June 3, 2022 | Ketanji Brown Jackson to Join SCOTUS as First Black Female Justice
|Commercial Speech||Important Cases|
|In its earliest opinions on the topic of commercial speech, the Supreme Court ruled it completely outside of First Amendment protection. The holding in Valentine v. Chrestensen, a 1942 case involving a conviction of a man for distributing an advertisement in violation of a local ordinance banning distributing advertisements, was that this ordinance was constitutional since the Constitution imposed no restraint on government in regard to “purely commercial” advertising.Commercial speech remained unprotected until the 1975 case Bigelow v. Virginia. A law banning the encouragement of procuring abortions was found unconstitutional because it restricted the First Amendment rights of abortion advertisers in newspapers. The opinion stated that speech was not stripped of all First Amendment protection because it appears as advertisement, and that the lower court had erred in finding that advertising had no First Amendment protection.|
The reversal of course by the Court continued in a case decided shortly after Bigelow, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. A law that did not allow pharmacists to advertise the cost of prescription drugs was held to be unconstitutional because speech that “proposes a commercial transaction” is protected expression. Commercial speech that was false or misleading could be prohibited, the court reasoned, but otherwise individuals and society have a strong interest in the free flow of lawful commercial information as another way to have an informed citizenry. The Court noted other forms of speech where the speaker had economic incentives, like negotiations in a labor dispute, which were still protected. The statute was held to be unconstitutional because it discriminated based on content (prices of drugs) without any sufficiently compelling state interest.
However, the question of when commercial speech COULD be regulated and the limits to the extent of commercial speech’s protection still remained. The Court answered this in the influential 1980 case Central Hudson Gas v. Public Service Commission. To determine whether or not a state law prohibiting a utility from advertising was legal, the Court formulated a four part test that creates an “intermediate scrutiny” standard. The Court first asks if the speech concerns lawful activity and is not misleading. If it does, the Court then asks if the government interest being argued is substantial. If the interest is not substantial, the inquiry ends and the regulation is unconstitutional. However, if the speech is lawful and not misleading but the government interest is also substantial, the Court then determines if the regulation is directly aiding the government’s substantial interest. Lastly, the Court must decide whether or not the regulation is more than is necessary to advance that government interest. Additionally, the burden of proof that a regulation is constitutional is on the government restricting it, rather than the speaker having to prove it unconstitutional.
|Valentine v. Chrestensen (1942) |
|Indecent and Profane Speech||Important Cases|
|Although obscenity is not protected under the First Amendment, some sexual speech is still protected. These forms include adult book stores and movie theatres, nude dancing, and profane or indecent speech. However, these forms are usually considered less protected than standard speech under the First Amendment.The regulation of sexual speech through prohibiting adult movie theaters began with the case Young v. American Mini-Theatres, Inc in 1976. The Court upheld an ordinance limiting the number and location of adult theaters. The opinion stated adult movie theatres had First Amendment protection as speech, yet allowed them to be more susceptible to government regulation due to the “low value” of the speech conveyed.This trend continued in the 1986 case City of Renton v. Playtime Theatres, Inc., where the Court upheld another city ordinance which effectively banned adult theatres entirely in a city. This time the Court emphasized the constitutionality of the ordinance because the ban was focused more on preventing the secondary effects of the theatres – the crime and decreasing property value associated with the presence of adult movie theatres.Nude dancing has been met with similar regulation and rationale by the Court. The Court initially upheld ordinances restricting nude dancing under the state authority granted by the Twenty First Amendment. The opinions in California v. LaRue and City of Newport v. Iacobucci used this reasoning since the establishments involved both had liquor licenses. The Court found that the Twenty First Amendment allowed for more enhanced control over public health, welfare, and morals, and since nude dancing was a less protected form of speech, this control outweighed its protections.|
Barnes v. Glen Theatre in 1991 featured the Court going even farther, allowing a ban on nudity in dancing because it furthered the governmental interest in “protecting societal order and morality.” This decision was re-affirmed in Erie v. PAP’s A.M, though under slightly different reasoning. Writing for the plurality, Justice O’Connor upheld an ordinance banning nude dancing because the purpose of the ban focused on removing secondary effects like crime rather than the nude dancing itself. Additionally, the Court held that the ban was permissible even without local evidence of nude dancing cause crime, because the town was allowed to rely on the experiences of other areas where the connection had been shown. This portion of the opinion gave local government extensive power to regulate nude dancing by lessening their burden in proving the need for their nude dancing regulations.
