal law which set limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law...

, , the Supreme Court affirmed the constitutionality

Constitutionality

of some parts, while declaring other parts unconstitutional, of the Federal Election Campaign Act

Federal Election Campaign Act

The Federal Election Campaign Act of 1971 is a United States federal law which increased disclosure of contributions for federal campaigns. It was amended in 1974 to place legal limits on the campaign contributions...

of 1971 and related laws. These laws restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Court concluded that limits on campaign contributions "serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion." However, the Court overturned the spending limits, which it found imposed "substantial restraints on the quantity of political speech."

Further rules on campaign finance were scrutinized by the Court when it determined McConnell v. Federal Election Commission
McConnell v. Federal Election Commission
McConnell v. Federal Election Commission, 540 U.S. 93 , is a case in which the United States Supreme Court upheld the constitutionality of most of the Bipartisan Campaign Reform Act of 2002 , often referred to as the McCain–Feingold Act....

, . The case centered on the Bipartisan Campaign Reform Act

Bipartisan Campaign Reform Act

The Bipartisan Campaign Reform Act of 2002 is a United States federal law that amended the Federal Election Campaign Act of 1971, which regulates the financing of political campaigns. Its chief sponsors were Senators Russell Feingold and John McCain...

of 2002, a federal law that imposed new restrictions on campaign financing. The Supreme Court upheld provisions which barred the raising of soft money by national parties and the use of soft money by private organizations to fund certain advertisements related to elections. However, the Court struck down the "choice of expenditure" rule, which required that parties could either make coordinated expenditures for all its candidates, or permit candidates to spend independently, but not both, which they agreed "placed an unconstitutional burden on the parties' right to make unlimited independent expenditures." The Supreme Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District, was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools...

.

In Federal Election Commission v. Wisconsin Right to Life, Inc.
Federal Election Commission v. Wisconsin Right to Life, Inc.
Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 , was a case in which the Supreme Court of the United States held that issue ads may not be banned from the months preceding a primary or general election.-Background:...

, 551 U.S. 449 (2007), the Supreme Court sustained an "as applied" challenge to provisions of the 2002 law dealing with advertising shortly before a primary, caucus, or an election.

In Davis v. Federal Election Commission
Davis v. Federal Election Commission
Davis v. Federal Election Commission, 554 U.S. 724 , is a decision by the United States Supreme Court, which held that Sections 319 and of the Bipartisan Campaign Reform Act of 2002 unconstitutionally infringed on a candidate's First Amendment rights.-Background:Section 319 of the Bipartisan...

, 554 U.S. 724 (2008), the Supreme Court declared the "Millionaire's Amendment" provisions of the BCRA to be unconstitutional. The Court held that easing BCRA restrictions for an opponent of a self-financing candidate spending at least $350,000 of his own money violated the freedom of speech of the self-financing candidate.

In Citizens United v. Federal Election Commission
Citizens United v. Federal Election Commission
Citizens United v. Federal Election Commission, , was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from censoring political broadcasts in candidate elections when those broadcasts are funded by corporations or unions...

, 558 U.S. ___ (2010), the Court ruled that the BCRA's federal restrictions on electoral advocacy by corporation

Corporation

A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...

s or unions

Trade union

A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...

were unconstitutional for violating the Free Speech Clause of the First Amendment. The Court overruled Austin v. Michigan Chamber of Commerce
Austin v. Michigan Chamber of Commerce
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 , was a case in which the Supreme Court of the United States held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and...

, , which had upheld a state law that prohibited corporations from using treasury funds to support or oppose candidates in elections did not violate the First or Fourteenth

Fourteenth Amendment to the United States Constitution

The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

Amendments. The Court also overruled the portion of McConnell that upheld such restrictions under the BCRA.

Flag desecration

The divisive issue of flag desecration

Flag desecration

Flag desecration is a term applied to various acts that intentionally destroy, damage or mutilate a flag in public, most often a national flag. Often, such action is intended to make a political point against a country or its policies...

as a form of protest first came before the Supreme Court in Street v. New York
Street v. New York
In Street v. New York, 394 U.S. 576 , the United States Supreme Court held that a New York state law making it a crime "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]" was, in part, unconstitutional because...

, . In response to hearing an erroneous report of the murder of James Meredith

James Meredith

James H. Meredith is an American civil rights movement figure, a writer, and a political adviser. In 1962, he was the first African American student admitted to the segregated University of Mississippi, an event that was a flashpoint in the American civil rights movement. Motivated by President...

, Sidney Street burned a 48-star U.S. flag

Flag of the United States

The national flag of the United States of America consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows of six stars alternating with rows...

. When questioned by the police he responded: "Yes; that is my flag; I burned it. If they let that happen to Meredith, we don't need an American flag." Street was arrested and charged with a New York state law making it a crime "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]." Street appealed his conviction to the Supreme Court, arguing the law was "overbroad, both on its face and as applied," that the language was "vague and imprecise" and did not "clearly define the conduct which it forbids", and that it unconstitutionally punished the destruction of an American flag, an act which Street contended "constitute[d] expression protected by the Fourteenth Amendment." In a 5–4 decision, the Court, relying on Stromberg v. California
Stromberg v. California
Stromberg v. California, 283 U.S. 359 was a United States Supreme Court case in which the Court ruled 7-2 that a 1919 California statute banning red flags was unconstitutional because it violated the Fourteenth Amendment...

