Freedom of Speech and Press: Exceptions to the First Amendment

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

Introduc tion ..................................................................................................................................... 1
Obscenity ......................................................................................................................................... 1
Child Pornography..........................................................................................................................2
Content-Based Restrictions.............................................................................................................3
Non-Content-Based Restrictions.....................................................................................................4
Prior Restraint..................................................................................................................................5
Commercial Speech.........................................................................................................................6
Defama tion .................................................................................................................................... 12
Speech Harmful to Children..........................................................................................................13
Children’s First Amendment Rights..............................................................................................15
Time, Place, and Manner Restrictions...........................................................................................16
Incidental Restrictions...................................................................................................................18
Symbolic Speech...........................................................................................................................19
Compelled Speech.........................................................................................................................21
Radio and Television.....................................................................................................................24
Freedom of Speech and Government Funding..............................................................................26
Free Speech Rights of Government Employees and Government Contractors.............................30
Government Employees..........................................................................................................30
Government Contractors.........................................................................................................34
Author Contact Information..........................................................................................................34

The First Amendment to the United States Constitution provides that “Congress shall make no
law ... abridging the freedom of speech, or of the press.... ” This language restricts government
both more and less than it would if it were applied literally. It restricts government more in that it
applies not only to Congress, but to all branches of the federal government, and to all branches of ¹
state and local government. It restricts government less in that it provides no protection to some
types of speech and only limited protection to others.
This report provides an overview of the major exceptions to the First Amendment—of the ways
that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide ²
no protection or only limited protection for some types of speech. For example, the Court has
decided that the First Amendment provides no protection to obscenity, child pornography, or
speech that constitutes “advocacy of the use of force or of law violation ... where such advocacy
is directed to inciting or producing imminent lawless action and is likely to incite or produce such
action.”
The Court has also decided that the First Amendment provides less than full protection to
commercial speech, defamation (libel and slander), speech that may be harmful to children,
speech broadcast on radio and television, and public employees’ speech. Even speech that enjoys
the most extensive First Amendment protection may be subject to “regulations of the time, place,
and manner of expression which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of communication.” And, even
speech that enjoys the most extensive First Amendment protection may be restricted on the basis
of its content if the restriction passes “strict scrutiny,” i.e., if the government shows that the
restriction serves “to promote a compelling interest” and is “the least restrictive means to further
the articulated interest.”

Obscenity apparently is unique in being the only type of speech to which the Supreme Court has
denied First Amendment protection without regard to whether it is harmful to individuals.
According to the Court, there is evidence that, at the time of the adoption of the First Amendment, ⁴
obscenity “was outside the protection intended for speech and press.” Consequently, obscenity
may be banned simply because a legislature concludes that banning it protects “the social interest ⁵
in order and morality.” No actual harm, let alone compelling governmental interest, need be
shown in order to ban it.

¹^H^e^r^b^e^r^{t v}^.^L^a^ndo,⁴⁴^{1 U}^.^S^.¹⁵³^,¹⁶⁸^n.¹⁶⁽¹⁹⁷⁹⁾^.
²^Su^pr^e^m^e^C^our^{t c}^a^s^e^s^s^uppor^ti^ng^a^{ll the}^pr^oh^ibit^io^ns^aⁿ^d^r^e^s^t^rⁱ^c^tion^s^{on s}^p^eechⁿ^o^t^e^dⁱⁿ^t^hⁱ^s^and^t^h^eⁿ^e^xt^p^a^ragrap^h
^{are ci}^t^e^dⁱⁿ^f^o^o^tⁿ^o^t^{es acco}^m^p^an^yⁱⁿ^g^t^h^{e sub}^s^eq^u^e^nt^dⁱ^scu^ssi^oⁿ^o^f^t^h^{ese p}^r^o^hⁱ^bⁱ^tⁱ^oⁿ^s^an^{d rest}^ri^ctⁱ^oⁿ^s^.
³^For^a^dditi^ona^l^inf^o^r^m^a^{tion, s}^e^e^C^R^S^R^e^por^t⁹⁵^-⁸^04,^Ob^scen^{ity a}ⁿ^d^In^d^ecen^{cy: Co}ⁿ^s^titu^tⁱ^oⁿ^a^l^Prin^ci^p^l^{es a}ⁿ^d^Fe^d^e^ra^l
^Stat^ute^s^{, by}^H^e^nr^y^C^ohe^n.
⁴^R^o^th^v^.^Uⁿ^ite^d^Sta^t^e^s^,³⁵^{4 U}^.^S.⁴^76,⁴⁸^{3 (}¹⁹⁵⁷⁾^{. H}^o^w^e^v^e^r^,^J^u^s^tic^e^D^oug^la^s^,^dis^s^e^ntiⁿ^g^,^w^r^ote^:^“^[^T^]^h^e^r^e^is^{no s}^p^e^cⁱ^a^l
^historic^a^l^e^v^ideⁿ^c^e^t^h^a^t^lite^ra^ture^de^a^lin^g^w^{ith se}^x^w^a^{s inte}^nde^{d t}^o^be^tre^a^t^e^dⁱⁿ^a^spe^cⁱ^a^l^m^a^nne^{r by}^those^w^{ho d}^r^a^f^te^d
^t^h^{e F}ⁱ^rst^A^m^en^d^m^en^t^.^”^Id^.^at⁵¹^4.
⁵^Id^.^a^t⁴⁸^5.

What is obscenity? It is not synonymous with pornography, as most pornography is not legally
obscene; i.e., most pornography is protected by the First Amendment. To be obscene,
pornography must, at a minimum, “depict or describe patently offensive ‘hard core’ sexual ⁶
conduct.” The Supreme Court has created a three-part test, known as the Miller test, to determine
whether a work is obscene. The Miller test asks:
⁽^a⁾^w^h^e^t^he^r^t^h^e^“a^ve^r^a^ge^p^e^r^s^oⁿ^a^p^p^l^yⁱ^{ng c}^o^nt^e^m^p^o^r^a^r^y^c^o^m^m^uⁿⁱ^t^y^st^aⁿ^d^a^r^d^s”^w^o^ul^d^fi^nd
^th^{at th}^e^w^o^rk^{, ta}^k^eⁿ^as^a^w^h^ole^,^appeals^to^th^{e pru}^r^ien^tⁱⁿ^teres^{t; (b) w}^h^eth^e^{r t}^h^e^w^o^rk^depict^s
^{or des}^c^ri^bes^,ⁱⁿ^a^pat^eⁿ^t^l^y^o^f^f^e^nsⁱ^v^e^w^a^y^,^s^e^x^u^a^l^con^d^u^c^t^s^p^eci^fⁱ^cal^l^y^de^fⁱⁿ^e^{d by}^t^h^e
^ap^p^licab^{le state la}^w^;^an^d⁽^c⁾^w^h^et^h^e^r^th^e^w^o^r^k^{, tak}^eⁿ^{as a}^w^h^o^l^{e, lack}^{s ser}ⁱ^o^u^s^liter^a^r^y^,⁷
^ar^{tistic, p}^o^{litical, o}^r^scien^tⁱ^f^ic^v^a^lu^e.
The Supreme Court has clarified that only “the first and second prongs of the Miller test—appeal
to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying ⁸
contemporary community standards.” As for the third prong, “[t]he proper inquiry is not whether
an ordinary member of any given community would find serious literary, artistic, political, or
scientific value in allegedly obscene material, but whether a reasonable person would find such ⁹
value in the material, taken as a whole.”
The Supreme Court has allowed one exception to the rule that obscenity is not protected by the
First Amendment: one has a constitutional right to possess obscene material “in the privacy of his ¹⁰
own home.” However, there is no constitutional right to provide obscene material for private ¹¹¹²
use or even to acquire it for private use.

Child pornography is material that visually depicts sexual conduct by children.¹⁴ It is unprotected
by the First Amendment even when it is not obscene; i.e., child pornography need not meet the
Miller test to be banned. Because of the legislative interest in destroying the market for the

⁶^Mille^{r v}^.^Ca^lif^ornia^,⁴¹^{3 U.}^S.^15,²⁷⁽¹⁹⁷^3).
⁷^Id^.^a^t²⁴^(c^ita^tio^{n om}^itte^d).
⁸^P^o^pe^v^.^Illin^ois,⁴⁸^{1 U.}^S.⁴⁹^7,⁵⁰^{0 (1}⁹⁸^{7). I}ⁿ^Ha^ml^ing^v.^Unⁱ^t^ed^S^t^a^t^es^{, 4}^{18 U}^.^S.⁸⁷^{, 1}⁰⁵⁽¹⁹⁷⁴⁾^{, t}^h^e^C^our^tⁿ^o^te^{d t}^h^a^t
^{a “co}^mm^uⁿⁱ^t^y^”^w^a^{s n}^o^t^an^y^“p^reci^{se geo}^g^rap^hⁱ^{c area,}^{” an}^d^su^ggest^ed^t^h^atⁱ^t^mⁱ^gh^t^b^e^l^e^{ss t}^h^an^aⁿ^entⁱ^r^{e st}^at^e.^In
^Ashc^{roft v}^.^Ame^r^ic^aⁿ^Civ^il^Libe^rti^e^{s Union}^,⁵³⁵^U^.^S^.⁵⁶⁴^,⁵⁷⁷⁽²⁰⁰²^),^t^h^{e S}^u^p^r^em^{e Co}^u^r^t^reco^gnⁱ^{zed t}^h^at^“W^eb
^pub^lishe^{rs c}^u^rreⁿ^tly^la^c^k^the^a^b^ility^{to lim}^{it a}^c^c^e^{ss to the}ⁱ^{r s}^ite^{s o}ⁿ^a^g^e^og^ra^phic^ba^sis,”^a^{nd t}^h^a^t^t^h^e^r^e^f^ore^the^use^of
^co^mm^uⁿⁱ^t^y^st^an^d^a^rd^{s t}^o^d^e^fⁱⁿ^e^“ob^s^cenⁱ^t^y^{” “}^w^o^u^l^d^eff^ectⁱ^v^el^y^f^o^rc^{e al}^l^sp^{eakers o}ⁿ^t^h^{e W}^e^b^t^o^abⁱ^d^{e b}^y^t^h^{e ‘}^m^o^s^t
^pur^ita^n’^c^o^m^m^unity^’^s^s^t^a^nda^r^d^s^.^”^N^e^v^e^r^t^he^le^s^s^,^the^C^our^{t f}^o^uⁿ^d^th^a^t^us^e^of^c^o^m^m^unit^y^s^t^a^nda^r^d^s^“^d^oe^s^not^by^itse^l^f
^re^nde^r”^a^sta^t^ute^uⁿ^c^o^nstitutⁱ^oⁿ^a^l^.^”^Id^.^a^t⁵⁸^{5 (}^e^m^pha^sⁱ^s^{in or}^ig^ina^l⁾^.
⁹^P^o^pe^v^.^Illin^ois,⁴⁸^{1 U.}^{S. a}^t⁵⁰^0-⁵⁰¹^.
¹⁰^Staⁿ^le^y^v^.^G^e^or^gⁱ^a^,^{394 U}^.^S.⁵⁵⁷^,⁵⁶^{8 (}¹⁹⁶⁹⁾^.
¹¹^Uⁿ^ite^d^Sta^t^e^s^v^.^R^e^ide^l^,⁴⁰^{2 U}^.^S.³⁵^{1 (}¹⁹⁷¹⁾^.
¹²^Uⁿ^ite^d^Sta^t^e^s^v^.¹²²^00-^F^t^{. R}^e^e^l^s^of^Film^{, 413}^U^.^S.¹²^{3 (}¹⁹⁷³⁾^.
¹³^For^a^dditi^ona^l^inf^o^r^m^a^{tion, s}^e^e^C^R^S^R^e^por^t⁹⁵^-⁴^06,^C^h^il^{d P}^o^rⁿ^ogr^aphy^:^C^ons^t^itutⁱ^o^nal^Pr^incⁱ^p^l^e^s^a^{nd Fe}^de^r^a^l
^Stat^ute^s^{, by}^H^e^nr^y^C^ohe^n.
¹⁴^N^e^w^Y^o^r^k^v^.^Fe^r^b^e^r^{, 4}^{58 U}^.^S.⁷⁴^{7, 7}⁶⁴⁽¹⁹⁸²⁾^{. T}^h^e^de^fⁱ^niti^on^of^“^s^e^x^ua^ll^y^ex^plic^{it c}^oⁿ^duc^t”ⁱⁿ^t^h^e^f^e^de^r^a^{l c}^h^ild
^por^nog^r^a^phy^s^t^a^t^ute^inc^l^u^d^e^s^“^l^a^s^cⁱ^vⁱ^ous^e^x^hibiti^on^of^the^g^e^nita^ls^or^p^ubic^a^r^e^a^of^aⁿ^y^pe^r^s^on^[^u^nde^r¹⁸^]^,^aⁿ^d^“ⁱ^sⁿ^o^t
^lim^ited^to^nu^d^e^exhⁱ^b^ition^s^o^r^exhⁱ^b^iti^oⁿ^sⁱⁿ^w^h^ich^t^h^{e ou}^tliⁿ^e^{s o}^f^th^o^s^{e areas [}^a^{re] d}ⁱ^scernⁱ^b^l^{e t}^h^rough^clo^t^hⁱⁿ^g^.^”¹⁸
^U^.^S.C^.^{§§ 22}⁵⁶⁽²⁾⁽^A⁾⁽^v⁾^,²²⁵^{2 n}^o^te^.

exploitative use of children, there is no constitutional right to possess child pornography even in ¹⁵
the privacy of one’s own home.
In 1996, Congress enacted the Child Pornography Protection Act (CPPA), which defined “child
pornography” to include visual depictions that appear to be of a minor, even if no minor is
actually used. The Supreme Court, however, declared the CPPA unconstitutional to the extent that ¹⁶
it prohibited pictures that are produced without actual minors. Pornography that uses actual
children may be banned because laws against it target “[t]he production of the work, not its ¹⁷
content”; the CPPA, by contrast, targeted the content, not the production. The government “may
not prohibit speech because it increases the chance an unlawful act will be committed ‘at some ¹⁸
indefinite future time.’” In 2003, Congress responded by enacting Title V of the PROTECT Act,
P.L. 108-21, which prohibits any “digital image, computer image, or computer-generated image
that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” It also
prohibits “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that
... depicts a minor engaging in sexually explicit conduct,” and is obscene or lacks serious literary,
artistic, political, or scientific value.

Justice Holmes, in one of his most famous opinions, wrote:
^T^h^{e m}^o^s^t^s^t^ring^eⁿ^{t protection}^of^f^r^{ee s}^p^eech^w^o^u^l^{d n}^o^{t protect a}^m^aⁿⁱⁿ^f^a^ls^el^y^s^h^ou^ti^ng^fⁱ^r^e
ⁱⁿ^a^th^eater^an^{d ca}^u^sⁱⁿ^g^a^panⁱ^{c.... T}^h^{e qu}^es^tion^{in ev}^er^y^cas^{e is}^w^h^et^h^e^{r t}^h^e^w^o^rds^u^s^{ed ...}¹⁹
^{create a clear an}^{d pres}^en^{t dan}^g^e^r....
In its current formulation of this principle, the Supreme Court held that “advocacy of the use of
force or of law violation” is protected unless “such advocacy is directed to inciting or producing ²⁰
imminent lawless action and is likely to incite or produce such action.” Similarly, the Court held
that a statute prohibiting threats against the life of the President could be applied only against ²¹
speech that constitutes a “true threat,” and not against mere “political hyperbole.”
In cases of content-based restrictions of speech other than advocacy or threats, the Supreme Court
generally applies “strict scrutiny,” which means that it will uphold a content-based restriction

¹⁵^O^s^bor^ne^v^.^O^h^io^{, 4}⁹⁵^U^.^S.¹⁰^{3 (}¹⁹⁹⁰⁾^.
¹⁶^A^s^h^c^ro^f^t^v^.^{Free Sp}^eech^Co^alitioⁿ^,⁴³⁵^U.S.²³⁴⁽²⁰⁰²⁾^.
¹⁷^Id^.^at²⁴⁹^;^{see al}^so^,^id.^a^t²^42.
¹⁸^Id^.^a^t²⁵^3.
¹⁹^S^c^h^eⁿ^c^{k v.}^Unⁱ^t^e^{d S}^t^at^es,²⁴^{9 U.S}^.⁴⁷^,⁵²⁽¹⁹¹⁹⁾^.
²⁰^B^r^a^ndeⁿ^bur^g^v^.^O^hⁱ^o^,³⁹^{5 U}^.^{S. 4}^44,⁴⁴^{7 (}¹⁹⁶⁹⁾^{. Se}^e^a^l^s^o^,^Ste^w^a^r^{t v}^.^Mc^C^o^y^,^{537 U}^.^S.⁹⁹^{3 (}²⁰⁰²⁾⁽^J^us^tic^e^Ste^v^eⁿ^s^’
^st^at^e^m^en^t^acco^m^p^an^yⁱⁿ^g^d^eⁿⁱ^al^of^certⁱ^o^rari^).
²¹^Wat^t^s^v.^Unⁱ^t^e^d^S^t^at^es,³⁹^{4 U.}^S^.⁷⁰⁵^,⁷⁰^{8 (}¹⁹⁶⁹⁾^.^S^{ee al}^so^,^NAA^C^P^v.^C^l^ai^bo^rⁿ^{e Har}^d^w^a^r^e^C^o^.^,⁴⁵^{8 U.}^S^.⁸⁸⁶
⁽¹⁹^82);^Plaⁿ^ne^d^P^a^re^nt^ho^od^v^.^Am^e^r^ic^aⁿ^Coa^litio^{n of}^Lⁱ^f^e^Ac^tiv^ist^s^{, 29}^{0 F}^.³^d¹⁰⁵⁸⁽⁹^th^Cⁱ^r^.²⁰⁰²⁾⁽^e^{n ba}^nc⁾^,^cert^.
^de^nie^d^,⁵^{39 U}^.^S.⁹⁵^{8 (}²⁰⁰³⁾⁽^t^he^“^N^ur^em^be^r^g^File^s^”^c^a^s^e⁾^{; Vir}^gⁱⁿⁱ^a^v^.^B^l^a^c^k^{, 538 U}^.^S.³⁴^3,³⁶^{0 (}²⁰⁰³⁾⁽^“^Iⁿ^tim^ida^tion
^{in t}^h^e^c^ons^ti^tuti^ona^lly^pr^os^c^r^iba^b^l^e^s^e^ns^e^of^t^h^{e w}^o^rdⁱ^s^{a t}^y^p^e^o^f^t^r^u^e^t^h^reat^,^w^h^{ere a sp}^{eaker d}ⁱ^rect^{s a t}^h^reat^t^o^a^p^e^rsoⁿ
^or^g^r^ou^p^of^pe^r^s^ons^w^{ith the}^inteⁿ^t^of^pla^cⁱ^ng^the^vⁱ^c^tim^{in f}^e^a^r^of^bodily^ha^r^m^or^de^a^t^h.”⁾^.

only if it is necessary “to promote a compelling interest,” and is “the least restrictive means to ²²
further the articulated interest.”
Thus, it is ordinarily unconstitutional for a state to proscribe a newspaper from publishing the ²³
name of a rape victim, lawfully obtained. This is because there ordinarily is no compelling ²⁴
governmental interest in protecting a rape victim’s privacy. By contrast, “[n]o one would
question but that a government might prevent actual obstruction to its recruiting service or the ²⁵
publication of the sailing dates of transports or the number and location of troops.” Similarly,
the government may proscribe “‘fighting’ words—those which by their very utterance inflict ²⁶
injury or tend to incite an immediate breach of the peace.” Here the Court was referring to
utterances that constitute “epithets or personal abuse” that “are no essential part of any exposition
of ideas,” as opposed to, for example, flag burning, which is discussed below, under “Symbolic
Speech.”

If the government limits speech, but its purpose in doing so is not based on the content of the
speech, then the limitation on speech may still violate the First Amendment, but it is less likely
than a content-based restriction to do so. This is because the Supreme Court applies less than
“strict scrutiny” to non-content-based restrictions. With respect to non-content-based restrictions,
the Court requires that the governmental interest be “significant” or “substantial” or “important,”
but not necessarily, as with content-based restrictions, “compelling.” And, in the case of non-
content-based restrictions, the Court requires that the restriction be narrowly tailored, but not, as
with content-based restrictions, that it be the least restrictive means to advance the governmental
interest.
Two types of speech restrictions that receive this “intermediate” scrutiny are (1) time, place, or
manner restrictions, and (2) incidental restrictions, which are restrictions aimed at conduct other
than speech, but that incidentally restrict speech. This report includes separate sections on these
two types of restrictions. In addition, restrictions on commercial speech, though content-based,
are subject to similar intermediate scrutiny; this report also includes a separate section on
commercial speech. Finally, bans on nude dancing and zoning restrictions on pornographic

²²^Sa^ble^C^o^m^m^unic^a^tions^of^C^a^lif^or^nia^,^Iⁿ^c^.^v^.^Fe^de^r^a^{l C}^o^m^m^unic^a^tions^C^o^m^m^is^sⁱ^{on, 49}^{2 U}^.^S^.¹¹⁵^,¹^{26 (}¹⁹⁸⁹⁾^{. T}^h^e
^Co^u^r^t^d^o^e^sⁿ^o^t^ap^p^l^y^st^ri^ct^scru^tⁱⁿ^y^t^o^an^o^t^h^e^{r t}^y^p^e^o^f^coⁿ^t^en^t^-^b^a^sed^rest^ri^ctⁱ^oⁿ^s^—rest^rⁱ^c^tⁱ^oⁿ^s^on^co^m^m^erci^al^sp^eech^,
^w^h^ic^{h is}^dis^c^us^s^e^{d be}^l^o^w^.
²³^T^h^e^Florⁱ^d^a^Sta^r^v^.^B^.^J^.^F^.,⁴⁹^{1 U}^.^{S. 5}²⁴⁽¹⁹⁸⁹⁾^{. T}^h^e^C^o^ur^{t le}^f^t^ope^{n the}^que^s^tⁱ^{on “}^w^he^the^r^{, i}ⁿ^c^a^s^e^s^w^h^e^r^e
^inf^o^r^m^a^{tion ha}^s^be^eⁿ^a^c^q^uⁱ^r^e^d^un^law^f^ul^ly^by^a^ne^w^s^pa^pe^r^or^by^a^sour^c^e^,^t^h^e^g^o^v^e^rⁿ^m^e^nt^m^a^y^e^v^e^r^pun^is^h^not^oⁿ^ly^the
^unla^w^f^u^{l a}^c^quisition^,^b^u^t^the^eⁿ^s^u^ing^pu^blic^a^tio^{n a}^s^w^e^ll.”^Id^.^a^t⁵³^{5 n.}^{8 (}^e^m^pha^sⁱ^sⁱⁿ^or^ig^ina^l⁾^.^Iⁿ^B^a^rtⁿⁱ^cki^v.^V^o^pp^er^,
⁵³²^U.S.⁵^{14 (}²⁰⁰¹⁾^{, t}^h^e^Cour^{t he}^{ld t}^h^a^t^a^c^oⁿ^t^eⁿ^t-ne^utra^l^sta^t^ute^pr^ohi^biti^ng^the^p^u^b^lic^a^tio^{n of}^ille^g^a^lly^inte^rc^e^p^te^d
^co^mm^uⁿⁱ^catⁱ^oⁿ^s⁽ⁱⁿ^t^hⁱ^s^{case a cel}^l^ph^on^{e co}ⁿ^v^ersatⁱ^oⁿ⁾^vi^o^l^at^{es f}^r^{ee sp}^eech^w^h^{ere t}^h^{e p}^e^rsoⁿ^w^h^o^p^u^b^lⁱ^s^h^e^{s t}^h^e
^mat^e^ri^al^dⁱ^d^no^t^p^a^rtⁱ^cⁱ^p^at^{e i}ⁿ^t^h^eⁱⁿ^t^e^rcep^tⁱ^oⁿ^,^and^t^h^{e co}^mm^uⁿⁱ^catⁱ^oⁿ^c^oⁿ^cern^s^a^p^u^b^lⁱ^cⁱ^ssu^e.
²⁴^How^e^ve^{r, the}^Cour^{t d}ⁱ^{d “}ⁿ^{ot r}^u^le^out^the^possi^bility^tha^t^{, i}ⁿ^a^pr^op^e^r^c^a^s^e^,ⁱ^m^posing^cⁱ^v^{il sa}^nc^{tions f}^o^{r p}^ubl^ic^a^tion^of
^th^{e n}^a^m^e^o^f^{a rap}^e^vⁱ^cti^m^mⁱ^g^h^{t b}^e^{... o}^v^erw^h^elmⁱⁿ^g^l^yⁿ^e^c^e^ssar^y^to^ad^v^aⁿ^{ce” a co}^m^p^ellin^g^{state in}^ter^e^st.^Id^.^a^t⁵³^7.
²⁵^N^e^a^r^v^.^Minne^s^o^ta^,²^{83 U}^.^S.⁶⁹⁷^,⁷¹^{6 (}¹⁹³¹⁾^.
²⁶^C^h^a^p^li^ns^k^y^v^.^N^e^w^H^a^m^p^s^h^ir^e^,^{315 U}^.^S.⁵⁶^8,⁵⁷^{2 (}¹⁹⁴²⁾^{. C}^a^m^pus^“^h^a^t^e^s^p^eech^{” p}^r^o^h^ib^itioⁿ^s^{at p}^u^b^{lic co}^lleg^e^{s (th}^e
^{First Am}^e^ndm^eⁿ^{t doe}^{s n}^o^{t a}^pply^{to priv}^a^t^e^c^o^lle^g^e^{s) a}^r^e^a^ppa^re^ntly^unc^oⁿ^stitu^tio^na^{l, e}^v^eⁿ^a^s^a^ppl^ie^{d t}^o^fⁱ^g^h^ting^w^o^rds,
ⁱ^f^t^h^e^y^co^{ver o}ⁿ^l^y^cert^aⁱⁿ^t^y^p^e^{s o}^f^h^a^t^e^sp^eech^,^su^c^h^{as sp}^eech^b^a^sed^on^raci^al^h^a^t^r^ed.^T^hⁱ^s^coⁿ^c^l^u^si^onⁱ^s^b^a^sed^oⁿ^t^h^e
^cro^ss-b^u^rⁿⁱⁿ^g^case,^R.A.V^.^v^.^City^of^{St. P}^a^u^l^,ⁱⁿ^f^r^a^no^t^e¹³⁸^.

theaters and bookstores, although discriminating on the basis of the content of speech, receive
intermediate scrutiny because, according to the Supreme Court, they are aimed at combating ²⁷
“secondary effects,” such as crime, and not at the content of speech.