Profane or sexually explicit language has been given First Amendment protection by the courts, yet there are notable exceptions, usually determined by the context of how the language is being transmitted and where the audience is. The 1971 opinion in Cohen v. California featured the Court overturning a conviction of disturbing the peace for a man who wore a jacket in a courtroom that had “Fuck the draft” written on it. Justice Harlan, writing for the majority, rejected the arguments made by the government that certain words could be banned for the good of the public and that the ban was justified because the public was a “captive audience”. The Court noted that cursing was a form of expression and that no other alternative may have as strongly communicated the political message of the speaker, and that if the State could ban curse words without any compelling reason their power to restrict speech would seem “inherently boundless.” Harlan also found that the public could not be considered a “captive audience” if their privacy rights weren’t being invaded – the government can regulate speech that may be invading the privacy of a person’s home, but cannot censor speech between people when out in public in order to “protect” them from certain messages.
Exceptions to the First Amendment protection of profane speech have been carved out depending on the context and medium of the speech. Profanity can be regulated in public schools, as demonstrated in Bethel School District No. 403 v. Fraser. The punishment of a student for giving a speech filled with sexual innuendo was upheld as constitutional, because that speech was “wholly inconsistent with the ‘fundamental value’ of public school education.”
Profane speech can be prohibited when broadcast over television and radio as well. In the famous “Seven Dirty Words” case FCC v. Pacifica Foundation, the comedian George Carlin’s monologue featuring repeated swear words was broadcast over the radio uncensored. The Supreme Court held that the Federal Communications Commission could prohibit and punish indecent language broadcast via television or the radio. The opinion followed a rationale related to the “captive audience” argument discussed in Cohen: broadcast media has a unique reach directly into the home, where a person has their greatest privacy rights, and therefore their privacy rights trump the speech rights of an outsider. Particular emphasis was placed on the fact that children are particularly vulnerable to broadcast media, and thus should not have to be exposed to profane language in their own home.
The Court has been much more reluctant to place restrictions on indecent speech over phones, the internet, and cable television, however. Often the reasoning in opinions dealing with these mediums is that there is less of a “captive audience” issue, and that laws restricting indecent speech are too restrictive or not narrowly tailored enough.
In Sable Communications v. FCC, a federal statute banning obscene or indecent telephone communications, aimed to stop phone-sex services, was held to be unconstitutional in regards to its ban of indecent speech. The Court emphasized the lack of a captive audience – the calls were being placed to the services rather than broadcast. Additionally, there was no evidence offered by the government that this law was necessary as the least restrictive way to protect minors.
This least restrictive means analysis pervaded two opinions of the court regarding indecent material on cable television as well. Denver Area Educational Telecommunications Consortium, Inc. v. FCC, decided in 1996, had a divided plurality opinion of the Court on whether three provisions of the Cable Television Consumer Protection and competition Act of 1992 were constitutional. The Court upheld the provision allowing cable operators to prohibit the broadcasting programming that depicts certain sexual content in a “patently offensive manner.” The remaining two provisions: one requiring that this material if allowed must be segregated to a specific channel available only on request; the other banning this material from “public, educational, or governmental channels”, were both struck down. The Court upheld the first provision on the First Amendment rights of the cable operator, allowing them to choose what to broadcast or not. The opinion also emphasized that the provision was actually even less strict than the one upheld in Pacifica – it did not require the prohibition, instead allowing the cable operator to choose. The other two provisions in comparison were mandatory, and the goal behind each – protecting minors and unconsenting adults from having to see indecent material – could have been achieved through the less restrictive means of blocking individually. Additionally the public, educational, and governmental channels were already heavily regulated, and the Court found no compelling need to allow cable operators the ability to censor material on these channels as well.