, , found that because the provision of the New York law criminalizing "words" against the flag was unconstitutional, and the trial did not sufficiently demonstrate that he was convicted solely under the provisions not yet deemed unconstitutional, the conviction was unconstitutional. The Court, however, "resist[ed] the pulls to decide the constitutional issues involved in this case on a broader basis" and left the constitutionality of flag-burning unaddressed.

The ambiguity with regard to flag-burning statutes was eliminated in Texas v. Johnson
Texas v. Johnson
Texas v. Johnson, , was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was...

, . In that case, Gregory Lee Johnson participated in a demonstration during the 1984 Republican National Convention

1984 Republican National Convention

The 1984 National Convention of the Republican Party of the United States convened on August 20 to August 23, 1984, at Reunion Arena in downtown Dallas, Texas. The convention nominated the incumbent Ronald Reagan of California for President of the United States and incumbent George H. W...

in Dallas, Texas

Dallas, Texas

Dallas is the third-largest city in Texas and the ninth-largest in the United States. The Dallas-Fort Worth Metroplex is the largest metropolitan area in the South and fourth-largest metropolitan area in the United States...

. At one point during the demonstration, Johnson poured kerosene over an American flag and set it aflame, shouting anti-American phrases. Johnson was promptly arrested and charged with violating a Texas law prohibiting the vandalizing of venerated objects. He was convicted, sentenced to one year in prison, and fined $2,000. In 1989, his appeal reached the Supreme Court. Johnson argued that the Texas statute imposed an unconstitutional content-based restriction on symbolic speech. The Supreme Court agreed and, in a 5–4 vote, reversed Johnson's conviction. Justice William J. Brennan, Jr.

William J. Brennan, Jr.

William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...

asserted that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable." Many members of Congress criticized the decision of the Court and the House of Representatives unanimously passed a resolution denouncing the Court. Congress passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman
United States v. Eichman
United States v. Eichman, 496 U.S. 310 was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v...

, . Many attempts have been made to amend the Constitution to allow Congress to prohibit the desecration of the flag. Since 1995, the Flag Desecration Amendment

Flag Desecration Amendment

The Flag Desecration Amendment, often referred to as the flag burning amendment, is a controversial proposed constitutional amendment to the United States Constitution that would allow the United States Congress to statutorily prohibit expression of political views through the physical desecration...

has consistently mustered sufficient votes to pass in the House of Representatives, but not in the Senate. In 2000, the Senate voted 63–37 in favor of the amendment, which fell four votes short of the requisite two-thirds majority. In 2006, another attempt fell one vote short.

Free speech zones

Free speech zones are areas set aside in public places for political activists

Activism

Activism consists of intentional efforts to bring about social, political, economic, or environmental change. Activism can take a wide range of forms from writing letters to newspapers or politicians, political campaigning, economic activism such as boycotts or preferentially patronizing...

to exercise their right of freedom of speech

Freedom of speech

Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...

as an exercise of what is commonly called "TPM" or "time, place, manner" regulation of speech. Free speech zones are set up by the Secret Service

United States Secret Service

The United States Secret Service is a United States federal law enforcement agency that is part of the United States Department of Homeland Security. The sworn members are divided among the Special Agents and the Uniformed Division. Until March 1, 2003, the Service was part of the United States...

who scout locations near which the president is to pass or speak. Officials may target those displaying signs and escort them to the free speech zones before and during the event. Protesters who refuse to go to free speech zones could be arrested and charged with trespass

Trespass

Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...

ing, disorderly conduct

Disorderly conduct

Disorderly conduct is a criminal charge in most jurisdictions in the United States. Typically, disorderly conduct makes it a crime to be drunk in public, to "disturb the peace", or to loiter in certain areas. Many types of unruly conduct may fit the definition of disorderly conduct, as such...

, and resisting arrest

Resisting arrest

Resisting arrest is a term used to describe a criminal charge against an individual who has committed, depending on the jurisdiction, at least one of the following acts:* threatening a police officer with physical violence while being arrested...

. In 2003, a seldom-used federal law was brought up that says that "willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting" is a crime.

Commercial speech

Commercial speech is speech done on behalf of a company or individual for the purpose of making a profit. Unlike political speech, the Supreme Court does not afford commercial speech full protection under the First Amendment. To effectively distinguish commercial speech from other types of speech for purposes of litigation, the Supreme Court uses a list of four indicia:

The contents do "no more than propose a commercial transaction."
The contents may be characterized as advertisements.
The contents reference a specific product.
The disseminator is economically motivated to distribute the speech.

Alone, each indicium does not compel the conclusion that an instance of speech is commercial; however, "[t]he combination of all these characteristics...provides strong support for...the conclusion that the [speech is] properly characterized as commercial speech."

The Court in Valentine v. Chrestensen
Valentine v. Chrestensen
Valentine v. Chrestensen, 316 U.S. 52 , was a case in which the Supreme Court of the United States ruled that commercial speech is not protected under the First Amendment- Introduction :The case started when the respondent, F.J...

, , upheld a New York City ordinance forbidding the "distribution in the streets of commercial and business advertising matter." Writing for a unanimous court, Justice Roberts explained:

In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council
Virginia State Pharmacy Board v. Virginia Citizens Consumer Council
Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 , was a case in which the United States Supreme Court held that a state could not limit pharmacists’ right to provide information about prescription drug prices...