There are two ways in which the government may attempt to restrict speech. The more common
way is to make a particular category of speech, such as obscenity or defamation, subject to
criminal prosecution or civil suit, and then, if someone engages in the proscribed category of
speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint,
which may occur in two ways. First, a statute may require that a person submit the speech that he
wishes to disseminate—a movie, for example—to a governmental body for a license to
disseminate it—e.g., to show the movie. Second, a court may issue a temporary restraining order
or an injunction against engaging in particular speech—publishing the Pentagon Papers, for
example.
With respect to both these types of prior restraint, the Supreme Court has written that “[a]ny
system of prior restraint of expression comes to this Court bearing a heavy presumption against ²⁸
its constitutional validity.” Prior restraints, it has held,
are the most serious and least tolerable infringement on First Amendment rights. ... A prior re-
straint, ... by definition, has an immediate and irreversible sanction. If it can be said that a threat
of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least
for the time. The damage can be particularly great when the prior restraint falls upon the commu-²⁹
nication of news and commentary on current events.
The Supreme Court has written that “[t]he special vice of a prior restraint is that communication
will be suppressed ... before an adequate determination that it is unprotected by the First ³⁰
Amendment.” The prohibition on prior restraint, thus, is essentially a limitation on restraints
until a final judicial determination that the restricted speech is not protected by the First
Amendment. It is a limitation, for example, against temporary restraining orders and preliminary
injunctions pending final judgment, not against permanent injunctions after a final judgment is ³¹
made that the restricted speech is not protected by the First Amendment.

²⁷^For^a^dditi^ona^l^inf^o^r^m^a^{tion o}ⁿ^t^hⁱ^s^s^ubje^c^t^{, s}^e^e^C^R^S^R^e^p^o^r^t^95-⁸⁰⁴^,^Ob^scenⁱ^t^y^an^{d Ind}^ecen^{cy: Co}ⁿ^s^tⁱ^t^u^tⁱ^oⁿ^a^l
^Pr^incⁱ^ple^s^aⁿ^d^Fe^de^r^a^l^St^atute^s^,^by^H^e^nr^y^C^ohe^n.
²⁸^Fr^e^e^d^m^a^{n v}^.^Ma^r^y^la^{nd, 38}^{0 U}^.^S.^51,⁵⁷^,^{58 (}¹⁹⁶⁵⁾⁽^“^a^no^nc^rⁱ^mⁱ^na^{l pr}^oc^e^s^s^w^h^ic^{h r}^e^qu^ir^e^s^the^pr^ior^s^ubm^is^sⁱ^{on of}^a
^fⁱ^l^m^t^o^{a cen}^so^{r avo}ⁱ^d^s^con^s^tⁱ^t^u^tⁱ^oⁿ^a^lⁱⁿ^fⁱ^rmⁱ^t^y^oⁿ^l^yⁱ^fⁱ^t^t^a^{kes p}^l^ace^unde^r^pr^oc^e^d^ur^a^l^s^a^f^e^g^u^a^r^ds^”⁾^{; Ne}^w^Y^o^r^k^Tⁱ^m^e^s
^C^o^{. v}^.^Uⁿⁱ^t^e^d^S^t^a^t^e^s^{, 40}^{3 U}^.^S.⁷¹^{3, 7}¹⁴⁽¹⁹⁷¹⁾⁽ⁱ^njuⁿ^c^tio^{n s}^o^ug^ht^by^Uⁿ^ite^{d Sta}^t^e^s^a^g^aⁱ^ns^{t pu}^blic^a^tⁱ^on^of^the^P^e^nta^g^on
^P^a^pe^r^s^de^nie^d⁾^.
²⁹^N^e^br^a^s^k^a^P^r^e^s^s^A^s^s^o^cⁱ^a^{tion v}^.^St^ua^r^t^{, 4}²⁷^U^.^S.⁵³^9,⁵⁵^{9 (}¹⁹⁷⁶⁾⁽^s^tr^ik^ing^dow^{n a}^c^our^{t or}^de^r^r^e^s^t^r^aⁱⁿ^ing^the
^pub^lic^a^tio^{n or}^br^oa^dc^a^s^{t of}^a^c^c^ounts^of^c^onf^e^s^sⁱ^ons^or^a^d^mⁱ^s^sⁱ^ons^m^a^de^by^the^de^f^e^nda^{nt a}^t^a^c^r^im^ina^l^tr^ia^l)^.
^In^j^uⁿ^c^tⁱ^oⁿ^s^t^h^at^{are d}^e^si^gn^ed^t^o^rest^ri^ct^m^e^r^e^l^y^t^h^{e t}ⁱ^m^e,^p^l^ace,^o^r^manⁿ^e^{r o}^f^{a p}^a^rtⁱ^c^u^l^{ar exp}^r^essi^on^{are su}^b^j^ect^t^o^{a l}^e^ss
^st^riⁿ^g^en^t^ap^plⁱ^catⁱ^oⁿ^o^f^Fⁱ^rst^A^m^eⁿ^d^m^en^t^p^rⁱⁿ^ci^p^l^es;^see,^“Tⁱ^m^e,^P^l^ace,^an^d^M^aⁿⁿ^{er Rest}^ri^ctⁱ^oⁿ^s^,^”^b^e^l^o^w^.
³⁰^P^ittsb^u^rg^h^P^r^e^{ss Co}^{. v}^.^Pⁱ^ttsb^u^rg^{h Com}^mⁱ^s^s^{ion o}ⁿ^Hum^aⁿ^Re^la^tio^{ns Com}^m^{ission, 4}¹³^U.S.³⁷^6,³⁹^{0 (1}⁹⁷^{3); se}^e
^a^l^s^o^,^Va^nc^e^v^.^Uⁿ^iv^e^r^s^a^{l A}^m^us^em^eⁿ^{t C}^o^.,⁴⁴^{5 U}^.^S.³⁰^8,³¹^5-³¹⁶⁽¹⁹⁸⁰⁾⁽^“^t^h^e^b^u^r^d^eⁿ^of^s^u^p^por^tⁱ^ng^aⁿⁱⁿ^ju^nc^tioⁿ
^a^g^aⁱ^{nst a}^f^u^ture^e^x^hibitioⁿ^[of^a^lle^g^e^dl^y^obsc^eⁿ^e^m^o^tion^pic^t^ur^e^s^]^is^e^v^eⁿ^he^a^v^ie^{r tha}ⁿ^the^bur^deⁿ^of^justifyⁱ^ng^the
^im^pos^ition^of^a^c^r^im^ina^l^s^a^nc^tion^f^o^r^a^pa^s^t^c^o^m^m^unic^a^tion”⁾^.
³¹^Se^e^,^Ma^rk^A^.^Le^m^l^e^y^a^{nd Eug}^eⁿ^e^V^o^l^ohk^,^F^r^eed^o^m^of^Sp^eech^and^In^j^uⁿ^c^tⁱ^oⁿ^sⁱⁿ^Iⁿ^t^e^l^l^ect^ua^l^P^r^o^p^ert^y^Ca^ses^{, 48}
⁽^c^onti^nue^d.^..)

In the case of a statute that imposes prior restraint, “a prescreening arrangement can pass ³²
constitutional muster if it includes adequate procedural safeguards.” These procedural
safeguards, the Court wrote, include that “the burden of proving that the film is unprotected
expression must rest on the censor,” and “that the censor will, within a specified brief period, ³³
either issue a license or go to court to restrain showing the film.” In the case of time, place, or
manner restrictions (and presumably other forms of speech that do not receive full First ³⁴
Amendment protection), lesser procedural safeguards are adequate.
Prior restraints are permitted in some circumstances. The Supreme Court has written, in dictum, ³⁵
“that traditional prior restraint doctrine may not apply to [commercial speech],” and the Court
has not ruled whether it does. “The vast majority of [federal] circuits ... do not apply the doctrine ³⁶
of prior restraint to commercial speech.” “Some circuits [however] have explicitly indicated that
the requirement of procedural safeguards in the context of a prior restraint indeed applies to ³⁷
commercial speech.”
Furthermore, “only content-based injunctions are subject to prior restraint analysis.”³⁸ In addition,
prior restraint is generally permitted, even in the form of preliminary injunctions, in intellectual ³⁹
property cases, such as those for infringements of copyright or trademark.

“The Constitution ... affords a lesser protection to commercial speech than to other ⁴⁰
constitutionally guaranteed expression.” Commercial speech is “speech that proposes a ⁴¹
commercial transaction.” That books and films are published and sold for profit does not make

^(...c^on^tin^ue^d)
^D^u^k^e^L^a^w^J^our^na^{l 14}^7,¹⁶^9-¹^{71 (}¹⁹⁹⁸⁾^.
³²^C^e^ntr^a^{l H}^u^ds^on^G^a^s^&^Ele^c^t^rⁱ^c^C^o^r^p^{. v}^.^Pu^blic^Se^r^v^ic^e^C^o^m^m^is^sⁱ^on^of^N^e^w^Y^o^r^k^{, 447}^U^.^S.⁵^57,⁵⁷¹^n.1³^.
³³^F^r^eed^maⁿ^,^s^upr^aⁿ^o^te²⁸^,³⁸^{0 U}^.^{S. a}^t⁵⁸^,⁵⁹^.
³⁴^T^hom^a^s^v^.^C^h^ic^a^g^{o P}^a^r^k^Dⁱ^s^t^rⁱ^c^t^,⁵³^{4 U}^.^S^.³¹⁶^,³^22-³²^{3 (}²⁰⁰²⁾^.
³⁵^C^e^ntr^a^{l H}^uds^oⁿ^,^s^upr^aⁿ^o^te³²^,⁴⁴⁷^U^.^S.^a^t⁵⁷¹^n.^13.
³⁶^B^o^s^l^e^y^v^.^W^ildW^e^t^T^.c^om^{, 310 F.}^Su^pp.²^d⁹¹⁴^,⁹³⁰⁽^N^.D^{. O}^hⁱ^o²⁰⁰⁴⁾^.
³⁷^N^e^w^Y^o^r^k^Mag^a^zⁱ^ne^v^.^Me^tr^opol^ita^{n T}^r^aⁿ^s^por^ta^ti^{on A}^u^th^or^ity^{, 13}^{6 F.}^3d¹^23,¹^{31 (}²^d^Cⁱ^r^.¹⁹⁹⁸⁾^,^c^e^r^{t. de}^nie^d^{, 52}⁵
^U^.^{S. 8}²⁴⁽¹⁹⁹⁸⁾^{; c}^iti^ng^a^s^e^x^am^pl^e^s^{, D}^e^s^e^r^t^O^u^tdoo^r^A^d^v^e^r^.^v^.^C^ity^of^Mor^eⁿ^o^Va^lle^y^,^{103 F}^.³^d⁸¹⁴^,⁸¹^{8 (}⁹^th^Cir.^th
¹⁹⁹^{6); I}ⁿ^re^Se^a^r^c^h^of^Kitty^{’s Ea}^s^t^{, 9}⁰⁵^F.2^d¹³^67,¹³⁷¹^-7^{2 &}ⁿ^.^{4 (}¹⁰^Cⁱ^r^.¹⁹⁹⁰⁾^.
³⁸^D^V^D^C^o^py^C^ontr^o^{l A}^s^s^o^cⁱ^a^tion,^Iⁿ^c^.^v^.^B^u^nne^r^,⁷⁵^P^.^3d^1,¹⁷⁽^C^a^l^{. 20}⁰³⁾⁽^a^“^p^rⁱ^or^r^e^s^t^r^a^int^is^a^c^ont^eⁿ^t-^bas^e^d
^rest^ri^ctⁱ^oⁿ^oⁿ^s^p^eech^pri^o^{r to}^{its o}^c^c^u^rre^nc^e^”^(ita^lic^{s in orig}^ina^l^)).^F^o^{r the}^te^{st re}^g^a^rding^c^onteⁿ^t-ne^utr^a^{l inju}^nc^tio^{ns, se}^e
^t^h^{e sect}ⁱ^oⁿ^oⁿ^“Tⁱ^m^e,^P^l^ace,^an^d^M^aⁿⁿ^e^{r Rest}^ri^ctⁱ^oⁿ^s^,^”^b^e^l^o^w^.
³⁹^Bosle^y^,^sup^r^a^note³⁶^{, a}^t⁹³⁰^;^L^e^m^l^ey^a^{nd V}^o^lok^h^,^sup^r^a^note^{31 (}^a^r^g^uing^tha^tⁱⁿ^te^lle^c^t^ua^{l pr}^ope^r^t^y^s^houl^d^ha^v^e^the
^sa^m^e^Fⁱ^rst^Amen^d^m^en^t^p^r^o^t^ectⁱ^o^{n f}^r^o^m^p^r^elⁱ^mⁱⁿ^ar^yⁱⁿ^j^uⁿ^c^tⁱ^oⁿ^s^{as ot}^h^e^{r sp}^eech^).
⁴⁰^Uⁿ^ite^d^Sta^t^e^s^v^.^Edg^e^B^r^oa^dc^a^s^ti^ng^C^o^.,⁵⁰^{9 U}^.^S.⁴¹^{8 (}¹⁹⁹³⁾^.
⁴¹^B^o^a^r^d^of^T^r^us^te^e^s^of^the^Sta^t^e^Uⁿ^iv^e^r^s^ity^o^f^N^e^w^Y^o^r^k^v^.^Fox^,⁴⁹^{2 U}^.^S.⁴^69,⁴^{82 (}¹⁹⁸⁹⁾⁽^e^m^pha^sⁱ^{s in}^or^ig^ina^l⁾^.^Iⁿ
^Ni^ke,^In^c.^v.^Ka^sky^{, 45 P.3}^d²⁴³⁽²⁰⁰²⁾^,^cert.^dⁱ^smissed^,⁵³⁹^U.^S^.⁶⁵⁴⁽²⁰⁰³⁾^,^Ni^{ke w}^a^{s su}^ed^f^o^{r u}ⁿ^f^ai^{r an}^d^d^ecep^tⁱ^v^e
^pr^a^c^tic^e^s^f^o^r^a^lle^ge^dly^f^a^lse^s^t^a^t^em^eⁿ^ts^{it m}^a^de^c^onc^e^r^ning^the^w^o^r^k^ing^c^onditⁱ^oⁿ^s^u^nde^r^w^h^ic^{h its}^p^r^od^uc^ts^w^e^r^e
^man^u^f^act^u^r^ed^.^T^h^{e Cal}ⁱ^f^o^rⁿⁱ^{a S}^u^p^r^em^{e Co}^u^r^t^ru^l^e^d^t^h^at^t^h^{e su}ⁱ^t^cou^l^d^p^r^o^ceed^,^an^d^t^h^{e S}^u^p^r^em^{e Co}^u^r^t^gran^t^e^d
^c^e^r^tioria^r^{i, b}^u^{t t}^h^eⁿ^dism^isse^{d it a}^s^im^prov^ideⁿ^tly^g^r^aⁿ^te^{d, w}^{ith a}^c^onc^urri^ng^aⁿ^d^tw^{o disse}^ntiⁿ^g^opⁱⁿ^io^{ns. T}^h^e^issue^le^f^t
^uⁿ^d^eci^d^e^d^w^a^s^w^h^et^h^e^{r Ni}^{ke’s st}^at^e^m^en^t^s^,^t^h^ou^gh^t^h^ey^coⁿ^cern^e^d^{a mat}^t^e^{r o}^f^p^u^b^lⁱ^c^d^e^b^a^t^e^an^{d ap}^pearedⁱⁿ^p^r^ess
^rel^{eases an}^d^l^e^t^t^e^{rs rat}^h^{er t}^h^anⁱⁿ^ad^vertⁱ^s^e^m^en^t^s^f^o^{r i}^t^s^p^r^o^d^u^c^t^s^,^s^h^o^u^l^d^b^e^d^eem^ed^“‘co^mm^erci^al^sp^eech^{’ b}^ecau^{se t}^h^ey
^mⁱ^g^h^{t a}^f^f^e^c^t^c^ons^um^e^r^s^’^opini^ons^a^bou^{t t}^h^e^busⁱⁿ^e^s^s^a^s^a^g^{ood c}^o^rp^ora^t^e^c^itiz^eⁿ^aⁿ^d^the^r^e^b^y^a^ffe^c^t^theⁱ^{r purc}^h^a^sⁱⁿ^g
^de^cⁱ^sⁱ^ons^.”^Id^.^a^t⁶⁵^{7 (Ste}^v^e^{ns, J.,}^c^onc^urri^ng^{). Nik}^e^subse^q^ue^ntly^se^ttle^{d the}^c^a^s^e^.

them commercial speech; i.e., it does not “prevent them from being a form of expression whose ⁴²
liberty is safeguarded [to the maximum extent] by the First Amendment.” Commercial speech,
however, may be banned if it is false or misleading, or if it advertises an illegal product or
service. Even if fits in none of these categories, the government may regulate it more than it may
regulate fully protected speech. In addition, the government may generally require disclosures to
be included in commercial speech; see the section on “Compelled Speech,” below.
The Supreme Court has prescribed the four-prong Central Hudson test to determine whether a
governmental regulation of commercial speech is constitutional. This test asks initially (1)
whether the commercial speech at issue is protected by the First Amendment (that is, whether it
concerns a lawful activity and is not misleading) and (2) whether the asserted governmental
interest in restricting it is substantial. “If both inquiries yield positive answers,” then to be
constitutional the restriction must (3) “directly advance[ ] the governmental interest asserted,” ⁴³
and (4) be “not more extensive than is necessary to serve that interest.”
The Supreme Court has held that, in applying the third prong of the Central Hudson test, the
courts should consider whether the regulation, in its general application, directly advances the
governmental interest asserted. If it does, then it need not advance the governmental interest as ⁴⁴
applied to the particular person or entity challenging it. Its application to the particular person or
entity challenging it is relevant in applying the fourth Central Hudson factor, although this factor
too is to be viewed in terms of “the relation it bears to the overall problem the government seeks ⁴⁵
to correct.” The fourth prong is not to be interpreted “strictly” to require the legislature to use
the “least restrictive means” available to accomplish its purpose. Instead, the Court has held,
legislation regulating commercial speech satisfies the fourth prong if there is a reasonable “fit” ⁴⁶
between the legislature’s ends and the means chosen to accomplish those ends.
The Supreme Court has applied the Central Hudson test in all the commercial speech cases it has ⁴⁷
decided since Central Hudson, and we discuss the ten most recent below, in chronological order.
In nine of these cases, the Court struck down the challenged speech restriction; it has not upheld a
commercial speech restriction since 1993. In its most recent commercial speech case, Thompson
v. Western States Medical Center, the Court noted that “several Members of the Court have
expressed doubts about the Central Hudson analysis and whether it should apply in particular
cases.” These justices believe that the test does not provide adequate protection to commercial
speech, but the Court has found it unnecessary to consider whether to abandon the test, because it
has been striking down the statutes in question anyway.
In Cincinnati v. Discovery Network, Inc., the Court struck down a Cincinnati regulation that
banned newsracks on public property if they distributed commercial publications, but not if they ⁴⁸
distributed news publications. As for the first two prongs of the Central Hudson test, the Court

⁴²^J^o^s^e^{ph B}^u^r^s^ty^{n, I}ⁿ^c^.^v^.^W^ils^on^{, 3}^{43 U}^.^S.⁴⁹^5,⁵⁰^1-⁵^{02 (}¹⁹⁵²⁾^.
⁴³^C^e^ntr^a^{l H}^u^ds^on^G^a^s^&^Ele^c^t^rⁱ^c^C^o^r^p^{. v}^.^Pu^blic^Se^r^v^ic^e^C^o^m^m^is^sⁱ^on^of^N^e^w^Y^o^r^k^,^s^upr^a^note³²^{, 4}^{47 U}^.^{S. a}^t⁵⁶⁶
⁽¹⁹⁸⁰⁾^.
⁴⁴^S^ee,^Ed^ge^Br^o^adc^as^ti^ng^,^sup^r^a^no^t^e⁴⁰^,⁵⁰⁹^U.^S^.^at⁴²^7.
⁴⁵^Id^.^a^t⁴³^0.
⁴⁶^B^o^a^r^d^of^T^r^us^te^e^s^of^the^Sta^t^e^Uⁿ^iv^e^r^s^ity^o^f^N^e^w^Y^o^r^k^v^.^Fox^,⁴⁹^{2 U}^.^S.⁴^69,⁴^{80 (}¹⁹⁸⁹⁾^.
⁴⁷^W^e^d^o^no^tⁱⁿ^cl^ud^{e am}^oⁿ^g^t^h^{e t}^e^{n t}^h^{e t}^h^{ree cases (d}ⁱ^s^cu^ssed^b^e^l^o^w^,^at^t^h^{e end}^o^f^t^h^{e sect}ⁱ^oⁿ^oⁿ^“C^om^p^e^l^l^e^d^S^p^eech^”)
ⁱⁿ^vo^l^vⁱⁿ^{g assess}^m^eⁿ^t^s^f^o^{r go}^vern^men^t^-co^m^p^e^l^l^e^d^ad^vertⁱ^s^e^m^en^t^s^,^b^ecau^{se t}^h^{e Co}^u^r^t^di^dⁿ^o^t^ap^pl^y^t^h^e^C^e^ntr^a^l^H^uds^on
^t^e^stⁱⁿ^t^h^{ese cases.}
⁴⁸⁵⁰^{7 U}^.^S^.⁴¹⁰⁽¹⁹⁹³⁾^.