The problem with Denver was that the opinion involved significant disagreement between the justices over the proper scrutiny standards to apply to cable television, as well as the reasons for allowing or prohibiting content. United States v. Playboy Entertainment Group, Inc. helped clarify the situation in 2000. The decision revolved around a provision of the Cable Act which required cable operators to fully scramble or block sexual programming in order to prevent “signal bleed”, where people receive images of cable channels they are not subscribed to. The Court applied strict scrutiny because by regulating only sexually explicit content, the government was engaging in content-based discrimination. Justice Kennedy, writing for the majority, stated that this meant the statute must be narrowly tailored, and that if “a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.” The Court held that individual blocking of such channels by subscribers is less restrictive than blanket banning by cable operators, and therefore the ban was unconstitutionally restrictive. This opinion is significant because in it, the Court officially uses a strict scrutiny analysis for sexually explicit speech – something it had declined to do in the past.
The first consideration by the Court of indecent material being transmitted over the internet was in the 1997 case Reno v. American Civil Liberties Union. The Communications Decency Act of 1996 made it a criminal offense to transmit obscene or indecent material to minors, or the transmission or displaying of such materials in a way that is available to minors. The Court held the law unconstitutional. Distinguishing this case from Pacifica, the Court noted that the Communications Decency Act was broader and more severe than the regulations under Pacifica – the former having criminal penalties and being in effect at all times. Simultaneously the Court rejected the statute for being too vague, running the real risk of criminalizing content that was not pornographic, such as educational, non-profit material about sexual topics.
In response to the Supreme Court’s decision in Reno, Congress passed the Child Online Protection Act, which required that websites restrict access of material that applies to a minor’s “prurient interest” through various age verification requirements, like specific verifying services or valid credit cards. In a 5-4 decision in the 2002 case Ashcroft v. American Civil Liberties Union, the Court upheld a preliminary injunction of the law, finding a substantial likelihood that the law would be unconstitutional. The opinion involved a strict-scrutiny analysis, because the law required a content-based restriction. Following a similar logic to the earlier cable broadcast decisions, the Court noted that filtering software on the users end represented a less restrictive means to protect minors compared to the law’s methods, and more likely to be successful since the law would only be able to control US-based websites to begin with.
|Young v. American Mini Theatres (1976)|
|Symbolic Speech||Important Cases|
|Speech can be communicated through more than just words – messages are regularly exchanged between people through conduct and symbols. The Supreme Court has recognized this, yet developed standards and tests for this kind of expressive conduct separately from verbal and written speech. This is due to the unique nature of symbolic speech, where the conduct or action taken as a means of expression may have consequences aside from the listener receiving a message. The Court first has to determine whether or not the conduct is actually expressing a message. If they decide the conduct is expressive, the Court then must decide to what extent it can be regulated or prohibited by the government.|
Although the Court had been recognizing symbolic speech for a long time, the most definitive test for determining whether or not conduct was expressive was not formulated until the 1974 case Spence v. Washington. Spence hung an upside-down American flag with a peace sign taped over it from his apartment’s window and was arrested and charged under a flag misuse statute. He stated that he hung the flag that way in response to the Kent state shootings as well as American invasion of Cambodia, because he wanted to show that he thought America should stand for peace. The Court reversed his conviction and found the statute to be unconstitutional after determining that Spence’s conduct was expressive, did not cause a breach of the peace or destroy property, and was within the protection of the first amendment. Two factors were discussed by the Court in determining that Spence’s conduct was considered speech – first, whether or not Spence intended a message to be communicated, and second, whether there was substantial likelihood that those receiving this message would understand it. Context is mentioned in the opinion as one way to tell whether others would be able to understand the message, and the Court felt that the timing of both Kent State and the invasion of Cambodia both made clear what Spence’s message was.