, , the Court overruled Valentine and ruled that commercial speech was entitled to First Amendment protection:

In Ohralik v. Ohio State Bar Association, , the Court ruled that commercial speech was not protected by the First Amendment as much as other types of speech:

In Central Hudson Gas & Electric Corp. v. Public Service Commission, , the Court clarified what analysis was required before the government could justify regulating commercial speech:

Is the expression protected by the First Amendment? Lawful? Misleading? Fraud?
Is the asserted government interest substantial?
Does the regulation directly advance the governmental interest asserted?
Is the regulation more extensive than is necessary to serve that interest?

Six years later, the Supreme Court, applying the Central Hudson standards in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico
Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico
Posadas de Puerto Rico Associates, dba Condado Holiday Inn v. Tourism Company of Puerto Rico et al. was a 1986 appeal to the Supreme Court of the United States to determine whether Puerto Rico's Games of Chance Act of 1948 is in legal compliance with the United States Constitution, specifically as...

, , affirmed the Supreme Court of Puerto Rico

Supreme Court of Puerto Rico

The Supreme Court of Puerto Rico is the highest court of the Commonwealth of Puerto Rico, having judicial authority within Puerto Rico to interpret and decide questions of Commonwealth law. As the highest body of the judicial branch of the Puerto Rican government, it is analogous to one of the...

's conclusion that Puerto Rico

Puerto Rico

Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...

's Games of Chance Act of 1948, including the regulations thereunder, was not facially unconstitutional. The lax interpretation of Central Hudson adopted by Posadas was soon restricted under 44 Liquormart, Inc. v. Rhode Island
44 Liquormart, Inc. v. Rhode Island
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 , was a United States Supreme Court case, which declared that a law banning the advertisement of alcohol except at the place of sale as unconstitutional and a violation of the First Amendment....

, , when the Court invalidated a Rhode Island

Rhode Island

The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...

law prohibiting the publication of liquor prices.

School speech

In Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District, was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools...

, , the Supreme Court extended free speech rights to students in school. The case involved several students who were punished for wearing black armbands to protest the Vietnam War

Vietnam War

The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...

. The Supreme Court ruled that the school could not restrict symbolic speech that did not cause undue interruptions of school activities. Justice Abe Fortas

Abe Fortas

Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...

wrote, However, since 1969 the Supreme Court has placed a number of limitations on Tinker interpretations. In Bethel School District v. Fraser
Bethel School District v. Fraser
Bethel School District v. Fraser, 478 U.S. 675 , was a United States Supreme Court decision involving free speech and public schools. Matthew Fraser was suspended from school for making a speech full of sexual double entendres at a school assembly...

, , the Court ruled that a student could be punished for his sexual-innuendo-laced speech before a school assembly and, in Hazelwood v. Kuhlmeier
Hazelwood v. Kuhlmeier
Hazelwood School District et al. v. Kuhlmeier et al., was a decision by the Supreme Court of the United States, which held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection...

, , the Court found that school newspapers enjoyed fewer First Amendment protections and are subject to school censorship. More recently, in Morse v. Frederick, the Court ruled that schools could, consistent with the First Amendment, restrict student speech at school-sponsored events, even events away from school grounds, if students promote "illegal drug use."

Obscenity

The federal government and the states have long been permitted to limit obscenity

Obscenity

An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...

or pornography

Pornography

Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...

. While The Supreme Court has generally refused to give obscenity any protection under the First Amendment, pornography is subject to little regulation. However, the exact definition of obscenity and pornography has changed over time.

When it decided Rosen v. United States
Rosen v. United States
Not to be confused with United States v. RosenRosen v. United States, , was a case decided by the United States Supreme Court dealing with the concept of obscenity...

in 1896, the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin, [1868] L. R. 3 Q. B. 360. The Hicklin standard

Hicklin test

The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...

defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." The Court ruled in Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...

, that the Hicklin test was inappropriate. Instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest."

Justice Potter Stewart

Potter Stewart

Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...

, in Jacobellis v. Ohio
Jacobellis v. Ohio
Jacobellis v. Ohio, , was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of a French film called The Lovers which the state had deemed obscene.Nico Jacobellis, manager of the Heights Art...

, , famously stated that, although he could not precisely define pornography, "I know it when I see it

I know it when I see it

The phrase "I know it when I see it" is a colloquial expression within the United States by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. The phrase was famously used by United States Supreme Court...

".

The Roth test was expanded when the Court decided Miller v. California
Miller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...

, . Under the Miller test

Miller test

The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...

, a work is obscene if: Note that "community" standards—not national standards—are applied whether the material appeals to the prurient interest; thus, material may be deemed obscene in one locality but not in another. National standards, however, are applied whether the material is of value. Child pornography

Child pornography

Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...

is not subject to the Miller test, as the Supreme Court decided in New York v. Ferber
New York v. Ferber
New York v. Ferber, , was a United States Supreme Court decision. The Court ruled unanimously that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity....

, . The Court thought that the government's interest in protecting children from abuse was paramount.

Personal possession of obscene material in the home may not be prohibited by law. In writing for the Court in the case of Stanley v. Georgia
Stanley v. Georgia
Stanley v. Georgia, , was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law.The Georgia home of Robert Eli Stanley, a suspected and previously convicted bookmaker, was searched by police with a federal warrant to seize betting paraphernalia...