found that the commercial publications at issue were not unlawful or misleading, and that the
asserted governmental interest in safety and esthetics was substantial. As for the third and fourth
prongs, although banning commercial newsracks presumably advances the asserted governmental
interests, the distinction between commercial and noncommercial speech “bears no relationship ⁴⁹
whatsoever to the particular interests that the city has asserted.” The city, therefore, did not
establish “the ‘fit’ between its goals and its chosen means that is required by our opinion in ⁵⁰
Fox.”
In Edenfield v. Fane,⁵¹ the Court struck down a Florida ban on solicitation by certified public ⁵²
accountants, even though the Court had previously, in Ohralik v. Ohio State Bar Association,
upheld a ban on solicitation by attorneys. The Court found that the government had substantial
interests in the ban, including the prevention of fraud, the protection of privacy, and the need to
maintain CPA independence and to guard against conflicts of interest. However, the Court found
no evidence that the ban directly advanced these interests, and noted, among other things, that,
“[u]nlike a lawyer, a CPA is not ‘a professional trained in the art of persuasion,’” and “[t]he
typical client of a CPA is far less susceptible to manipulation than the young accident victim in ⁵³
Ohralik.”
The Court added, more generally, that the government’s burden in justifying a restriction on
commercial speech “is not satisfied by mere speculation or conjecture; rather, a governmental
body seeking to sustain a restriction on commercial speech must demonstrate that the harms it ⁵⁴
recites are real and that its restriction will in fact alleviate them to a material degree.”
In United States v. Edge Broadcasting Co., the Court upheld “federal statutes that prohibit the
broadcast of lottery advertising by a broadcaster licensed to a State that does not allow lotteries, ⁵⁵
while allowing such broadcasting by a broadcaster licensed to a State that sponsors a lottery.... ”
The governmental interest in the statutes was to balance the interests of states that prohibit
lotteries and states that operate lotteries. The broadcaster that challenged the statutes was licensed
in North Carolina, which does not allow lotteries, but broadcasted from only three miles from the
Virginia border, which does allow lotteries. The broadcaster claimed that prohibiting it from
broadcasting advertisements for the Virginia lottery did not advance the governmental interest or
represent a “reasonable fit” because North Carolina radio listeners in its area were already
inundated with advertisements from Virginia stations advertising the Virginia lottery and because
most of the broadcaster’s listeners were in Virginia. The Supreme Court upheld the statutes
because, even if they did not advance the governmental interest or represent a reasonable fit as
applied to the particular broadcaster, they did as applied to the overall problem the government
sought to address.
In Ibanez v. Florida Board of Accountancy, the Court held that the Florida Board of Accountancy
could not reprimand an accountant for truthfully referring to her credentials as a Certified Public
Accountant and a Certified Financial Planner in her advertising and other communication with

⁴⁹^Id^.^a^t⁴²^{4 (}^e^m^pha^sⁱ^sⁱⁿ^or^ig^ina^l⁾^.
⁵⁰^Id^.^a^t⁴²^8.
⁵¹⁵⁰^{7 U}^.^S^.⁷⁶¹⁽¹⁹⁹³⁾^.
⁵²⁴³^{6 U}^.^S^.⁴⁴⁷⁽¹⁹⁷⁸⁾^.
⁵³^Edeⁿ^fie^l^d^,^s^upr^a^no^t^e⁵¹^,⁵⁰⁷^U.S^.^at⁷⁷^5.
⁵⁴^Id^.^a^t⁷⁷^0-⁷⁷¹^.
⁵⁵^Edge^Br^oa^dc^as^ti^ng^,^sup^r^aⁿ^o^t^e⁴⁰^,⁵⁰^{9 U.}^S^.^at⁴²¹^.

the public, such as her business cards and stationery.⁵⁶ The Court wrote that it “cannot imagine ⁵⁷
how consumers can be misled by her truthful representation” that she was a CPA.”
In Rubin v. Coors Brewing Co., the Court struck down a federal statute, 27 U.S.C. § 205(e), that ⁵⁸
prohibits beer labels from displaying alcohol content unless state law requires such disclosure.
The Court found sufficiently substantial to satisfy the second prong of the Central Hudson test
the government’s interest in curbing “strength wars” by beer brewers who might seek to compete
for customers on the basis of alcohol content. However, it concluded that the ban “cannot directly
and materially advance” this “interest because of the overall irrationality of the Government’s ⁵⁹
regulatory scheme.” This irrationality is evidenced by the fact that the ban does not apply to
beer advertisements, and by the fact that the statute requires the disclosure of alcohol content on
the labels of wines and spirits.
In Florida Bar v. Went For It, Inc., the Court upheld a rule of the Florida Bar that prohibited
personal injury lawyers from sending targeted direct-mail solicitations to victims and their ⁶⁰
relatives for 30 days following an accident or disaster. The Bar argued “that it has a substantial
interest in protecting the privacy and tranquility of personal injury victims and their loved ones ⁶¹
against intrusive, unsolicited contact by lawyers,” and the Court found that “[t]he anecdotal
record mustered by the Bar” to demonstrate that its rule would advance this interest in a direct ⁶²
and material way was “noteworthy for its breadth and detail”; it was not “mere speculation and ⁶³
conjecture.” Therefore, the rule passed what the Court called the second prong of the Central ⁶⁴
Hudson test. As for the final prong, the Court found the Bar’s rule to be “reasonably well ⁶⁵
tailored to its stated objective.... ” In a subsequent case, the Court wrote that, in Florida Bar v.
Went For It, Inc., it had “upheld a 30-day prohibition against a certain form of legal solicitation ⁶⁶
largely because it left so many channels of communication open to Florida lawyers.”

⁵⁶⁵¹^{2 U}^.^S^.¹³⁶⁽¹⁹⁹⁴⁾^{. C}^u^rⁱ^o^u^s^l^y^,^the^C^o^ur^{t i}ⁿ^I^b^ane^z^w^rⁱ^t^e^{s t}^h^at^“on^l^y^f^a^l^s^e,^d^ecep^tⁱ^v^e,^o^r^mⁱ^sl^e^a^dⁱ^{ng co}^mmerci^a^l
^sp^eech^m^a^{y b}^e^b^aⁿⁿ^e^d^”⁽^id^.^a^t¹⁴²⁾^,^de^s^p^ite^its^de^cⁱ^sⁱ^ons^up^hol^di^ng^ba^ns^of^tr^uthf^{ul c}^o^m^m^e^r^cⁱ^a^l^s^p^e^e^c^hⁱⁿ^Ed^ge
^Br^oadc^as^tin^g^,^s^upr^a^no^t^e⁴⁰^,^and^o^t^h^e^{r cases.}^P^e^rh^ap^{s t}^h^{e Cou}^r^t^m^ean^t^t^h^at^oⁿ^l^y^f^a^l^s^e,^d^ecep^tⁱ^v^e,^o^r^mⁱ^sl^eadⁱⁿ^g
^co^mmerci^a^l^sp^eech^m^a^y^b^e^b^aⁿⁿ^e^d^wⁱ^t^h^o^u^t^con^sⁱ^d^eratⁱ^oⁿ^o^f^t^h^{e sec}^oⁿ^d^,^t^hⁱ^r^d,^and^f^o^u^r^t^h^p^r^oⁿ^g^{s o}^f^t^h^e^C^e^ntr^a^{l H}^u^ds^oⁿ
^te^st.
⁵⁷^Id^.^a^t¹⁴^4.
⁵⁸⁵¹^{4 U}^.^S^.⁴⁷⁶⁽¹⁹⁹⁵⁾^.
⁵⁹^Id^.^a^t⁴⁸^8.
⁶⁰⁵¹^{5 U}^.^S^.⁶¹⁸⁽¹⁹⁹⁵⁾^.
⁶¹^Id^.^a^t⁶²^4.
⁶²^Id^.^a^t⁶²^7.
⁶³^Id^.^a^t⁶²^6.
⁶⁴^T^h^{e Co}^u^r^{t ref}^e^rred^to^t^h^e^C^e^ntr^a^l^H^uds^oⁿ^te^s^t^a^s^ha^vⁱ^ng^t^h^r^e^e^pa^r^t^s^,^a^{nd r}^e^f^e^r^r^e^{d to i}^t^s^s^e^c^ond^{, t}^h^ir^d^,^a^{nd f}^our^t^h
^pr^oⁿ^g^s^{, a}^s^{, r}^e^s^p^e^c^tiv^e^l^y^,^its^fⁱ^r^s^{t, se}^c^{ond, a}^nd^thir^{d. T}^h^e^C^o^ur^t^didⁿ^o^t,^how^e^v^e^r^{, a}^lte^r^the^s^ubs^ta^nc^e^o^f^the^te^s^t^{. I}ⁿ⁴⁴
^Liqu^or^m^a^r^t^,^Iⁿ^c^.^v^.^Rh^ode^I^s^l^aⁿ^d^,⁵¹⁷^U^.^S.⁴^84,⁵^{29 (}¹⁹⁹⁶⁾⁽^O^’^C^on^nor^,^J^{., c}^o^nc^ur^rⁱ^ng⁾^,^the^j^u^s^tic^e^s^r^e^turⁿ^e^d^to^the
^tra^d^itio^na^{l n}^u^m^b^e^r^ing^.
⁶⁵^Id^.^a^t⁶³^{3. I}ⁿ^Sh^ape^r^o^v^.^K^e^ntuc^k^y^Bar^As^s^o^cⁱ^a^tioⁿ^,⁴⁸^{6 U}^.^S^.⁴⁶⁶⁽¹⁹⁸⁸⁾^,^the^C^our^t^ha^d^pr^e^v^ious^ly^h^e^{ld tha}^t^a^s^t^a^t^e
^ma^yⁿ^o^t^p^l^{ace a “b}^an^oⁿ^all^dⁱ^rect^-mai^l^so^lⁱ^cⁱ^t^a^tⁱ^oⁿ^s^,^w^h^at^{ever t}^h^{e t}ⁱ^m^{e f}^r^a^m^{e an}^d^w^h^o^e^{ver t}^h^{e reci}^pⁱ^en^t^.^”^Fl^or^id^{a B}^a^r^,
⁵¹⁵^U^.^S.^a^t⁶^{29 (}^e^m^pha^sⁱ^sⁱⁿ^or^ig^ina^l⁾^.^T^h^e^C^o^ur^t^ha^s^a^l^s^o^he^l^d^t^h^a^t^a^no^npr^of^{it or}^g^a^niz^a^tion’^s^s^o^lic^it^a^tion^by^le^tte^r^of
^prospe^c^tiv^e^c^lie^{nts is a}^prote^c^t^e^d^f^o^rm^of^politic^a^l^e^x^pre^{ssion (}^In^r^e^P^rⁱ^m^u^s^,⁴³^{6 U.}^S^.⁴¹²⁽¹⁹⁷⁸^)),^and^t^h^at^{a st}^at^{e m}^a^y
^pro^h^ibit^la^wy^e^r^{s f}^r^o^m^solic^iting^p^r^ospe^c^tiv^e^c^lie^{nts in}^pe^rson⁽^Ohra^lik^v^.^Ohio^St^ate^B^a^{r Assoc}ⁱ^a^tioⁿ^,⁴³⁶^U^.^S.⁴⁴⁷
⁽¹⁹⁷⁸⁾⁾^.^T^h^e^A^vⁱ^a^{tion D}ⁱ^s^a^s^t^e^r^Fa^mⁱ^l^y^A^s^sⁱ^s^t^aⁿ^c^e^A^c^{t of}^1996,⁴⁹^U^.^S.C^.^{§ 1}¹³⁶⁽^g⁾⁽²⁾^,^pr^o^hⁱ^b^its^uⁿ^s^olic^ite^d^th
^c^o^m^m^unic^a^tions^c^onc^e^rⁿⁱ^ng^a^po^t^e^ntia^{l a}^c^tion^f^o^r^pe^r^s^ona^l^inj^u^r^y^or^w^r^ong^f^u^{l de}^a^t^{h be}^f^o^r^e^the³⁰^d^a^y^f^o^llowⁱ^ng^aⁿ
^acci^d^eⁿ^tⁱⁿ^vo^l^vⁱⁿ^{g an ai}^{r carri}^{er pro}^vⁱ^dⁱⁿ^{g i}ⁿ^t^e^rst^a^t^e^o^r^f^o^rei^gⁿ^ai^{r t}^r^an^sp^o^r^t^a^tⁱ^oⁿ^.
⁶⁶
⁽^c^onti^nue^d.^..)

In 44 Liquormart, Inc. v. Rhode Island, the Court, struck down a state statute that prohibited ⁶⁷
disclosure of retail prices in advertisements for alcoholic beverages. In the process, it increased
the protection that the Central Hudson test guarantees to commercial speech by making clear that
a total prohibition on “the dissemination of truthful, nonmisleading commercial messages for
reasons unrelated to the preservation of a fair bargaining process” will be subject to a stricter
review by the courts than a regulation designed “to protect consumers from misleading, ⁶⁸
deceptive, or aggressive sales practices.”
The Court added: “The First Amendment directs us to be especially skeptical of regulations that ⁶⁹
seek to keep people in the dark for what the government perceives to be their own good.” It
concluded “that the price advertising ban cannot survive the more stringent constitutional review
that Central Hudson itself concluded was appropriate for the complete suppression of truthful, ⁷⁰
nonmisleading commercial speech.”
In Greater New Orleans Broadcasting Association, Inc. v. United States,⁷¹ the Court applied the
Central Hudson test to strike down, as applied to advertisements of private casino gambling that
are broadcast by radio or television stations located in Louisiana, where such gambling is legal, ⁷²
the same federal statute it had upheld in United States v. Edge Broadcasting Co., as applied to
broadcast advertising of Virginia’s lottery by a radio station located in North Carolina, where no
such lottery was authorized. The Court emphasized the interrelatedness of the four parts of the
Central Hudson test; e.g., though the government has a substantial interest in reducing the social
costs of gambling, the fact that the Congress has simultaneously encouraged gambling, because
of its economic benefits, makes it more difficult for the government to demonstrate that its
restriction on commercial speech materially advances its asserted interest and constitutes a
reasonable “fit.” In this case, “[t]he operation of [18 U.S.C.] § 1304 and its attendant regulatory
regime is so pierced by exemptions and inconsistencies that the Government cannot hope to
exonerate it. . . . [T]he regulation distinguishes among the indistinct, permitting a variety of
speech that poses the same risks the Government purports to fear, while banning messages ⁷³
unlikely to cause any harm at all.”
In Lorillard Tobacco Co. v. Reilly, the Supreme Court applied the Central Hudson test to strike
down most of the Massachusetts Attorney General’s regulations governing the advertising and ⁷⁴
sale of cigarettes, smokeless tobacco, and cigars. The Court first found the “outdoor and point-
of-sale advertising regulations targeting cigarettes” to be preempted by the Federal Cigarette

^(...c^on^tin^ue^d)
^{44 L}ⁱ^q^uor^m^a^r^t^{, I}ⁿ^c^.^v^.^R^h^ode^I^s^la^nd,⁵¹^{7 U}^.^S.⁴⁸^4,⁵⁰^{2 (}¹⁹⁹⁶⁾^.
⁶⁷^Id^.
⁶⁸^Id^.^a^t⁵⁰^{1. T}^h^e^nine^j^u^s^tic^e^s^w^e^r^e^unaⁿⁱ^m^ous^{in s}^t^rⁱ^kⁱ^ng^dow^{n t}^h^e^l^a^w^,^w^h^ic^{h pr}^oh^ibite^{d a}^d^v^e^r^tis^ing^the^pr^ic^e^of
^a^l^c^oholic^be^v^e^r^a^g^e^s^,^{but on}^ly^pa^r^t^s^of^J^u^s^tic^e^Ste^v^eⁿ^s^’^opi^nioⁿ^f^o^r^t^h^e^C^our^{t w}^e^r^e^joine^d^by^a^m^a^jor^ity^o^f^jus^tic^e^s^{. T}^h^e
^quo^ta^tio^ns^a^bov^e^,^f^o^r^e^x^a^m^ple^,^a^r^e^f^r^o^m^P^a^r^t^I^V^of^the^C^our^t’^s^o^pⁱⁿ^ion,^w^h^ic^{h w}^a^s^joine^d^by^only^J^u^s^tic^e^s^K^e^nne^dy^a^nd
^Gⁱ^ns^bur^g^be^sⁱ^de^s^J^u^s^tic^e^Ste^v^eⁿ^s^.
⁶⁹^Id^.^a^t⁵⁰^3.
⁷⁰^Id^.^a^t⁵⁰^{8, c}ⁱ^tⁱ^ng^C^e^ntr^a^{l H}^u^ds^on^,^s^upr^aⁿ^o^te³²^,⁴⁴^{7 U}^.^{S. a}^t⁵⁶^6,^n.9.
⁷¹⁵²^{7 U}^.^S^.¹⁷³⁽¹⁹⁹⁹⁾^.
⁷²^Edge^Br^oa^dc^as^ti^ng^,^sup^r^a^note^s^{40, 55}^.
⁷³⁵²⁷^U.^S.^at¹⁹^0,¹⁹^5.
⁷⁴⁵³^{3 U}^.^S^.⁵²⁵⁽²⁰⁰¹⁾^.

Labeling and Advertising Act, 15 U.S.C. §§ 1331-1341.⁷⁵ By its terms, however, this statute’s
preemption provision applies only to cigarettes, so the Court considered the smokeless tobacco
and cigar petitioners’ First Amendment challenges to the outdoor and point-of-sale advertising
regulations. Further, the cigarette petitioners did not raise a preemption challenge to
Massachusetts’ sales practices regulations (regulations, described below, other than outdoor and
point-of-sale advertising regulations), so the Court considered the cigarette as well as the
smokeless tobacco and cigar petitioners’ claim that these regulations violate the First
Amendment.
The Court struck down the outdoor advertising regulations under the fourth prong of the Central
Hudson test, finding that the prohibition of any advertising within 1,000 feet of schools or
playgrounds “prohibit[ed] advertising in a substantial portion of the major metropolitan areas of ⁷⁶
Massachusetts,” and that such a burden on speech did not constitute a reasonable fit between the
means and ends of the regulatory scheme. “Similarly, a ban on all signs of any size seems ill ⁷⁷
suited to target the problem of highly visible billboards, as opposed to smaller signs.”
The Court found “that the point-of-sale advertising regulations fail both the third and fourth steps ⁷⁸
of the Central Hudson analysis.” The prohibition on advertising “placed lower than five feet
from the floor of any retail establishment which is located within a one thousand foot radius of”
any school or playground did not advance the goal of preventing minors from using tobacco
products because “[n]ot all children are less than 5 feet tall, and those who are certainly have the ⁷⁹
ability to look up and take in their surroundings.”
The Court, however, upheld the sales practices regulations that “bar the use of self-service
displays and require that tobacco products be placed out of the reach of all consumers in a ⁸⁰
location accessible only to salespersons.” These regulations, though they “regulate conduct that
may have a communicative component,” do so “for reasons unrelated to the communications of ⁸¹
ideas.” The Court therefore applied the O’Brien test for incidental restrictions of speech (see the
section below on “Incidental Restrictions”) and concluded “that the State has demonstrated a
substantial interest in preventing access to tobacco products by minors and has adopted an ⁸²
appropriately narrow means of advancing that interest.”
In Thompson v. Western States Medical Center,⁸³ the Court struck down section 503A of the
Food, Drug, and Cosmetic Act, 21 U.S.C. § 353a, which “exempts ‘compounded drugs’ from the
Food and Drug Administration’s standard drug approval requirements as long as the providers of
those drugs abide by several restrictions, including that they refrain from advertising or ⁸⁴
promoting particular compounded drugs.” “Drug compounding,” the Court explained, “is a
process by which a pharmacist or doctor combines, mixes, or alters ingredients to create a

⁷⁵^Id^.^a^t⁵⁵^1.
⁷⁶^Id^.^a^t⁵⁶^2.
⁷⁷^Id^.^a^t⁵⁶^3.
⁷⁸^Id^.^a^t⁵⁶^6.
⁷⁹^Id^.
⁸⁰^Id^.^a^t⁵⁶^7.
⁸¹^Id^.^a^t⁵⁶^9.
⁸²^Id^.
⁸³⁵³^{5 U}^.^S^.³⁵⁷⁽²⁰⁰²⁾^.
⁸⁴^Id^.^a^t³⁶^0.

medication tailored to the needs of an individual patient.”⁸⁵ The Court found that the speech
restriction in this case served “important” governmental interests, but that, “[e]ven assuming” that ⁸⁶
it directly advances these interests, it failed the fourth prong of the Central Hudson test. In
considering the fourth prong, the Court wrote that “the Government has failed to demonstrate that
the speech restrictions are ‘not more extensive than is necessary to serve’” the governmental
interests, as “[s]everal non-speech-related means [of serving those interests] might be possible ⁸⁷
here.” “If the First Amendment means anything,” the Court added, “it means that regulating
speech must be a last—not first—resort. Yet here it seems to have been the first strategy the ⁸⁸
Government thought to try.” The Court noted that it had “rejected the notion that the
Government has an interest in preventing the dissemination of truthful commercial information in ⁸⁹
order to prevent members of the public from making bad decisions with the information.”
In saying that the government failed to demonstrate that the speech restrictions were “not more
extensive than is necessary to serve” the governmental interests, the Court was quoting from the
fourth prong of the Central Hudson test, but nowhere in Thompson did it note that it had
previously modified the fourth prong to require merely a reasonable “fit” between the
legislature’s ends and means, and not use of the least restrictive means to serve the governmental
interests. Rather, it wrote: “In previous cases addressing this final prong of the Central Hudson
test, we have made clear that if the Government could achieve its interests in a manner that does ⁹⁰
not restrict speech, or that restricts less speech, the Government must do so.” Yet the Court did
not state that it intended to overrule its reasonable “fit” construction of the fourth prong.

Defamation (libel is written defamation; slander is oral defamation) is the intentional
communication of a falsehood about a person, to someone other than that person, that injures the
person’s reputation. The injured person may sue and recover damages under state law, unless state
law makes the defamation privileged (for example, a statement made in a judicial, legislative,
executive, or administrative proceeding is ordinarily privileged). Being required to pay damages
for a defamatory statement restricts one’s freedom of speech; defamation, therefore, constitutes an
exception to the First Amendment.
The Supreme Court, however, has granted limited First Amendment protection to defamation.
The Court has held that public officials and public figures may not recover damages for
defamation unless they prove, with “convincing clarity,” that the defamatory statement was made
with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of ⁹¹
whether it was false or not.”

⁸⁵^Id^.^a^t³⁶^0-³⁶¹^.
⁸⁶^Id^.^a^t³⁶^{9, 37}^1.
⁸⁷^Id^.^a^t³⁷^{1, 37}^2.
⁸⁸^Id^.^a^t³⁷^3.
⁸⁹^Id^.^a^t³⁷^4.
⁹⁰^Id^{. a}^t³⁷^1.
⁹¹^Ne^w^York^Tⁱ^m^e^{s v}^.^Sulliv^aⁿ^,³⁷^{6 U.S.}²^54,²^79-²⁸^{0 (1}⁹⁶^{4); C}^u^rti^s^Publ^ishi^ng^{Co. v}^.^B^u^tts,³⁸^{8 U.}^{S. 1}³⁰⁽¹⁹⁶^7).