Just because conduct is expressive does not mean it necessarily has the same protection as other protected speech. Depending on the nature of the conduct, the state may be able to regulate or prohibit the speech incidentally by controlling the action. The test for determining for when this is allowed to happen first appeared in United States v. O’Brien. The 1968 case dealt with an individual who burned his draft registration card and was prosecuted under a federal law that made destruction of draft cards a crime. When speech and non-speech elements combine in conduct, the Court held that a compelling government interest could justify a statute regulating the expressive conduct, as long as the interest is unrelated to free expression and goes no farther than necessary to further that interest. Under this test, the Court upheld O’Brien’s conviction, determining that the ban was based on other justifications rather than preventing the message, such as the necessity of the cards for emergency military mobilization.
Flag burning has repeatedly come up before the Court as a controversial form of expressive conduct. Despite multiple attempts by the states and federal government to ban forms of flag desecration, the Court has consistently applied the O’Brien test to find those laws unconstitutional. After various narrow holdings such as the one in Spence (law was unconstitutional when applied expressive conduct, altering of a private flag, on private property, without causing breach of the peace) the Court definitely ruled that flag desecration was constitutionally protected conduct under Texas v. Johnson in 1989 and United States v. Eichman in 1990.
The statute in question in Texas v. Johnson made it illegal to damage a flag if done knowing it was likely to offend others. The Supreme Court found the flag burning to be expressive content protected under the First Amendment, and the statute to be unconstitutional. Justice Brennan pointed out that the statute by its very wording had to be aimed at the expression rather than the conduct, because it didn’t ban all flag burning – just that which would knowingly offend others. The Court re-iterated that “the government may not prohibit expression of an idea simply because if finds the idea itself offensive or disagreeable.”
In reaction to this ruling, Congress passed the Flag Protection Act of 1989, this time making it applicable to flag destruction in general, rather than to specific times when someone may be offended. However, the Court still found this ban to be unconstitutional. In United States v. Eichman, the Court held the statute suffered from the same flaw as the Texas Statute- aiming at stopping dissent or protest. This was due to the Government’s expressed interest in protecting the integrity of the flag as a symbol, which makes the intent of the statute the communicative message of flag burning rather than the physical act of damaging a flag.
|Spence v. Washington (1974)|
|Speech of Public Employees||Important Cases|
|Government employees have freedom of speech under the First Amendment, but only under particular circumstances and with a lesser degree of protection than other individuals. Deciding whether a government employee’s speech is protected involves the balancing of protecting that employee’s constitutional rights with the rights of the government as an employer to manage or fire its employees.|
One of the first influential cases regarding public employee’s speech is Pickering v. Board of Education, decided in 1968. A public school teacher wrote a letter to a newspaper criticizing the fundraising conducted by his school, and was fired as a result. The Supreme Court held that the firing violated the First Amendment. The opinion stressed that public employees are permitted to comment on matters of “public concern”, even if they are critical of their superiors. The interests of the state in efficiently managing its work and employees is weighed against this matter of public concern. In Pickering’s case, the critical comments made in the newspaper dealt with a public concern – the potential misuse of school funding – and his criticisms did not interfere with his ability to perform as a teacher. Therefore his speech was protected, and the firing was unconstitutional.
The 1977 decision in Mt. Healthy City School District Board of Education v. Doyle further clarified the test. The Court ruled to uphold the firing of an untenured teacher because he would have otherwise been fired regardless of his protected speech, since he argued with other teachers and made obscene gestures at students. Before applying the Pickering test, the Court found that a public employee would first have the burden of proving that his conduct was constitutionally protected and that it was a substantial reason for the government action (firing). If they can show that, then the burden shifts to the government to show that by a preponderance of the evidence, it would have taken the same action without considering the protected speech.
|Pickering v. Board of Education (1968)Mt. Healthy City Sch. Dist. v. Doyle (1977)|