, , Justice Thurgood Marshall

Thurgood Marshall

Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...

wrote, "If the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch." However, it is not unconstitutional for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private. Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition, , struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Government by the Free Speech Coalition, a "California...

, , further upheld these rights by invalidating the Child Pornography Prevention Act of 1996

Child Pornography Prevention Act of 1996

The Child Pornography Prevention Act of 1996 was a United States federal law to restrict child pornography on the internet, including virtual child pornography....

, holding that, because the act "[p]rohibit[ed] child pornography that does not depict an actual child..." it was overly broad and unconstitutional under the First Amendment. Justice Anthony M. Kennedy wrote: "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

In United States v. Williams
United States v. Williams
United States v. Williams, 553 U.S. 285 , was a decision by the Supreme Court of the United States that a federal statute prohibiting the "pandering" of child pornography did not violate the First Amendment to the United States Constitution, even if a person charged under the code did not in fact...

, 553 U.S. 285 (2008), by a vote of 7–2, the Supreme Court upheld the PROTECT Act of 2003

PROTECT Act of 2003

The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse. "PROTECT" is a "backronym" which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today"....

. The Court ruled that prohibiting offers to provide and requests to obtain child pornography did not violate the First Amendment, even if a person charged under the Act did not possess child pornography.

Libel and slander

American tort liability

United States tort law

This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes...

for defamatory speech or publications—slander and libel

Slander and libel

Defamation—also called calumny, vilification, traducement, slander , and libel —is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image...

—traces its origins to English common law. For the first two hundred years of American jurisprudence, the basic substance of defamation law continued to resemble that existing in England at the time of the Revolution. An 1898 American legal textbook on defamation provides definitions of libel and slander nearly identical to those given by Blackstone and Coke. An action of slander required:

Actionable words, such as those imputing the injured party: is guilty of some offense, suffers from a contagious disease or psychological disorder, is unfit for public office because of moral failings or an inability to discharge his or her duties, or lacks integrity in profession, trade or business;
That the charge must be false;
That the charge must be articulated to a third person, verbally or in writing;
That the words are not subject to legal protection, such as those uttered in Congress; and
That the charge must be motivated by malice.

An action of libel required the same five general points as slander, except that it specifically involved the publication of defamatory statements. For certain criminal charges of libel, such as seditious libel, the truth or falsity of the statements was immaterial, as such laws were intended to maintain public support of the government and the truth of the statements merely eroded public support more thoroughly. Instead, libel placed specific emphasis on the result of the publication. Libelous publications tended to "degrade and injure another person" or "bring him into contempt, hatred or ridicule."

Concerns that defamation under common law might be incompatible with the new republican form of government caused early American courts to struggle between William Blackstone

William Blackstone

Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

's argument that the punishment of "dangerous or offensive writings...[was] necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty" and the argument that the need for a free press guaranteed by the Constitution outweighed the fear of what might be written. Consequently, very few changes were made in the first two centuries after the ratification of the First Amendment.

The Supreme Court's ruling in New York Times Co. v. Sullivan
New York Times Co. v. Sullivan
New York Times Co. v. Sullivan, 376 U.S. 254 , was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the...

. fundamentally changed American defamation law. The case redefined the type of "malice" needed to sustain a libel case. Common law malice consisted "ill-will" or "wickedness". Now, a public officials seeking to sustain a civil action against a tortfeasor needed to prove by "clear and convincing evidence" actual malice. The case involved an advertisement published in The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...

indicating that officials in Montgomery, Alabama

Montgomery, Alabama

Montgomery is the capital of the U.S. state of Alabama, and is the county seat of Montgomery County. It is located on the Alabama River southeast of the center of the state, in the Gulf Coastal Plain. As of the 2010 census, Montgomery had a population of 205,764 making it the second-largest city...

had acted violently in suppressing the protests of African-Americans during the civil rights movement

Civil rights movement

The civil rights movement was a worldwide political movement for equality before the law occurring between approximately 1950 and 1980. In many situations it took the form of campaigns of civil resistance aimed at achieving change by nonviolent forms of resistance. In some situations it was...

. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel claiming the advertisement damaged his reputation. The Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice Brennan

William J. Brennan, Jr.

William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...

suggested that public officials may sue for libel only if the publisher published the statements in question with "actual malice

Actual malice

Actual malice in United States law is a condition required to establish libel against public officials or public figures and is defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." Reckless disregard does not...

" — "knowledge that it was false or with reckless disregard of whether it was false or not."

While actual malice standard applies to public officials and public figures, in Philadelphia Newspapers v. Hepps, , the Court found that, with regard to private individuals, the First Amendment does "not necessarily force any change in at least some features of the common-law landscape." In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 was a Supreme Court case which held that a credit reporting agency could be liable in defamation if it carelessly relayed Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) was a Supreme Court case which held...

, the Court held that "[i]n light of the reduced constitutional value of speech involving no matters of public concern...the state interest adequately supports awards of presumed and punitive damages — even absent a showing of 'actual malice.'" Despite varying from state to state, private individuals generally need prove only the negligence of the defendant.