The Court has also held that a private figure who sues a media defendant for defamation may not
recover without some showing of fault, although not necessarily of actual malice (unless the
relevant state law requires it). However, if a defamatory falsehood involves a matter of public
concern, then even a private figure must show actual malice in order to recover presumed ⁹²
damages (i.e., not actual financial damages) or punitive damages.

Speech that is otherwise fully protected by the First Amendment may be restricted in order to
protect children. This is because the Court has “recognized that there is a compelling interest in ⁹³
protecting the physical and psychological well-being of minors.” However, any restriction must
be accomplished “‘by narrowly drawn regulations without unnecessarily interfering with First
Amendment freedoms.’ It is not enough to show that the government’s ends are compelling; the ⁹⁴
means must be carefully tailored to achieved those ends.”
Thus, the government may prohibit the sale to minors of material that it deems “harmful to ⁹⁵
minors” (“so called ‘girlie’ magazines”), whether or not they are not obscene as to adults. It may
prohibit the broadcast of “indecent” language on radio and television during hours when children ⁹⁶
are likely to be in the audience, but it may not ban it around the clock unless it is obscene.

⁹²^G^e^r^t^z^v.^R^o^b^e^r^t^Wel^c^h^,^Iⁿ^c.,⁴¹⁸^U.^S^.³²^{3 (}¹⁹⁷⁴⁾^.
⁹³^Sa^ble^C^o^m^m^unic^a^tions^of^C^a^lif^or^nia^,^Iⁿ^c^.^v^.^FC^C^,⁴⁹^{2 U}^.^S^.¹¹⁵^,¹^{26 (}¹⁹⁸⁹⁾^{. A}^f^e^de^r^a^{l dis}^t^rⁱ^c^t^c^our^t^note^d^t^h^a^t^{, i}ⁿ
^{cases t}^h^atⁱⁿ^vo^l^v^{e a rest}^ri^ctⁱ^oⁿ^o^f^mⁱⁿ^o^r^{s’ acces}^{s t}^o^sexu^al^l^y^e^x^p^lⁱ^cⁱ^t^m^a^t^e^ri^al^,^“t^h^e^S^u^p^r^em^{e Co}^u^r^t^’^{s j}^u^ri^sp^r^u^d^eⁿ^{ce do}^es
^{not re}^quire^e^m^piric^a^l^e^v^ideⁿ^c^e^.^Oⁿ^ly^s^o^m^e^mⁱⁿⁱ^m^a^{l am}^{ount of}^e^v^ideⁿ^c^e^is^re^quire^d.^{... ”}^Pla^y^boy^Entertaⁱ^nm^eⁿ^{t G}^r^oup,
^Iⁿ^c^.^v^.^U^.^S.^{, 3}⁰^F^.^S^u^p^p^.^2d⁷⁰^2,⁷¹⁶⁽^D^{. D}^e^l.¹⁹⁹⁸⁾^;^af^f’^d^,⁵^{29 U}^.^{S. 8}⁰³⁽²⁰⁰⁰⁾^{. B}^y^c^ontr^a^s^t^{, in}^c^a^s^e^s^{not i}ⁿ^v^o^lv^ing
^acces^{s o}^f^mⁱⁿ^o^r^{s t}^o^sexu^al^l^y^exp^lⁱ^cⁱ^t^m^a^t^e^ri^al^,^t^h^{e S}^u^p^r^em^{e Co}^u^r^t^gen^e^ral^l^y^req^uⁱ^{res t}^h^at^t^h^{e go}^vernmen^t^,^t^o^j^u^stⁱ^f^y^a
^rest^ri^ctⁱ^oⁿ^even^on^sp^eech^wⁱ^t^h^l^e^{ss t}^h^an^f^u^l^l^Fⁱ^rst^Am^en^d^m^en^t^p^r^o^t^ectⁱ^oⁿ^,^“m^u^s^t^d^e^m^oⁿ^s^t^r^at^{e t}^h^at^t^h^{e reci}^t^e^d^h^a^rm^{s are}
^re^a^l^{, not}^m^e^re^l^y^c^onje^c^t^ura^l^{, a}ⁿ^{d t}^h^a^t^the^re^g^u^la^ti^{on w}^{ill i}ⁿ^f^a^c^t^a^lle^vⁱ^a^t^e^the^s^e^ha^rm^{s in a}^dire^c^t^aⁿ^d^m^a^te^ria^l^w^a^y^.^”
^T^u^rn^{er Bro}^a^d^castⁱⁿ^{g S}^y^st^e^m^v.^F^CC,⁵¹²^U.^S^.⁶²²^,⁶⁶⁴⁽¹⁹⁹⁴⁾⁽ⁱ^nci^d^en^t^a^l^rest^ri^ctⁱ^oⁿ^oⁿ^s^p^eech^).^S^e^{e al}^so^,^E^d^eⁿ^fⁱ^el^d^v.
^Fa^ne^{, 5}^{07 U}^.^S.⁷⁶^1,⁷⁷^0-⁷⁷¹⁽¹⁹⁹³⁾⁽^r^e^s^t^rⁱ^c^tio^{n o}ⁿ^c^o^m^m^e^r^cⁱ^a^l^s^p^ee^c^h⁾^;^Nⁱ^x^{on v}^.^S^h^rⁱ^nk^Mis^s^our^{i G}^o^v^e^rⁿ^m^e^{nt P}^A^C^,
⁵²⁸^U^.^S.³^77,³^{92 (}²⁰⁰⁰⁾⁽^r^e^s^t^rⁱ^c^tion^on^c^a^m^pa^ig^{n c}^ontrⁱ^bu^tio^ns⁾^.
⁹⁴^Id^.^Iⁿ^t^h^e^c^a^s^e^of^c^onteⁿ^t-ba^se^{d r}^e^g^u^la^tions,^na^rrow^ta^iloring^re^q^uⁱ^r^e^s^tha^t^the^re^g^u^la^ti^on^be^“^t^he^le^a^s^{t re}^stric^tiv^e
^mean^{s t}^o^f^u^rt^h^e^{r t}^h^{e art}ⁱ^c^u^l^at^edⁱⁿ^t^e^rest^.^”
⁹⁵^Gⁱ^ns^be^r^g^v^.^N^e^w^Y^o^r^k^{, 390 U}^.^S.⁶²⁹^{, 6}³¹⁽¹⁹⁶⁸⁾^.
⁹⁶^Fe^de^r^a^{l C}^o^m^m^unic^a^tions^C^o^m^mⁱ^s^sⁱ^{on v}^.^P^a^cⁱ^fⁱ^c^a^Fou^nda^ti^on,⁴³⁸^U^.^{S. 7}²⁶⁽¹⁹⁷⁸⁾^{; A}^c^{tion f}^o^r^C^h^ild^r^e^n’^s^T^e^le^vⁱ^sⁱ^on
^v^.^Fe^de^r^a^{l C}^o^m^m^unic^a^tions^C^o^m^m^issⁱ^on,⁵⁸^F.3^d⁶⁵^{4 (}^D^.C^{. C}ⁱ^r^.¹⁹⁹⁵⁾⁽^eⁿ^ba^nc⁾^,^cert^.^d^eⁿⁱ^ed^{, 51}⁶^U.^S^.¹⁰⁴³⁽¹⁹⁹⁶⁾^.
^T^h^{e Su}^p^r^em^{e Co}^u^r^{t h}^a^{s stated}^t^h^a^t^{, to}^b^eⁱⁿ^d^ecen^{t, a}^b^r^o^a^d^cas^{t n}^eedⁿ^o^t^h^a^v^e^p^r^u^r^ien^t^ap^p^{eal; “th}^eⁿ^o^{rmal d}^e^fⁱⁿ^itioⁿ^o^f
^‘iⁿ^d^ecen^t^’^ref^e^rs^m^e^rel^y^t^o^nonc^oⁿ^f^o^r^m^aⁿ^c^e^w^ith^accep^t^e^d^st^an^d^a^r^d^{s o}^f^m^o^ralⁱ^t^y^,^”^Pac^ific^a^,⁴³^{8 U.S}^.^at⁷⁴^0.^Th^{e F}^C^C
^h^o^l^d^s^t^h^at^t^h^{e con}^cep^t^“i^{s i}ⁿ^tⁱ^m^at^e^l^y^coⁿⁿ^ect^ed^wⁱ^t^h^t^h^{e exp}^o^s^u^r^e^o^f^chⁱ^l^d^reⁿ^t^o^l^aⁿ^g^u^a^{ge t}^h^at^d^e^scri^bes,ⁱⁿ^t^e^rm^s
^pa^te^ntly^of^f^e^ns^iv^e^as^m^e^as^ur^e^d^by^c^onte^m^por^a^r^y^c^o^m^m^unit^y^s^t^a^nda^r^d^s^f^o^r^the^b^r^oa^dc^a^s^{t m}^e^dium^{, s}^e^xua^{l or}^e^x^c^r^e^t^or^y
^a^c^tiv^itie^{s a}^{nd org}^a^{ns, a}^t^tim^e^s^of^the^da^y^w^h^eⁿ^the^r^e^{is a}^re^a^s^ona^ble^risk^tha^t^c^h^il^dreⁿ^m^a^y^be^{in the}^a^udieⁿ^c^e^.^”^Id^.^at
⁷³²^.^T^h^{e F}^{CC app}^lⁱ^e^{d t}^hⁱ^s^d^e^fⁱⁿⁱ^tⁱ^oⁿⁱⁿ^{a case i}ⁿ^w^hⁱ^c^h^t^h^{e si}ⁿ^g^er^Boⁿ^o^sai^d^at^t^h^{e G}^o^l^d^en^G^l^o^b^e^A^w^a^rd^{s t}^h^at^hⁱ^s
^a^w^a^r^{d w}^a^{s “}^f^[^*^*^*^]ⁱ^ng^brillia^nt.”^A^f^e^de^ra^{l c}^{ourt of}^a^ppe^a^l^{s, h}^o^w^e^ve^{r, ov}^e^rrule^{d t}^h^e^FCC,^ho^ldiⁿ^g^“^t^ha^{t the}^{FCC’s ne}^w
^p^o^lⁱ^c^y^regardⁱⁿ^{g ‘f}^l^e^etⁱⁿ^{g exp}^l^etⁱ^v^{es’ i}^s^arbⁱ^t^r^ar^y^an^d^cap^ri^ci^o^u^s^und^{er t}^h^{e A}^d^mⁱⁿⁱ^st^ratⁱ^v^{e P}^r^o^cedu^r^e^A^c^t^.^{” F}^o^x
^T^e^levⁱ^sⁱ^{on Sta}^tⁱ^ons^{, I}ⁿ^c^.^v^.^Fe^de^r^a^{l C}^o^m^m^unic^a^tions^C^o^m^mⁱ^ss^ion,⁴⁸⁹^F.^3d⁴^{44 (}²^d^Cⁱ^r^.²⁰⁰⁷⁾^,^c^e^r^{t. gra}ⁿ^te^d^{, N}^o^.^07-
⁵⁸²⁽^U^.S.^Ma^r^c^h^17,²⁰⁰⁸⁾^.^Sⁱ^m^ila^r^l^y^,^the^FC^C^fⁱ^ne^d^br^oa^dc^a^s^{t s}^t^a^t^ions^f^o^r^br^oa^dc^a^s^ting^J^a^ne^{t J}^a^c^k^s^on’^s^e^x^pos^ur^e^of
^he^r^br^e^a^s^{t f}^o^rⁿⁱ^ne^-^s^ix^te^eⁿ^{th of}^a^s^e^c^{ond d}^u^rⁱ^ng^a^Su^pe^r^B^o^w^l^ha^lf^tim^e^s^h^o^w^{, but a}^f^e^de^r^a^{l c}^our^t^of^a^ppe^a^l^s^ov^e^r^turⁿ^e^d
^the^fⁱ^ne^on^no^n-^c^o^ns^tit^utio^na^{l g}^r^o^unds^{. C}^B^S^C^o^r^p^{. v}^.^FC^C^,⁵³⁵^F.3^d¹⁶⁷⁽³^{d C}ⁱ^r^.²⁰⁰⁸⁾^{. F}^o^r^a^d^diti^on^a^l^inf^o^r^m^a^tion,
^inc^l^u^d^ing^aⁿ^aⁿ^a^l^y^s^is^of^w^h^e^t^he^r^pr^o^h^ibit^ing^t^h^e^br^oa^dc^a^s^{t of}^“ⁱ^nde^c^eⁿ^t”^w^o^r^d^s^r^e^g^a^r^d^le^s^s^of^c^onte^x^t^w^{ould v}ⁱ^ola^t^e^t^h^e
^Fir^s^{t A}^m^e^ndm^eⁿ^{t, s}^e^e^C^R^S^R^e^por^{t R}^L³²²^22,^R^e^g^u^l^a^tⁱ^oⁿ^o^f^B^r^oa^d^c^a^s^t^Ind^ecen^{cy: B}^a^ckg^ro^un^{d an}^d^L^e^g^a^l^Aⁿ^a^l^ysi^s^{, by}
^H^e^nr^y^C^ohe^{n a}^{nd K}^a^th^le^eⁿ^Aⁿⁿ^R^u^aⁿ^e^.

Federal law currently bans indecent broadcasts between 6 a.m. and 10 p.m.⁹⁷ Similarly, Congress
may not ban dial-a-porn, but it may (as it does at 47 U.S.C. § 223) prohibit it from being made ⁹⁸
available to minors or to persons who have not previously requested it in writing.
In Reno v. American Civil Liberties Union, the Supreme Court declared unconstitutional two
provisions of the Communications Decency Act (CDA) that prohibited indecent communications ⁹⁹
to minors on the Internet. The Court held that the CDA’s “burden on adult speech is unaccep-
table if less restrictive alternatives would be at least as effective in achieving the legitimate
purpose that the statute was enacted to serve.” “[T]he governmental interest in protecting children
from harmful materials ... does not justify an unnecessarily broad suppression of speech
addressed to adults. As we have explained, the Government may not ‘reduc[e] the adult ¹⁰⁰
population ... to ... only what is fit for children.’”
The Court distinguished the Internet from radio and television because (1) “[t]he CDA’s broad
categorical prohibitions are not limited to particular times and are not dependent on any
evaluation by an agency familiar with the unique characteristics of the Internet,”(2) the CDA
imposes criminal penalties, and the Court has never decided whether indecent broadcasts “would
justify a criminal prosecution,” and (3) radio and television, unlike the Internet, have, “as a matter
of history ... ‘received the most limited First Amendment protection, ... in large part because
warnings could not adequately protect the listener from unexpected program content.... [On the
Internet], the risk of encountering indecent material by accident is remote because a series of
affirmative steps is required to access specific material.”
In 1998, Congress enacted the Child Online Protection Act (COPA), P.L. 105-277, title XIV, to
replace the CDA. COPA differs from the CDA in two main respects: (1) it prohibits
communication to minors only of “material that is harmful to minors,” rather than material that is
indecent, and (2) it applies only to communications for commercial purposes on publicly
accessible websites. COPA has not taken effect, because a constitutional challenge was brought
and the district court, finding a likelihood that the plaintiffs would prevail, issued a preliminary
injunction against enforcement of the statute, pending a trial on the merits. The Third Circuit
affirmed, but, in 2002, in Ashcroft v. American Civil Liberties Union, the Supreme Court held that
COPA’s use of community standards to define “material that is harmful to minors” does not by
itself render the statute unconstitutional. The Supreme Court, however, did not remove the
preliminary injunction against enforcement of the statute, and remanded the case to the Third
Circuit to consider whether it is unconstitutional nonetheless. In 2003, the Third Circuit again
found the plaintiffs likely to prevail and affirmed the preliminary injunction. In 2004, the
Supreme Court affirmed the preliminary injunction because it found that the government had
failed to show that filtering prohibited material would not be as effective in accomplishing
Congress’s goals. It remanded the case for trial, however, and did not foreclose the district court ¹⁰¹
from concluding otherwise. In 2007, the district court found COPA unconstitutional and issued

⁹⁷^For^a^dditi^ona^l^inf^o^r^m^a^{tion, s}^e^e^C^R^S^R^e^por^t⁹⁵^-⁸^04,^Ob^scen^{ity a}ⁿ^d^In^d^ecen^{cy: Co}ⁿ^s^titu^tⁱ^oⁿ^a^l^Prin^ci^p^l^{es a}ⁿ^d^Fe^d^e^ra^l
^Stat^ute^s^{, by}^H^e^nr^y^C^ohe^{n. R}^e^s^t^rⁱ^c^tions^on^c^a^b^le^te^le^vⁱ^sⁱ^{on i}ⁿ^teⁿ^d^e^d^{to pr}^ote^c^t^c^h^il^dr^eⁿ^a^r^e^dis^c^us^s^e^{d i}ⁿ^tha^t^r^e^por^t^aⁿ^d
^a^l^s^o^{in t}^h^is^r^e^p^o^r^t^un^de^r^“^R^a^d^io^a^{nd T}^e^le^vⁱ^sⁱ^on.”
⁹⁸^Sa^ble^C^o^m^m^unic^a^tions^of^C^a^lif^or^nia^,^Iⁿ^c^.^v^.^Fe^de^r^a^l^C^o^m^m^unic^a^tions^C^o^m^m^is^sⁱ^{on, 49}^{2 U}^.^S^.¹¹⁵⁽¹⁹⁸⁹⁾^;^Dⁱ^a^l
^Iⁿ^f^o^r^m^a^{tion Se}^r^v^ic^e^s^v^.^T^hor^nb^ur^g^h^{, 93}⁸^F.2^d¹⁵³^{5 (}²^d^Cⁱ^r^.¹⁹⁹¹⁾^,^cert^.^d^eⁿⁱ^ed^,⁵^{02 U}^.^S.¹⁰⁷²⁽¹⁹⁹²⁾^.
⁹⁹⁵²^{1 U}^.^S^.⁸⁴⁴⁽¹⁹⁹⁷⁾^.
¹⁰⁰^Id^.^a^t⁸⁷^4-⁸⁷⁵^.
¹⁰¹^Amerⁱ^can^Cⁱ^vi^l^Li^b^e^r^tⁱ^e^s^A^sso^ci^atⁱ^oⁿ^v.^R^e^no^,³¹^F^.^S^u^p^p^.^2d⁴⁷^{3 (}^E^.^D^.^P^a^{. 19}⁹⁹⁾^,^aff’d^{, 2}¹⁷^F.^3d¹⁶²⁽³^{d C}ⁱ^r^.
²⁰⁰⁰⁾^,^v^a^c^a^te^d^a^{nd r}^e^m^a^nde^d^s^u^b^nom^.^A^s^hc^r^o^f^t^v^.^A^m^e^rⁱ^c^aⁿ^Cⁱ^v^{il L}ⁱ^be^r^tie^s^Uⁿ^ion^,⁵³⁵^U^.^S.⁵⁶^{4 (}²⁰⁰²⁾^,^a^f^f^’^{d on}
⁽^c^onti^nue^d.^..)

a permanent injunction against its enforcement; in 2008, the U.S. Court of appeals affirmed,
finding that COPA “does not employ the least restrictive alternative to advance the Government’s ¹⁰²
compelling interest” and is also vague and overbroad. In 2009, the Supreme Court declined to
review the case.

In a case upholding high school students’ right to wear black arm bands to protest the war in
Vietnam, the Supreme Court held that public school students do not “shed their constitutional ¹⁰³
rights to freedom of speech or expression at the schoolhouse gate.” They do, however, shed
them to some extent. The Supreme Court has upheld the suspension of a student for using a ¹⁰⁴
sexual metaphor in a speech nominating another student for a student office. It has upheld ¹⁰⁵
censorship of a student newspaper produced as part of the school curriculum. (Lower courts ¹⁰⁶
have indicated that non-school-sponsored student writings may not be censored.)
A plurality of the justices found that a school board must be permitted “to establish and apply
their curriculum in such a way as to transmit community values,” but that it may not remove
school library books in order to deny access to ideas with which it disagrees for political or ¹⁰⁷
religious reasons. The Supreme Court has also held that Congress may not prohibit people 17
or younger from making contributions to political candidates and contributions or donations to ¹⁰⁸
political parties. Most recently, in Morse v. Frederick, the Court held that a school could punish
a pupil for displaying a banner that read, “BONG HiTS 4 JESUS,” because these words could ¹⁰⁹
reasonably be interpreted as “promoting illegal drug use.” The Court indicated that it might
have reached a different result if the banner had addressed the issue of “the criminalization of ¹¹⁰
drug use or possession.” Justice Alito, joined by Justice Kennedy, wrote a concurring opinion
stating that they had joined the majority opinion “on the understanding that (a) it goes no further
than to hold that a public school may restrict speech that a reasonable observer would interpret as
advocating illegal drug use and (b) it provides no support for any restriction on speech that can
plausibly be interpreted as commenting on any political or social issue, including speech on ¹¹¹
issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”
As Morse v. Frederick was a 5-to-4 decision, Justices Alito’s and Kennedy’s votes were necessary

^(...c^on^tin^ue^d)
^r^e^m^and^,³²^{2 F}^.³^d²⁴⁰⁽³^{d C}ⁱ^r^.²⁰⁰³⁾^,^aff’^{d an}^d^r^e^m^aⁿ^d^e^d^,⁵⁴^{2 U}^.^S^.⁶⁵^{6 (}²⁰⁰⁴⁾^.^S^{ee al}^so^{, f}^o^o^tⁿ^o^te⁸^of^{this re}^por^t.
¹⁰²^A^m^e^r^ic^aⁿ^Cⁱ^v^{il L}ⁱ^be^r^tie^s^Uⁿ^ion^v^.^G^onz^a^l^e^s^{, 478 F}^.^S^u^p^p^.^2d⁷⁷⁵⁽^E^.D^.^P^a^.²⁰⁰⁷⁾^,^af^f’^d^s^{ub nom}^.^A^m^eri^can^Ci^vi^l
^Lⁱ^be^r^tie^s^Uⁿ^{ion v}^.^Muk^a^s^e^y^,⁵³⁴^F.3^d¹⁸¹^,¹⁹⁸⁽³^{d C}ⁱ^r^.²⁰⁰⁸⁾^,^c^e^r^{t. de}^nie^d^{, N}^o^{. 0}⁸^-5⁶⁵^(U^.S.^J^a^n.²¹^{, 2}⁰⁰⁸^).
¹⁰³^Tⁱ^nk^e^r^v^.^D^e^s^Moine^s^I^nde^pe^nde^{nt C}^o^m^m^unity^Sc^{hool D}ⁱ^s^t^rⁱ^c^t^,³⁹^{3 U}^.^S.⁵^03,⁵^{06 (}¹⁹⁶⁹⁾^.
¹⁰⁴^B^e^the^l^Sc^h^ool^Dⁱ^s^t^rⁱ^c^t^N^o^.⁴^{63 v}^.^Fr^a^s^e^r^{, 47}^{8 U}^.^S^.⁶⁷⁵⁽¹⁹⁸⁶⁾^.
¹⁰⁵^Hazel^w^{ood Sc}^h^o^o^l^Dⁱ^s^t^rⁱ^c^t^v^.^K^u^hlm^e^ie^r^,^{484 U}^.^S.²⁶^{0 (}¹⁹⁸⁸⁾^.
¹⁰⁶^E.g^{., B}^u^r^c^{h v}^.^B^a^r^k^e^r^{, 86}^{1 F}^.²^d¹¹⁴⁹⁽⁹^th^Cⁱ^r^.¹⁹⁸⁸⁾^;^R^o^m^a^{no v}^.^H^a^r^rⁱ^ng^ton,⁷²⁵^{F. S}^u^p^p^.⁶⁸^{7 (}^E^.D^.^N^.^Y^.¹⁹⁸⁹⁾^.
¹⁰⁷^B^o^a^r^d^of^Educ^a^tio^{n, I}^s^la^{nd T}^r^e^e^s^Sc^ho^{ol D}ⁱ^s^t^rⁱ^c^t^v^.^Pic^o^,⁴^{57 U}^.^S.⁸⁵³^{, 8}⁶⁴⁽¹⁹⁸²⁾^{. T}^h^e^C^o^ur^t^note^d^tha^t^“ⁿ^othⁱ^ng
^{in o}^u^r^de^cⁱ^sⁱ^on^to^da^y^af^f^e^c^t^s^{in a}ⁿ^y^w^a^y^the^dis^c^r^e^tion^of^a^loc^a^l^s^c^hool^boa^r^d^t^o^c^h^o^o^s^e^b^ook^s^to^ad^d^{to t}^h^e^libra^rie^s^of
^theⁱ^r^s^c^ho^ols^.^”^Id^{. a}^t⁸⁷^1.
¹⁰⁸^Mc^C^oⁿⁿ^e^{ll v}^.^Fe^de^r^a^l^Ele^c^tion^C^o^m^m^is^sⁱ^{on, 54}^{0 U}^.^S^.⁹³^,²³^1-²³²⁽²⁰⁰³⁾^.
¹⁰⁹¹²^{7 S}^.^C^t^.²⁶¹⁸^{, 2}⁶²⁴⁽²⁰⁰⁷⁾^.
¹¹⁰^Id^{. a}^t²⁶²⁵^.
¹¹¹^Id^{. a}^t²⁶³⁶^.

for a majority and therefore should be read as limiting the majority opinion with respect to future
cases.