In Greenbelt Cooperative Publishing Association, Inc. v. Bresler, , the Supreme Court ruled that a Greenbelt News Review

Greenbelt News Review

The Greenbelt News Review was established in 1937 as a volunteer cooperative shortly after settlement of Greenbelt, Maryland, and was originally called The Cooperator...

article, which quoted a visitor to a city council meeting who characterized Bresler's aggressive stance in negotiating with the city as "blackmail", was not libelous since nobody could believe anyone was claiming that Bresler had committed the crime of blackmail and that the statement was essentially hyperbole (i.e., clearly an opinion).

The Supreme Court ruled in Gertz v. Robert Welch, Inc.
Gertz v. Robert Welch, Inc.
Gertz v. Robert Welch, Inc., 418 U.S. 323 , was a case in which the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals...

, opinions could not be considered defamatory. It is, therefore, permissible to suggest, for instance, that someone is a bad lawyer, but not permissible to declare falsely that the lawyer is ignorant of the law: the former constitutes a statement of values, but the latter is a statement alleging a fact.

More recently, in Milkovich v. Lorain Journal Co.
Milkovich v. Lorain Journal Co.
Milkovich v. Lorain Journal Co., 497 U.S. 1 , was a United States Supreme Court case that rejected the argument that a separate opinion privilege existed against libel. It was seen by legal commentators as the end of an era that began with New York Times Co. v. Sullivan and continued with Gertz v...

, , the Supreme Court backed off from the protection from "opinion" announced in Gertz. The court in Milkovich specifically held that there is no wholesale exception to defamation law for statements labeled "opinion," but instead that a statement must be provably false (falsifiable) before it can be the subject of a libel suit.

Hustler Magazine v. Falwell
Hustler Magazine v. Falwell
In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 , the United States Supreme Court held, in a unanimous 8–0 decision , that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them.Thus,...

, , extended the "actual malice" standard to intentional infliction of emotional distress

Intentional infliction of emotional distress

Intentional infliction of emotional distress is a tort claim of recent origin for intentional conduct that results in extreme emotional distress. Some courts and commentators have substituted mental for emotional, but the tort is the same...

in a ruling which protected a parody

Parody

A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...

Private action

Ordinarily, the First Amendment applied only to direct government censorship. The protection from libel suits recognizes that the power of the state is needed to enforce a libel judgment between private persons. The Supreme Court's scrutiny of defamation suits is thus sometimes considered part of a broader trend in U.S. jurisprudence away from the strict state action requirement, and into the application of First Amendment principles when private actors invoke state power.

Likewise, the Noerr-Pennington doctrine

Noerr-Pennington doctrine

Under the Noerr-Pennington doctrine, private entities are immune from liability under the antitrust laws for attempts to influence the passage or enforcement of laws, even if the laws they advocate for would have anticompetitive effects. Eastern Railroad Presidents Conference v. Noerr Motor...

is a rule of law that often prohibits the application of antitrust law to statements made by competitors before public bodies: a monopolist may freely go before the city council and encourage the denial of its competitor's building permit without being subject to Sherman Act liability. Increasingly, this doctrine has been applied to litigation outside the antitrust context, including state tort suits for intentional interference with business relations and SLAPP Suits

Strategic lawsuit against public participation

A strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition....

.

State constitutions provide free speech protections similar to those of the U.S. Constitution. In a few states, such as California, a state constitution has been interpreted as providing more comprehensive protections than the First Amendment. The Supreme Court has permitted states to extend such enhanced protections, most notably in Pruneyard Shopping Center v. Robins
Pruneyard Shopping Center v. Robins
Pruneyard Shopping Center v. Robins, , was a U.S. Supreme Court decision issued on June 9, 1980 which arose out of a free speech dispute between the Pruneyard Shopping Center in Campbell, California, and several local high school students...

, . In that case, the Court unanimously ruled that while the First Amendment may allow private property owners to prohibit trespass by political speakers and petition-gatherers, California was permitted to restrict property owners whose property is equivalent to a traditional public forum (often shopping malls and grocery stores) from enforcing their private property rights to exclude such individuals. Writing for the majority, Justice Rehnquist rejected the appellants argument for the common law's protection of property against trespass, writing that such an interpretation would "represent a return to the era of Lochner v. New York, , when common-law rights were also found immune from revision... [it] would freeze the common law as it has been constructed by courts, perhaps at its 19th-century state of development." The Court did, however, maintain that shopping centers could impose "reasonable restrictions on expressive activity." Subsequently, New Jersey

New Jersey

New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...

, Colorado

Colorado

Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...

, Massachusetts

Massachusetts

The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...

and Puerto Rico

Puerto Rico

courts have adopted the doctrine; California's courts have repeatedly reaffirmed it.

The U.S. Supreme Court has never interpreted the First Amendment as having the same power to alter private property rights, or provide any other protection against purely private action. When considering private authority figures (such as parents or an employer), the First Amendment provides no protection. A private authority figure may reserve the right to censor their subordinate's speech, or discriminate on the basis of speech, without any legal consequences. "All may dismiss their employees at will,...for good cause, for no cause, or even for a cause morally wrong, without thereby being guilty of a legal wrong." With specific regard to employee free speech, a few court cases illuminate the limits of the First Amendment vis-a-vis private employment.

In Korb v. Raytheon, 574 N.E.2d 370, 410 Mass. 581 (1991), Raytheon

Raytheon

Raytheon Company is a major American defense contractor and industrial corporation with core manufacturing concentrations in weapons and military and commercial electronics. It was previously involved in corporate and special-mission aircraft until early 2007...

terminated Lawrence Korb after receiving complaints of his public involvement in an anti-nuclear proliferation nonprofit known as the Committee for National Security

Committee for National Security

The Ministry for National Security or MNB is an intelligence agency for the government of Turkmenistan. It is composed largely of the remnants of KGB organs left over after the collapse of the Soviet Union; its functions remain largely the same as well...

(CNS) and his advocacy of reduced defense spending. On February 26, 1986 The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...

ran an article describing Korb's speech at a press conference held the day prior as "critical of increased defense spending." Following the publication of the article, several military officials "expressed their disapproval" of Korb's comments. Despite writing a letter of retraction which ran in The Washington Post, Raytheon terminated Korb's position after it continued to receive "Navy, Air Force, and Armed Services Committee objections." In adjudicating Korb's claim of wrongful discharge, the Supreme Judicial Court of Massachusetts found "no public policy prohibiting an employer from discharging an ineffective at-will employee." His claim under the State Civil Rights Act was dismissed as well. In affirming the lower courts decision to dismiss, Justice Abrams wrote: "Although Korb has a secured right to speak out on matters of public concern, and he has a right to express views with which Raytheon disagrees, he has no right to do so at Raytheon's expense."

In the similar case, Drake v. Cheyenne Newspapers, Inc., 891 P.2d 80 (1995), Kerry Drake and Kelly Flores, editorial employees at Cheyenne Newspapers, Inc. were fired for refusing to wear a button urging a "no" vote on the unionization of the editorial division. Drake and Flores filed an action claiming the management engaged in a "retaliatory discharge in violation of public policy, breach of covenant of good faith and fair dealing and breach of the employment contract." Drake and Flores argued that the "right to speech found in the Wyoming Constitution at Art. 1, § 20 represents an important public policy" which the Newspaper violated "when it terminated [their] employment because they exercised free speech[.]" In examining the court precedent, the Wyoming Supreme Court

Wyoming Supreme Court

The Wyoming Supreme Court is the highest court in the U.S. state of Wyoming. The Court consists of a Chief Justice and four Associate Justices. Each Justice is appointed by the Governor of Wyoming for an eight-year term. The five Justices select the Chief Justice from amongst themselves. The person...

concluded that "[t]erminating an at-will employee for exercising his right to free speech by refusing to follow a legal directive of an employer on the employer's premises during working hours does not violate public policy." As for Drake and Flores' claim for breach of a covenant of good faith and fair dealing, the court found no "explicit promise by the Newspaper that they would terminate only for cause."

The precedent of Korb and Drake do not, however, demonstrate an absence of free speech protections at private employers, but merely the limits of such protections. In both Korb and Drake, public policy was mentioned as a possible cause of action. Since Petermann v. International Brotherhood of Teamsters, 344 P.2d 25 (Cal.App. 1959), courts have recognized public policy exceptions to at-will terminations. In that case, the California Court of Appeals held "it would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge an employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute."

Some jurisdictions, courts have moved to expand some speech protections to political activity under the public policy doctrine. In Novosel v. Nationwide, , the court found some public policy protection of private-sector employee free speech, writing: "[T]he protection of an employee's freedom of political expression would appear to involve no less compelling a societal interest than the fulfillment of jury service or the filing of a workers' compensation claim." The court found "Pennsylvania law permits a cause of action for wrongful discharge where the employment termination abridges a significant and recognized public policy." Subsequently, however, the Pennsylvania courts rejected the Third Circuit's

United States Court of Appeals for the Third Circuit

The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...

reasoning, "believing that you can't claim wrongful discharge under a provision of the Constitution unless you can show state action," which is impossible where the employer is a private enterprise.

Involuntary administration of medicine

First Amendment implications of involuntary administration of psychotropic medication arose late in the twentieth century. In Rogers v. Okin
Rogers v. Okin
Rogers v. Okin was a landmark case in which the United States Court of Appeals for the First Circuit considered whether a mental patient, committed to a state psychiatric facility and assumed to be competent, has the right to make treatment decisions in non-emergency...

, Judge Joseph L. Tauro

Joseph Louis Tauro

Joseph Louis Tauro is a United States federal judge. He is the son of the late Massachusetts Chief Justice G. Joseph Tauro.Born in Winchester, Massachusetts, Tauro received an A.B. from Brown University in 1953 and an LL.B. from Cornell Law School in 1956. He was a First Lieutenant in the United...

for the United States District Court for the District of Massachusetts

United States District Court for the District of Massachusetts

The United States District Court for the District of Massachusetts is the federal district court whose jurisdiction is the Commonwealth of Massachusetts, USA. The first court session was held in Boston in 1789. The second term was held in Salem in 1790 and until 1813 court session locations...

found: He went on to contend that "whatever powers the Constitution has granted our government, involuntary mind control is not one of them." Two years later in Rennie v. Klein
Rennie v. Klein
Rennie v. Klein was a case heard in the Federal District Court of New Jersey in 1978 to decide whether an involuntarily committed mental patient has a constitutional right to refuse psychiatric medication...