Even speech that enjoys the most extensive First Amendment protection may be subject to
“regulations of the time, place, and manner of expression which are content-neutral, are narrowly
tailored to serve a significant government interest, and leave open ample alternative channels of ¹¹²
communication.” In the case in which this language appears, the Supreme Court allowed a city
ordinance that banned picketing “before or about” any residence to be enforced to prevent
picketing outside the residence of a doctor who performed abortions, even though the picketing
occurred on a public street. The Court noted that “[t]he First Amendment permits the government
to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the ¹¹³
objectionable speech.”
Thus, the Court, while acknowledging that music, as a form of expression and communication, is
protected under the First Amendment, upheld volume restrictions placed on outdoor music in ¹¹⁴
order to prevent intrusion on those in the area. Other significant governmental interests, besides
protection of captive audiences, may justify content-neutral time, place, and manner restrictions.
For example, in order to prevent crime and maintain property values, a city may place zoning ¹¹⁵
restrictions on “adult” theaters and bookstores. And, in order to maintain the orderly
movements of crowds at a state fair, a state may limit the distribution of literature to assigned ¹¹⁶
locations.
However, a time, place, and manner restriction will not be upheld in the absence of sufficient
justification or if it is not narrowly tailored. Thus, the Court held unconstitutional a total ¹¹⁷
restriction on displaying flags or banners on public sidewalks surrounding the Supreme Court.
And a time, place, and manner restriction will not be upheld if it fails to “leave open ample
alternative channels for communication.” Thus, the Court held unconstitutional an ordinance that
prohibited the display of signs from residences, because “[d]isplaying a sign from one’s own ¹¹⁸
residence often carries a message quite distinct from placing the same sign someplace else.... ”
When a court issues an injunction that restricts the time, place, or manner of a particular form of
expression, because prior restraint occurs, “a somewhat more stringent application of general
First Amendment principles” is required than is required in the case of a generally applicable

¹¹²^Fr^is^by^v^.^Sc^hultz^,⁴⁸^{7 U}^.^S^.⁴⁷⁴^,⁴⁸¹⁽¹⁹⁸⁸⁾^.
¹¹³^Id^.^a^t⁴⁸^7.
¹¹⁴^W^a^r^d^v^.^R^o^c^k^A^g^aⁱ^ns^{t R}^a^cⁱ^sm^{, 491 U}^.^S.⁷⁸^{1 (}¹⁹⁸⁹⁾^.
¹¹⁵^Y^o^uⁿ^g^v^.^A^m^e^rⁱ^c^aⁿ^{Mini T}^h^e^a^t^e^r^s^,^Iⁿ^c^.,⁴²^{7 U}^.^S^.⁵⁰⁽¹⁹⁷⁶⁾^;^R^e^nt^{on v}^.^Pla^y^ti^m^e^T^h^e^a^t^e^r^s^,^Iⁿ^c^{., 47}⁵^U^.^S.^{41 (}¹⁹⁸⁶⁾^.
^A^lthoug^{h s}ⁱ^ng^li^ng^ou^{t “}^a^dul^t”^m^a^te^rⁱ^a^l^mⁱ^g^h^{t a}^ppe^a^r^to^be^a^c^o^nteⁿ^t-^ba^s^e^{d dis}^tⁱⁿ^c^tio^n,^the^C^our^tⁱⁿ^R^e^nton^said^t^h^at
^regu^l^a^tⁱ^oⁿ^s^o^f^sp^eech^{are co}ⁿ^t^eⁿ^t^-ⁿ^e^u^t^ralⁱ^f^t^h^ey^“are^justifie^d^wⁱ^t^h^ou^t^ref^e^ren^{ce t}^o^t^h^{e co}^nt^en^t^o^f^t^h^{e r}^e^gu^l^a^t^e^d^sp^eech^.^”
⁴⁷⁵^U.^S^.^at⁴⁸^(em^p^h^a^si^{s i}ⁿ^ori^gⁱⁿ^al^).^Z^oⁿⁱⁿ^g^rest^ri^ctⁱ^oⁿ^s^{are j}^u^stⁱ^fⁱ^e^d^{as m}^e^asu^r^{es t}^o^“p^reven^t^cri^m^e^,^p^r^o^t^ect^t^h^{e ci}^t^y^’s
^re^ta^{il tra}^d^e^,^m^a^inta^{in pr}^ope^rty^v^a^l^u^e^s^{, a}^{nd g}^e^ne^ra^lly^‘prote^c^[^t^]^aⁿ^d^pre^s^e^r^v^[^e^]^t^h^e^q^u^a^lity^of^[^t^he^c^ity^’s^]^ne^ig^hbor^ho^ods^,
^c^o^m^m^e^r^c^ia^{l dis}^t^rⁱ^c^t^s^,^a^{nd t}^h^e^q^u^a^l^ity^of^ur^ba^{n lif}^e^,^’^{not t}^o^s^u^pp^r^e^s^s^the^e^x^pr^e^s^sⁱ^{on of}^uⁿ^p^o^p^u^la^r^vⁱ^e^w^s.”^Id^.
¹¹⁶^H^e^f^f^r^{on v}^.^Iⁿ^te^rⁿ^a^tⁱ^ona^{l S}^o^cⁱ^e^t^y^f^o^r^K^r^is^hⁿ^a^C^o^ns^cⁱ^ous^ne^s^s^,^Iⁿ^c^.,⁴^{52 U}^.^S.⁶⁴^{0 (}¹⁹⁸¹⁾^.
¹¹⁷^Uⁿ^ite^d^Sta^t^e^s^v^.^G^r^a^c^e^,⁴⁶¹^U^.^S.¹⁷¹⁽¹⁹⁸³⁾^.
¹¹⁸^City^of^L^a^due^v^.^G^ille^{o, 512}^U.S.⁴³⁽¹⁹⁹^4).

statute or ordinance that restricts the time, place, or manner of speech.¹¹⁹ Instead of asking
whether the restrictions are “narrowly tailored to serve a significant governmental interest,” a
court must ask “whether the challenged provisions of the injunction burden no more speech than ¹²⁰
necessary to serve a significant government interest.” Applying this standard, the Supreme
Court, in Madsen v. Women’s Health Center, Inc., upheld a state court injunction that had ordered
the establishment of a 36-foot buffer zone on a public street outside a particular health clinic that
performed abortions. The Court in this case also upheld an injunction against noise during
particular hours, but found that a “broad prohibition on all ‘images observable’ burdens speech
more than necessary to achieve the purpose of limiting threats to clinic patients or their ¹²¹
families.” It also struck down a prohibition on all uninvited approaches of persons seeking the
services of the clinic, and a prohibition against picketing, within 300 feet of the residences of
clinic staff. The Court distinguished the 300-foot restriction from the ordinance it had previously ¹²²
upheld that banned picketing “before or about” any residence.
In Schenck v. Pro-Choice Network of Western New York, the Court applied Madsen to another ¹²³
injunction that placed restrictions on demonstrating outside an abortion clinic. The Court
upheld the portion of the injunction that banned “demonstrating within fifteen feet from either
side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways
and driveway entrances of such facilities”—what the Court called “fixed buffer zones.” It struck
down a prohibition against demonstrating “within fifteen feet of any person or vehicles seeking
access to or leaving such facilities”—what it called “floating buffer zones.” The Court cited
“public safety and order” in upholding the fixed buffer zones, but it found that the floating buffer
zones “burden more speech than is necessary to serve the relevant governmental interests”
because they make it “quite difficult for a protester who wishes to engage in peaceful expressive
activity to know how to remain in compliance with the injunction.” The Court also upheld a
“provision, specifying that once sidewalk counselors who had entered the buffer zones were
required to ‘cease and desist’ their counseling, they had to retreat 15 feet from the people they had
been counseling and had to remain outside the boundaries of the buffer zones.”
In Hill v. Colorado, the Court upheld a Colorado statute that makes it unlawful, within 100 feet of
the entrance to any health care facility, to “knowingly approach” within eight feet of another
person, without that person’s consent, “for the purpose of passing a leaflet or handbill to,
displaying a sign to, or engaging in oral protest, education, or counseling with such other ¹²⁴
person.” This decision is significant because it upheld a statute that applies to everyone, and
not, as in Madsen and Schenck, merely an injunction directed to particular parties. The Court
found the statute to be a content-neutral time, place, and manner regulation of speech that
“reflects an acceptable balance between the constitutionally protected rights of law-abiding ¹²⁵
speakers and the interests of unwilling listeners.... ” The restrictions are content-neutral because

¹¹⁹^M^a^d^s^en^v.^W^o^m^eⁿ^’^{s Heal}^t^h^Cen^t^er,^In^c.^,⁵¹²^U.^S^.⁷⁵^3,⁷⁶^{5 (19}⁹⁴⁾^.^In^t^hⁱ^s^case,^t^h^{e C}^o^u^r^t^h^e^l^d^t^h^at^t^h^{e ch}^al^l^eⁿ^g^ed
ⁱⁿ^j^uⁿ^c^tⁱ^oⁿ^w^a^{s co}ⁿ^t^en^t^-ⁿ^e^u^t^ral^,^even^t^h^o^u^g^hⁱ^t^w^a^{s d}ⁱ^rect^ed^at^ab^o^r^tⁱ^oⁿ^p^r^o^t^est^o^rs,^b^ecau^{se i}^t^s^p^u^r^p^o^s^e^w^a^{s t}^o^p^r^o^t^ect
^pa^tie^nts,^not^to^inte^rf^e^r^e^w^{ith the}^prote^s^{tors’ m}^e^ssa^ge^.
¹²⁰^Id^.^T^h^{is is}^no^{t “}^p^ri^{or re}^stra^{int a}ⁿ^a^l^y^s^is,”^w^h^ic^{h c}^ourts^a^pply^{to c}^o^nt^eⁿ^t-^ba^s^e^{d i}ⁿ^ju^nc^tio^ns^{; s}^e^e^,^“^P^rⁱ^or^R^e^s^t^r^a^int,”
^s^upr^a^.
¹²¹^Id^.^a^t⁷⁷^3.
¹²²^S^ee,^t^e^xt^acco^m^p^an^yⁱⁿ^gⁿ^o^t^{es 1}¹²^-¹¹³^,^s^upr^a^.
¹²³⁵¹^{9 U}^.^S^.³⁵⁷⁽¹⁹⁹⁷⁾^.
¹²⁴⁵³⁰^U.^S.⁷⁰^3,⁷⁰^{7 (}²⁰⁰⁰⁾^.
¹²⁵
^Id^.^a^t⁷¹^4.

they regulate only the places where some speech may occur, and because they apply equally to all
demonstrators, regardless of viewpoint. Although the restrictions do not apply to all speech, the
“kind of cursory examination” that might be required to distinguish casual conversation from ¹²⁶
protest, education, or counseling is not “problematic.” The law is “narrowly tailored” to
achieve the state’s interests. The eight-foot restriction does not significantly impair the ability to
convey messages by signs, and ordinarily allows speakers to come within a normal conversational
distance of their targets. Because the statute allows the speaker to remain in one place, persons
who wish to hand out leaflets may position themselves beside entrances near the path of
oncoming pedestrians, and consequently are not deprived of the opportunity to get the attention of
persons entering a clinic.

Some laws are not designed to limit freedom of expression, but nevertheless can have that effect.
For example, when a National Park Service regulation prohibiting camping in certain parks was
applied to prohibit demonstrators, who were attempting to call attention to the plight of the
homeless, from sleeping in certain Washington, D.C. parks, it had the effect of limiting the
demonstrators’ freedom of expression. Nevertheless, the Court found that application of the
regulation did not violate the First Amendment because the regulation was content-neutral and
was narrowly focused on a substantial governmental interest in maintaining parks “in an ¹²⁷
attractive and intact condition.”
The Supreme Court has said that an incidental restriction on speech is constitutional if it is not ¹²⁸
“greater than necessary to further a substantial governmental interest.” However, the Court has
made clear that an incidental restriction, unlike a content-based restriction, “need not be the least
restrictive or least intrusive means” of furthering a governmental interest. Rather, the restriction
must be “narrowly tailored,” and “the requirement of narrow tailoring is satisfied ‘so long as the
... regulation promotes a substantial governmental interest that would be achieved less effectively ¹²⁹
absent the regulation.’”
The Court has noted that the standard for determining the constitutionality of an incidental
restriction “in the last analysis is little, if any, different from the standard applied to time, place, or ¹³⁰
manner restrictions.” Thus, the restriction on camping may be viewed as a restriction on
conduct that only incidentally affects speech, or, if one views sleeping in connection with a
demonstration as expressive conduct, then the restriction may be viewed as a time, place, and
manner restriction on expressive conduct. In either case, as long as the restriction is content-
neutral, the same standard for assessing its constitutionality will apply.

¹²⁶^Id^.^a^t⁷²^2.
¹²⁷^C^l^a^r^k^v^.^C^o^m^m^unit^y^f^o^r^C^r^e^a^{tive N}^on-^Vi^oleⁿ^c^e^,⁴⁶⁸^U^.^S.²⁸^{8 (}¹⁹⁸⁴⁾^.
¹²⁸^Sa^{n Fr}^aⁿ^cⁱ^s^c^{o A}^r^ts^&^A^t^hle^tic^s^,^Iⁿ^c^.^v^.^Uⁿ^ite^{d Sta}^t^e^s^O^l^y^m^pic^C^o^m^m^itte^e^,^{483 U}^.^S.⁵²^2,⁵³^{7 (}¹⁹⁸⁷⁾^{. T}^h^is^is^k^nowⁿ
^{as t}^h^{e “}^O’Brien^te^st,”^w^h^ic^{h w}^a^s^fⁱ^rst^f^o^rm^ula^t^e^d^{in the}^c^a^s^e^c^ite^{d i}ⁿⁿ^o^te¹³⁸^,ⁱⁿ^f^r^a^.
¹²⁹^W^a^r^d^v^.^R^o^c^k^A^g^aⁱ^ns^{t R}^a^cⁱ^sm^{, 491 U}^.^S.⁷⁸^1,⁷⁹^8-⁷^{99 (}¹⁹⁸⁹⁾^{. T}^hⁱ^s^c^a^s^e^m^a^k^e^s^c^l^e^a^r^tha^t^{, a}^ltho^u^g^h^bot^{h “}^s^tr^ic^t
^sc^rutiny^”^a^{nd the}^O’Brien^te^{st f}^o^{r inc}ⁱ^deⁿ^t^a^l^re^stric^tio^{ns re}^qu^ire^“ⁿ^a^rrow^ta^iloring^,”^“^t^he^sa^m^e^de^g^r^e^e^of^ta^iloring^is^not
^r^e^quir^e^d”^un^de^r^the^tw^o;^un^de^r^th^e^O’Brien^t^e^st^,^“l^east^-rest^ri^ctⁱ^v^e-a^l^t^e^rn^atⁱ^v^{e an}^al^ysi^sⁱ^s^w^h^o^l^l^y^o^u^t^of^p^l^ace.^”^Id^.^at
⁷⁹⁸^-79⁹ⁿ^.^6.^Itⁱ^s^al^so^o^u^t^o^f^p^l^{ace i}ⁿ^app^l^yⁱⁿ^g^t^h^e^C^e^ntr^a^{l H}^uds^oⁿ^co^mmerci^a^l^sp^eech^t^e^st^.
¹³⁰^Cla^r^k^,^sup^r^aⁿ^o^t^e¹²⁷^,⁴⁶⁸^U.^S^.^at²⁹⁸^.^Aⁿ^d^,^“t^h^e^valⁱ^dⁱ^t^y^o^f^tⁱ^m^e,^p^l^ace,^o^r^m^aⁿⁿ^e^{r rest}^ri^ctⁱ^oⁿ^sⁱ^s^det^e^r^mⁱⁿ^ed^uⁿ^d^e^r
^st^an^d^a^rd^{s very}^si^mⁱ^l^a^{r t}^o^t^h^o^s^{e app}^lⁱ^cab^l^eⁱⁿ^t^h^{e c}^o^mm^er^ci^al^sp^eech^coⁿ^t^ext^.^{” Un}ⁱ^t^e^d^S^t^at^{es v.}^E^d^{ge Bro}^a^d^castⁱⁿ^{g Co}^.^,
^s^upr^a^no^te⁴⁰^{, 5}⁰⁹^U^.^S.^a^t⁴^30.

In 1991, the Supreme Court held that the First Amendment does not prevent the government from
requiring that dancers wear “pasties” and a “G-string” when they dance (non-obscenely) in
“adult” entertainment establishments. Indiana sought to enforce a state statute prohibiting public
nudity against two such establishments, which asserted First Amendment protection. The Court
found that the statute proscribed public nudity across the board, not nude dancing as such, and ¹³¹
therefore imposed only an incidental restriction on expression. In 2000, the Supreme Court
again upheld the application of a statute prohibiting public nudity to an “adult” entertainment
establishment. It found that the statute was intended “to combat harmful secondary effects,” such ¹³²
as “prostitution and other criminal activity.”
In a 1994 case, the Supreme Court apparently put more teeth into the test for incidental
restrictions by remanding the case for further proceedings rather than deferring to Congress’s
judgment as to the necessity for the “must-carry” provisions of the Cable Television Consumer ¹³³
Protection and Competition Act of 1992. To justify an incidental restriction of speech, the
Court wrote, the government “must demonstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate these harms in a direct and material ¹³⁴
way.” The Court added that its
^o^b^lig^atioⁿ^to^ex^er^{cise in}^d^e^p^eⁿ^d^eⁿ^t^j^u^d^g^m^eⁿ^t^w^h^eⁿ^Fir^s^{t Am}^eⁿ^d^m^eⁿ^{t r}ⁱ^g^h^{ts ar}^{e im}^p^lⁱ^c^at^e^dⁱ^s
ⁿ^o^{t a lice}ⁿ^{se to}^r^e^w^eⁱ^g^h^th^{e e}^v^id^en^ce^{de novo}^{, or t}^o^repl^ace^C^ong^res^s^’^f^act^u^a^l^predi^c^tⁱ^oⁿ^s
^wⁱ^t^h^ou^{r o}^wⁿ^.^R^a^t^h^{er, i}^tⁱ^s^t^o^a^s^su^{re t}^h^at^{, i}ⁿ^f^o^r^m^u^l^a^tⁱⁿ^gⁱ^t^s^j^udgm^eⁿ^t^s^{, C}^oⁿ^g^r^e^s^s^h^a^s^dra^wⁿ¹³⁵
^r^easoⁿ^ab^{le in}^f^e^r^eⁿ^c^e^s^b^a^sed^oⁿ^s^u^b^s^taⁿ^{tial ev}^id^en^ce.

“The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long ¹³⁶
recognized that its protection does not end at the spoken or written word.” Thus wrote the
Supreme Court when it held that a statute prohibiting flag desecration violated the First
Amendment. Such a statute is not content-neutral if it is designed to protect “a perceived need to ¹³⁷
preserve the flag’s status as a symbol of our Nation and certain national ideals.”
By contrast, the Court upheld a federal statute that made it a crime to burn a draft card, finding
that the statute served “the Government’s substantial interest in assuring the continuing
availability of issued Selective Service certificates,” and imposed only an “appropriately narrow” ¹³⁸
incidental restriction of speech. Even if Congress’s purpose in enacting the statute had been to

¹³¹^Ba^rne^s^v^.^G^l^eⁿ^T^h^e^a^t^re^{, Inc}^{., 50}¹^U^.^S.⁵⁶^{0 (1}⁹⁹^1).
¹³²^Er^ie^v^.^P^a^p’^s^A^.^M.,⁵²^{9 U}^.^S^.²⁷⁷⁽²⁰⁰⁰⁾^.
¹³³^T^u^rⁿ^e^r^B^r^oa^dc^a^s^ting^Sy^s^t^em^{, I}ⁿ^c^.^v^.^Fe^de^r^a^{l C}^o^m^m^unic^a^tions^C^o^m^mⁱ^s^sⁱ^{on, 5}^{12 U}^.^S.⁶²^{2 (}¹⁹⁹⁴⁾^,^dⁱ^s^c^us^s^e^{d un}^de^r
^“^R^a^d^{io a}ⁿ^d^T^e^le^vⁱ^sⁱ^on,”^be^low^.^D^a^vⁱ^{d C}^o^le^de^s^c^rⁱ^be^s^Tu^rⁿ^e^r^{as “eff}^e^ctⁱ^v^el^y^gi^viⁿ^g^bⁱ^t^e^t^o^t^h^e^O’Brien^s^t^a^nda^r^d^.”^H^e
^w^r^ite^{s tha}^t^{, “}ⁱ^f^the^Court^ha^{d a}^p^pl^ie^{d the}^O’Brien^s^t^a^nda^r^d^t^h^e^w^a^y^{it a}^ppl^ie^{d t}^h^a^t^s^t^aⁿ^da^r^dⁱⁿ^O’Brieⁿ^{, it}^s^h^o^u^l^d^ha^v^e
^uphe^l^d^t^h^e^‘^m^us^{t c}^a^r^r^y^’^r^u^le^{. T}^h^e^O’Brien^sta^nda^rd^{is e}^x^tre^m^e^l^y^de^fe^re^ntia^l.”^The^Pe^rils^{of Pr}^agma^tis^m^{, L}^EG^A^L^T^IM^E^S^,
^J^u^ly^{25, 1}⁹⁹⁴^{, a}^t^S^{27, S}³⁰^.
¹³⁴^Id^.^a^t⁶⁶^4.
¹³⁵^Id^.^a^t⁶⁶^6.
¹³⁶^T^e^xa^s^v^.^J^ohns^oⁿ^,⁴⁹¹^U^.^S.³^{97 (}¹⁹⁸⁹⁾^.
¹³⁷^Uⁿ^ite^d^Sta^t^e^s^v^.^Eic^h^m^a^{n, 49}^{6 U}^.^{S. 3}¹⁰⁽¹⁹⁹⁰⁾^.
¹³⁸^Uⁿ^ite^d^Sta^t^e^s^v^.^O^’^B^r^ie^n,³⁹^{1 U}^.^{S. 3}⁶⁷^,³⁸²⁽¹⁹⁶⁸⁾^.

suppress freedom of speech, “this Court will not strike down an otherwise constitutional statute ¹³⁹
on the basis of an alleged illicit legislative motive.”
In 1992, in R.A.V. v. City of St. Paul, the Supreme Court struck down an ordinance that prohibited
the placing on public or private property of a symbol, such as “a burning cross or Nazi swastika,
which one knows or has reasonable grounds to know arouses anger, alarm or resentment in ¹⁴⁰
others, on the basis of race, color, creed, religion or gender.” Read literally, this ordinance
would clearly violate the First Amendment, because, “[i]f there is a bedrock principle underlying
the First Amendment, it is that the Government may not prohibit the expression of an idea simply ¹⁴¹
because society finds the idea itself offensive or disagreeable.” In this case, however, the
Minnesota Supreme Court had construed the ordinance to apply only to conduct that amounted to
fighting words. Therefore, the question for the Supreme Court was whether the ordinance,
construed to apply only to fighting words, was constitutional.
The Court held that it was not, because, although fighting words may be proscribed “because of
their constitutionally proscribable content,” they may not “be made the vehicles for content ¹⁴²
discrimination unrelated to their distinctively proscribable content.” Thus, the government may
proscribe fighting words, but it may not make the further content discrimination of proscribing ¹⁴³
particular fighting words on the basis of hostility “towards the underlying message expressed.”
In this case, the ordinance banned fighting words that insult “on the basis of race, color, creed,
religion or gender,” but not “for example, on the basis of political affiliation, union membership,
or homosexuality.... The First Amendment does not permit St. Paul to impose special prohibitions ¹⁴⁴
on those speakers who express views on disfavored subjects.” This decision does not, of
course, preclude prosecution for illegal conduct that may accompany cross burning, such as
trespass, arson, or threats. As the Court put it: “St. Paul has sufficient means at its disposal to ¹⁴⁵
prevent such behavior without adding the First Amendment to the fire.”
In a subsequent case, the Supreme Court held that its opinion in R.A.V. did not mean that statutes
that impose additional penalties for crimes that are motivated by racial hatred are
unconstitutional. Such statutes imposed enhanced sentences not for bigoted thought, but for the
commission of crimes that can inflict greater and individual and societal harm because of their
bias-inspired motivation. A defendant’s motive has always been a factor in sentencing, and even
in defining crimes; “Title VII [of the Civil Rights Act of 1964], for example, makes it unlawful
for an employer to discriminate against an employee ‘because of such individual’s race, color, ¹⁴⁶
religion, sex, or national origin.’”
In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a ¹⁴⁷
state to prohibit burning a cross with the intent of intimidating any person or group of persons.