, , the United States Court of Appeals for the Third Circuit

United States Court of Appeals for the Third Circuit

avoided the plaintiffs' First Amendment and Eighth Amendment

Eighth Amendment to the United States Constitution

The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...

arguments, finding it "preferable to look to the right of personal security recognized in Ingraham v. Wright
Ingraham v. Wright
Ingraham v. Wright, , was a United States Supreme Court case that upheld the disciplinary corporal punishment policy of Florida's public schools by a 5–4 vote....

", a Fourteenth Amendment

Fourteenth Amendment to the United States Constitution

case, in analyzing the constitutional implications of the involuntary administration of psychotropic medication.

Memoirs of convicted criminals

In some states, there are Son of Sam law

Son of Sam law

A Son of Sam Law is any American law designed to keep criminals from profiting from the publicity of their crimes, often by selling their stories to publishers. However, this is not in the same manner of asset forfeiture, which is intended to seize assets acquired directly as a result of criminal...

s prohibiting convicted criminals from publishing memoir

Memoir

A memoir , is a literary genre, forming a subclass of autobiography – although the terms 'memoir' and 'autobiography' are almost interchangeable. Memoir is autobiographical writing, but not all autobiographical writing follows the criteria for memoir set out below...

s for profit. These laws were a response to offers to David Berkowitz

David Berkowitz

David Richard Berkowitz , also known as Son of Sam and the .44 Caliber Killer, is an American serial killer and arsonist whose crimes terrorized New York City from July 1976 until his arrest in August 1977.Shortly after his arrest in August 1977, Berkowitz confessed to killing six people and...

to write memoirs about the murders he committed. The Supreme Court struck down a law of this type in New York as a violation of the First Amendment in the case Simon & Schuster v. Crime Victims Board
Simon & Schuster v. Crime Victims Board
Simon & Schuster v. Crime Victims Board, , was a Supreme Court case dealing with Son of Sam laws, which are state laws that prevent convicted criminals from publishing books about their crime for profit...

, . That statute did not prohibit publication of a memoir by a convicted criminal. Instead, it provided that all profits from the book were to be put in escrow for a time. The interest from the escrow

Escrow

An escrow is:* an arrangement made under contractual provisions between transacting parties, whereby an independent trusted third party receives and disburses money and/or documents for the transacting parties, with the timing of such disbursement by the third party dependent on the fulfillment of...

account was used to fund the New York State Crime Victims Board — an organization that pays the medical and related bills of victims of crime. Similar laws in other states remain unchallenged.

Freedom of the press

In Lovell v. City of Griffin, , Chief Justice Hughes defined the press as, "every sort of publication which affords a vehicle of information and opinion." Freedom of the press, like freedom of speech, is subject to restrictions on bases such as defamation law.

In Branzburg v. Hayes
Branzburg v. Hayes
Branzburg v. Hayes, 408 U.S. 665 , was a landmark United States Supreme Court decision invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury. The case was argued February 23, 1972 and decided June 29 of the same year. The reporter lost his...

, , the Court ruled that the First Amendment did not give a journalist

Journalist

A journalist collects and distributes news and other information. A journalist's work is referred to as journalism.A reporter is a type of journalist who researchs, writes, and reports on information to be presented in mass media, including print media , electronic media , and digital media A...

the right to refuse a subpoena

Subpoena

A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...

from a grand jury

Grand jury

A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...

. The issue decided in the case was whether a journalist could refuse to "appear and testify before state and Federal grand juries" basing the refusal on the belief that such appearance and testimony "abridges the freedom of speech and press guaranteed by the First Amendment." The 5–4 decision was that such a protection was not provided by the First Amendment.

Taxation of the press

State governments retain the right to tax newspapers, just as they may tax other commercial products. Generally, however, taxes that focus exclusively on newspapers have been found unconstitutional. In Grosjean v. American Press Co. , the Court invalidated a state tax on newspaper advertising revenues. Similarly, some taxes that give preferential treatment to the press have been struck down. In Arkansas Writers' Project v. Ragland, , for instance, the Court invalidated an Arkansas

Arkansas

Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...

law exempting "religious, professional, trade and sports journals" from taxation since the law amounted to the regulation of newspaper content.

In Leathers v. Medlock, , the Supreme Court found that states may treat different types of the media differently, such as by taxing cable television, but not newspapers. The Court found that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas."

Content regulation

The courts have rarely treated content-based regulation of journalism with any sympathy. In Miami Herald Publishing Co. v. Tornillo
Miami Herald Publishing Co. v. Tornillo
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 , was a United States Supreme Court case that overturned a Florida state law requiring newspapers to allow equal space in their newspapers to political candidates in the case of a political editorial or endorsement content...

, , the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment and so it ruled that the government may not force newspapers to publish that which they do not desire to publish.

Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there is a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. However, the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis.

In Federal Communications Commission v. Pacifica Foundation
Federal Communications Commission v. Pacifica Foundation
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 is a landmark United States Supreme Court decision that defined the power of the Federal Communications Commission over indecent material as applied to broadcasting...

, , the Supreme Court upheld the Federal Communications Commission

Federal Communications Commission

The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...

's authority to restrict the use of "indecent

Decency

Decency is the quality or state of conforming to social or moral standards of taste and propriety.-See also:*Taste *Communications Decency Act*Public indecency*Indecent exposure*Sodomy law*Norm *Grotesque body...

" material in broadcasting.