¹³⁹^Id^.^a^t³⁸^3.
¹⁴⁰⁵⁰^{5 U}^.^S^.³⁷⁷⁽¹⁹⁹²⁾^.
¹⁴¹^T^e^xa^s^v^.^J^ohns^oⁿ^,^sup^r^a^no^te¹³^{6, a}^t⁴¹^4.
¹⁴²^R.A.V^.^,^sup^r^a^no^te¹^40,^a^t³^84-³⁸^{5 (}^e^m^pha^sⁱ^s^{in or}^igⁱⁿ^a^l⁾^.
¹⁴³^Id^.^a^t³⁸^6.
¹⁴⁴^Id^.^a^t³⁹^1.
¹⁴⁵^Id^.^a^t³⁹^6.
¹⁴⁶^Wⁱ^s^c^ons^{in v}^.^Mitc^he^ll,⁵⁰^{8 U}^.^S^.⁴⁷⁶^{, 4}⁸⁷⁽¹⁹⁹³⁾⁽^e^m^pha^sⁱ^s^a^dde^d^by^the^C^our^{t t}^o^its^q^uota^tⁱ^on^of^th^e^s^t^a^t^ute⁾^.
¹⁴⁷^Vⁱ^rgⁱⁿ^ia^v^.^Bla^c^k^{, 53}^{8 U.S.}³^{43 (}²⁰⁰^3).^A^plura^lity^he^ld,^how^e^v^e^r^,^tha^t^a^sta^t^ute^m^a^y^{not pre}^s^um^e^,^f^r^om^the^f^a^c^t^tha^t
^{a d}^e^f^eⁿ^d^aⁿ^t^b^u^rn^ed^{a cr}^o^ss,^t^h^at^{he h}^a^d^anⁱⁿ^t^e^nt^t^oⁱⁿ^tⁱ^mⁱ^d^at^e.^T^h^{e st}^at^e^m^u^st^p^r^o^v^{e t}^h^at^h^e^di^d^,^{as “a b}^u^rⁿⁱⁿ^g^cro^{ss i}^s
⁽^c^onti^nue^d.^..)

Such a prohibition does not discriminate on the basis of a defendant’s beliefs—“as a factual
matter it is not true that cross burners direct their intimidating conduct solely to racial or religious
minorities.... The First Amendment permits Virginia to outlaw cross burning done with the intent
to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of
prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating ¹⁴⁸
messages.... ”

On occasion, the government attempts to compel speech rather than to restrict it. For example, in
Riley v. National Federation of the Blind of North Carolina, Inc., a North Carolina statute
required professional fundraisers for charities to disclose to potential donors the gross percentage ¹⁴⁹
of revenues retained in prior charitable solicitations. The Supreme Court held this uncon-
stitutional, writing
^T^h^{ere is}^certain^l^y^s^o^m^e^diff^ereⁿ^{ce bet}^w^een^co^m^p^el^{led s}^p^{eech an}^{d co}^m^p^{elled s}^ileⁿ^{ce, bu}^{t in}
^th^{e co}ⁿ^t^e^x^{t o}^f^p^r^o^t^ected^sp^eech^{, th}^{e d}ⁱ^f^f^e^reⁿ^{ce is}^wⁱ^t^h^o^u^{t co}ⁿ^s^titu^tioⁿ^a^{l si}^gⁿ^ifican^{ce, f}^o^{r th}^e
^Firs^t^Am^eⁿ^d^m^eⁿ^t^gu^aran^tee^s^“f^reedo^m^o^f^s^p^eech^{,” a}^termⁿ^eces^s^a^ril^y^co^m^p^risⁱ^ng^t^h^e¹⁵⁰
^deci^sⁱ^on^of^bot^h^w^h^at^t^o^s^a^y^aⁿ^d^w^h^at^not^to^sa^y^.
In the commercial speech context, by contrast, the Supreme Court held, in Zauderer v. Office of
Disciplinary Counsel, that an advertiser’s
^coⁿ^s^tit^u^tioⁿ^a^ll^y^p^r^o^t^ectedⁱⁿ^ter^e^{st in}^not^p^r^o^v^idⁱⁿ^g^aⁿ^y^p^a^r^tic^u^l^ar^f^act^u^a^{l i}ⁿ^f^o^r^m^atioⁿⁱⁿ^hⁱ^s
^adv^e^rtisⁱⁿ^gⁱ^s^mⁱⁿⁱ^m^a^{l.... [A}^]ⁿ^adv^e^rtis^er^’^s^ri^gh^ts^{are reas}^on^abl^y^{protected as}^lon^g^a^s
^dⁱ^s^c^l^o^s^u^r^e^r^e^q^uⁱ^r^e^m^eⁿ^t^s^a^r^e^r^e^as^oⁿ^a^b^l^y^r^e^l^a^t^e^d^t^o^t^h^e^S^t^a^t^e^’^sⁱⁿ^t^e^r^e^s^tⁱⁿ^p^r^e^v^en^tⁱ^ng^deception
^of^con^s^um^er^s^{.... T}^h^{e rig}^h^t^of^{a com}^m^e^{rcial s}^p^ea^k^e^{r n}^o^{t to div}^u^l^g^e^accu^{rate i}ⁿ^f^o^r^m^atioⁿ¹⁵¹
^reg^a^rdin^g^hⁱ^s^s^e^rv^ice^s^isⁿ^o^{t ... a f}^uⁿ^d^a^m^eⁿ^{tal ri}^g^h^t^.
In Zauderer, the Supreme Court upheld an Ohio requirement that advertisements by lawyers that
mention contingent-fee rates disclose whether percentages are computed before or after deduction
of court costs and expenses.
In Meese v. Keene, however, the Court upheld compelled disclosure in a noncommercial ¹⁵²
context. This case involved a provision of the Foreign Agents Registration Act of 1938, which
requires that, when an agent of a foreign principal seeks to disseminate foreign “political
propaganda,” he must label such material with certain information, including his identity, the

^(...c^on^tin^ue^d)
^{not a}^l^w^a^y^s^inte^nde^d^{to i}ⁿ^tim^ida^t^e^,^”^{but m}^a^y^c^onstitute^a^c^o^nstit^utio^na^lly^prote^c^t^e^d^e^x^pre^{ssion of}^o^pⁱⁿ^ion.^Id^.^at³⁶^5.
¹⁴⁸^Id^.^a^t³⁶^3.
¹⁴⁹⁴⁸^{7 U}^.^S^.⁷⁸¹⁽¹⁹⁸⁸⁾^{. I}ⁿ^Il^lⁱⁿ^oⁱ^s^{ex rel}^.^Ma^dⁱ^ga^{n v.}^T^e^l^e^ma^rketⁱⁿ^g^A^sso^ci^a^t^es,^In^c.^{, 5}³⁸^U^.^S.⁶⁰^0,⁶⁰^{5 (}²⁰⁰³⁾^{, t}^h^e
^Supr^e^m^e^C^our^t^he^{ld t}^h^a^t^a^f^undr^aⁱ^s^e^r^w^{ho r}^e^ta^ine^d⁸⁵^pe^r^c^eⁿ^t^of^g^r^os^s^r^ecei^p^t^{s f}^r^o^m^donor^s^,^but^f^a^lse^l^y^r^e^pr^e^s^eⁿ^te^{d tha}^t
^“^a^sⁱ^gⁿ^if^icaⁿ^{t a}^m^{ount of}^each^d^o^l^l^a^r^dona^te^{d w}^ould^be^paⁱ^d^ov^e^r^to”^a^c^h^a^r^ita^ble^or^g^a^niz^a^tio^{n, c}^oul^d^b^e^s^u^e^d^f^o^r^f^r^a^ud.
^“^S^{o lo}^ng^a^s^the^e^m^pha^sⁱ^s^is^on^w^h^a^t^the^f^uⁿ^d^r^a^is^e^r^s^mⁱ^s^l^ea^ding^ly^conv^e^y^{, a}^{nd not}^oⁿ^pe^r^c^eⁿ^ta^g^e^limⁱ^t^a^tions^on
^solic^{itors’ f}^e^e^s^p^e^{r se}^{, su}^ch^[^f^rau^d^]^acti^oⁿ^sⁿ^eedⁿ^o^{t im}^p^e^rm^issib^l^y^ch^{ill p}^r^o^t^ected^sp^eech^.”^Id^.^at⁶^19.
¹⁵⁰⁴⁸^{7 U}^.^S^.⁷⁸¹^,⁷^96-⁷⁹^{7 (}¹⁹⁸⁸⁾⁽^e^m^pha^sⁱ^s^{in or}^ig^ina^l⁾^.
¹⁵¹⁴⁷^{1 U}^.^S^.⁶²⁶^,⁶⁵¹^,⁶⁵²^n.¹⁴⁽¹⁹⁸⁵⁾⁽^e^m^pha^sⁱ^s^{in or}^igⁱⁿ^a^l⁾^.
¹⁵²⁴⁸^{1 U}^.^S^.⁴⁶⁵⁽¹⁹⁸⁷⁾^.

principal’s identity, and the fact that he has registered with the Department of Justice. The mater-
ial need not state that it is “political propaganda,” but one agent objected to the statute’s
designating material by that term, which he considered pejorative. The agent wished to exhibit,
without the required labels, three Canadian films on nuclear war and acid rain that the Justice
Department had determined were “political propaganda.”
In Meese v. Keene, the Supreme Court upheld the statute’s use of the term, essentially because it
considered the term not necessarily pejorative. On the subject of compelled disclosure, the Court
wrote:
^C^ong^res^s^{did n}^o^{t proh}^{ibit, edit}^{, or res}^t^rain^th^{e dis}^t^ribu^tioⁿ^of^adv^o^cac^y^m^a^terials^{.... T}^o^th^e
^coⁿ^t^r^a^r^y^{, Co}ⁿ^g^r^e^s^s^si^m^p^l^y^r^e^q^u^ir^ed^th^{e d}ⁱ^s^s^e^mⁱⁿ^ato^r^{s o}^f^s^u^c^h^m^a^terⁱ^{al to}^m^a^k^e^ad^d^itioⁿ^a^l¹⁵³
^dⁱ^sclo^su^r^e^s^th^a^t^w^o^u^l^d^b^e^tter^eⁿ^ab^{le t}^h^{e p}^u^b^lic^to^ev^al^u^a^te^th^{e i}^m^p^o^r^{t o}^f^th^e^p^r^o^p^a^g^aⁿ^d^a.
One might infer from this that compelled disclosure, in a noncommercial context, gives rise to no
serious First Amendment issue, and nothing in the Court’s opinion would seem to refute this
inference. Thus, it seems impossible to reconcile this opinion with the Court’s holding a year later
in Riley (which did not mention Meese v. Keene) that, in a noncommercial context, there is no
difference of constitutional significance between compelled speech and compelled silence.
In Meese v. Keene, the Court did not mention earlier cases in which it had struck down laws
compelling speech in a noncommercial context. In Wooley v. Maynard, the Court struck down a
New Hampshire statute requiring motorists to leave visible on their license plates the motto “Live ¹⁵⁴
Free or Die.” In West Virginia State Board of Education v. Barnette, the Court held that a state ¹⁵⁵
may not require children to pledge allegiance to the United States. In Miami Herald Publishing
Co. v. Tornillo, the Court struck down a Florida statute that required newspapers to grant political ¹⁵⁶
candidates equal space to reply to the newspapers’ criticism and attacks on their record.
The Court decided two cases in its 1994-1995 term involving compelled speech. In McIntyre v.
Ohio Elections Commission, the Court, applying strict scrutiny, struck down a compelled
disclosure requirement by holding unconstitutional a state statute that prohibited the distribution
of anonymous campaign literature. “The State,” the Court wrote, “may, and does, punish fraud
directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of
speech, based on its content, with no necessary relationship to the danger sought to be ¹⁵⁷
prevented.”
In Hurley v. Irish-American Gay Group of Boston, the Court held that Massachusetts could not
require private citizens who organize a parade to include among the marchers a group imparting a
message—in this case support for gay rights—that the organizers do not wish to convey.
Massachusetts had attempted to apply its statute prohibiting discrimination on the basis of sexual
orientation in any place of public accommodations, but the Court held that parades are a form of

¹⁵³^Id^.^a^t⁴⁸^0.
¹⁵⁴⁴³^{0 U}^.^S^.⁷⁰⁵⁽¹⁹⁷⁷⁾^.
¹⁵⁵³¹^{9 U}^.^S^.⁶²⁴⁽¹⁹⁴³⁾^.
¹⁵⁶⁴¹^{8 U}^.^S^.²⁴¹⁽¹⁹⁷⁴⁾^{. I}ⁿ^P^a^c^ific^Gas^&^Ele^c^t^ric^{Co. v}^.^Pub^lic^Utili^tie^{s Commission}^{of C}^a^lif^orni^a^,⁴⁷^{5 U}^.^S.^{1 (}¹⁹⁸⁶⁾^,
^the^Co^urt^he^{ld t}^h^a^t^a^sta^t^e^m^a^y^{not re}^quire^a^priv^a^t^e^l^y^o^w^ne^{d utility}^c^o^m^p^aⁿ^y^{to inc}^l^u^d^eⁱⁿ^its^billi^ng^eⁿ^v^e^lope^{s v}ⁱ^e^w^s
^of^a^c^ons^um^e^r^g^r^{oup w}^{ith w}^h^ic^{h i}^t^dis^a^g^r^e^e^s^{. W}^h^ile^a^plura^lity^opiⁿⁱ^{on a}^dhe^re^{d t}^o^by^f^{our jus}^t^ic^e^s^re^lie^{d he}^a^v^ily^on
^Tornil^lo^,^the^r^e^w^a^{s not a}^Co^{urt m}^a^jority^c^onseⁿ^{sus a}^s^{to ra}^ti^ona^le^.
¹⁵⁷⁵¹⁴^U.^S.³³^4,³⁵^{7 (}¹⁹⁹⁵⁾^.

expression, and the state’s “[d]isapproval of a private speaker’s statement does not legitimatize
use of the Commonwealth’s power to compel the speaker to alter the message by including one ¹⁵⁸
more acceptable to others.”
In Glickman v. Wileman Brothers & Elliott, Inc., the Supreme Court upheld the constitutionality
of marketing orders promulgated by the Secretary of Agriculture that imposed assessments on ¹⁵⁹
fruit growers to cover the cost of generic advertising of fruits. The First Amendment, the Court
held, does not preclude the government from “compel[ling] financial contributions that are used
to fund advertising,” provided that such contributions do not finance “political or ideological” ¹⁶⁰
views.
In United States v. United Foods, Inc., the Court struck down a federal statute that mandated ¹⁶¹
assessments on handlers of fresh mushrooms to fund advertising for the product. The Court did
not apply the Central Hudson commercial speech test, but rather found “that the mandated
support is contrary to First Amendment principles set forth in cases involving expression by
groups which include persons who object to the speech, but who, nevertheless, must remain ¹⁶²
members of the group by law or necessity.” It distinguished Glickman on the ground that “[i]n
Glickman the mandated assessments for speech were ancillary to a more comprehensive program
restricting marketing authority. Here, for all practical purposes, the advertising itself, far from ¹⁶³
being ancillary, is the principal object of the regulatory scheme.”
In Johanns v. Livestock Marketing Association, the Supreme Court upheld a federal statute that
directed the Secretary of Agriculture to use funds raised by an assessment on cattle sales and ¹⁶⁴
importation to promote the marketing and consumption of beef and beef products. The Court
found that, unlike in Glickman and United Foods, where “the speech was, or was presumed to be,
that of an entity other than the government itself,” in Johanns the promotional campaign
constituted the government’s own speech and therefore was “exempt from First Amendment ¹⁶⁵
scrutiny.” It did not matter “whether the funds for the promotions are raised by general taxes or ¹⁶⁶
through targeted assessment.” As for the plaintiffs’ contention “that crediting the advertising to
‘America’s Beef Producers’” attributes the speech to them, the Court found that, because the
statute does not require such attribution, it does not violate the First Amendment, but the
plaintiffs’ contention might form the basis for challenging the manner in which the statute is ¹⁶⁷
applied.

¹⁵⁸⁵¹⁵^U.^S.⁵⁵^7,⁵⁸^{1 (}¹⁹⁹⁵⁾^.
¹⁵⁹⁵²^{1 U}^.^S^.⁴⁵⁷⁽¹⁹⁹⁷⁾^.
¹⁶⁰^Id^.^,⁵^{21 U}^.^{S. a}^t⁴⁷^1,⁴⁷^{2. T}^h^e^C^o^ur^{t f}^oun^{d t}^h^a^t^t^h^e^m^a^r^k^e^ting^or^de^r^s^did^no^{t r}^a^is^e^a^Fir^s^{t A}^m^e^ndm^eⁿ^t^is^s^u^e^,^b^u^t
^“^sⁱ^m^pl^y^a^que^s^tio^{n of}^e^c^onom^ic^p^o^lic^y^f^o^r^C^ong^r^e^s^s^a^{nd t}^h^e^Ex^e^c^u^tiv^e^{to r}^e^s^o^lv^e^.^”^T^h^e^C^e^ntr^a^{l H}^u^ds^on^t^e^st^(see
^“Co^mmerci^a^l^S^p^eech^,^”^ab^o^v^e),^t^h^ere^f^o^r^e,^w^a^{s i}ⁿ^ap^p^lⁱ^cab^l^e^.^Id^.^a^t⁴^74.
¹⁶¹⁵³^{3 U}^.^S^.⁴⁰⁵⁽²⁰⁰¹⁾^.
¹⁶²^Id^.^a^t⁴¹^3.
¹⁶³^Id^.^a^t⁴¹^1.
¹⁶⁴⁵⁴^{4 U}^.^S^.⁵⁵⁰⁽²⁰⁰⁵⁾^.
¹⁶⁵^Id^.^a^t⁵⁵^{9, 55}^3.
¹⁶⁶^Id^{. a}^t⁵⁶^2.
¹⁶⁷^Id^{. a}^t⁵⁶^4-⁵⁶⁶^.

Radio and television broadcasting has more limited First Amendment protection than other
media. In Red Lion Broadcasting Co. v. Federal Communications Commission, the Supreme
Court invoked what has become known as the “scarcity rationale” to justify this discrimination:
^W^h^{ere th}^{ere are s}^u^bs^taⁿ^tiall^y^m^o^{re in}^di^vⁱ^du^al^s^w^ho^w^aⁿ^t^{to broadcas}^{t th}^an^t^h^{ere are}
^f^r^eq^u^eⁿ^c^{ies to}^allo^{cate, it is}^id^{le to}^p^o^s^{it an}^uⁿ^ab^rⁱ^d^g^eab^{le Fir}^s^t^Am^en^d^m^en^{t r}ⁱ^g^h^{t to}¹⁶⁸
^broadcas^{t com}^p^{arable to th}^{e rig}^h^t^o^f^ev^er^yⁱⁿ^di^vⁱ^du^al^t^o^s^p^ea^k^,^w^rⁱ^t^{e, or pu}^blⁱ^s^h^.
The Court made this statement in upholding the constitutionality of the Federal Communication
Commission’s “fairness doctrine,” which required broadcast media licensees to provide coverage
of controversial issues of interest to the community and to provide a reasonable opportunity for
the presentation of contrasting viewpoints on such issues.
Later, in Federal Communications Commission v. Pacifica Foundation, the Court upheld the ¹⁶⁹
power of the FCC “to regulate a radio broadcast that is indecent but not obscene.” The Court
cited two distinctions between broadcasting and other media: “First, the broadcast media have
established a uniquely pervasive presence in the lives of all Americans ... confront[ing] the
citizen, not only in public, but also in the privacy of the home,” and “Second, broadcasting is ¹⁷⁰
uniquely accessible to children.”
In Turner Broadcasting System, Inc. v. Federal Communications Commission, the Court declined
to question the continuing validity of the scarcity rationale, but held that “application of the more
relaxed standard of scrutiny adopted in Red Lion and other broadcast cases is inapt when deter-¹⁷¹
mining the First Amendment validity of cable regulation.” In Turner, however, the Court found
the “must-carry” provisions of the Cable Television Consumer Protection and Competition Act of
1992, which require cable television systems to devote a portion of their channels to the
transmission of local broadcast television stations, to be content-neutral in application and subject
only to the test for incidental restrictions on speech. Attempting to apply this test, however, the
Court found “genuine issues of material fact still to be resolved” as to whether “broadcast
television is in jeopardy” and as to “the actual effects of must-carry on the speech of cable ¹⁷²¹⁷³
operators and cable programmers.” It therefore remanded the case for further proceedings.
In Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications
Commission, a plurality of the Supreme Court (four justices) apparently retreated from the

¹⁶⁸³⁹⁵^U.^S.³⁶^7,³⁸^{8 (}¹⁹⁶⁹⁾^.
¹⁶⁹⁴³⁸^U.^S.⁷²^6,⁷²^{9 (}¹⁹⁷⁸⁾^.
¹⁷⁰^Id^.^a^t⁷⁴^8-⁷⁴⁹^.^Iⁿ^Action^f^o^{r Ch}ⁱ^l^d^ren^’^{s T}^e^levisioⁿ^v.^Fed^e^ra^l^Co^m^m^uⁿⁱ^ca^tⁱ^on^{s Co}^mmission^(A^CT^II^{I), 5}⁸^F.³^d⁶⁵⁴^,
⁶⁶⁰^{(D.C. Cir}^.¹⁹⁹⁵^{) (en}^b^aⁿ^c^),^cert^.^d^eⁿⁱ^ed^,⁵¹⁶^U^.^S^.¹⁰⁴³⁽¹⁹⁹⁶⁾^,^t^h^{e cou}^r^t^o^f^ap^p^eal^s,ⁱⁿ^up^h^o^l^dⁱ^{ng a b}^aⁿ^onⁱⁿ^d^ecen^t
^br^oa^dc^a^s^ts^f^r^om^{6 a}^.^m^.^{to 1}⁰^p.m^{., w}^r^ote^:^“^W^hile^w^e^a^pply^s^t^rⁱ^c^t^s^c^r^u^tiny^{to r}^e^g^u^la^tio^ns^of^th^is^kⁱ^nd^r^e^g^a^r^d^le^s^s^of^the
^medⁱ^u^m^a^f^f^ect^ed^b^y^t^h^e^m^,^o^u^r^ass^e^ss^m^eⁿ^t^o^f^w^h^et^h^e^{r sect}ⁱ^oⁿ¹⁶^(a)^su^rvi^v^{es t}^h^at^scru^tⁱⁿ^y^m^u^stⁿ^ecess^a^ri^l^y^t^a^{ke i}ⁿ^t^o
^a^c^c^{ount t}^h^e^uⁿ^iq^ue^c^oⁿ^t^e^x^{t of}^the^br^oa^dc^a^s^{t m}^e^dia^.^”^Se^e^,^“^S^p^eech^Har^m^f^u^l^t^o^C^hⁱ^l^d^reⁿ^,^”^sup^r^a^.
¹⁷¹^Turⁿ^e^r^,^s^upr^a^no^t^e¹³^3,⁵¹^{2 U.}^S^.^at⁶³⁹^.
¹⁷²^Id^.^a^t⁶⁶^7-⁶⁶⁸^.
¹⁷³^Oⁿ^r^e^m^a^{nd, the}^l^o^w^e^r^c^our^{t u}^phe^{ld t}^h^e^m^u^s^t^-^c^a^r^r^y^r^u^le^s^,^a^{nd the}^S^upr^e^m^e^C^our^{t a}^f^fⁱ^r^m^e^d^{, f}ⁱ^nding^“^t^ha^{t the}^m^u^s^t^-
^carr^y^p^r^o^vⁱ^sⁱ^oⁿ^s^f^u^rt^h^e^{r i}^m^p^o^r^t^aⁿ^t^go^vern^men^t^alⁱⁿ^t^e^rest^s;^an^{d .}^.^.^{do n}^o^t^bu^rd^{en su}^b^s^t^aⁿ^tⁱ^a^l^l^y^m^o^{re sp}^eech^t^h^an
^ne^c^e^s^s^a^r^y^{to f}^u^r^t^he^r^thos^eⁱⁿ^te^r^e^s^t^s^.^”^T^u^rⁿ^e^r^B^r^oa^dc^a^s^ting^Sy^s^t^em^{, I}ⁿ^c^.^v^.^Fe^de^r^a^{l C}^o^m^m^unic^a^tions^C^o^m^m^is^sⁱ^{on, 52}⁰
^U.^S^.¹⁸^0,¹⁸^{5 (}¹⁹⁹⁷⁾^.

Court’s position in Turner that cable television is entitled to full First Amendment protection.¹⁷⁴
In Part II of its opinion, the plurality upheld § 10(a) of the Cable Television Consumer Protection
and Competition Act of 1992, 47 U.S.C. § 532(h), which permits cable operators to prohibit
indecent material on leased access channels. (The Cable Communications Policy Act of 1984 had
required cable operators to provide leased access and public access channels free of operator
editorial control.) In upholding § 10(a), the Court, citing Pacifica, noted that cable television “is
as ‘accessible to children’ as over-the-air broadcasting,” has also “established a uniquely
pervasive presence in the lives of all Americans,” and can also “‘confron[t] the citizen’ in ‘the ¹⁷⁵
privacy of the home,’ ... with little or no prior warning.” It also noted that its “distinction in
Turner, ... between cable and broadcast television, relied on the inapplicability of the spectrum
scarcity problem to cable,” but that that distinction “has little to do with a case that involves the ¹⁷⁶
effects of television viewing on children.” Applying something less than strict scrutiny, the
Court concluded “that § 10(a) is a sufficiently tailored response to an extraordinarily important ¹⁷⁷
problem.”
In Part III of Denver Area, a majority of the Court (six justices) struck down § 10(b) of the 1992
Act, 47 U.S.C. § 532(j), which required cable operators, if they do not prohibit such programming
on leased access channels, to segregate it on a single channel and block that channel unless the
subscriber requests access to it in writing. In this part of the opinion, the Court seemed to apply
strict scrutiny, finding “that protection of children is a ‘compelling interest,’” but “that, not only is
it not a ‘least restrictive alternative,’ and is not ‘narrowly tailored’ to meet its legitimate objective, ¹⁷⁸
it also seems considerably ‘more extensive than necessary.’”
In Part IV, which only three justices joined, the Court struck down § 10(c), 42 U.S.C. § 531 note,
which permitted cable operators to prohibit indecent material on public access channels. Without
specifying the level of scrutiny they were applying, the justices concluded “that the Government
cannot sustain its burden of showing that § 10(c) is necessary to protect children or that it is ¹⁷⁹
appropriately tailored to secure that end.”
In United States v. Playboy Entertainment Group, Inc., the Supreme Court made clear, as it had
not in Denver Consortium, that strict scrutiny applies to content-based speech restriction on cable ¹⁸⁰
television. The Court struck down a federal statute designed to “shield children from hearing or
seeing images resulting from signal bleed,” which refers to blurred images or sounds that come
through to non-subscribers. The statute required cable operators, on channels primarily dedicated
to sexually oriented programming, either to fully scramble or otherwise fully block such
channels, or to not provide such programming when a significant number of children are likely to
be viewing it, which, under an FCC regulation meant to transmit the programming only from 10
p.m. to 6 a.m. The Court apparently assumed that the government had a compelling interest in
protecting children from sexually oriented signal bleed, but found that Congress had not used the
least restrictive means to do so. Congress in fact had enacted another provision that was less
restrictive and that served the government’s purpose. This other provision requires that, upon

¹⁷⁴⁵¹^{8 U}^.^S^.⁷²⁷⁽¹⁹⁹⁶⁾^.
¹⁷⁵^Id^.^a^t⁷⁴^5.
¹⁷⁶^Id^.^a^t⁷⁴^8.
¹⁷⁷^Id^.^a^t⁷⁴^3.
¹⁷⁸^Id^.^a^t⁷⁵^5.
¹⁷⁹^Id^.^a^t⁷⁶^6.
¹⁸⁰⁵²^{9 U}^.^S^.⁸⁰³⁽²⁰⁰⁰⁾^.

request by a cable subscriber, a cable operator, without charge, fully scramble or fully block any
channel to which a subscriber does not subscribe.

The Supreme Court has held that Congress, incident to its power to provide for the general
welfare (Art. I, § 8, cl. 1),
^m^a^y^at^t^a^c^h^con^dⁱ^tⁱ^ons^on^t^h^{e re}^cei^pt^of^f^e^deral^f^uⁿ^d^s^,^aⁿ^d^h^a^s^re^p^e^a^t^e^d^l^y^em^pl^oy^e^d^t^h^e^p^o^w^e^r
^“^t^o^fu^rt^h^e^{r broad pol}ⁱ^c^y^obj^ectⁱ^v^{es b}^y^con^dⁱ^tⁱ^oni^ng^receⁱ^p^t^of^f^e^deral^m^oⁿ^e^y^s^u^pon
^com^p^liaⁿ^ce^wⁱ^t^h^f^e^{deral s}^t^at^utory^an^{d ad}^mⁱⁿⁱ^s^t^rati^v^e^direct^iv^es^.”^{... T}^h^{e breadth}^{of t}^h^is
^po^w^e^{r w}^a^s^m^a^de^clearⁱⁿ^Unit^{ed States}^{v. Butler}^{, 297 U.S}^.^1,^{66 (1}⁹³⁶^{), w}^h^{ere t}^h^{e C}^o^u^r^t^...
^d^e^t^e^r^mⁱⁿ^e^d^t^h^a^t^“t^he^p^o^w^e^r^o^f^Coⁿ^g^r^e^{ss t}^o^a^u^t^h^o^rⁱ^z^e^ex^pen^dⁱ^t^u^r^e^of^pu^blⁱ^c^m^oⁿ^e^y^s^f^o^r^pu^blⁱ^c
^p^u^r^p^o^s^{es is n}^o^{t li}^m^ited^b^y^th^e^dⁱ^r^{ect g}^r^an^{ts o}^f^le^gⁱ^s^l^ativ^{e p}^o^w^e^r^f^o^uⁿ^dⁱⁿ^th^{e Co}ⁿ^s^t^itu^tⁱ^oⁿ^.^”
^T^h^u^s^{, obj}^ectiv^esⁿ^o^{t t}^h^oug^{ht t}^o^be^wⁱ^t^hⁱⁿ^A^r^tⁱ^{cle I’s}^“^e^num^e^r^{ated leg}ⁱ^s^l^ati^v^e^fⁱ^elds^,”^id^.^{, at}
⁶⁵^,^m^a^yⁿ^e^v^e^r^t^h^e^le^{ss b}^e^attain^ed^th^r^o^u^g^h^th^e^u^s^{e o}^f^t^h^{e sp}^en^dⁱⁿ^g^p^o^w^e^r^an^d^th^{e co}ⁿ^d^itioⁿ^a^l¹⁸¹
^g^r^an^t^of^f^e^deral^fun^d^s^.
This means that Congress may regulate matters by attaching conditions to the receipt of federal
funds that it might lack the power to regulate directly. However, the Court added, “other
constitutional provisions may provide an independent bar to the conditional grant of federal
funds.” One of these other constitutional provisions is the First Amendment. The Court has held,
in fact, that the government “may not deny a benefit to a person on a basis that infringes his ¹⁸²
constitutionally protected interests—especially, his interest in freedom of speech.” Similarly, in
Federal Communications Commission v. League of Women Voters, the Court declared
unconstitutional a federal statute that prohibited noncommercial television and radio stations that ¹⁸³
accepted federal funds from engaging in editorializing, even with nonfederal funds.
Congress would have the authority to prohibit television and radio stations from using the federal
funds they accept to engage in editorializing, as the Court would view Congress in that case not ¹⁸⁴
as limiting speech, but as choosing to fund one activity to the exclusion of another. “A refusal
to fund protected activity [i.e., speech], without more, cannot be equated with the imposition of a ¹⁸⁵
‘penalty’ on that activity.” In Rust v. Sullivan, the case in which this quotation appears, the
Court upheld a “gag order” that prohibited family planning clinics that accept federal funds from
engaging in abortion counseling or referrals. The Court found that, in this case, “the government
is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for ¹⁸⁶
purposes for which they were authorized.”
In Rust v. Sullivan, the Court also indicated that it will allow Congress to condition the receipt of
federal funds on acceptance of a limitation on the use of nonfederal funds as well as of federal

¹⁸¹^So^{uth D}^a^k^o^ta^v^.^D^o^le^{, 4}⁸³^U^.^S.²⁰³^{, 2}⁰⁶^-²⁰^{7 (}¹⁹⁸⁷⁾^.
¹⁸²^P^e^r^r^y^v^.^Sinde^r^m^a^{nn, 40}^{8 U}^.^S.⁵^93,⁵⁹^{7 (}¹⁹⁷²⁾⁽^s^tr^ik^ing^d^o^wⁿ^s^t^a^t^e^univ^e^r^s^ity^’^s^r^e^f^u^s^a^{l to r}^e^ne^w^tea^c^h^e^r^’^s^c^ontr^a^c^t
^b^ecau^{se o}^f^hⁱ^{s p}^u^b^{lic criticism}^o^f^th^{e co}^lleg^e^ad^mⁱⁿⁱ^stratioⁿ⁾^.
¹⁸³⁴⁶^{8 U}^.^S^.³⁶⁴⁽¹⁹⁸⁴⁾^.
¹⁸⁴^S^ee,^id.^a^t⁴^00.
¹⁸⁵^{Rust v}^.^S^u^lliv^aⁿ^,⁵⁰^{0 U.}^{S. 1}⁷³^,¹^{93 (}¹⁹⁹¹⁾^.
¹⁸⁶^Id^.^a^t¹⁹^6.

funds, but apparently will not allow Congress to limit the use of nonfederal funds outside the ¹⁸⁷
project that accepts the federal funds. Justice Blackmun, dissenting, feared that, “[u]nder the
majority’s reasoning, the First Amendment could be read to tolerate any governmental restriction ¹⁸⁸
upon an employee’s speech so long as that restriction is limited to the funded workplace.”
The Court also “recognized that the university is a traditional sphere of free expression so
fundamental to the functioning of our society that the Government’s ability to control speech
within that sphere by means of conditions attached to the expenditure of Government funds is re-¹⁸⁹
stricted by the vagueness and overbreadth doctrines of the First Amendment.”
In National Endowment for the Arts v. Finley, the Supreme Court upheld the constitutionality of a
federal statute (20 U.S.C. § 954(d)(1)) requiring the NEA, in awarding grants, to “tak[e] into
consideration general standards of decency and respect for the diverse beliefs and values of the ¹⁹⁰
American public.” The Court acknowledged that, if the statute were “applied in a manner that ¹⁹¹
raises concern about the suppression of disfavored viewpoints,” then such application might be
unconstitutional. The statute on its face, however, is constitutional because it “imposes no ¹⁹²
categorical requirement,” being merely “advisory.” “Any content-based considerations that
may be taken into account in the grant-making process are a consequence of the nature of arts
funding.... The ‘very assumption’ of the NEA is that grants will be awarded according to the ¹⁹³
‘artistic worth of competing applications,’ and absolute neutrality is simply ‘inconceivable.’”
The Court also found that the terms of the statute, “if they appeared in a criminal statute or
regulatory scheme, ... could raise substantial vagueness concerns.... But when the Government is
acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally ¹⁹⁴
severe.”
In Legal Services Corporation v. Velazquez, the Court struck down a provision of the Legal
Services Corporation Act that prohibited recipients of Legal Services Corporation (LSC) funds
(i.e., legal-aid organizations that provide lawyers to the poor in civil matters) from representing a ¹⁹⁵
client who seeks “to amend or otherwise challenge existing [welfare] law.” This meant that,
even with non-federal funds, a recipient of federal funds could not argue that a state welfare
statute violated a federal statute or that a state or federal welfare law violated the U.S.
Constitution. If a case was underway when such a challenge became apparent, the attorney had to
withdraw.

¹⁸⁷^Id^.^at¹⁹⁶^.^T^h^u^s^,^{a gran}^t^{ee w}^h^o^accep^t^s^f^e^d^e^ral^f^unds^to^ope^r^a^te^a^f^a^mⁱ^l^y^pla^nning^c^lⁱⁿ^ic^m^a^y^be^pr^ohibite^{d f}^r^om
^us^ingⁿ^onf^e^d^e^r^a^l^f^unds^t^o^pr^ov^ide^a^bor^ti^on^c^o^uⁿ^s^e^ling^th^r^oug^h^the^c^linic^{, b}^u^{t m}^a^y^{not be}^pr^o^h^ib^ite^{d f}^r^om^us^ing
^nonf^e^d^e^r^a^l^f^unds^t^o^pr^ov^ide^a^b^or^tⁱ^{on c}^o^uⁿ^s^e^ling^o^u^ts^ide^t^h^e^c^lin^ic^.
¹⁸⁸^Id^.^a^t²¹^{3 (}^e^m^pha^sⁱ^sⁱⁿ^or^ig^ina^l⁾^.
¹⁸⁹^Id^.^a^t²⁰^0.
¹⁹⁰⁵²⁴^U.^S.⁵⁶^9,⁵⁷^{2 (}¹⁹⁹⁸⁾^.
¹⁹¹^Id^.^a^t⁵⁸^7.
¹⁹²^Id^.^at⁵⁸¹^.^J^u^stⁱ^{ce S}^calⁱ^a^,ⁱⁿ^{a co}^ncu^rriⁿ^g^opⁱⁿⁱ^o^n,^cl^ai^m^e^{d tha}^t^this^inte^rpre^ta^tioⁿ^of^the^sta^t^ute^“^g^utt^[^e^d^]^it.”^He
^b^e^lⁱ^e^ved^t^h^at^t^h^{e st}^at^u^t^{e “est}^a^b^lⁱ^s^h^e^{s co}ⁿ^t^en^t^-^an^{d vi}^ew^p^oⁱⁿ^t^-b^{ased cri}^t^e^ri^{a u}^p^oⁿ^w^hⁱ^c^h^gran^t^a^p^p^lⁱ^c^a^tⁱ^oⁿ^s^{are t}^o^b^e
^e^v^a^l^ua^te^{d. A}^{nd tha}^t^is^pe^r^f^e^c^t^l^y^cons^tit^uti^ona^l.”^Id^.^a^t⁵⁹^0.
¹⁹³^Id^.^a^t⁵⁸^5.
¹⁹⁴^Id^.^a^t⁵⁸^8-⁵⁸⁹^.
¹⁹⁵⁵³^{1 U}^.^S^.⁵³³⁽²⁰⁰¹⁾^.

The Supreme Court distinguished this situation from that in Rust v. Sullivan on the ground “that
the counseling activities of the doctors under Title X amounted to governmental speech,” whereas
“an LSC-funded attorney speaks on behalf of the client in a claim against the government for ¹⁹⁶
welfare benefits.” Furthermore, the restriction in this case “distorts the legal system” by
prohibiting “speech and expression upon which courts must depend for the proper exercise of the ¹⁹⁷
judicial power,” and thereby is “inconsistent with accepted separation-of-powers principles.”
In United States v. American Library Association,¹⁹⁸ the Supreme Court followed Rust v. Sullivan,
and upheld the Children’s Internet Protection Act, which requires schools and libraries that accept
federal funds to purchase computers used to access the Internet to block or filter minors’ Internet
access to visual depictions that are obscene, child pornography, or “harmful to minors”; and to
block or filter adults’ Internet access to visual depictions that are obscene or child pornography.
Blocking or filtering technology may be disabled, however, “to enable access for bona fide
research or other lawful purpose.”
The plurality noted that “Congress may not ‘induce’ the recipient [of federal funds] ‘to engage in ¹⁹⁹
activities that would themselves be unconstitutional.’” The plurality therefore viewed the
question before the Court as “whether [public] libraries would violate the First Amendment by ²⁰⁰
employing the filtering software that CIPA requires.” Does CIPA, in other words, effectively
violate library patrons rights? The plurality concluded that it does not, as “Internet access in ²⁰¹
public libraries is neither a ‘traditional’ or a ‘designated’ public forum,”and that therefore it
would not be appropriate to apply strict scrutiny to determine whether the filtering requirements
are constitutional.
But the plurality also considered whether CIPA imposes an unconstitutional condition on the
receipt of federal assistance—in other words, does it violate public libraries’ rights by requiring
them to limit their freedom of speech if they accept federal funds? The plurality found that,
assuming that government entities have First Amendment rights (it did not decide the question),
CIPA does not infringe them. This is because CIPA does not deny a benefit to libraries that do not
agree to use filters; rather, as in Rust v. Sullivan, the statute “simply insist[s] that public funds be ²⁰²
spent for the purposes for which they were authorized.” “CIPA does not ‘penalize’ libraries that
choose not to install such software, or deny them the right to provide their patrons with unfiltered
Internet access. Rather, CIPA simply reflects Congress’ decision not to subsidize their doing ²⁰³
so.”
The Court distinguished Velazquez on the ground that public libraries have no role comparable to
that of legal aid attorneys “that pits them against the Government, and there is no comparable

¹⁹⁶^Id^.^a^t⁵⁴^{1, 54}^2.
¹⁹⁷^Id^.^a^t⁵⁴^{4, 54}^{5, 54}^6.
¹⁹⁸⁵³^{9 U}^.^S^.¹⁹⁴⁽²⁰⁰³⁾^.
¹⁹⁹^Id^.^a^t²⁰^3.
²⁰⁰^Id^.
²⁰¹^Id^.^a^t²⁰^5.
²⁰²^Id^.^a^t²¹^1.
²⁰³^Id^.^a^t²¹^2.

assumption that they must be free of any conditions that their benefactors might attach to the use ²⁰⁴
of donated funds or other assistance.”
In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Supreme Court upheld the
Solomon Amendment, which provides that, in the Court’s summary, “if any part of an institution
of higher education denies military recruiters access equal to that provided other recruiters, the ²⁰⁵
entire institution would lose certain federal funds.” FAIR, the group that challenged the
Solomon Amendment, is an association of law schools that barred military recruiting on their
campuses because of the military’s discrimination against homosexuals. FAIR challenged the
Solomon Amendment as violating the First Amendment because it forced schools to choose
between enforcing their nondiscrimination policy against military recruiters and continuing to
receive specified federal funding.
The Court first rejected an interpretation of the Solomon Amendment that would have avoided the
constitutional issue; under this interpretation, “a school excluding military recruiters would
comply with the Solomon Amendment so long as it also excluded any other employer that ²⁰⁶
violates its nondiscrimination policy.” The Court instead construed the Solomon Amendment to
require schools to allow the military the same access as any other employer, including employers
who do not discriminate and whom the schools allow on campus.
Interpreting the Solomon Amendment as such, the Court concluded: “Because the First
Amendment would not prevent Congress from directly imposing the Solomon Amendment’s
access requirement, the statute does not place an unconstitutional condition on the receipt of ²⁰⁷
federal funds.” The Court added: “The Solomon Amendment neither limits what law schools
may say nor requires them to say anything.... It affects what law schools must do—afford equal ²⁰⁸
access to military recruiters—not what they may or may not say.” The law schools’ conduct in
barring military recruiters, the Court found, “is not inherently expressive,” and, therefore, unlike ²⁰⁹
flag burning, for example, is not “symbolic speech.” Applying the O’Brien test for restrictions
on conduct that have an incidental effect on speech, the Court found that the Solomon
Amendment clearly “promotes a substantial government interest that would be achieved less ²¹⁰
effectively absent the regulation.”
The Court also found that the Solomon Amendment did not unconstitutionally compel schools to
speak, or even to host or accommodate the government’s message. As for compelling speech, law
schools must “send e-mails and post notices on behalf of the military to comply with the Solomon
Amendment ... This sort of recruiting assistance, however, is a far cry from the compelled speech ²¹¹
in Barnette and Wooley. ... [It] is plainly incidental to the Solomon Amendment’s regulation of
conduct.” As for forcing one speaker to host or accommodate another, “[t]he compelled speech

²⁰⁴^Id^.^a^t²¹^{3 (}^e^m^pha^sⁱ^sⁱⁿ^or^ig^ina^l⁾^.
²⁰⁵⁵⁴^{7 U}^.^S^.⁴⁷^,⁵¹⁽²⁰⁰⁶⁾^.
²⁰⁶^Id^{. a}^t⁵⁶^.
²⁰⁷^Id^{. at}⁶⁰^{. T}^h^{e Co}^u^r^{t stated}^t^h^{at C}^oⁿ^g^{ress’s au}^th^o^rⁱ^t^y^to^dⁱ^rectly^req^uⁱ^{re cam}^p^u^s^acce^ss^f^o^{r m}^ilitar^y^re^cru^{iters co}^m^e^s
^f^r^o^m^its^A^r^tic^le^I^,^s^e^c^{tion 8,}^pow^e^r^s^{to p}^r^ov^ide^f^o^r^t^h^e^c^o^m^m^{on de}^f^e^ns^e^,^{to r}^a^is^e^aⁿ^d^s^u^pp^or^{t a}^r^mⁱ^e^s^{, a}^{nd t}^o^pr^ov^ide^aⁿ^d
^m^a^inta^{in a}^na^v^y^.^Id^{. a}^t⁵⁸^.
²⁰⁸^Id^{. a}^t⁶⁰^.
²⁰⁹^Id^{. a}^t⁶⁴^{, 6}⁵^{. T}^h^e^f^l^a^g^burⁿⁱ^ng^c^a^s^e^s^a^r^e^quote^d^a^t^no^te^s¹³^{6 a}ⁿ^d¹^37,^s^upr^a^.
²¹⁰^Id^at⁶⁷^.^T^h^e^O’Brien^t^e^stⁱ^s^q^u^o^t^edⁱⁿ^t^h^{e t}^e^xt^acco^m^p^an^yⁱⁿ^gⁿ^o^t^e¹²⁸^,^sup^r^a^.
²¹¹^Id^a^t^61,⁶²^.^B^a^rne^tte^and^Woo^l^ey^{are ci}^t^e^d^,^resp^ectⁱ^v^el^y^,ⁱⁿⁿ^o^t^e^{s 1}⁵⁵^an^{d 15}⁴^,^s^upr^a^.

violation in each of our prior cases ... resulted from the fact that the complaining speaker’s own ²¹²
message was affected by the speech it was forced to accommodate.” By contrast, the Court
wrote, “Nothing about recruiting suggests that law schools agree with any speech by recruiters,
and nothing in the Solomon Amendment restricts what the law schools may say about the ²¹³
military’s policies.”
Finally, the Court found that the Solomon Amendment was not analogous to the New Jersey law
that had required the Boy Scouts to accept a homosexual scoutmaster, and which the Supreme ²¹⁴
Court struck down as violating the Boy Scouts’ “right of expressive association.” Recruiters,
unlike the scoutmaster, are “outsiders who come onto campus for the limited purpose of trying to ²¹⁵
hire students—not to become members of the school’s expressive association.”