Petition and assembly

The right to petition was an echo of the English Bill of Rights 1689 which, following the Seven Bishops

Seven Bishops

thumb|200px|A portrait of the Seven Bishops.The Seven Bishops of the Church of England were those imprisoned and tried for seditious libel over their opposition to the second Declaration of Indulgence issued by James II in 1688...

case, stated it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.

The right to petition the government extends to petitions of all three branches of government: the Congress, the executive and the judiciary. According to the Supreme Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain. Nonetheless, in the past, Congress has directly limited the right to petition. During the 1790s, Congress passed the Alien and Sedition Acts
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...

, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In 1835 the House of Representatives adopted the Gag Rule
Gag rule
A gag rule is a rule that limits or forbids the raising, consideration or discussion of a particular topic by members of a legislative or decision-making body.-Origin and pros and cons:...

, barring abolitionist petitions calling for the end of slavery. The Supreme Court did not hear a case related to the rule, which was abolished in 1844. During World War I

World War I

World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...

, individuals petitioning for the repeal of sedition and espionage laws were punished; again, the Supreme Court did not rule on the matter.

The right of assembly was originally distinguished from the right to petition. In United States v. Cruikshank
United States v. Cruikshank
United States v. Cruikshank, 92 U.S. 542 was an important United States Supreme Court decision in United States constitutional law, one of the earliest to deal with the application of the Bill of Rights to state governments following the adoption of the Fourteenth Amendment.-Background:On Easter...

, , the Supreme Court held that "the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under protection of, and guaranteed by, the United States." Justice Waite's

Morrison Waite

Morrison Remick Waite, nicknamed "Mott" was the seventh Chief Justice of the United States from 1874 to 1888.-Early life and education:...

opinion for the Court carefully distinguished the right to peaceably assemble as a secondary right, while the right to petition was labeled to be a primary right. Later cases, however, paid less attention to these distinctions.

Freedom of association

Although it is not explicitly protected in the First Amendment, the Supreme Court ruled, in NAACP v. Alabama, , freedom of association to be a fundamental right protected by it. In Roberts v. United States Jaycees
Roberts v. United States Jaycees
Roberts v. United States Jaycees, , was an opinion of the Supreme Court of the United States overturning the United States Court of Appeals for the Eighth Circuit's application of a Minnesota antidiscrimination law, which had permitted the United States Junior Chamber to exclude women from full...

, , the Supreme Court held that associations may not exclude people for reasons unrelated to the group's expression. However, in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston
Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 , is a landmark decision of the Supreme Court of the United States regarding the right to assemble and for groups to determine what message is actually conveyed to the public...

, , the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. Likewise, in Boy Scouts of America v. Dale
Boy Scouts of America v. Dale
Boy Scouts of America et al. v. Dale, , was a case of the Supreme Court of the United States overturning the New Jersey Supreme Court's application of the New Jersey public accommodations law, which had forced the Boy Scouts of America to readmit assistant Scoutmaster James Dale...

, , the Supreme Court ruled that a New Jersey law, which forced the Boy Scouts of America

Boy Scouts of America

The Boy Scouts of America is one of the largest youth organizations in the United States, with over 4.5 million youth members in its age-related divisions...

to admit an openly gay member, to be an unconstitutional abridgment of the Boy Scouts' right to free association.

International significance

Some of the provisions of the United States Bill of Rights have their roots in the English Bill of Rights

Bill of Rights 1689

The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...

and other aspects of English law

English law

English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

. The English Bill of Rights, however, does not include many of the protections found in the First Amendment. For example, while the First Amendment guarantees freedom of speech to the general populace, the English Bill of Rights protected only "Freedome of Speech and Debates or Proceedings in Parlyament." The Declaration of the Rights of Man and of the Citizen

Declaration of the Rights of Man and of the Citizen

The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...

, a French revolutionary document passed just weeks before Congress proposed the Bill of Rights, contains certain guarantees that are similar to those in the First Amendment. For instance, it suggests that "every citizen may, accordingly, speak, write, and print with freedom."

Article III, Sections 4 and 5 of the Constitution of the Philippines

Constitution of the Philippines

The Constitution of the Philippines is the supreme law of the Philippines.The Constitution currently in effect was enacted in 1987, during the administration of President Corazon Aquino, and is popularly known as the "1987 Constitution"...

, written in 1987, contain identical wording to the First Amendment regarding speech and religion, respectively. These phrases can also be found in the 1973 and 1935 Philippine constitutions. All three constitutions contain, in the section on Principles, the sentence, "The separation of Church and State shall be inviolable", echoing Jefferson's famous phrase.

While the First Amendment does not explicitly set restrictions on freedom of speech, other declarations of rights sometimes do so. The European Convention on Human Rights

European Convention on Human Rights

The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

, for example, permits restrictions "in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Similarly the Constitution of India

Constitution of India

The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...

allows "reasonable" restrictions upon free speech to serve "public order, security of State, decency or morality."

The First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights, nor the French Declaration of the Rights of Man and of the Citizen, contains a similar guarantee.

External links

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.

Text

Background

Establishment of religion

Separationists

Accommodationists

Free exercise of religion

Speech critical of the government

Anonymous speech

Campaign finance

Flag desecration

Free speech zones

Commercial speech

School speech

Obscenity

Libel and slander

Private action

Involuntary administration of medicine

Memoirs of convicted criminals

Freedom of the press

Taxation of the press

Content regulation

Petition and assembly

Freedom of association

International significance

See also

Further reading

External links