In Pickering v. Board of Education, the Supreme Court said that “it cannot be gainsaid that the
State has interests as an employer in regulating the speech of its employees that differ
significantly from those it possesses in connection with the regulation of speech of the citizenry ²¹⁶
in general.” The First Amendment, however, “protects a public employee’s right, in certain ²¹⁷
circumstances, to speak as a citizen addressing matters of public concern.”
In Pickering, the Supreme Court held it unconstitutional for a school board to fire a teacher for
writing a letter to a local newspaper criticizing the administration of the school system. The Court
did not, however, hold that the teacher had the same right as a private citizen to write such a
letter. Rather, because the teacher had spoken as a citizen on a matter of public concern, the Court
balanced “the interests of the teacher, as a citizen, in commenting upon matters of public concern
and the interest of the State, as an employer, in promoting the efficiency of the public services it ²¹⁸
performs through its employees.” In this case, the Court found that the statements in the letter
were
ⁱⁿ^no^wa^y^dⁱ^r^e^c^t^e^d^t^o^w^a^r^d^s^aⁿ^y^p^e^r^s^oⁿ^wⁱ^t^h^who^m^a^p^p^e^l^l^aⁿ^t^[^t^he^teach^{er] w}^o^u^l^dⁿ^o^r^m^all^y^be
ⁱⁿ^con^t^{act i}ⁿ^th^{e cou}^r^s^e^of^his^dail^y^w^o^r^k^as^{a teach}^{er. T}^h^u^sⁿ^o^qu^es^tion^of^m^aⁱⁿ^t^aⁱⁿⁱⁿ^g^eⁱ^th^e^r
^di^s^cⁱ^p^lⁱⁿ^{e b}^yⁱ^m^m^e^di^at^{e s}^u^p^e^ri^ors^{or h}^a^rm^ony^a^m^oⁿ^g^c^o^w^o^rk^ersⁱ^s^pres^eⁿ^t^e^{d h}^e^re.
^A^ppellant’s^e^m^plo^y^m^eⁿ^t^relati^on^s^h^ips^wⁱ^t^h^t^h^{e Board ... are n}^o^{t t}^h^{e kin}^d^o^f^clos^e^w^o^r^k^ing

²¹²^Id^.^at⁶³^.^T^h^{e Co}^urt^ci^t^e^d^Hu^r^l^e^y^,^s^upr^a^no^t^e¹⁵⁸^,^an^d^Torⁿ^ill^o^,^su^p^r^a^no^t^e¹⁵⁶^.
²¹³^Id^{. a}^t⁶⁵^.
²¹⁴^Id^{. a}^t⁶⁸^{, q}^u^o^ting^B^o^y^Sc^outs^of^A^m^e^r^ic^a^v^.^D^a^l^e^{, 530}^U^.^S.⁶^40,⁶^{44 (}²⁰⁰⁰⁾^.
²¹⁵^Id^{. a}^t⁶⁹^.
²¹⁶³⁹¹^U.^S.⁵⁶^3,⁵⁶^{8 (}¹⁹⁶⁸⁾^.
²¹⁷^G^a^rc^e^{tti v}^.^Ce^ba^{llos, 5}⁴⁷^U.S.⁴¹⁰^{, 4}¹⁷⁽²⁰⁰^6).
²¹⁸^Id^.^,^q^uotiⁿ^g^Pⁱ^ckeriⁿ^g^,^s^upr^a^no^{te 2}¹⁶^,³⁹^{1 U.}^S^.^at⁵⁶⁸^.

^r^e^latioⁿ^s^hⁱ^p^s^f^o^r^w^h^ic^h^{it ca}ⁿ^p^e^r^s^u^a^si^v^e^l^y^b^e^clai^m^e^d^t^h^{at p}^e^r^s^oⁿ^{al lo}^y^a^lt^y^aⁿ^d^coⁿ^f^id^en^ce²¹⁹
^{are n}^eces^s^a^r^y^{to t}^h^{eir proper f}^uⁿ^c^tⁱ^onⁱⁿ^g^.
In Arnett v. Kennedy, the Supreme Court again balanced governmental interests and employee
rights, and this time sustained the constitutionality of a federal statute that authorized removal or
suspension without pay of an employee “for such cause as will promote the efficiency of the ²²⁰
service,” where the “cause” cited was an employee’s speech. The employee’s speech in this
case, however, consisted in falsely and publicly accusing the director of his agency of bribery.
The Court interpreted the statute to proscribe
^on^l^y^t^h^{at pu}^{blic s}^p^eech^w^h^ichⁱ^m^properl^y^da^m^a^g^e^s^aⁿ^{d i}^m^pairs^th^{e rep}^u^t^a^tⁱ^oⁿ^an^d^e^f^fⁱ^cⁱ^eⁿ^cy
^of^t^h^{e e}^m^pl^o^yⁱⁿ^g^a^g^en^c^y^{, a}ⁿ^{d i}^t^t^husⁱ^m^pos^{es n}^o^g^r^eat^{er cont}^rol^s^on^t^h^e^beh^a^vⁱ^{or of f}^e^deral
^e^m^plo^y^ees^a^s^{are n}^eces^s^a^r^y^f^o^{r th}^{e protection}^of^th^{e Gov}^e^rnm^e^{nt as}^e^m^plo^y^{er. In}^{deed, th}^e
^A^c^{t i}^sⁿ^o^{t directed at s}^p^eech^as^s^u^c^h^{, bu}^{t at e}^m^plo^y^{ee beh}^a^vⁱ^{or, in}^clu^d^ing^s^p^eech^,^w^h^ichⁱ^s²²¹
^d^e^trⁱ^m^en^ta^{l to}^th^{e ef}^fⁱ^cieⁿ^c^y^o^f^th^{e e}^m^p^l^o^yⁱⁿ^g^ag^eⁿ^c^y^.
In Givhan v. Western Line Consolidated School District, the Court upheld the First Amendment
right of a public school teacher to complain to the school principal about “employment policies
and practices at [the] school which [she] conceived to be racially discriminatory in purpose or ²²²
effect.”
In Connick v. Myers, an assistant district attorney was fired for insubordination after she
circulated a questionnaire among her peers soliciting views on matters relating to employee ²²³
morale. The Supreme Court upheld the firing, distinguishing Pickering on the ground that, in
that case, unlike in this one, the fired employee had engaged in speech concerning matters of
public concern:
^W^h^eⁿ^e^m^p^l^o^y^e^e^e^x^p^r^e^s^sⁱ^oⁿ^c^aⁿⁿ^o^t^b^e^f^aⁱ^r^l^y^c^oⁿ^sⁱ^d^e^r^e^d^a^s^r^e^l^a^tⁱⁿ^g^t^o^aⁿ^y^m^a^t^t^e^r^o^f^p^o^litical,
^s^o^cⁱ^a^l^,^o^r^o^t^h^e^r^coⁿ^c^e^rⁿ^t^o^t^h^e^c^o^m^m^uⁿⁱ^t^y^,^g^o^v^e^rⁿ^m^eⁿ^t^o^f^fⁱ^cⁱ^a^l^s^s^h^o^u^l^d^eⁿ^j^o^y^{a w}ⁱ^d^e^latitu^d^e
ⁱⁿ^m^aⁿ^a^gⁱⁿ^g^t^h^eir^o^f^fⁱ^ce^s,^w^ith^o^u^tⁱⁿ^tr^u^sⁱ^v^e^o^v^er^si^g^h^t^b^y^th^e^ju^dⁱ^cⁱ^a^r^yⁱⁿ^t^h^eⁿ^a^m^e^o^f^th^e^Fⁱ^r^s^t
^Am^eⁿ^d^m^eⁿ^t....
^W^e^{do n}^o^{t s}^u^gg^es^{t, h}^o^w^e^v^e^r,^th^{at M}^y^ers^’^s^p^eech^{, e}^v^eⁿⁱ^f^{not tou}^c^hing^u^pon^a^m^a^{tter of}
^p^u^b^{lic co}ⁿ^cerⁿ^,ⁱ^s^to^tall^y^b^e^y^oⁿ^d^th^{e p}^r^o^t^ectioⁿ^o^f^t^h^{e Fir}^s^t^Am^en^d^m^eⁿ^t.^“^[^T^]^h^e^Fir^s^t
^Am^eⁿ^d^m^eⁿ^{t does}ⁿ^o^{t protect s}^p^eech^an^{d as}^s^e^m^b^l^y^on^l^y^{to the ex}^{tent it can}^{be c}^h^aracterized
^{as political....” ...}^W^e^h^o^{ld on}^l^y^th^at^w^h^eⁿ^{a pu}^{blic e}^m^plo^y^e^e^speak^{s n}^o^{t as a citize}ⁿ^u^p^oⁿ
^m^a^tters^o^f^pu^{blic con}^cerⁿ^,^bu^t^as^an^e^m^p^l^o^y^ee^u^pon^m^a^t^t^ers^on^l^y^o^f^pers^on^{al i}ⁿ^teres^t^{, abs}^eⁿ^t
^th^e^m^o^s^t^un^us^u^a^{l o}^f^circums^t^an^ces^{, a f}^e^{deral cou}^r^{t is}ⁿ^o^{t th}^e^appro^p^{riate f}^o^rumⁱⁿ^w^h^ic^h^to
^revⁱ^e^w^th^e^wⁱ^s^d^o^m^of^{a pers}^onn^{el decis}ⁱ^on^ta^k^eⁿ^b^y^{a pu}^blic^ag^en^c^y^alle^g^e^dl^yⁱⁿ^reaction^to²²⁴
^t^h^{e e}^m^pl^o^y^ee’s^beh^a^vⁱ^or.

²¹⁹^Pⁱ^ckeriⁿ^g^,^sup^r^aⁿ^o^te²^16,³^{91 U}^.^{S. a}^t⁵⁶^9-⁵^70.
²²⁰⁴¹⁶^U.^S.¹³^4,¹⁴^{0 (}¹⁹⁷⁴⁾^.
²²¹^Id^.^a^t¹⁶^2.
²²²⁴³⁹^U.^S.⁴¹^0,⁴¹^{3 (}¹⁹⁷⁹⁾^.
²²³⁴⁶^{1 U}^.^S^.¹³⁸⁽¹⁹⁸³⁾^.
²²⁴^Id^.^a^t¹⁴^6-¹⁴⁷^.^S^ubs^e^q^ue^ntly^{, in}^Garc^e^{tti v}^.^Ce^ball^o^s^,^s^upr^aⁿ^o^te²^17,⁵⁴^{7 U}^.^{S. a}^t⁴¹^{8, t}^h^e^C^o^ur^{t w}^r^ote^tha^t^,^if^aⁿ
^em^ploy^ee^did^{not s}^p^e^a^k^a^s^a^c^itiz^eⁿ^on^a^m^a^tte^r^of^public^c^o^nc^e^r^n,^theⁿ^“^t^he^e^m^ploy^e^e^ha^s^{no Fir}^s^t^A^m^e^ndm^eⁿ^{t c}^a^u^s^e
^o^f^actⁱ^oⁿ^b^a^sed^oⁿ^hⁱ^s^o^r^h^e^{r em}^p^l^o^y^{er’s re}^actⁱ^oⁿ^t^o^t^h^{e sp}^eech^.^S^ee^C^onn^ic^k^,^s^upr^a^{, a}^t¹⁴^7.”

In Connick v. Myers, however, one question in Myers’ questionnaire did touch upon a matter of
public concern, and, to this extent, Myers’ speech was entitled to Pickering balancing to
determine whether it was protected by the First Amendment. The Court also considered that the
questionnaire interfered with working relationships, was prepared and distributed at the office,
arose out of an employment dispute, and was not circulated to obtain useful research. The Court
repeated something it had said in Pickering: it did “not deem it either appropriate or feasible to ²²⁵
attempt to lay down a general standard against which all such statements may be judged.”
In Rankin v. McPherson, the Court upheld the right of an employee to remark, after hearing of an ²²⁶
attempt on President Reagan’s life, “If they go for him again, I hope they get him.” The Court
considered the fact that the statement dealt with a matter of public concern, did not amount to a
threat to kill the President, did not interfere with the functioning of the workplace, and was made
in a private conversation with another employee and therefore did not discredit the office.
Furthermore, as the employee’s duties were purely clerical and encompassed “no confidential,
policymaking, or public contact role,” her remark did not indicate that she was “unworthy of ²²⁷
employment.”
These Supreme Court cases indicate the relevant factors in determining whether a government
employee’s speech is protected by the First Amendment. It should be emphasized that the Court ²²⁸
considers the time, place, and manner of expression. Thus, if an employee made political
speeches on work time, such that they interfered with his or others’ job performance, he could
likely be fired as “unworthy of employment.” At the same time, he could not be fired for the
particular political views he expressed, unless his holding of those views made him unfit for the
job. Thus, a governmental employer could not allow employees to make speeches in support of
one political candidate on work time, but not allow employees to make speeches in support of
that candidate’s opponent. But a Secret Service agent assigned to guard the President would not
have the same right as the clerical worker in Rankin to express the hope that the President would
be assassinated.
In Waters v. Churchill, a plurality of justices concluded that, in applying the Connick test—“what
the speech was, in what tone it was delivered, what the listener’s reactions were”—the court ²²⁹
should not ask the jury to determine the facts for itself. Rather, the court should apply the test ²³⁰
“to the facts as the employer reasonably found them to be.” That is, the employer need not
“come to its factual conclusions through procedures that substantially mirror the evidentiary rules
used in court,” but it may not come to them based on no evidence, or on “extremely weak ²³¹
evidence when strong evidence is clearly available.”
In United States v. National Treasury Employees Union (NTEU), the Court struck down a law that
prohibited federal employees from accepting any compensation for making speeches or writing
articles, even if neither the subject of the speech or article nor the person or group paying for it

²²⁵^Id^.^a^t¹⁵^4.
²²⁶⁴⁸³^U.^S.³⁷^8,³⁸^{0 (}¹⁹⁸⁷⁾^.
²²⁷^Id^.^a^t³⁹^0-³⁹¹^.
²²⁸^S^ee,^e.^g.^,^Conⁿⁱ^{ck v.}^M^y^ers,^s^upr^a^no^t^e²²^3,⁴⁶^{1 U.}^S^.^at¹⁵²^(“A^l^so^rel^e^van^tⁱ^s^t^h^{e m}^aⁿⁿ^e^r,^tⁱ^m^e,^an^d^p^l^{ace i}ⁿ^w^hⁱ^c^h
^t^h^{e qu}^estⁱ^oⁿⁿ^ai^{re w}^a^{s d}ⁱ^st^ri^b^u^t^e^d^.^”^).
²²⁹⁵¹¹^U.^S.⁶⁶^1,⁶⁶^{8 (}¹⁹⁹⁴⁾^.
²³⁰^Id^.^a^t⁶⁷^{7 (}^e^m^pha^sⁱ^sⁱⁿ^or^ig^ina^l⁾^.
²³¹^Id^.^a^t⁶⁷^{6, 67}^7.

had any connection with the employee’s official duties. The prohibition did not apply to books, ²³²
nor to fiction or poetry. The Court noted that, “[u]nlike Pickering and its progeny, this case
does not involve a post hoc analysis of one employee’s speech and its impact on that employee’s
public responsibilities.... [T]he Government’s burden is greater with respect to this statutory ²³³
restriction on expression than with respect to an isolated disciplinary action.” Doing the
balancing it had mandated in Pickering, the Court concluded that “[t]he speculative benefits the
honoraria ban may provide the Government are not sufficient to justify this crudely crafted ²³⁴
burden on respondents’ freedom to engage in expressive activities.”
In City of San Diego v. Roe, the Court held that a police department could fire a police officer
who sold a video on the adults-only section of eBay that showed him stripping off a police ²³⁵
uniform and masturbating. The Court found that the officer’s “expression does not qualify as a ²³⁶
matter of public concern ... and Pickering balancing does not come into play.” The Court also
noted that the officer’s speech, unlike federal employees’ speech in NTEU, “was linked to his
official status as a police officer, and designed to exploit his employer’s image,” and therefore ²³⁷
“was detrimental to the mission and functions of his employer.” Therefore, the Court had “little
difficulty in concluding that the City was not barred from terminating Roe under either line of ²³⁸
cases [i.e., Pickering or NTEU].” This leaves uncertain whether, had the officer’s expression
not been linked to his official status, the Court would have overruled his firing under NTEU or
would have upheld it under Pickering on the ground that his expression was not a matter of public
concern.
In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government
employees by holding that there is no protection—Pickering balancing is not to be applied—
“when public employees make statements pursuant to their official duties,” even if those ²³⁹
statements are about matters of public concern. In this case, a deputy district attorney had
presented his supervisor with a memo expressing his concern that an affidavit that the office had
used to obtain a search warrant contained serious misrepresentations. The deputy district attorney
claimed that he was subjected to retaliatory employment actions, and sued. The Supreme Court
held “that when public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the Constitution does ²⁴⁰
not insulate their communications from employer discipline.” The fact that the employee’s
speech occurred inside his office, and the fact that the speech concerned the subject matter of his ²⁴¹
employment, were not sufficient to foreclose First Amendment protection. Rather, the ²⁴²
“controlling factor” was “that his expressions were made pursuant to his duties.” Therefore,

²³²⁵¹^{3 U}^.^S^.⁴⁵⁴⁽¹⁹⁹⁵⁾^.
²³³^Id^{. a}^t⁴⁶^6-⁴⁶⁸^.
²³⁴^Id^.^a^t⁴⁷^7.
²³⁵⁵⁴^{3 U}^.^S^.⁷⁷⁽²⁰⁰⁴⁾^.
²³⁶^Id^{. a}^t⁸⁴^.
²³⁷^Id^.
²³⁸^Id^{. a}^t⁸⁰^.
²³⁹^Garc^e^tti^,^sup^r^a^note²¹^{7, 54}⁷^U^.^S.^a^t⁴²¹^.
²⁴⁰^Id^.
²⁴¹^T^h^e^{Court c}^ite^d^Givh^an^,^s^upr^a^no^t^e²²²^,^f^o^{r t}^h^{ese po}ⁱⁿ^t^s^.^T^h^{e d}ⁱ^f^f^eren^{ce b}^e^t^w^e^eⁿ^Gⁱ^v^han^a^nd^Ce^ba^llos^wa^s
^a^ppa^r^e^ntly^tha^t^Gⁱ^v^h^aⁿ^’^s^c^o^m^p^laⁱⁿ^ts^w^e^r^e^{not m}^a^de^pur^s^u^aⁿ^t^to^he^r^job^d^u^tie^{s, w}^h^e^r^e^a^s^Ce^ba^{llos’ w}^e^re^{. T}^h^e^r^e^f^ore^,
^Gⁱ^v^h^aⁿ^s^pok^e^a^s^a^c^itiz^eⁿ^w^h^e^r^e^a^s^C^e^ba^llos^s^p^ok^e^a^s^a^g^o^v^e^rⁿ^m^e^{nt e}^m^plo^y^e^e^.^Se^e^,^{547 U}^.^S^.^a^t⁴²^0-⁴²¹^.
²⁴²^Garc^e^tti^,^sup^r^a^note²¹^{7, 54}⁷^U^.^S.^a^t⁴²¹^.

another employee in the office, with different duties, might have had a First Amendment right to
utter the speech in question, and the deputy district attorney himself might have had a First
Amendment right to communicate the information that he had in a letter to the editor of a
newspaper. In these two instances, a court would apply Pickering balancing.
In Board of County Commissioners v. Umbehr, the Court held that “the First Amendment protects
independent contractors from the termination of at-will government contracts in retaliation for ²⁴³
their exercise of the freedom of speech.” The Court held that, in determining whether a
particular termination violates the First Amendment, “the Pickering balancing test, adjusted to ²⁴⁴
weigh the government’s interests as contractor rather than as employer,” should be used. The
Court did “not address the possibility of suits by bidders or applicants for new government ²⁴⁵
contracts.... ”
In Elrod v. Burns²⁴⁶ and Branti v. Finkel,²⁴⁷ the Supreme Court held that “[g]overnment officials
may not discharge public employees for refusing to support a political party or its candidates, ²⁴⁸
unless political affiliation is a reasonably appropriate requirement for the job in question.” In
O’Hare Truck Service, Inc. v. Northlake, the Court held “that the protections of Elrod and Branti
extend to ... [a situation] where the government retaliates against a contractor, or a regular
provider of services, for the exercise of rights of political association or the expression of political ²⁴⁹
alle gi ance.”
^H^e^nr^y^Co^heⁿ
^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
^h^c^oh^eⁿ^@^c^r^s^.l^oc.g^ov^{, 7-}⁷⁸⁹²

²⁴³⁵¹⁸^U.^S.⁶⁶^8,⁶⁷^{0 (}¹⁹⁹⁶⁾^.
²⁴⁴^Id^.^a^t⁶⁷^3.
²⁴⁵^Id^.^a^t⁶⁸^5.
²⁴⁶⁴²^{7 U}^.^S^.³⁴⁷⁽¹⁹⁷⁶⁾^.
²⁴⁷⁴⁴^{5 U}^.^S^.⁵⁰⁷⁽¹⁹⁸⁰⁾^.
²⁴⁸^O’^Har^e^Tr^u^c^{k S}^e^r^vⁱ^ce,^Iⁿ^c.^v.^No^r^t^h^l^ake,⁵¹⁸^U.^S.⁷¹^2,⁷¹^{4 (}¹⁹⁹⁶⁾^.
²⁴⁹^Id^.